State v. Doughty

Decision Date03 April 1979
Citation399 A.2d 1319
PartiesSTATE of Maine, v. Regina DOUGHTY.
CourtMaine Supreme Court

Henry N. Berry, III, Dist. Atty., Peter G. Ballou (orally), Asst. Dist. Atty., Portland, for plaintiff.

Wilson, Steinfeld, Murrell, Barton & Lane by Paul Aranson (orally), Thomas P. Wilson, Portland, for defendant.


DUFRESNE, Active Retired Justice. 1

Regina Doughty (defendant) appeals from a judgment of conviction entered March 17, 1978 upon a jury verdict finding her guilty of perjury under 17-A M.R.S.A., § 451(1)(A). 2 We deny her appeal.

The perjury indictment charged the defendant with making a material false statement under oath in the course of a criminal prosecution against one Robert Kennedy in which the State sought to prove that said Kennedy had committed a simple assault against Mrs. Doughty. The defendant claims that there was error in her trial for perjury, because the presiding Justice 1) admitted evidence over her objection that at the time of the Kennedy trial she had hired an attorney who was present in court taking notes; 2) the Justice failed sua sponte to instruct the jury respecting the particular purpose for which such evidence could be considered, and 3) he denied her motion for judgment of acquittal based on the alleged insufficiency of the evidence to support the jury verdict.


The record in the instant case discloses the following undisputed facts. A heavy snow storm hit the City of Portland during the second week-end of January, 1977. It did not abate until late evening on Monday, January 10th. Robert Kennedy, maintenance employee of Auburn Terrace, the apartment complex at 113 Auburn Terrace in Portland in which Mrs. Doughty lived at the time, had started to remove snow from the parking lot serving the residents of the multiple housing units including Mrs. Doughty's. The other tenants were moving their cars to another part of the lot to facilitate the snow removal, but the defendant, though requested to do so, refused. Contrariwise, she did emerge from her apartment and stood alongside her car, engaging in a heated exchange with other residents of the Terrace who had gathered near the parking lot. "Egged on" by the other occupants, Kennedy ordered Mrs. Doughty to move her car, threatening, by Kennedy's own account, to "plow the snow right up around her belly." Kennedy made two "passes" at Doughty with the plow, each time stopping short of her, so the witnesses except the defendant herself testified. Kennedy then left the area without plowing the parking space occupied by the Doughty vehicle which she had refused to move.

On January 19, 1977 Mrs. Doughty contacted District Attorney Henry Berry respecting her confrontation with Kennedy. After interviewing her and causing her to make her complaint against Kennedy under oath, District Attorney Berry then authorized the issuance of an official complaint for criminal assault against Kennedy. At the Kennedy trial, Mrs. Doughty testified, as the State's chief witness, that her leg had been injured by snow pushed upon her with the plow by Kennedy.

Indicted for perjury, 3 Mrs. Doughty was tried by jury in the Superior Court (Cumberland County) and convicted of the charge. The Court sentenced her to prison for a term of two years, but placed her on immediate probation. As indicated previously, she appeals from the judgment of conviction on the three stated grounds which we will now discuss in their respective turn.


Initially, the defendant claims that it was error by the Superior Court Justice to admit in evidence over her objection the fact that, prior to the Kennedy trial, she had hired an attorney who was present taking notes at that trial. She argues that the evidence was irrelevant and, even if relevant, its prejudicial impact outweighed its probative value. We note that such evidence was introduced in the case originally through the testimony of District Attorney Berry before Mrs. Doughty gave testimony in her own defense, but again was explored in the course of the cross-examination of the defendant.

Evidence which has any rational tendency to prove or disprove a factual issue in the case, whether such evidence be immediate and direct or indirect and circumstantial, is relevant and should be admissible unless its admissibility is limited by constitutional requirements or is otherwise precluded by statutory mandate, some specific rule of the Maine Rules of Evidence, or other applicable rule well established in the courts of this State. Rules 401-402, M.R.Evid. See State v. Brown, Me., 321 A.2d 478, 482 (1974), and cases cited; State v. Fitzherbert, Me., 249 A.2d 760, 762 (1969).

Testimonial evidence having a tendency to establish the probability or improbability of a fact in issue cannot be excluded as irrelevant automatically, even though the effective impact of such evidence may be somewhat remote. See State v. Smith, 140 Me. 255, 278, 37 A.2d 246 (1944); State v. Witham, 72 Me. 531, 537 (1881).

Relevancy of evidence is dependent upon its probative value respecting a fact in issue in the particular circumstances developed at trial and the initial determination of relevancy must necessarily rest largely in the sound discretion of the presiding justice as of the time such evidence is offered. Eaton v. Sontag, Me., 387 A.2d 33, 38 (1978) and cases cited.

Furthermore, as provided by Rule 403, M.R.Evid., relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. The application of the rule concerning any of the stated considerations of exclusion must rest with the exercise of a sound judicial discretion on the part of the presiding justice. See State v. Dodge, Me., 397 A.2d 588 (1979). In evaluating the impact for prejudice upon the jury which any evidence might present, the discretion allowed the trial justice is of broad range. State v. McDonough, Me., 350 A.2d 556, 563 (1976); State v. Gagne, Me., 343 A.2d 186, 196 (1975).

In Eaton v. Sontag, supra, at page 39, we cited with approval the rule in State v. Mathis, 47 N.J. 455, 221 A.2d 529, 538 (1966), to the effect that "(g)enerally speaking, there must be something more than mere poverty of an accused to tie him to criminal activity," and, in the application of the rule, we said

"the mere fact that the plaintiffs may have been embarrassed financially by reason of their monetary overextension in the development of the project, without proof of some other circumstance of colorable or deceitful conduct, did not justify the Sontags' ex post facto suspicion that, to improve their financial condition, the Eatons were motivated by dishonest design and did perpetrate a double-cross on friends of fifteen years standing."

Thus, a mere general potential of monetary gain which may accrue to a person hiring an attorney, as in the case of the financial status of parties, without more might possibly be so devoid of probative value of the existence of a corrupt motive to testify falsely as to render the same inadmissible. We recognized as much, when we stated in State v. Kouzounas, 137 Me. 198, 17 A.2d 147 (1941), an arson case:

"While mere consultation with an attorney is not sufficient to show an improper motive or practice, yet it may take place under circumstances that would warrant a jury in finding the act as conduct indicative of guilt."

The general rule is that the pendency of a civil action brought against an accused by a witness in a criminal case is admissible as tending to show interest and bias of the witness to prove a motive to falsify, exaggerate or minimize on his part, in other words, to support a claim that such witness' testimony may be false or inaccurate, intentionally or otherwise. Such evidence may be introduced in cross-examination. Malone v. State, 358 So.2d 490 (Ala.Cr.App.1978); People v. Johnston, 76 Mich.App. 332, 256 N.W.2d 782 (1977); Cox v. State, 523 S.W.2d 695 (Tex.Cr.App.1975); State v. Williams, 16 N.J.Super. 372, 84 A.2d 756 (1951); Commonwealth v. Marcellino, 271 Mass. 325, 171 N.E. 451 (1930). Such evidence may be shown by the testimony of other witnesses. Lane v. Commonwealth, 190 Va. 58, 55 S.E.2d 450 (1949); Cabel v. State, 18 Ala.App. 557, 93 So. 260 (1922).

The rule has been extended to the situation where no civil action has been commenced, but such a suit is or may be contemplated, as in the case of consultation with, or the hiring of, an attorney. State v. Kouzounas, 137 Me. 198, 17 A.2d 147 (1941); State v. White, 286 N.C. 395, 211 S.E.2d 445 (1975); State v. Hart, 239 N.C. 709, 80 S.E.2d 901 (1954); Villaroman v. United States, 87 U.S.App.D.C. 240, 184 F.2d 261 (1950), 21 A.L.R.2d 1074; Ferguson Seed Farms v. McMillan, 18 S.W.2d 595 (Tex.1929), 63 A.L.R. 1009; State v. McLemore, 99 Kan. 777, 164 P. 161 (1917); State v. Decker, 161 Mo.App. 396, 143 S.W. 544 (1912).

The intent of a person to realize a monetary gain out of an incident which has become the subject of litigation, as may be evidenced by the pendency of a civil action for damages or by anticipatory preparation therefor through lawyer consultation or hiring, is an individualized fact having a logical tendency to show bias against the other party to the reference litigation, hostility to his cause and an interest adverse to him in the outcome of the legal dispute. Facts showing that the State's prosecuting witness may have been actuated by personal considerations instead of altruistic interest generated solely from motives in the public interest to bring a criminal to justice, especially, as in the instant case, when conjoined with Mrs. Doughty's seemingly unjustified show of defiance and hostility toward Kennedy in her refusal to move her automobile to permit snow...

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