State v. Flood

• Decision Date: 17 December 1979
• Citation: 408 A.2d 1295
• Parties: STATE of Maine, v. Vicki L. FLOOD.
• Court: Maine Supreme Court

Page 1295

408 A.2d 1295

STATE of Maine, v. Vicki L. FLOOD.

Supreme Judicial Court of Maine.

Dec. 17, 1979.

Michael E. Povich, Dist. Atty., Bronson Platner, Asst. Dist. Atty. (orally), Machias, for plaintiff.

Hewes, Culley & Feehan, George W. Beals, Martica F. Sawin, Portland (orally), for defendant.

Before POMEROY, WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.

POMEROY, Justice.

Defendant Vicki Flood appeals from the judgment of conviction entered by the Superior Court, Washington County. The jury found defendant guilty on two charges of assault arising out of two separate incidents, consolidated into a single trial at defendant's request. The issues on appeal are:

(1) whether the admission of the police chief's testimony that he called defendant's companions "druggies", Based on personal knowledge, deprived defendant of her right to a fair trial, when one of the companions testified at trial;

(2) whether, with regard to the assault of June 7, 1978, the State failed to meet its burden of proof on the defense of justification.

We sustain the appeal.

On June 7, 1978, defendant was stopped by three police officers for speeding. She refused to sign the speeding ticket and was arrested by an officer of the Machias Police Department, who testified that he did not first tell her:

(1) that the signature was not an admission of guilt, but only to insure her appearance in court, or

(2) that she could be arrested for not signing it

Following her arrest, defendant said that she would sign the ticket, and the arresting officer testified at trial that at that point he would have allowed defendant to sign the ticket and go on her way; but Officer Ames, East Machias Police Department, who had previously been arguing with defendant, said she could not be unarrested. Defendant swore at Officer Ames and was arrested by him for disorderly conduct. Then, when he reached toward her, she punched him in the nose. Officer Ames arrested her for assault, 17-A M.R.S.A. § 207. ¹ The charges for speeding and disorderly conduct were dropped prior to trial. At trial, defendant did not deny that she punched Officer Ames, but asserted that she did so in self-defense, because she reasonably believed that her action was necessary to defend herself from the imminent use of unlawful non-deadly force. 17-A M.R.S.A. § 108(1).

On August 14, 1978, defendant was stopped by two Machias Police Officers and arrested for operating under the influence of intoxicating liquor, 29 M.R.S.A. § 1312 and subsequently for assault for allegedly hitting one officer in the face and kicking another in the head. There was conflicting testimony on whether these assaults occurred, and if so, whether or not they were intentional, accidental, or in self-defense. The drunken driving charge was dismissed.

Both issues on appeal relate to the evidence introduced with respect to the first of the assault charges. First, defendant alleges that she was deprived of a fair trial by statements elicited from Officer Ames on direct examination. In issue is the following colloquy:

Q. Now, when you were you said at one point you were arguing with Vicky Flood; is that correct?

A. Yes.

Q. Did you say anything about those girls?

A. Yes, I did.

Q. What did you say?

A. Called them druggies.

Q. Why did you do that?

A. Because I know.

Q. Did you say anything further about them?

A. That they had been relations to me.

Q. That they were relations to you?

A. Yes, they were.

Q. Why did you say those things to her?

A. Because I knew that they were what I called them.

At this point defense counsel objected, which objection was overruled by the Court.

Defendant asserts that the trial Justice erred in overruling the objection because the evidence was of no probative value and was highly prejudicial. Such prejudice resulted from the identification of defendant's companions, and defendant (by association), as engaged in certain criminal activity, inevitably coloring the jury's evaluation of defendant's conduct. Furthermore, defendant contends, the objected-to testimony served to impeach the credibility of defendant's companions, who were called as witnesses, and the testimony was impermissible for impeachment purposes under the Maine Rules of Evidence.

Under Rule 51, M.R.Crim.P., a party is required to state the ground of his objections. "The overruling of a general objection preserves nothing for review unless it clearly appears that the evidence was inadmissible for any purpose whatsoever." State v. Kelley, Me., 357 A.2d 890 (1976); H. Glassman, 3Maine Practice, 425 (1967). Our task, therefore, is to determine whether there was any tenable ground for admitting the evidence in question. As the discussion below will establish, we can find no grounds on which Officer Ames's statement that he "knew that they were what I called them (druggies)" could be deemed admissible evidence.

The statement that the officer called the occupants of the car "druggies" was itself objectionable hearsay, although arguably, as the State suggests on appeal, falling within the exception for "then existing mental, emotional, or physical condition" as showing the belligerent attitude of Officer Ames toward the defendant and her companions. Rule 803(3) M.R.Evid. Even in that context it might well be deemed more prejudicial than probative. Rule 403, M.R.Evid. Certainly a limiting instruction would have been in order. But the prosecution's posing of the question "Why did you say those things to her?" was clearly improper under the circumstances.

First, even if one grants that What Officer Ames Thought the young women were was relevant to show his state of mind and motive, Why he held that belief is totally irrelevant to the issues in the case, and therefore, inadmissible. M.R.Evid., R. 402.

Second, the testimony was probably effective in impeaching the testimony of defendant and more particularly of her two witnesses who were in the car with her on the evening in question. The question was improper and the answer inadmissible for impeachment purposes. Although the term "druggies" is somewhat ambiguous, it implies certain criminal activity. This implication is greatly strengthened by testimony from a police officer that "he knew they were" since the logical inference from this statement is that he knew this from criminal activities and records to which he had access because of his occupation. But the State introduced no evidence, documentary or otherwise, of any convictions of defendant's companions for drug-related activities. In State v. Cuddy, Me., 366 A.2d 858 (1976), relying on State v. Toppi, Me., 275 A.2d 805 (1971), and State v. Ifill, Me., 343 A.2d 5, 8 (1975), we made clear that the propounding of such a question as that asked by the prosecutor here is improper if he is not prepared to introduce documentary evidence of convictions admissible under R. 609, M.R.Evid. That case was similar to this in that the impeachment affected a witness (in that case a co-defendant), and the defendant claimed that "the jury may well have considered the lack of credibility resulting from the alleged past criminal record of his co-defendant in determining appellant's own guilt." ² 366 A.2d at 860. In analyzing the potential prejudice from the improperly admitted evidence, the Court quoted approvingly from the United States Supreme Court's opinion in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968):

The practical and human limitations of the jury system (are such that they) Cannot be ignored. . . . An important element of a fair trial is that a jury consider only relevant and competent evidence bearing on the issue of guilt or innocence. Id. 391 U.S. at 135, 130, n.6, 88 S.Ct. at 1627, 1625.

The Court further determined that the trial justice in Cuddy should have been more sensitive to the possibility of prejudice. In sustaining that appeal, the Court concluded that:

The State's questions as to the prior record . . . were highly prejudicial. From the jury's verdict it is clear that they did not find the co-defendant's...