State v. Fournier
| Decision Date | 16 July 1970 |
| Parties | STATE of Maine v. Frank FOURNIER. |
| Court | Maine Supreme Court |
Robert T. Coffin, County Atty., Chadbourn H. Smith, (Law Student) Portland, for plaintiff.
George Milliken, Portland, for defendant.
Before WILLIAMSON, C. J., and WEBBER, MARDEN, DUFRESNE and WEATHERBEE, JJ.
The defendant-appellant, Frank Fournier, was indicted under 17 M.R.S.A. § 3401 for the crime of robbery by stealing with force and violence a sum of money from the person of one Kenneth Morrison. Tried before a jury, Fournier was found guilty and sentenced to the Men's Correctional Center, from which judgment he now appeals. His appeal is hereby denied.
The defendant claims error in that the State was permitted to impeach its own witness, Antonio R. Leo, and says the error was compounded when the State was allowed to have Sergeant William N. Pearson of the Maine State Police testify in furtherance of the reference impeachment. This issue arose in the following manner. The witness Leo had been indicted for the same crime of robbery of Kenneth Morrison. In order to prove its case against the defendant Fournier and one Gardner Corey, a co-defendant, the State extended immunity to Leo and called him as its own witness. When Leo's testimony in direct examination by the State prosecutor departed in material aspects from prior statements made by the witness to Officer Pearson of the Maine State Police respecting the participation of the co-defendant Corey in the robbery, the State's Attorney inquired from the witness concerning the alleged prior inconsistent statements. Leo first equivocated but then categorically denied telling Officer Pearson that Gardner Corey was there and positively asserted that he, Leo, drove around the block before the scuffle and not afterwards as his prior statement indicated. We note in passing that Leo did not retreat to any degree in his testimony from implicating in the robbery the defendant Fournier. On objection by the attorneys of both defendants, the Court below ruled the witness hostile, allowed the State to cross-examine Mr. Leo and permitted his prior inconsistent statement to be introduced through Officer Pearson, instructing the jury that even though he permitted the State to treat the witness Leo as a hostile witness, subject to cross-examination, nevertheless the weight to be accorded his testimony was for the jury as the fact finder and for the jury alone. The Justice below further instructed the jury that the prior statement of the witness Leo as testified to by Officer Pearson was offered solely for the purpose of impeaching or discrediting the testimony of Mr. Leo despite the fact that Mr. Leo was called as a State's witness in the first place and specifically emphasized to the jury
It is a long established rule that a party calling a witness may not by general evidence impeach his competency or credibility. But, as stated in State v. Sanborn, 1921, 120 Me. 170, 113 A. 54, See also, State v. DeBery, 1954, 150 Me. 38, 103 A.2d 526.
It was proper for the State, when it found the witness Leo, whom it felt compelled to call because of the necessities of the case, partially adverse to the interests of the State out of an apparent bias towards the co-defendant Corey, to seek from the presiding Justice a ruling that the witness was hostile and that the State could thereafter examine the witness by way of cross-examination. The occasion for the exercise of this right must be determined by the trial Court in the exercise of a sound judicial discretion. The Court below committed no error in permitting the State to cross-examine its own witness. There was no abuse of discretion. State v. McFarland, 1967, Mr., 232 A.2d 804.
It was proper for the State to cross-examine its own witness about prior statements made by him in contradiction of his testimony in court. These prior statements however are not to be treated as having any substantive or independent testimonial value. State v. Chickering, 1952, 97 N.H. 368, 89 A.2d 206; 98 C.J.S. Witnesses § 578(d) and cases cited at note 84. The jury in the instant case was instructed, and properly so, that they may consider the prior inconsistent statements solely for impeachment purposes, that is, in reaching their decision whether to believe the testimony of the witness as given in court, which testimony the prior statement contradicted. The Court clearly conveyed to the jury that the prior inconsistent...
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