State v. Galloway
| Decision Date | 31 October 1968 |
| Citation | 247 A.2d 104 |
| Parties | STATE of Maine v. John C. GALLOWAY. |
| Court | Maine Supreme Court |
Ronald E. Ayotte, County Atty., T. A. Fitanides, Asst. County Atty., Alfred, for plaintiff.
Anthony McManus, Dover, N. H., and William B. Troubh, Portland, for defendant.
Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, DUFRESNE, WEATHERBEE, JJ.
This was an appeal from a conviction by jury verdict of the crime of assault with intent to rape. Defendant's points of appeal raise eight issues which will be dealt with in the order in which they are presented.
1. Denial of motion for new trial. It is not disputed that the complainant was assaulted in her trailer home by an assailant unknown to her at the time. After a struggle the complainant successfully evaded an attempted rape. Factual issues were presented for the jury with respect to the identification of the defendant as the assailant and with respect to the defendant's claim of alibi. There was substantial credible evidence which, if believed by the jury, would support the State's position on both issues. The motion was properly denied.
2. Testimony of witness Vittum. Over objection Chief of Police Vittum was permitted to relate a portion of a conversation which he had with complainant about ten minutes after the assault. The Justice below carefully restricted the witness to a narration of the description of her assailant given to him by the complainant. It is obvious that the Court deemed the conversation to have been too remote from the event to be admissible as part of the res gestae. The portion of complainant's declaration to the officer dealing with identification was, however, admissible under a different rule. The first witness for the prosecution had been the complainant. She had given to the jury a verbal description of her assailant and positively identified the defendant as that person. She had then been subjected to a rigorous cross-examination which clearly had as its primary objective the impeachment of the witness with respect to identification. Stress was laid on asserted prior inconsistent statements with respect to identification. It then became proper to show though other witnesses that she had remained constant in her description of the assailant and that her testimony given on the stand was not of recent contrivance. Her statements to the witness Vittum, carefully limited by the Court as we have noted to matters of description and identification, then became admissible not for the truth of the matter asserted, but as verbal acts tending to corroborate the testimony of the complainant. The rule was clearly stated and applied in State v. King (1923) 123 Me. 256, 258, 122 A. 578, 579. The Court said, 'The weight of authority also seems to support the rule that where the prosecutrix has taken the stand and her testimony has been impeached, evidence of the details of her prior statement of what occurred may be received in corroboration of her testimony given on the stand, but not as evidence of the facts stated.' In State v. Bragg (1944) 141 Me. 157, 161, 40 A.2d 1, 3, the opinion states, 'It is, of course, well settled that * * * if the prosecutrix takes the stand her testimony may be corroborated by proof that she made a complaint through the testimony of the person to whom it was made but the details of the complaint are not admissible unless her testimony has been impeached or the complaint is within the rule of res gestae.' (Emphasis supplied) There was no error.
3. Testimony of witness Baston. Presents the same issue as #2 above and is governed by the same rule.
4. On two occasions reference was made to the fact that defendant had been physically present in the Dover (N. H.) District Court. No point was properly saved for review. In any event the references were rendered completely innocuous by the disclosure of Officer Baston on cross-examination that the defendant voluntarily presented himself there to be returned to Maine in connection with the instant case. There was no insinuation to the jury that defendant had a prior criminal record in New Hampshire. Evidence relating to alleged admissions of the respondent with respect to an unrelated sex crime by in New Hampshire was considered by the Presiding Justice in the absence of the jury and by his ruling excluded.
5. Admission of State's Exhibit #7. Over objection this exhibit, a jacket worn by defendant, was admitted into evidence. Before the complainant knew the identity of her assailant and before the defendant was apprehended, the complainant gave a description of the clothing her assailant was wearing which included an accurate description of Exhibit #7. When first shown the exhibit before trial she characterized it as 'identical' to the one her assailant had worn. At trial she testified that the jacket was 'similar' to the one so worn. The jacket then became a proper item of circumstantial evidence to be weighed by the jury in determining the crucial issue of identification. Alone the evidence could not convict, but it had probative value as tending to corroborate the positive identification made by the complainant when she frst saw the defendant and at trial.
6. This point is stated in the points of appeal in these terms: 'The Court erred in accepting, over Defendant's objection, certain testimony as to identification of the Defendant by the Complainant.' Without more, the Court is unable to find in the record the testimony said to have been admitted over objection. The positive identification in the courtroom, made without objection, came in this manner:
'Q. And can you tell us who did this to you?
A. (By the prosecutrix) I can now, yes. I know who.
Q. Do you see him in the courtroom here?
A. Right there.'
The record shows that the witness pointed to the defendant. The entire testimony consumes 141 pages of the record and the reviewing Court can hardly be expected to find unidentified error without any indication as to its location. Where neither the briefs nor the points of appeal inform the Court either by quotation from or reference to the record, the point must be treated as waived.
7. 'The Court erred in not granting a mistrial upon (the complainant's) testimony that the...
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