State v. Pullen

Decision Date10 June 1970
Citation266 A.2d 222
PartiesSTATE of Maine v. Conrad PULLEN.
CourtMaine Supreme Court

Nicholas S. Strater, Peter T. Dawson, Asst. Attys. Gen., Augusta, for plaintiff.

Berman, Berman & Simmons, by Jack H. Simmons, Lewiston, for defendant.


DUFRESNE, Justice.

Tried by jury on a four-count indictment charging rape, fellatio, sodomy and assault and battery of a high and aggravated nature, the defendant at the conclusion of the evidence and before argument, with Court approval, changed his not-guilty plea and entered a plea of guilty to the charge of fellatio. The jury thereafter found him guilty of rape, attempted sodomy and assault and battery of a high and aggravated nature. Sentenced in each case to a term in the Maine State Prison, the defendant appeals the convictions other than the one of fellatio. His appeal raises several claims of error which we will treat as nearly as possible in the order in which the alleged errors arose.

1. Court's denial of cross-examination concerning alleged inconsistent statements of State's witness in the District Court.

During the course of the prosecutrix's cross-examination the following colloquy took place:

'Q. In the District Court under cross-examination didn't you say at that time you were driving?

A. I don't believe so.

Q. Didn't you say in the District Court under cross-examination that the reason that you stopped was because you didn't have a license?

A. I couldn't have gotten out of that snowbank anyways. Conrad had to push while Bruce was driving out the second time, because they thought I'd get stuck again.

Q. And didn't you say in the District Court (State's Attorney) I am going to object. The Court: Is there a record? Is there a transcript of the District Court hearing? (Defense Attorney): Not that I know of. I wasn't there, present, your Honor.

The Court: Well then, what are we doing quoting District Court testimony?

The Court: I am not interested unless someone was there, heard it, and will testify to it.

(Defense Attorney): I am going to eliminate that for the time being, your Honor.'

The defendant's trial attorney did not further attempt to discredit the testimony of the prosecutrix either by seeking to draw from her any other alleged previous inconsistent statements or by introducing any such evidence through the testimony of witnesses at the preliminary probable cause hearing. his present attorney views the trial Court's limitation on cross-examination as a reversible abuse of judicial discretion, especially after the District Court's refusal of defendant's request for a continuance of the probable cause hearing for the purpose of procuring the services of a court reporter.

No legal grievance is shown. Initially, we note that the defendant's attorney expressly informed the Court that he was abandoning for the time being these cross-examination tactics. He thereafter never pressed the issue in the course of the trial. Such deliberate withdrawal in the presence of the jury, though stated to be only for the time being, could possibly have been a strategic maneuver in an area where counsel was merely probing without backup support. By such express conduct defendant's counsel effectively waived any possible error which the Court below might otherwise have committed in restricting the cross-examination.

However, the Court's ruling was correct. It is true that, whenever a witness has testified to any material facts, his statements out of court or at a former judicial proceeding which appear inconsistent with his present testimony are admissible in evidence for the purpose of impeaching his credibility. State v. Kingbury, 1870, 58 Me. 238; State v. McDonald, 1876, 65 Me. 466; State v. Warner, 1967, Me., 237 A.2d 150. The defendant could have done so by offering the testimony of any person at the probable cause hearing who heard and recollected any inconsistent declarations which the prosecutrix may have made and there was no necessity for him to lay any foundation for such later contradiction. Ware v. Ware, 8 Me. 42; State v Blake, 1845, 28 Me. 350; Wilkins v. Babbershall, 1850, 32 Me. 184; Currier v. Bangor Railway & Electric Company, 1920, 119 Me. 313, 111 A. 333. To continue exercising his right to cross-examine the prosecutrix in the manner he was pursuing, it became incumbent upon the defendant on objection to show that he had a present ability later to offer the impeaching evidence his cross-examination was seeking to flush out. He had no right to discredit the witness through unsupportable and indiscriminate implications, even in question form, that the witness may have given contradictory testimony at a previous judicial proceeding, on the mere chance the witness may give answers favorable to the defendant. Any other rule would permit a full scale 'fishing' expedition which could possibly serve no other end than bring confusion to the jury and unduly waste the Court's time. See, State v. Reed, 1872, 60 Me. 550, 553; Wallace v. State, 1965, Del., 211 A.2d 845; State v. Simon, 1935, 115 N.J.L. 207, 178 A. 728.

Furthermore, the cross-examining attorney made no proffer to the Court below of the expected answer to his question and the nature of the impeaching evidence. A party complaining about the exclusion of evidence must show affirmatively that the exclusion has prejudiced him. The answers to the first two questions were in the negative and the answers to any further inquiry along the same line could have been the same and thus no advantage nor aggrievement would have accrued to the defendant. State v. Rist, 1931, 130 Me. 163, 154 A. 178. The Court was justified in eliminating from the trial an unfair practice which consists of impeaching a witness by innundoes respecting alleged inconsistent statements of the witness existing solely in the overactive imagination of the cross-examiner. As in International Paper Company v. State, 1968, Me., 248 A.2d 749, the defendant was in no way prevented from revealing the existence of inconsistent prior testimony, if in fact any had been given at the probable cause hearing. Without an offer of proof, the Court's ruling in limiting cross-examination as he did was within sound judicial discretion and this point of appeal is without merit.

2. Denial of motion for continuance at District Court level.

Admitting that the probable cause hearing is not ordinarily a critical stage in criminal proceedings, Holbrook v. State of Maine, 1965,161 Me. 102, 105, 208 A.2d 313, the defendant argues that the District Court's denial of his motion to continue the probable cause hearing to secure the services of a court reporter had an 'appreciable effect' in depriving trial counsel of probable cross-examination leverage due to the absence of a record concerning pretrial disclosure of the prosecutrix's evidence. The Maine Rules of Criminal Procedure provide that the magistrate shall allow the defendant reasonable time and opportunity to consult counsel and shall admit him to bail, 5(b), and that he shall hear the evidence within a reasonable time, 5(c). The defendant is expressly granted therein the right to cross examine witnesses against him and to introduce evidence in his own behalf. Neither the statutes nor the rules require that a transcript be made of the proceedings at the probable cause hearing. The purpose of a preliminary examination for one charged with a felony is to determine whether an offense has been committed and whether there is probable cause for charging a defendant with the commission thereof. The proceeding is not a judicial trial of the issue of guilt or innocence. Kaye, Petr. v. Keeper of the Jail, 1950, 145 Me. 103, 72 A.2d 811. There is nothing in the language or the history of Rule 5 to suggest that the preliminary examination has any purpose other than to afford a person arrested upon complaint an opportunity to challenge the existence of probable cause for detaining him or requiring bail pending grand jury action. It was not intended as a means of discovery in aid to trial preparation. Smith v. O'Brien, 1969, 109 N.H. 317, 251 A.2d 323; Sciortino v. Zampano, 1967, 2d Cir., 385 F.2d 132, cert. den. 390 U.S. 906, 88 S.Ct. 820, 19 L.Ed.2d 872. Where the requested continuance would have postponed the hearing beyond the date when the Grand Jury convened, we cannot say the magistrate erred in fefusing to delay the hearing. There was no abuse of discretion; furthermore, any claim of prejudice would be highly conjectural.

3. Motion for acquittal made and argued in chambers outside the presence of defendant.

The record indicates that at the end of the first day of trial at 5:26 p. m. the case was recessed until the next day. Anticipating that the State would officially close it evidence in chief upon resumption of the trial, the defendant's attorney on his own initiative, with the State's attorney participating, argued to the Presiding Justice in chambers a motion for judgment of acquittal respecting the several accusations for which the defendant was being tried. The Court denied them all. Upon the start of the trial on the following day, the State officially rested. The defendant did not renew his motion in open court, but proceeded to introduce his evidence. Defendant now complains that the Court committed reversible error when it heard and ruled upon his motion for acquittal under Rule 29(a), M.R.Crim.P., in chambers in his absence. Noting that the defendant's motion was premature and, after the State had rested, could have been renewed in open court and argued in the absence of the jury if such request had been made, and observing that the alleged irregularity was prompted by defendant's trial counsel and that the claimed impropriety of such Court action was never suggested at the trial level but raised for the first time on appeal, we would ordinarily not consider such issues except that in the...

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