State v. Reilly

• Citation: 446 A.2d 1125
• Parties: STATE of Maine v. Robert J. REILLY.
• Decision Date: 28 June 1982
• Court: Supreme Judicial Court of Maine (US)

Page 1125

446 A.2d 1125

STATE of Maine v. Robert J. REILLY.

Supreme Judicial Court of Maine.

June 28, 1982.

David M. Cox, Dist. Atty., Gary F. Thorne, Asst. Dist. Atty. (orally), Bangor, for plaintiff.

Stern & Goldsmith by J. Hilary Billings (orally), Marshall A. Stern, Bangor, for defendant.

Before McKUSICK, C. J., and NICHOLS, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ.

ROBERTS, Justice.

Following a jury trial in Superior Court, Penobscot County, Robert J. Reilly was convicted of assault on an officer, 17-A M.R.S.A. § 752. On appeal he claims that (1) the prosecutor's final argument was improper and requires reversal, (2) the trial court erred when it excluded what he characterizes as a prior consistent statement, (3) the trial court should not have allowed the prosecutor to ask certain questions regarding the defendant's ingestion of drugs and (4) the trial court erred by refusing to give a proposed instruction. We conclude that, in the context of this case, the prosecutor's final argument requires us to vacate Reilly's conviction.

I.

A. Officer Falvey's Testimony

Two substantially different stories regarding the underlying facts were elicited at trial. Officer Timothy Falvey of the Bangor Police Department testified that on the morning of January 23, 1981, he saw a car drive by him in the middle of the road. He followed the car, which was driven by Reilly, through a number of streets. He testified the car was fishtailing and going "at quite a high rate of speed" for the conditions which were bad that night--the roads being snowy and icy. Falvey said that most of the time he followed the car he had his blue lights on as he was going to advise the driver to slow down. Reilly pulled into his driveway, Falvey pulled up behind him, got out of his police car and asked Reilly for his license and registration. Reilly asked Falvey why he had stopped him. Falvey told him he'd explain after he found out who Reilly was. Reilly gave Falvey his license and registration. Falvey then told Reilly that, given the conditions, Reilly should slow down. Falvey then went back to his car to run a license check on Reilly. After unsuccessfully attempting to check on Reilly's license, Falvey got out of his car and told Reilly he wouldn't give him a ticket but that he should slow down in the future. At that point, Falvey testified, Reilly began to scream and yell at Falvey to the effect that "us fucking pigs were always harassing him." Falvey responded that "if that's the kind of attitude he wants to take, he still can receive a summons for his excessive speed on the street." Falvey started to walk back to his car to get his ticket book whereupon Reilly jumped him from behind and began to kick and choke him. Falvey called for help on his portable radio.

After Falvey punched Reilly a few times Reilly got off him. Falvey then told Reilly he was under arrest, grabbed his nightstick, ran after Reilly who was now standing at the rear of the police car, and at least twice hit Reilly across the side of his head with the nightstick. Falvey tried to grab Reilly to handcuff him but Reilly got up, ran onto the porch of his house, pushed Falvey away and ran inside. Another police car arrived with two officers. Falvey yelled at the two officers, smashed the glass in Reilly's outside door with his nightstick, opened up the inner door, went into the house and with the help of the other officers subdued Reilly. Falvey received eight stitches above his left eye as a result of this altercation. Photographs of Falvey, taken a few hours later, were admitted into evidence. He missed two days of work.

B. Reilly's Testimony

Reilly's testimony differed substantially from that of Officer Falvey. Reilly testified that he was driving at twenty miles per hour, he was not in the middle of the road, he knew the police car was following him and that the police car's blue lights did not go on until it pulled up behind him at his driveway. Reilly said, "What's the problem officer?" Falvey told him to shut up and demanded his license and registration. Reilly gave him those and asked what he had done. Falvey told him that he was fishtailing. Reilly told him it was slippery and his car had a tendency to fishtail. Falvey went back to the police car, then returned with his nightstick in his hand, pushed Reilly up against his car and told Reilly that "I was going to be a nice guy and give you a warning, but now I'm going to give you a ticket." Reilly told Falvey he had no right to touch him whereupon Falvey put his nightstick across Reilly's chest and told him he didn't have any rights. Falvey, followed by Reilly, "stormed" back to the cruiser saying he was going to write a ticket. When they arrived at the police car, Falvey lunged at Reilly, grabbed him by the tie and started to choke him. The two fell to the ground. Reilly eventually ended up on top of Falvey. Falvey called for help on his radio and asked Reilly to please let him up and they'd talk about it. When Reilly let Falvey go, Falvey stood up and hit Reilly with his nightstick on the top of his head and knocked him to the ground. Falvey hit Reilly at least four times with his nightstick while he was on the ground. Reilly couldn't remember exactly how many times he was hit as he lost consciousness for a short period of time. Reilly rolled away and ran to his house. Falvey caught him at the front door but Reilly pushed him away and ran inside. Falvey kicked down the door to Reilly's apartment and came inside followed by officers Demonico and Roach. Reilly was handcuffed in the bathroom of the apartment after which Falvey hit him a few more times in the head with his nightstick. The officers present then threw him onto the kitchen floor and kicked and hit him. Reilly testified that he was taken to the Bangor police station, taken into a room where an officer Demonico mashed his head into a table and choked him with a nightstick. Reilly was then beaten for twenty minutes to half an hour and finally told to strip. One officer cut his tie off with a pair of scissors. Demonico told Reilly to hurry up and jabbed him twice in the stomach with his nightstick. The police later took Reilly to a hospital for a blood test. Reilly testified that while at the hospital Demonico again hit him in the stomach with a nightstick. Photographs of Reilly after he had been treated were admitted into evidence. Reilly testified that as a result of the incident he had seen a doctor twenty-five or thirty times, he had a hard time talking and swallowing as cartilage had been broken around his Adam's apple, he still had headaches, ringing sensations, pain in his ears and had been on medication for eight months as a result of the incident.

C. Rebuttal Testimony

The State called Officers Roach, Demonico and Butler of the Bangor Police Department to rebut the defense testimony. They essentially testified that they did not see or hear anyone beat the defendant at any time.

Later, in surrebuttal, Reilly testified that it was not Demonico who hit him in the stomach at the hospital or choked him at the police station, but rather Officer Butler (whom Reilly had recognized when he testified in rebuttal on behalf of the State).

II.

In his closing rebuttal argument the district attorney told the jury that defense counsel in his closing argument had conceded that the police were telling the truth. Defense counsel had not done so. The State then told the jury that defense counsel knew the police were telling the truth. Later, relying on the fact that Reilly had changed his testimony regarding the identity of the officer he claimed had assaulted him at the police station and hospital, the prosecutor said Reilly was "so reckless that he doesn't mind going around damaging people's careers." Finally, regarding Reilly's many visits to see doctors the district attorney said:

What kind of an attempt is that? That's just an attempt to exaggerate the facts. That's what that man is doing. He doesn't know what an oath means. He has no conception of that, none at all. And, yet, Defense Counsel never told us about how you reconcile Mr. Reilly's statement with Mr. Demonico and Mr. Cammack. They didn't even dare do anything, didn't even try, because they knew Mr. Reilly was a liar.

Defense counsel did not object to this argument.

With dismaying frequency we have been called upon to determine the propriety of prosecutorial tactics. See State v. Ledger, Me., 444 A.2d 404, 409-11 (1982); State v. Terrio, Me., 442 A.2d 537, 543 (1982); State v. Collin, Me., 441 A.2d 693, 696-97 (1982); State v. Simmons, Me., 435 A.2d 1090, 1093-94 (1981); State v. Connor, Me., 434 A.2d 509, 511-12 (1981); State v. Gaudette, Me., 431 A.2d 31, 32-34 (1981); State v. Vigue, Me., 420 A.2d 242, 246-47 (1980); State v. Thurlow, Me., 414 A.2d 1241, 1243-45 (1980); State v. Flood, Me., 408 A.2d 1295, 1297-99 (1979); State v. Dana, Me., 406 A.2d 83, 86-88 (1979). Even more disconcerting are the number of occasions we have determined that prosecutorial tactics used in the trial below were improper. See Ledger, 444 A.2d at 411; Terrio, 442 A.2d at 543; Collin, 441 A.2d at 697; Gaudette, 431 A.2d at 34; Vigue, 420 A.2d at 247; Thurlow, 414 A.2d at 1244; Flood, 408 A.2d at 1298-99; Dana, 406 A.2d at 88.

The prosecutor's duty "to see that the accused has a fair trial [as well as the duty] to bring about a just conviction of the guilty," State v. Wyman, Me., 270 A.2d 460, 463 (1970), should, by now, be well known to the prosecutorial bar. See Ledger, 444 A.2d at 411. We have repeatedly emphasized that "while a prosecutor 'may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.' " Collin, 441 A.2d at 697, quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935). See also Gau...