State v. Robinson

• Decision Date: 13 July 1989
• Parties: STATE of Maine v. Timothy ROBINSON.
• Court: Maine Supreme Court

Page 492

561 A.2d 492

STATE of Maine v. Timothy ROBINSON.

Supreme Judicial Court of Maine.

Argued June 12, 1989.

Decided July 13, 1989.

R. Christopher Almy, Dist. Atty. and Philip C. Worden (orally), Asst. Dist. Atty., Bangor, for the State.

Marshall T. Carey (orally), Bangor, for defendant.

Before McKUSICK, C.J., and WATHEN, GLASSMAN, CLIFFORD, HORNBY and COLLINS, JJ.

CLIFFORD, Justice.

The defendant, Timothy Robinson, appeals from a judgment of the Superior Court (Penobscot County, Smith, J.) entered on a jury verdict finding him guilty of theft, Class B, 17-A M.R.S.A. § 353 (1983). Robinson contends on appeal that (1) the trial court erred in admitting the prior inconsistent statements of a witness; (2) the trial court failed to properly instruct the jury; (3) the evidence was insufficient to support the verdict of the jury; and (4) he was deprived of effective assistance of counsel. We affirm the judgment.

In May of 1988, the office of the Blue Knights International, a motorcycle club of police officers located in Brewer, was burglarized. The office was entered through a plate glass window and a computer keyboard, metal safe, telephone and answering machine were stolen.

Some of the items were found by the police at Robinson's residence, a home owned by Robinson's father. The phone and answering machine were found in a closed paper bag under a pile of laundry in Robinson's bedroom closet, and the computer and keyboard were found in a shed outside of the house. The safe was not found on the premises.

After a jury trial, Robinson was found not guilty of burglary, 17-A M.R.S.A. § 401 (1983 & Supp.1988), and guilty of theft. This appeal followed.

Robinson first contends that the court erred in permitting the testimony of Brewer Police Officer Steve Barker, who testified concerning prior statements made by Eugene Caston, a witness called to testify by the State. Caston admitted to having been involved in the burglary and theft after being confronted with a shoe impression and fingerprints tying him to the scene; he was later convicted for his involvement.

At Robinson's trial, Caston testified that he was acquainted with Robinson but, to the surprise of both the State and Robinson, denied that Robinson was involved in the commission of the crime. Caston stated that he hid the stolen items for a few days, and then asked Robinson to store a few things for him. He further testified that he did not tell Robinson that the items were stolen.

The State, confronted with Caston's unexpected denial of Robinson's participation in the burglary and theft, called Officer Barker who testified that he had interviewed Caston at the Penobscot County Jail. Barker testified that Caston had told him that Robinson had helped him remove the stolen property from the Blue Knights' office; that they used Robinson's father's car to transport the stolen items; and that they had disposed of the safe in a cemetery and stored the remaining items in the Robinson household. Before and after the impeaching testimony was presented, the trial court gave the jury a limiting instruction. The court stated that Barker's testimony was not being offered for the truth of its contents, but "on the matter of credibility of the testimony of Mr. Caston and on that credibility alone." Robinson did not object to the limiting instruction. In its final instructions, again without objection from Robinson, the court for the third time made clear to the jury that the purpose of Barker's testimony was limited to credibility.

Robinson contends that Barker's testimony was hearsay and that its admission was substantially prejudicial to him under M.R.Evid. 403 and constitutes obvious error. We disagree.

We have consistently held that a witness may be impeached by evidence that he made an earlier, out-of-court statement inconsistent with his trial testimony. See, e.g., State v. Liberty, 478 A.2d 1112, 1116 (Me.1984); State v. Allen, 462 A.2d 49, 51 (Me.1983). Because the out-of-court statement is introduced not to prove its truth but for the limited purpose of attacking the credibility of the maker, it is not hearsay and is properly admissible. Liberty, 478 A.2d at 1116. We have delineated, however, two preconditions before such statements may be admitted: the out-of-court statement must be truly inconsistent with the witness's trial testimony, and the impeachment must be based on a "relevant" and not a "collateral" matter. Allen, 462 A.2d at 52. Even if the prior statement satisfies all the prerequisites for admissibility as a prior inconsistent statement, a trial court must further ask whether the danger of unfair prejudice substantially outweighs the probative value of the evidence. State v. Dodge, 397 A.2d 588, 592 (Me.1979); M.R.Evid. 403. The danger of unfair prejudice arises from the risk that the out-of-court statement would be used by the jury as substantive proof of the defendant's guilt. Dodge, 397 A.2d at 592.

In the instant case, contrary to Caston's trial testimony, Caston had previously told Officer Barker that Robinson had assisted him in perpetrating the crime. Not only is that prior statement directly inconsistent with Caston's trial testimony, but it also concerns a central issue in the case--the extent of Robinson's participation in the crime. See Allen, 462 A.2d at 52. Because the statement was introduced to impeach Caston's trial testimony and not to prove the truth of the matter asserted, the testimony did not constitute hearsay. See Liberty, 478 A.2d at 1116. Moreover, the jury was properly instructed three separate times that the testimony was to be considered for a limited purpose only. There was no abuse of discretion in the admission of Caston's prior inconsistent statement. ¹

Robinson further argues that the jury instructions were inadequate. The court instructed the jury on the elements of burglary (17-A M.R.S.A. § 401 (1983)) and that they could find Robinson guilty of either theft by unauthorized taking (17-A M.R.S.A. § 353) or theft by receiving stolen property (17-A M.R.S.A. § 359 (1983)), both of which it defined. ² In addition, the court instructed the jury under 17-A M.R.S.A. § 361(2) (1983) on the permissible inference, including the inference of theft, that may be drawn from the possession of property recently stolen. Robinson did not object at trial to the instructions, and our review of them discloses no obvious error affecting substantial rights. State v. Herbest, 551 A.2d 442, 447 (Me.1988); State v. Griffin, 487 A.2d 247, 249 (Me.1984).

Robinson also asserts that the evidence was insufficient to support his conviction of theft. Specifically, he contends that under 17-A M.R.S.A. § 359, ³ receiving stolen property, there was insufficient evidence of his knowledge or belief that the items found at his home were stolen. In addition, he argues that the evidence of his possession of the stolen items was insufficient to permit an inference under 17-A M.R.S.A. § 361(2) that he was guilty of the theft. ⁴

The standard applied when reviewing the sufficiency of the evidence in a criminal case is "whether, based on [the] evidence viewed in the light most favorable to the prosecution, any trier of fact rationally could find beyond a reasonable doubt every element of the offense charged." State v. Barry, 495 A.2d 825, 826 (Me.1985). Caston testified that Robinson gave him permission to store the items at Robinson's home. Two of the items were found by the police in a closed paper bag under a pile of laundry in Robinson's bedroom closet, giving rise to an inference that Robinson was attempting to conceal them....