State v. Shuman

• Decision Date: 05 April 1993
• Citation: 622 A.2d 716
• Parties: STATE of Maine v. Lester SHUMAN, Jr.
• Court: Maine Supreme Court

Page 716

622 A.2d 716

STATE of Maine v. Lester SHUMAN, Jr.

Supreme Judicial Court of Maine.

Argued Jan. 6, 1993.

Decided April 5, 1993.

R. Christopher Almy, Dist. Atty., Jeffrey M. Silverstein (orally), Asst. Dist. Atty., Bangor, for the State.

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

Before WATHEN, C.J., and GLASSMAN, CLIFFORD, COLLINS and RUDMAN, JJ.

GLASSMAN, Justice.

Lester Shuman, Jr., appeals from the judgments entered in the Superior Court (Penobscot County, Beaulieu, J.) on jury verdicts finding him guilty of attempted murder, 17-A M.R.S.A. §§ 152 (1983) & 201 (1983 & Supp.1992) and aggravated assault, 17-A M.R.S.A. § 208 (1983). He contends that the trial court erred in admitting certain evidence at the trial and that he received ineffective assistance of counsel. We affirm the judgments.

The jury heard the following evidence: During the afternoon of February 19, 1990, Shuman was involved in an altercation that provoked a call to the Bangor police. Following a visit from the police officers, Shuman made a statement to his wife, in the presence of Joseph Ruest, that if Shuman were arrested for assault as a result of the altercation he would shoot his wife and their children. Shuman then asked Ruest to be a witness on his behalf that he did not assault anyone in the course of the altercation. Ruest did not respond. Later that evening, Shuman and Ruest were present at the home of Alfred Smith. Shuman again asked Ruest to vouch for him with respect to any assault charges arising out of the altercation of that afternoon, and Ruest declined. Following a further exchange with Ruest, Shuman left the apartment, returned with a gun and shot Ruest in the presence of two witnesses. Shuman returned with the gun to his own home, where he awakened his wife, told her he "shot Joe," secured the keys to his car, and left. Shuman was voluntarily taken into police custody an hour later. A gun owner's manual furnished to the police by Mrs. Shuman depicted the same type, make and model of a gun previously purchased by Alfred Smith and given to Shuman prior to February 19, 1990. Mrs. Shuman identified the manual as belonging to Shuman and being the manual for the gun in Shuman's possession when he had awakened her. Although the gun was not located, the spent and live 9 mm round found in the Smith home at the scene of the shooting was the appropriate ammunition for the type of gun described in the manual.

I. Evidentiary Rulings

We review the trial court's evidentiary rulings for clear error or an abuse of its discretion. State v. Giovanini, 567 A.2d 1345, 1346 (Me.1989). In doing so, we accord wide discretion to the court's determinations on the relevancy of the proffered evidence, Gurski v. Culpovich, 540 A.2d 764, 766 (Me.1988); M.R.Evid. 402, as well as to its evaluation of any unfair prejudice that may result from the admission of the evidence. State v. Heald, 393 A.2d 537, 542 (Me.1978); M.R.Evid. 403.

A. Shuman's prior statements

Shuman first contends that the court erred in admitting, over his objection, the testimony of Ruest that Shuman threatened to shoot his wife and their children if he were arrested for the prior incident and in failing, sua sponte, to give a limiting instruction to the jury that it could not consider this evidence as indicative of Shuman's character. He argues that the statement was irrelevant and unfairly prejudicial and should have been excluded pursuant to M.R.Evid. 403 and 404(b).

Evidence of similar acts, although prejudicial, may be admitted for the limited purpose of establishing an essential element of the crime charged, including the element of intent. State v. Grant, 394 A.2d 274, 276 (Me.1978). Similar threats or acts against others are relevant if there is a sufficient nexus between the evidence sought to be introduced and the elements of the crime charged. State v. Gagne, 362 A.2d 166, 170 (Me.1976); State v. Wyman, 270 A.2d 460, 462 (Me.1970).

Here, the trial court ruled that the statement was probative of Shuman's state of mind on the day of the shooting. To the extent that the statement demonstrated an unprovoked, knowing and intentional threat involving the use of a gun, in contrast to Shuman's later claim of self defense, it was properly admitted as relevant to Shuman's state of mind relating to his fear of criminal prosecution. Gagne, 362 A.2d at 170. Nor on this record can we say that the statement was unfairly prejudicial. The likelihood that the jury would draw from it an improper inference about Shuman's character and propensity to commit such a crime is ameliorated by the lack of evidence that Shuman made any effort to carry out his threat to his wife, the evidence of his later, non-threatening conversation with his wife, and the time lag between the statement and the assault on Ruest. State v. Forbes, 445 A.2d 8, 13 (Me.1982). Furthermore, we have repeatedly stated that it is not reversible error for the trial court to fail to give a limiting instruction to the jury when none was requested by the defendant. State v. Dube, 598 A.2d 742, 745 (Me.1991); State v. Glidden, 489 A.2d 1108, 1110 (Me.1985); State v. McDonough, 350 A.2d 556, 564 (Me.1976).

B. Gun owner's manual

Shuman next contends that the court erred in admitting, over his objection, the gun owner's manual. He argues that because the gun used in the shooting had not been located the State was unable to connect the manual with the gun used in the charged offense. "[T]he admissibility into evidence of an object or article which testimony tends to make relevant as an evidentiary exhibit in the nature of 'demonstrative' or 'real' evidence, lies, essentially, in the discretion of the [trial court]." Cope v. Sevigny, 289 A.2d 682, 689 (Me.1972). If relevant, such evidence is admissible unless unfairly prejudicial to the defendant. State v. Philbrick, 481 A.2d 488, 494 (Me.1984).

In addition to Mrs. Shuman's testimony that the manual belonged to Shuman and was the manual for the gun in Shuman's possession on the evening of February 19th, Alfred Smith testified that the manual depicted the same type, make and model as the "9 mm Intratech" gun he purchased...