State v. Steen

• Decision Date: 06 April 1993
• Citation: 623 A.2d 146
• Parties: STATE of Maine v. Jon STEEN.
• Court: Maine Supreme Court

Page 146

623 A.2d 146

STATE of Maine v. Jon STEEN.

Supreme Judicial Court of Maine.

Argued Jan. 13, 1993.

Decided April 6, 1993.

Stephanie Anderson, Dist. Atty., Jane Elizabeth Lee (orally), Asst. Dist. Atty., Portland, for plaintiff.

Gene R. Libby (orally), Verrill & Dana, Kennebunk, for defendant.

Before ROBERTS, GLASSMAN, CLIFFORD, COLLINS and RUDMAN, JJ.

COLLINS, Justice.

Jon Steen appeals from a judgment entered on his conviction of gross sexual assault, 17-A M.R.S.A. § 253(1)(A) (Supp.1991), ¹ following a jury trial in the Superior Court (Cumberland County, Brodrick, J.). Steen contends that: (1) the prosecutor's misconduct at trial denied him a fair trial; (2) the trial court violated his right to confrontation by prohibiting his inquiry, on voir dire and cross-examination, into a prior allegation of rape made by the complainant; and (3) the trial court erroneously instructed the jury. Although we reject Steen's latter two contentions, we agree that the prosecutor's conduct in this case requires us to vacate his conviction.

On April 11, 1991, the complainant attended a party at the Tau Kappa Epsilon (TKE) fraternity at the University of Southern Maine's Gorham campus. The complainant testified that she was drunk when she arrived at the party. At the party, the complainant met Jon Steen. She and Steen danced together and talked for some time. The complainant testified, however, that when she went to the bathroom Steen sexually assaulted her. Steen admits engaging in vaginal intercourse with the complainant but denies that it was nonconsensual. The complainant suffered a laceration in the base of her vagina. Steen's expert testified that, because the tear occurred in an area recently subjected to surgery, the tear could have been the result of consensual intercourse.

The detective who investigated the case, Detective Drown, testified that Steen made several inculpatory remarks during his initial interview. Although the detective did not record this conversation with Steen, Drown testified that he wrote it down from memory. Steen denied making the inculpatory statements to Drown.

Steen appeals from the judgment entered on the jury's conviction.

I. Prosecutorial Misconduct

During the State's cross-examination of Steen, the prosecutor asked Steen 24 questions that required him to give his opinion as to whether other witnesses were lying. ² Steen objected five times to this type of questioning but the trial court sustained only one objection. The State contends that Steen, through his direct examination, accused Detective Drown of lying and this opened the door to the State's cross-examination. The record does not support the State's contention. During direct examination, Steen denied making the inculpatory statements testified to by Drown. He did not accuse Drown and other witnesses of lying until asked to do so by the State on cross-examination.

This court has consistently held that "while a prosecutor 'may strike hard blows, [she] is not at liberty to strike foul ones. It is as much [her] 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.' " State v. Collin, 441 A.2d 693, 697 (Me.1982) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935)). As a representative of an impartial sovereign, the prosecutor is under a duty to ensure that a criminal defendant gets a fair trial and this duty must far outweigh any desires to achieve a record of convictions. Id.

As we have previously stated, "Cross-examination that tries to push a defendant into saying other witnesses lied is impermissible." State v. Commeau, 409 A.2d 247, 249 n. 1 (Me.1979) (emphasis added) (citing People v. Graves, 61 Ill.App.3d 732, 18 Ill.Dec. 829, 839-40, 378 N.E.2d 293, 303-04 (1978)). "Determining what credence to give to the various witnesses is a matter within the exclusive province of the jury." State v. Crocker, 435 A.2d 58, 77 (Me.1981) (citing State v. Doughty, 399 A.2d 1319, 1326 (Me.1979)) (emphasis added). Questions that force a witness to give his opinion on whether another witness is lying invade this province and are impermissible.

We do not mean to suggest that isolated questioning of this sort would per se require a new trial. "Prompt and appropriate curative instructions, under some circumstances, may well alleviate the damage caused by such conduct." State v. Reilly, 446 A.2d 1125, 1129 (Me.1982). The trial court in the case at bar, however, sustained only one of Steen's five objections to the State's cross-examination.

Steen also challenges statements made by the prosecutor that suggest she thought Steen and his medical expert were lying. For example, the prosecutor asked Steen, "So you made this one up on your own?" and "So now we have three versions ... It is hard for you to keep this all straight, isn't it?" (Emphasis added). Steen objected to these questions. In her closing argument, the prosecutor also stated:

Now at trial [Steen] has got a theory for how [the vaginal tear suffered by the complainant] occurred. And what does he do to advance his theory? He calls Dr. Piver, a medical doctor, no less, flown up specially all the way from Maryland just to testify for Jon Steen. And Dr. Piver sits on this witness stand and he says that that tear, well, that tear wasn't big enough for rape, that must have been consensual.... I suggest to you, ladies and gentlemen, that his opinion is based on $2,500, the money the defendant paid him for his testimony.

(Emphasis added). Steen objected to this statement but the objection was overruled.

Although it is proper for the State to point out inconsistencies in a defendant's statement, see State v. Kane, 432 A.2d 442, 444 (Me.1981), it is impermissible for a prosecutor to assert that the defendant lied on the stand. See State v. Smith, 456 A.2d 16, 17 (Me.1983). The prosecutor through her cross-examination of Steen and her statements in closing remarks clearly suggested to the jury that she thought these witnesses were lying.

Since we cannot find it highly probable that the jury's determination of Steen's guilt was unaffected by the prosecutor's comments, see State v. True, 438 A.2d 460, 467 (Me.1981), we vacate his conviction. Although we vacate Steen's conviction based on the prosecutor's conduct, we address the other issues raised by Steen for "the guidance of the court and counsel in the event of a new trial." Reilly, 446 A.2d at 1125.

II. Prior Allegations of Rape by the Complainant

Steen argues that the trial court violated his Sixth Amendment right to confront his accuser when it precluded inquiry into a "prior rape allegation" on voir dire and on cross-examination of the complainant. In his offer of proof, Steen stated that John Doe ³ had consensual sexual intercourse with the complainant after a party on campus which both attended. According to Steen's offer of proof, the complainant allegedly told an acquaintance, Jane Roe, that John Doe had raped her. The complainant never reported this incident to the authorities. The State responded that the complainant denied ever speaking with Jane Roe about the incident with Doe and further denied that the sexual intercourse with Doe was consensual. The trial court excluded any mention of the Doe incident because facts were "very much in dispute," and would lead to trying two cases of rape." The trial court continued:

[T]he minimal probative value on the issue of the victim's credibility is clearly outweighed by the confusion this prior incident would introduce into this case....

A trial court enjoys broad discretion in determining the scope of cross-examination. State v. White, 456 A.2d 13, 15 (Me.1983). We will uphold the trial court's exercise of that discretion unless it interferes with a defendant's right to a fair trial. Id. In the case at bar, Steen's offer of proof established only an allegation that the complainant made a prior false accusation of sexual assault. The complainant never made any formal complaint against Doe and denied making any allegation of rape to Jane Roe. Furthermore, Steen never provided affidavits of Doe or Roe despite the trial court's...