State v. Trafton

• Decision Date: 26 February 1981
• Citation: 425 A.2d 1320
• Parties: STATE of Maine v. Clinton TRAFTON.
• Court: Maine Supreme Court

Page 1320

425 A.2d 1320

STATE of Maine v. Clinton TRAFTON.

Supreme Judicial Court of Maine.

Argued Nov. 6, 1980.

Decided Feb. 26, 1981.

David W. Crook, Dist. Atty., J. Michael Talbot (orally), Asst. Dist. Atty., Skowhegan, for plaintiff.

Lawrence T. Potter (orally), Waterville, for defendant.

Before McKUSICK, C. J., and WERNICK, GODFREY, GLASSMAN, ROBERTS and CARTER, JJ.

CARTER, Justice.

After a trial in Superior Court, Somerset County, the jury adjudged the defendant, Clinton Trafton, guilty of theft by unauthorized taking or transfer, 17-A M.R.S.A. § 353 (1980 Supp.). The defendant brings this appeal from the judgment entered on the verdict.

We sustain the appeal.

On May 8, 1979, Stanley McGray, owner of a gas station in Skowhegan, had in a cracker box six bank bags containing between $8,000 and $10,000. That evening McGray left Chuck Robins, Jr., alone with the box of money in McGray's van. The next morning, May 9, McGray took the box to his gas station. The defendant, as had been his habit for two or three months, met McGray at the gas station. Nobody else entered the station building. McGray left the defendant alone in the station for twenty minutes with the box. Upon McGray's return, the defendant left. The evidence shows that later that day McGray reported to the police the theft of one bank bag containing approximately $1,000, and stated that the money might have been taken the previous evening. On May 10, McGray told the police that all six bags had been in the box at the gas station the morning of May 9th.

In addition to McGray, two other witnesses testified for the State. Horace Libby's testimony was thoroughly impeached by three other witnesses. Douglas Beane testified to a conversation with the defendant as follows (in pertinent part):

Q. About that time did you have occasion to talk to Clinton Trafton?

A. Some time during June.

A. I said, why would (McGray) want you arrested. He said (McGray) claims I took some money up there and I didn't do it. He said (McGray) offered to give me a hundred dollars to take a lie detector test. I said, why don't you

(Defense Counsel): Objection.

The Court: Overruled.

A. So I said, I would take the lie detector test.

(Defense Counsel): Objection.

(Discussion at side bar. Objection overruled.)

A. .... And I said if you didn't take the money it will prove you're not guilty and there's nothing to worry about.

Q. And what did the Defendant say?

A. No, he didn't want to take it and wanted to know if (McGray) would talk. ... He said, maybe (McGray will) let me pay him back so much each week.

Before Beane left the stand, the defense counsel asked for curative instructions to explain that lie detector tests will not necessarily establish guilt or innocence. The trial court refused this request.

At the conclusion of McGray's testimony, the defense counsel attempted to ask McGray about a 1975 conviction for simple larceny, but was unable properly to formulate the question. ¹ Defense counsel then asked for the right to recall McGray, to which the trial court replied "You have that right anyway." When the defense counsel later attempted to recall McGray to ask about his prior conviction, the trial court refused to allow him to do so, stating that the prejudice to the State's case would significantly outweigh the probative value of that evidence.

I

The defendant argues that the trial court erred by allowing Beane to testify about the defendant's unwillingness to take a lie detector test.

We agree.

Both the results of polygraph tests and a party's willingness or unwillingness to take such a test are inadmissible. State v. Mower, Me., 314 A.2d 840, 841 (1974). "(S)ince polygraph tests are ... unreliable and not usable as evidence in a trial, evidence that one has refused to submit to such test ... cannot be considered as having a bearing on the question of consciousness of guilt." Id. ²

The State argues that State v. Mitchell, Me., 402 A.2d 479 (1979) supports the admission of Beane's testimony. There a policeman testified as to what the alleged kidnapping victim had told him, and at the end of his testimony stated that he was a polygraph examiner. There was no evidence that a polygraph examination was in fact given, nor was there evidence that any party was willing or unwilling to take such a test. The trial judge denied a motion for a mistrial, though he offered to give curative instructions to the jury upon request. The instant case is easily distinguished, primarily because Beane's testimony squarely presented the jury with evidence of the defendant's unwillingness to take a lie detector test. The jury may well have considered the defendant's unwillingness as evidence of his consciousness of guilt the very evil which requires exclusion of such evidence.

Finally, the trial court's ruling emphasized that it was the defendant, in his out-of-court conversation with Beane, who brought up the subject of lie detector tests. In some circumstances, after a defendant has introduced testimony at trial regarding his willingness to take a lie detector test, the State may be allowed to rebut with evidence of the defendant's unwillingness to take such a test. State v. Fox, 257 Iowa 174, 131 N.W.2d 684, 687 (1964); Williams v. State, 238 So.2d 137, 139, cert. denied, 241 So.2d 397 (Fla.D.C.A.1970); cf. State v. McDonough, Me., 350 A.2d 556, 562-63 (1976) (Not manifest error for State to refer to polygraph examination while rehabilitating witness after defendant referred to examination while attempting to impeach that witness's testimony). Thus, the relevant question is not who first broached the subject of lie detector tests outside the courtroom, but rather who elicited such testimony at trial. In the instant case, the State, not the defendant, elicited the objectionable testimony. It should, therefore, have been excluded on defendant's timely objection, and it was reversible error not to do so, especially in view of "the serious danger that a mechanical device, rather than the judgment of the jury will decide credibility." State v. Williams, Me., 388 A.2d 500, 506-07 (1978); see also State v. Casale, 150 Me. 310, 320, 110 A.2d 588, 592-93 (1954).

II

The defendant argues that the trial court erred in refusing to allow counsel to recall McGray in order to question him about his prior conviction for simple larceny.

We agree.

The trial court erred by refusing to allow the recall of McGray. It is true that a trial court has discretion in deciding whether to allow the recall of a witness. See M.R.Evid. 611(a); State v. Kingsbury, Me., 399 A.2d 873, 875 (1979). If, after a request is made for the right to recall a witness, the trial court leads the requesting party to believe that he will be allowed to recall the witness, and allowing the recall would not prejudice the opposing party, then fair play compels the trial court to in fact permit the recall. See Friend v. Commissioner of Internal Revenue, 102 F.2d 153 (7th Cir. 1939); Zurich v. Wehr, 163 F.2d 791 (3d Cir. 1947). By informing defense counsel that he had the right to recall McGray, the trial court in the instant case led him to believe he would be permitted later to recall McGray, and may have induced counsel temporarily to cease his line of inquiry with the witness. Therefore, it was error to refuse the recall.

We must delve further, however, since the trial court did not indicate at that time how it would rule on the admissibility of evidence of McGray's prior larceny conviction. Thus, even if defense counsel had been permitted to recall McGray, the trial court might have ruled to exclude evidence of the prior conviction. If the trial court could properly have excluded that evidence, the failure to allow the recall of McGray might be deemed harmless error.

We find that the trial court could not have properly excluded evidence of McGray's prior larceny conviction. Under M.R.Evid. 609(a) ³ evidence of a prior conviction involving dishonesty or false statement is admissible to attack a witness's credibility if the probative value of the evidence outweighs the prejudicial effect to the defendant. The crime of larceny involves dishonesty or false statement. State v. Charest, Me., 424 A.2d 718, 718-719 (1981); see State v. Gervais, Me., 394 A.2d 1183, 1186 (1978). In addition, the trial court could not have found that the probative value of the evidence did not outweigh the prejudicial effect to the defendant, because evidence which impeached the credibility of the complainant would not have prejudiced the defendant in any way. Therefore, it would have been error for the trial court to have excluded evidence of the conviction under Rule 609.

The State argues that the trial court could have excluded the conviction under M.R.Evid. 403. ⁴ Whether Rule 403 may be applied to exclude evidence of a prior conviction used to impeach a prosecution witness, or whether Rule 609 is the exclusive rule to be applied to such situations, is an open question. ⁵ Assuming, without deciding, that Rule 403 was applicable, then the trial court could properly have excluded evidence of the conviction only if the danger of unfair prejudice substantially outweighed its probative value. Prejudice, in this context, means an undue tendency to move the tribunal to decide on an improper basis. State v. Linnell, Me., 408 A.2d 693, 695 n....