State v. Weese
| Citation | 424 A.2d 705 |
| Parties | STATE of Maine v. David WEESE and Dwight Weese. |
| Decision Date | 21 January 1981 |
| Court | Supreme Judicial Court of Maine (US) |
David W. Crook, Dist. Atty., J. Michael Talbot (orally), Asst. Dist. Atty., Skowhegan, for plaintiff.
Burton G. Shiro (orally), Ronald L. Bishop, Lawrence T. Potter, Waterville, for defendants.
Before McKUSICK, C.J., and WERNICK, GODFREY, GLASSMAN, ROBERTS and CARTER, JJ.
David and Dwight Weese appeal from their convictions for night hunting in violation of 12 M.R.S.A. § 2455. 1 The two defendants, father and son, were found guilty after a consolidated trial by jury in Superior Court, Somerset County. At trial both defendants were represented by the same attorney. The defendants challenge their convictions on three grounds: first, that the judge improperly sustained the State's objection to certain questions regarding the defendants' intent; second, that the judge erred in declining to give defendants' requested instruction that "suspicion, no matter how strong, is not sufficient to sustain a conviction;" and third, that there was insufficient evidence to support defendants' convictions. We affirm the judgment against the father, David Weese. We vacate the judgment against the son, Dwight Weese, for reasons other than those asserted by the defendants.
At about 8:45 in the evening of September 17, 1979, two law enforcement officers were stationed behind a grove of pines off the Dolan Road in Solon, Maine. One officer was Dennis McIntosh, District Game Warden; the other was Sergeant Larry Cummings of the Maine Department of Inland Fisheries and Wildlife. The officers were staking out a field frequented by both deer and night hunters.
Soon an automobile moved slowly off the Dolan Road on an abandoned driveway which led through the field. The vehicle climbed a short rise, stopped, and turned so that its headlights swept the field. Then the automobile swung back to its original position, the headlights again sweeping the field. Finally the car backed slowly down the driveway and resumed traveling down the Dolan Road.
The erratic movements of the automobile caused McIntosh and Cummings to suspect that the vehicle contained night hunters searching for deer. The officers entered their patrol car and followed the suspected vehicle for a short distance without showing their headlights. When the officers activated the blue lights, the other automobile drove on for a few hundred feet and then stopped.
McIntosh and Cummings ran to the other vehicle and discovered four members of the David Weese family in it. In the front passenger's seat was defendant David Weese; at the wheel was Dwight Weese David's fourteen-year-old son. 2 Seated in the back were David's younger sons, Duane and Daniel. Warden McIntosh testified that when he asked David Weese what he was looking for in the field, David replied that he was just seeing if any deer were there but was not going to kill any. Lying next to David Weese in the automobile was a large caliber hunting rifle, with a mounted target scope. The chamber was open. Seeing the rifle, McIntosh arrested David Weese for night hunting. Upon searching the car in the immediate area of the front seat, Sergeant Cummings found a live rifle shell lying on the floor were David Weese's feet would have been.
On October 2, 1979, a complaint for night hunting was issued against David Weese, followed eight days later by another complaint against his son, Dwight. On April 30, 1980, five days before trial, on motion by the State, the trial justice ordered joinder of the two defendants for trial. The order of joinder recited that it had been issued after hearing, but the record is silent as to any argument of counsel concerning the propriety of joinder.
At trial, defendant David Weese declined to take the stand. The only testimony was that of the arresting officers, Dwight Weese, and his younger brothers, Duane and Daniel. The gist of the boys' testimony was that they were all driving to visit their uncle a few miles away when Dwight, who did not yet have a driver's license or learner's permit, persuaded his father to let him operate the car for a while; that they used the Dolan Road as a seldom-used route on which Dwight could safely practice driving; that they turned off Dolan Road on the driveway over the field but found it too rough to continue; and that, after backing out of the field, they had traveled slowly along Dolan Road because it was rough. While defense counsel was conducting a direct examination of Dwight Weese, the following interchange occurred:
BY (Defense Counsel):
Q. Well, when you went into, on this road, this Dolan Road, was there intent on your part to hunt?
After rephrasing his questions, defense counsel succeeded in eliciting testimony concerning the defendants' intent. Similar objections and rulings were made when Dwight's younger brothers testified.
The Weeses contend that defense counsel's questions were not leading because they did not suggest to the witness the desired response. Since those questions sought testimony concerning the defendants' intent a crucial issue in the case the defendants assert that the judge committed prejudicial error in sustaining the State's objections. In contrast, the State regards the questions as plainly encouraging an exculpatory answer. Even if the judge did commit error, the State argues, the error was harmless because defense counsel ultimately obtained the testimony he was seeking.
We agree with the State that the defendants sustained no prejudice from the court's rulings in this matter. By redirecting his inquiry, defense counsel ultimately enabled Dwight and his brothers to testify to the defendants' intent, and we cannot find that the defendants were harmed as a result of the fact that their testimony about the family's intent was evoked by a less direct line of questioning. However, the reasons stated by the trial court for upholding the State's objection may reflect some misapprehension about the nature of leading questions. Even though a question concerns a critical issue, it is not objectionably leading merely because it calls for the witness to respond with a simple "yes" or "no."
On direct examination of a friendly witness, a question is objectionably leading when it encourages the witness to adopt as his answer an assertion implicit in the question rather than to state the witness's own recollection. See Towle v. Aube, Me., 310 A.2d 259 (1973). 3 Every question is leading in the sense that it directs the witness's attention to a particular event or topic. An objectionably leading question not only solicits an answer concerning a specific topic but also suggests a desired specific answer in regard to that topic. It is not necessarily improper for counsel to ask his witness a detailed and pointed question that may be answered "yes" or "no." Objectionable leading occurs when the question suggests to the witness the answer that is desired, thereby diminishing the likelihood that the answer will be the truth. See generally R. Field & P. Murray, Maine Evidence § 611.3 at 155 (1976); 3 J. Wigmore, Evidence § 769 at 154-55 (Chadbourne Rev. 1970). 4
The particular form or phrasing of a question does not necessarily determine whether it is leading. A question may become leading if the interrogator's tone of voice, emphasis on certain words, or nonverbal conduct suggests the desired response. See R. Field & P. Murray, Maine Evidence § 611.3 (1976).
Here, in the context of the particular courtroom situation, it was within the range of the trial court's discretion to rule that the first question asked by defense counsel was impermissibly leading and to treat counsel's second formulation of the question, though not leading on its face, as tainted by the phrasing used by counsel immediately before in presenting the question in its first formulation. Our concern is with the specific ground given by the trial court for its ruling: namely, that the question called for a "yes" or "no" response and concerned a critical issue in the case. It cannot be said that the rulings themselves were erroneous in view of the wide discretion that the trial court has in making evidentiary rulings.
Next, the Weeses contend that the judge erred in refusing to instruct the jury, as part of his instruction on proof beyond a reasonable doubt, that "suspicion, no matter how strong, is not sufficient to sustain a conviction." Although the proposed instruction is a correct statement of the law, State v. Caliendo, 136 Me. 169, 175, 4 A.2d 837, 840 (1939), there was no error in declining to give it. A trial court is not required to give a requested jury...
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