State v. Whitman

• Citation: 429 A.2d 203
• Parties: STATE of Maine v. Richard WHITMAN.
• Decision Date: 04 May 1981
• Court: Maine Supreme Court

Page 203

429 A.2d 203

STATE of Maine v. Richard WHITMAN.

Supreme Judicial Court of Maine.

Argued March 12, 1981.

Decided May 4, 1981.

John R. Atwood (orally), Dist. Atty., Rockland, for plaintiff.

Strout, Payson, Pellicani, Cloutier, Hokkanen & Strong, Robert J. Levine, Rockland (orally), for defendant.

Before McKUSICK, C. J., and GODFREY, NICHOLS, GLASSMAN ^*, ROBERTS and CARTER, JJ.

CARTER, Justice.

Following a jury trial in Superior Court (Knox County), on July 15 and 16, 1980, the defendant was convicted of attempted murder, 17-A M.R.S.A. § 152 (Supp.1980). He was charged with intentionally or knowingly discharging a firearm against the person of Linda Post. On appeal, the defendant contends that errors occurred in the pretrial proceedings, the exclusion and admission of evidence at trial, and the jury instructions. We address two of these contentions and conclude that the conviction must be set aside.

The evidence at trial showed that Linda Post and the defendant had lived together intermittently for several years until they separated permanently in March 1979. According to Post's testimony, the defendant came to her home and awakened her on the evening of June 14, 1979, threatened her, and shot her with a pistol as she ran towards a neighbor's house. She was taken to the hospital and treated for injuries, including bullet wounds. The defendant testified at trial and denied committing the offense, stating that he had spent the evening with friends. The defendant did not call any witnesses to corroborate his alibi.

I.

At trial, Linda Post was the state's principal witness against the defendant. We conclude that the trial court erred by excluding evidence about a civil suit commenced by Post against the defendant, in which she claimed damages arising out of the facts of the alleged crime.

During defense counsel's cross-examination of Linda Post, the court sustained the state's objection to the following question:

Isn't it true that in the summer of 1979 you had your lawyer send a letter to Richard Whitman saying that if he didn't give you a sum of money that you were going to bring suit against him?

The defendant did not at that point make any offer of proof concerning the nature of the threatened litigation.

In the defendant's own direct examination, the court again sustained the state's objection to the question: "Has a law suit been served upon you?" The defendant then made the following offer of proof:

I would like to make an offer of proof that on July 15th, 1980, Richard Whitman was served with a complaint, a civil complaint for intentional infliction of personal injuries against Linda Post, arising out of the same alleged facts and circumstances in this case, from the situation dated June 14th, 1979. She is suing him for $12,000.

The court sustained the state's objection, stating:

(The action was brought) a year subsequent to the purported report to the police, and I don't see that it would have anything to do with impeachment, and I think there is the danger of a prejudicial effect that would outweigh the probative value ....

The court's ruling therefore included both a determination that the evidence was not relevant, M.R.Evid. 401, and a determination that its probative value was substantially outweighed by the danger of unfair prejudice, M.R.Evid. 403.

The court apparently concluded that the civil suit was irrelevant because it was commenced after Post's report to the police and therefore would not have given her a motive for lying to the police. The suit could, however, have given Post a reason to falsify or exaggerate in her testimony at trial. A pending civil suit, or even a contemplated suit, arising out of the same incident that gave rise to the criminal charges is almost always relevant to the credibility of a prosecuting witness because it gives her a financial interest in the outcome of the criminal prosecution. Such evidence has great probative value because it shows that the state's prosecuting witness "may have been actuated by personal considerations instead of altruistic interest generated solely from motives in the public interest to bring a criminal to justice." State v. Doughty, Me., 399 A.2d 1319, 1324 (1979).

Although the defendant made no specific offer of proof during his cross-examination of Post, he was entitled to introduce the evidence through his own testimony. Evidence of a witness's bias and personal interest is not limited to cross-examination and no preliminary foundation is necessary. Id. at 1324.

The state argues, citing State v. Dodge, Me., 397 A.2d 588 (1979), that the court's ruling was proper because the defendant did not offer into evidence the complaint Post had served against him. Our decision in Dodge created no such requirement. In Dodge the defendant apparently sought to impeach the prosecuting witness by showing that his testimony at the criminal trial contradicted allegations in his civil complaint and his answers to interrogatories. On appeal, we noted that since the defendant had not provided the Law Court with a copy of the complaint or interrogatories, it was difficult to review the trial court's exclusion of testimony about the civil action. In the case before us, the excluded evidence was simply the fact that Post had commenced a civil suit based on the events giving rise to the criminal prosecution, and there is no reason to require that the actual pleadings be entered into evidence or included in the record on appeal.

Although the fact of Post's civil suit was clearly relevant to her credibility, its admission into evidence was still subject to the court's discretion under M.R.Evid. 403. We are satisfied, however, the the defendant has met his burden of demonstrating that the trial court abused that discretion. See State v. Poland, Me., 426 A.2d 896, 900 (1981). Since Linda Post was the state's principal witness, evidence tending to impeach her credibility had greatly enhanced probative value. Id. We do not see how this highly probative value could be "substantially outweighed" by the factors on the other side of the Rule 403 balance: "the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." The defendant was not proposing a digression into an unrelated matter that might confuse or mislead the jury or prejudice the public interest in getting at the truth of the events in question. Id. at 898.

The state argues that the evidence was properly excluded because testimony from both Post and the defendant had already produced ample evidence of the hostility and antagonism between them, so that further evidence would be merely cumulative and time-wasting. See State v. DiPietro, Me., 420 A.2d 1233, 1235 (1980). None of the other evidence, however, showed that Post had a specific, independent financial interest in the outcome of the prosecution. Even beyond the personal animosity that would make Post's interests adverse to those of the defendant, her civil damage suit gave her an additional pecuniary motivation for bias against the defendant and hostility to his case.

We are unable to say that the defendant was not prejudiced by the court's ruling. Linda Post's credibility was a critical element in the state's case against the defendant. The potential for prejudice to the defendant was overwhelming in light of remarks made in the prosecutor's closing argument to the jury. Since the jury had received no evidence about a pending or contemplated civil suit, the prosecutor was able to argue Post's lack of any financial interest in order to support her credibility:

(A)ll you heard was that there was animosity between them.... To leap from animosity to prejudice is asking the jury to do the same thing that I hope you're not going to do, by assuming answers to questions that you never heard any testimony about at all.

(Y)ou're supposed to assume that because she has these two wounds, and that she was in the hospital for a day and half or two days, that she has a financial interest in what we are doing here. Well, the name of this case is not Linda Post versus Richard Whitman; the name of this case is State of Maine versus Richard Whitman, and no matter what happens here, no matter what your verdict is, it being guilty, not one penny inures, goes to Linda Post.

(Defense counsel) would say that the only person that had anything to gain by stating something other than the truth on the witness stand is Linda Post, and yet no matter what you do today, it will have no consequence to her at all, whatsoever, none.

This argument did great injustice to the defendant. The defendant was entitled to have the jury hear that there was a suit entitled "Linda Post versus Richard Whitman." In light of that suit, the argument that Post would receive no benefit from a guilty verdict was very misleading. Evidence of a final judgment of conviction may be admissible in Post's civil suit in which she claimed substantial money damages. See M.R.Evid. 803(22); R. Field and P. Murray, Maine Evidence, § 803.22 (1970). But cf. Lipman Brothers, Inc. v. Hartford Accident & Indemnity Co., 149 Me. 199, 100 A.2d 246 (1953) (stating traditional rule that judgment of conviction is not admissible in civil proceeding). Also, a criminal conviction could very well increase Post's chances of obtaining a settlement of her suit for personal injuries and medical expenses. Therefore, the exclusion of evidence about the civil suit, together with the prosecutor's argument exploiting that exclusion, resulted in prejudicial error and entitles the defendant to a new trial.

II.

The defendant contends that the trial court also erred by permitting prosecutorial comment on the defendant's failure to call his alibi witness and by instructing the jury on the permissible inference to be drawn from that failure.

In response to the state's demand for notice of alibi,...