State v. Willoughby

• Decision Date: 09 April 1986
• Citation: 507 A.2d 1060
• Parties: STATE of Maine v. Philip WILLOUGHBY.
• Court: Maine Supreme Court

Page 1060

507 A.2d 1060

STATE of Maine v. Philip WILLOUGHBY.

Supreme Judicial Court of Maine.

Argued March 3, 1986.

Decided April 9, 1986.

James E. Tierney, Atty. Gen., Wayne S. Moss (orally), Charles K. Leadbetter, Asst. Attys. Gen., Augusta, for plaintiff.

Bourget & Bourget, Ronald W. Bourget (orally), Augusta, Paul D. Mathews, Gardiner, for defendant.

Before NICHOLS, ROBERTS, VIOLETTE, WATHEN, GLASSMAN and SCOLNIK, JJ.

SCOLNIK, Justice.

The defendant, Philip Willoughby, appeals from a judgment entered on a jury verdict in the Superior Court (Kennebec County) convicting him of murder, 17-A M.R.S.A. § 201(1)(A) (1983), kidnapping (Class A), 17-A M.R.S.A. § 301(1)(A)(5) (1983), robbery (Class A), 17-A M.R.S.A. § 651(1)(C) (1983), and aggravated assault (Class B), 17-A M.R.S.A. § 208(1)(B) (1983). On appeal, he contends that 1) the trial justice erred in excluding certain expert testimony; 2) his right to a speedy trial was denied; 3) the motion justice erred in quashing a subpoena ad testificandum; 4) the prosecutor misrepresented the testimony of a potential witness; and 5) the trial justice erred in admitting David Willoughby's allegedly perjured testimony. We affirm the judgment.

On December 3, 1983, Paula Roberts was kidnapped from the Summer Haven Ice Cream, Inc. shop in Augusta and was subsequently found dead. On January 26, 1984, Philip and his step-brother David Willoughby were indicted for her murder and kidnapping, the robbery of Summer Haven Ice Cream, and aggravated assault on a store customer. After Philip appeared and entered a plea of not guilty, he was committed to Kennebec County Jail because of his inability to furnish bail.

On February 3, 1984, Philip Willoughby, pursuant to Rule 14 of the Maine Rules of Criminal Procedure, filed a motion, later granted, for a separate trial from that of co-defendant David Willoughby. On February 22, the defense requested an extension of time for filing pretrial motions. The court then ordered that such motions be filed by April 2. The defendant filed a number of pretrial motions including those to dismiss various counts of the indictment, requests for funds for expert witnesses and a private investigator and for extension of time for filing motions regarding laboratory tests. On June 28, the court ordered that the trial of David Willoughby commence on October 1, 1984 and that Philip Willoughby be tried on November 5, 1984.

The trial of David Willoughby began on October 3. On October 11, the jury returned a verdict of not guilty on all counts. After David's acquittal, a different assistant attorney general was named as chief prosecutor for Philip's trial. Philip served a subpoena ad testificandum upon the prosecutor in David's trial for the purpose of obtaining at Philip's trial the prosecutor's testimony regarding certain statements he had allegedly made about David. After hearing on November 1, the court granted the State's motion to quash the subpoena.

On November 5, jury selection commenced in the trial of Philip Willoughby. On November 7, before the jury was sworn, the court, over defendant's objection, held a hearing on motions filed by Robert Willoughby (Philip's step-father), Rita Willoughby (Philip's mother), and Stacie Willoughby (Philip's sister), to quash trial subpoenas and to dismiss a material witness complaint, or alternatively, for a protective order. Upon questioning, Robert, Rita and Stacie Willoughby asserted that a family privilege precluded them from furnishing testimony that was adverse to Philip. The court denied the motions, finding no basis in Maine law for a family privilege and held Robert, Rita and Stacie in contempt of court for failure to testify to matters that were not "communications" when so directed by the court, and ordered each witness jailed pending the outcome of the trial. That same day, Robert, Rita and Stacie filed notices of appeal to the Law Court. On November 8, the court granted the State's motion to continue the trial pending disposition of the appeal. That motion alleged that the three Willoughbys were "material and essential witnesses to the State's case." The defendant then filed a motion to dismiss on the ground that he was denied a speedy trial.

On February 25, 1985, we vacated the contempt commitments of Robert, Rita and Stacie Willoughby and dismissed their appeals. In re Willoughby, 487 A.2d 636 (Me.1985). On March 1, the court granted the defendant's motion for the appointment at state expense of a psychologist to examine the defendant. Thereafter, Dr. Brian Rines conducted an examination of Philip. During the month of March, the defendant filed several motions, including those for additional funds for a private investigator and a motion in limine to exclude the testimony of David Willoughby.

Jury selection for the trial commenced April 1. That same day, the State moved in limine to exclude the testimony of Dr. Brian Rines. The motion was granted on April 3 following an offer of proof. At a hearing in chambers on April 2, the parties discussed the defendant's motion in limine to exclude David Willoughby's testimony. The prosecutor stated that he was aware of evidence that would impeach David's testimony in three areas. The next day the court ruled preliminarily that David's testimony would be excluded. On April 4, as a result of the testimony elicited in voir dire examination of David and witnesses presented by the defense at a hearing held in the absence of the jury, the court reversed its preliminary ruling and allowed David Willoughby to testify. On April 13, the jury returned a verdict of guilty on all four counts. This appeal followed.

I. Exclusion of Dr. Rines' Testimony

The defendant contends that the justice who heard the in limine motion erred in excluding as inadmissible character evidence the testimony proffered by clinical psychologist, Dr. Brian Rines, about the defendant's tendency to "puff up" or exaggerate his participation in the crimes involving Paula Roberts. The issue arises because the defendant, while incarcerated prior to his trial, made to his fellow inmates several incriminating statements that were received in evidence. We agree that the presiding justice erred in excluding the expert medical testimony as character evidence offered to impeach the validity of extra-judicial statements of the defendant but conclude that the defendant was not thereby prejudiced.

The defendant's offer of proof elicited from Dr. Rines his diagnosis that the defendant had a classifiable personality disorder. In Dr. Rines' opinion, Philip made statements describing sexual abuse of the corpse in order to exaggerate the importance of his involvement in these crimes and to "puff up" or enhance his or others' views of him.

Relying upon State v. Arnold, 421 A.2d 932 (Me.1980), the trial justice excluded Dr. Rines' expert opinion as "psychological testimony offered to impeach the truthfulness" of the defendant. However, a comparison of the nature of the proffered testimony in Arnold with that in the case before us reveals that this reliance was misplaced. In Arnold, the psychologist sought to testify solely about the defendant's character for truthfulness. We held there that because the evidence proffered by the defendant was not "reputation" evidence of his character for truthfulness, it was inadmissible under Rule 405(a) of the Maine Rules of Evidence, which provides the exclusive method of proving a trait of character. ¹

Here, the proffered testimony was not merely "a generalized description of [the defendant's] disposition in respect to a general trait, such as honesty," State v. Conlogue, 474 A.2d 167, 172 (Me.1984) (quoting Field & Murray, Maine Evidence, § 406.1, at 75 (1976)), but was medical testimony concerning a "puffing syndrome," which, like the expert testimony of the battered child syndrome in Conlogue, "cannot fairly be called 'character evidence' within the meaning of the rule." State v. Conlogue, 474 A.2d at 172; cf. State v. Anaya, 438 A.2d 892 (Me.1981) (battered wife syndrome). ² Just as a description of the battered child syndrome would have allowed the jury in Conlogue to weigh the credibility of a witness's confession and subsequent retraction, so would a description of the puffing syndrome related to Philip's personality disorder have allowed the jury here to assess the credibility of his incriminating declarations to fellow jail inmates. The defendant has " 'wide latitude' to present all evidence relevant to his defense, unhampered by piecemeal rulings on evidence.' " State v. Conlogue, 474 A.2d at 172 (citation omitted). Philip was therefore entitled to show the "[c]ircumstances tending to lessen the probative effect" of his admissions. Field & Murray § 801.5, at 193. Accordingly, Dr. Rines' testimony should have been admitted.

Although the justice erred in excluding this testimony, we conclude that such error was harmless. M.R.Crim.P. 52(a). We are persuaded that on this record, exclusion of the expert testimony made no difference to the end result of the trial. See State v. Reeves, 499 A.2d 130, 137 (Me.1985); State v. Rytky, 476 A.2d 1152, 1155 (Me.1984) (refusal to admit evidence of victim's reputation in community for truth, though error, was harmless when it was highly improbable error affected judgment in the case); State v. True, 438 A.2d 460, 467 (Me.1981).

It is undisputed that the statements made by the defendant to the inmates were incriminating. However, at least five of the inmates who testified at trial agreed that there is a "pecking order" in jail that leads the inmates to "puff up," brag or make untrue statements about their crimes to impress the "tough guys" or the "bosses." Moreover, some of the inmates testified about the different and at times inconsistent stories Philip told. Philip Willoughby himself testified about the "pecking order" that "goes by crimes." He said he tried to get into the "little cliques" by bragging about...