State v. Norwood, 97 A.3d 613

In summer 2012 MDEA surveillance of Norwood’s Ellsworth home noted frequent short visits; agents arrested occupants of a car leaving his house Aug. 27 and seized 26 oxycodone pills.
Two days later agents stopped Norwood, found 35 oxycodone pills on his person and a sword concealed in a cane; a warrant search of his home produced three more pills.
State charged Norwood with unlawful trafficking (Class B), unlawful possession (Class C), and carrying a concealed weapon (Class D).
At trial Norwood called Randy Archilles to impeach State witness Brandon Long; on advice of counsel Archilles refused to answer three questions and invoked the Fifth Amendment. The trial judge declined to independently probe the basis for the privilege claim in front of the jury.
The court admitted evidence of the Aug. 27 arrest and pills found on the other occupants as relevant to trafficking/intent to sell.
Jury convicted Norwood on all counts; on appeal he argued (1) the court abused its discretion by not independently determining the legitimacy of Archilles’s Fifth Amendment claim, and (2) the court erred in admitting the other occupants’ arrests/pills under M.R. Evid. 403. The court affirmed.

Issue	Plaintiff's Argument (Norwood)	Defendant's Argument (State)	Held
Whether trial court erred by declining to independently evaluate a witness’s assertion of the Fifth Amendment privilege	Norwood: court should have inquired (outside jury) whether Archilles reasonably feared self-incrimination and ruled on privilege rather than defer to counsel/witness	State: court may accept the witness’s assertion and counsel’s advice; any error was harmless because Long’s impeachment was already achieved	Court: Failure to independently evaluate was error but harmless beyond a reasonable doubt given prior impeachment of Long; conviction affirmed
Whether admission of evidence about the Aug. 27 arrests and seized oxycodone was unfairly prejudicial under M.R. Evid. 403	Norwood: evidence was prejudicial and its probative value did not substantially outweigh unfair prejudice	State: evidence was relevant to trafficking/intent to sell and the jury could reasonably infer connection to Norwood	Court: Evidence was relevant and probative and not unfairly prejudicial; admission was not an abuse of discretion

State v. Butsitsi, 60 A.3d 1254 (Me. 2013) (standards for reviewing invocation of Fifth Amendment by witness)
State v. Robbins, 318 A.2d 51 (Me. 1974) (court must evaluate witness’s privilege claim and may question outside jury)
Hoffman v. United States, 341 U.S. 479 (1951) (witness need not prove hazard; court decides whether silence justified)
State v. Vickers, 309 A.2d 324 (Me. 1973) (privilege protects disclosures that reasonably could lead to prosecution)
United States v. Castro, 129 F.3d 226 (1st Cir. 1997) (indirectly incriminating answers may invoke privilege)
State v. York, 705 A.2d 692 (Me. 1997) (harmless-error framework for constitutional error)
State v. Lipham, 910 A.2d 388 (Me. 2006) (Rule 403 abuse-of-discretion review)
State v. Forbes, 445 A.2d 8 (Me. 1982) (relevancy and probative value analysis for Rule 403)