Lead Opinion
Following a jury trial, the Superior Court (Penobscot County) convicted defendant James DeLong of four counts of incest, 17-A M.R.S.A. § 556 (1983), which he committed upon his minor daughter. On appeal defendant argues that the Superior Court erred 1) in admitting evidence of other sexual acts between him and the victim, 2) in keeping the jury deliberating until 12:40 a.m., thereby allegedly coercing the jury into a verdict, and 3) in allowing the prosecutor to disparage the defense in closing argument. Defendant also makes an assertion of insufficiency of the evidence in regard to both the Superior Court’s denial of his motion to suppress certain evidence and the jury’s verdict finding him guilty of the crimes as charged.
Over defendant’s objection, the presiding justice, after giving the jury a limiting instruction, permitted the victim to testify at trial to incestuous conduct of her father, defendant DeLong, beyond the four instances charged in the indictment. She testified that between her ages of 12 and 18 her father subjected her to a steady course of sexual intercourse, which occurred almost twice weekly. On appeal, defendant’s sole complaint as to the admission of this evidence is that the justice erred in applying the balancing test of M.R. Evid. 403. We do not agree. An appellate court on this record has no basis for declaring that the presiding justice exceeded the bounds of reasonable discretion in concluding that the probative value of the evidence of other criminal acts was not substantially outweighed by any danger of unfair prejudice.
This court has long recognized that evidence of prior or subsequent acts similar to the charged offense is admissible for any permissible purpose other than to prove the character of the defendant to show that he acted in conformity therewith. For more than a century our case law has declared that evidence of a defendant’s prior or subsequent sexual relations with a victim is admissible to show the relationship between the parties or the intent of the defendant. See, e.g., State v. Witham,
That long and unbroken line of precedents “is still valid today” under the Maine Rules of Evidence, which became effective on February 2, 1976. Pierce v. State,
On appeal defendant recognizes that Evidence Rule 404(b) does not bar the admission of the evidence of defendant’s course of incestuous conduct with his daughter. He founds his appellate argument exclusively upon Evidence Rule 403.
The presiding justice has broad discretion in ruling on the admissibility of evidence challenged as unfairly prejudicial; review of such rulings focuses on whether there was an abuse of discretion. State v. Heald, [393 A.2d 537 , 542 (Me.1978) ].
Defendant takes nothing on his first argument on appeal.
II. Alleged Jury Coercion
As his second issue on appeal defendant urges that the presiding justice coerced the jury into its verdict by keeping them deliberating beyond a reasonable hour and by then impatiently imposing a time limit. Since this issue is raised for the first time on appeal, we review for obvious error only. M.R.Crim.P. 52(b); State v. True,
The length of time a jury should be kept deliberating is a matter vested within the sound discretion of the trial justice. See State v. Hodgkins,
In the case at bar the jury began deliberations at 3:40 p.m. and did not reach a
THE COURT: ... It’s now 12:20 a.m., and, Mr. Foreman, if there are any problems with any juror who is — I’m concerned about jurors staying up too late, and I just want to make sure that you take full time for deliberations and that — but that you move forward with dispatch in view of the time. I’m concerned about the time, so that I would again — it’s an important case. It’s taken three days trial. It’s important. We hope that we can resolve the case, and you think that further deliberations would be beneficial, Mr. Foreman?
THE FOREMAN: I do.
On appeal defendant contends that the 9¥2 hours of deliberations created problems of exhaustion that caused the opinions of individual jurors to be overcome by the majority and that the judge’s statement “to move forward with dispatch in view of the time” further coerced an already weary jury into a decision.
We disagree. When viewed in the totality of the circumstances the presiding justice’s handling of the jury during its deliberations did not overstep the bounds of his allowable discretion. Although the jury was out for many hours, it acted alertly throughout the evening by requesting “readbacks” and further instructions. In addition, the foreman responded affirmatively on at least two occasions to the justice’s inquiries whether further deliberations would be useful. The fact that the jurors did not at the time appear too exhausted to reach a just verdict is further evidenced by the complete failure by defendant and his counsel, who were present on the occasions when the jury returned to the courtroom, to make any objection whatever to the. continued deliberations or to the justice’s additional instructions. Cf. State v. True,
Moreover, the justice’s remarks about “moving forward with dispatch,” viewed in context as they must be, do not appear coercive. Prior to his request that the jury move with dispatch, the justice expressed concern about juror fatigue and the necessity for jurors to take enough time for full deliberations. Further, in his remarks to the jury at approximately 10:05 p.m., the justice, while instructing the jury with a view towards encouraging agreement, also cautioned individual jurors not to relinquish their views for the sake of consensus. Looking at the totality of the circumstances, we can find no error at all in the way the presiding justice handled the jury that convicted defendant.
III. Allegedly Improper Closing Argument by the State
Defendant next contends that two remarks made by the prosecution in closing argument deprived him of a fair trial. The prosecution criticized the defense strategy to discredit the prosecutrix by calling two of her friends to testify, stating:
You heard from [name deleted], a .dear friend ... of the victim. She never knew anything about this incest. She does now. The victim’s friend has been brought into it.
Defendant seasonably objected to those comments and argues on appeal that those statements seriously prejudiced his case by implying that he had an improper motive for calling those witnesses. Because the alleged error was preserved by objection, we review defendant’s contention under the harmless error rule. M.R.Crim.P. 52(a). Although the prosecution’s remarks were impertinent, any error was harmless be
Defendant also complains, for the first time on appeal, of the following remarks by the prosecution:
Throughout this entire defense, ladies and gentlemen, you’re constantly saying, well, what kind of mother is Luella De-Long? Remember, she is not on trial, and what kind of a sister is Donna? Donna DeLong is not on trial. That man right over there is (indicating). They’re not focusing in on the issues of this case. They are trying to develop a smoke screen to divert your attention from the real issues when they suggest to you that Donna DeLong and Luella DeLong are at fault.
Because defendant failed to object at trial, we review defendant’s contention under the obvious error rule. M.R.Crim.P. 52(b). The record shows that the prosecutor appropriately used his closing argument to review the evidence and “present his analysis in summation with vigor and zeal” by “highlighting absurdities or discrepancies” in defendant’s case. State v. Smith,
IV. Sufficiency of the Miranda Warnings
Defendant contends that the Superior Court justice, who denied his motion to suppress all statements he had made to the police, was clearly in error in finding that the police had complied with the requirements of Miranda v. Arizona,
The Miranda case does not require that the specific final question be asked; it only requires, before a person is put under custodial interrogation, that he be fully informed of the rights delineated in Miranda and that he knowingly waive those rights. An explicit oral or written statement of waiver is not required. North Carolina v. Butler,
V. Sufficiency of the Evidence
Defendant finally contends that the evidence was insufficient for the jury to have found him guilty of the four counts of incest charged in the indictment. We
The entry is:
Judgments of conviction affirmed.
VIOLETTE, WATHEN, and SCOLNIK, JJ., concurring.
Notes
. M.R.Evid. 404(b) is identical to Fed.R.Evid. 404(b), with one exception. It omits the second sentence appearing in the federal rule, which reads: "It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” However, the advisers’ note to M.R.Evid. 404(b), citing prior Maine cases, declares that Rule 404(b) does not exclude evidence of other crimes, wrongs, or acts when offered "for another purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” the very same purposes expressly permitted by the federal rule. See M.R.Evid. 404(b) advisers’ note, reprinted in Field & Murray, Maine Evidence 67 (1976). The drafters of Maine Rules of Evidence presumably concluded that the omitted sentence adds nothing to the rule since it merely illustrates the other purposes for which the first sentence does not make the evidence of other crimes inadmissible.
. At no time did counsel for defendant, either at trial in the Superior Court or in his brief and oral argument presented to this court on appeal, see fit to raise any objection whatever to the limiting instructions given by the presiding justice. In those circumstances, any seeming inconsistency of a part of those limiting instructions with the provisions of M.R.Evid. 608(b) falls within "the familiar principle that points not preserved at trial or argued on appeal are considered waived.” State,v. Boilard,
Dissenting Opinion
with whom NICHOLS, Justice, joins, dissenting.
I respectfully dissent. The court’s limiting instruction concerning the admission of the testimony of the victim of other sexual acts of the defendant with the victim not encompassed by the indictment was manifest error. To ensure the basic integrity of the judicial process and the constitutional right of a defendant to a fundamentally fair trial, we notice an error that works substantial injustice even though, as here, it was not brought to the attention of the trial or appellate court. State v. Brunette,
The jury was instructed on three separate occasions as to the purpose for the admission of testimony concerning the defendant’s other sexual acts with the victim. Before the victim or the defendant testified, the trial court instructed the jury:
You may consider such testimony of such other sexual acts ... for the limited purpose of proving the relationship and mutual disposition of the parties as it may relate to opportunity or a course of conduct on the part of the Defendant and as it may bear on the credibility of the testimony of the witnesses in this case.
During the victim’s testimony, the court again instructed the jury:
I would again remind you of the instruction I gave you before concerning other acts of sexual activity ... other acts, if there is testimony concerning them, would be offered for the limited purpose as I indicated to you of showing opportunity, course of conduct, credibility of the witnesses, and the relationship of the parties; and those are limited purposes. ...
And, finally, at the conclusion of all the evidence, the trial court instructed:
Again, I would remind you of the instruction I gave you before. There has also been some testimony concerning other sexual acts, and that evidence was admitted before you for limited purposes, ... to show a course of conduct and the relationship of the parties and admitted as it relates to the credibility of the parties.
I do not dispute that evidence of other misconduct may be admissible when offered for purposes other than to prove a defendant’s character in order to show he acted in conformity therewith. See State v. Berry,
By not addressing the trial court’s improper instruction, the court impliedly finds that the clear violation of Rule 608 did not affect the jury’s verdict. I disagree. We have stated that such a limiting instruction as the trial court attempted to give here serves an important function in minimizing the prejudice to the defendant from the admission of evidence of prior misconduct. See State v. Wallace,
Here, the limiting instruction was given to the jury before any testimony was heard. Thus, even from the outset of the trial, the court unduly emphasized the testimony as it related to the credibility of the victim and the defendant. We recently held that such undue emphasis by the trial court impermissibly diminished the jury’s function of evaluating the credibility of the witnesses and thereby denied the defendant a fair trial. State v. Randall,
We must, therefore, assume that the jury did improperly consider evidence of the defendant’s prior sexual acts in evaluating the credibility of both the defendant and the victim. After reviewing all the circumstances of this trial, it is apparent, as recognized by the trial court, that credibility of the parties was a vital issue to be determined by the jury. As the trial justice noted in his final charge to the jury, one of the most important functions of a jury is to evaluate the credibility of the witnesses. See State v. Crocker,