STATE of Maine v. Demitrius GLOVER.
Supreme Judicial Court of Maine.
July 29, 1991
1086
Submitted on Briefs June 5, 1991.
The entry is:
Judgment affirmed.
All concurring.
III.
Roberto Gonzalez, a 29-year-old Portland resident, was one of the witnesses called by the State to relate defendant‘s admissions. Gonzalez testified that defendant had told him before the murder that the victim “probably will get killed” and admitted to him after the murder that he had killed the victim by putting poisoned cocaine in her beer. Gonzalez also testified that defendant told him that he had written in Spanish on the wall of the victim‘s apartment. When shown a picture of the writing, Gonzalez identified defendant‘s handwriting and gave a translation. During cross-examination, when defendant‘s counsel challenged the accuracy of the translation, Gonzalez lost his temper, accused defense counsel of trying to trick him, and refused to answer any more questions. At sidebar, defendant‘s counsel requested a mistrial. The presiding justice refused, but, with the assent of defendant‘s counsel, instructed the jury to disregard all of Gonzalez‘s testimony. Defendant neither objected to the instruction nor otherwise indicated that he was not satisfied with the court‘s disposition of the matter. But he argues here that the court‘s failure to declare a mistrial was obvious error. We disagree. The decision to declare a mistrial is left to the sound discretion of the trial court. See State v. Hilton, 431 A.2d 1296, 1302 (Me.1981). A curative instruction is adequate except “where there are exceptionally prejudicial circumstances or prosecutorial bad faith.” Id. In the case at bar there is no suggestion of any prosecutorial bad faith and defendant has failed to show that he was prejudiced at all by Gonzalez‘s outburst.
Janet Mills, Dist. Atty., Patricia Mador, Asst. Dist. Atty., Auburn, for plaintiff.
David Brandt, Dilworth, White & Brandt, Windham, for defendant.
Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD, COLLINS and BRODY, JJ.
BRODY, Justice.
Defendant Demitrius Glover appeals from his conviction entered in the Superior Court (Androscoggin County, Alexander, J.) after a jury found him guilty of attempted trafficking in cocaine, a violation of
On the evening of July 5, 1990, Glover and his girlfriend were walking in downtown Lewiston when Special Agent Cameron Campbell of the Bureau of Intergovernmental Drug Enforcement (BIDE) stopped his car alongside them. A conversation ensued between Glover and Campbell‘s passenger, and Campbell eventually asked Glover to obtain two $50 bags of cocaine for him. Glover consented, saying that they
On Glover‘s instructions, Campbell drove to a Park Street apartment building. After entering the building with his girlfriend, Glover returned to Campbell‘s car with two small, plastic bags of a white powder tucked under his tongue. Campbell took the bags and slipped them into the waistband of his pants. He later field-tested the contents and received a negative result. The powder was subsequently analyzed in a laboratory to reveal that it contained no drugs at all but only baking soda.
Glover was indicted for attempted trafficking in cocaine, a Class C offense, to which he pleaded not guilty. At his trial on December 11, 1990, the court denied his motion for a judgment of acquittal made at the close of the State‘s evidence. Glover then testified that he knew all along that the white powder in the bags was baking soda because he had put it there himself in order to “rip these guys off.” After the court denied his renewed motion for a judgment of acquittal, the jury found him guilty as charged.
On appeal, Glover first argues that the court erred in denying his motion for a judgment of acquittal made at the conclusion of the State‘s case. Specifically, he2
The only cognizable issue raised by Glover on appeal is whether the evidence as a whole was sufficient to support his conviction. “The standard to be applied to determine whether evidence is sufficient to support a jury‘s conviction is whether, based on that evidence viewed in the light most favorable to the prosecution, any trier of fact rationally could find beyond a reasonable doubt every element of the offense charged.” State v. Barry, 495 A.2d 825, 826 (Me.1985). In applying this standard, we recognize that the weight of the evidence and the determination of witness credibility are the exclusive province of the jury. State v. Lee, 583 A.2d 212, 214 (Me. 1990).
Special Agent Campbell testified that when he asked Glover if he could obtain two $50 bags of cocaine, “Glover said, ‘Yeah, sure. We have got to go for it.‘” Later, according to Campbell, when Glover and his girlfriend returned empty-handed from the Lincoln Street apartment building, “[Glover] said that the people he had gone to see didn‘t have any coke, that they were expecting some later, and that we would have to go someplace else.” Campbell also testified that Glover‘s technique of hiding the two small bags of white powder under his tongue is one often used by persons transporting cocaine because it allows them to speak somewhat coherently yet avoid detection of the drugs in a pat-down search.
Campbell described the bags and testified that they were identical in appearance and method of packaging to other bags of cocaine that he had seen as a result of more than 150 drug investigations. He further testified that, but for the fact that the white powder was baking soda, there was nothing in the transaction with Glover that was significantly different from other undercover purchases that Campbell had made in his eleven-plus years as a police officer and BIDE agent. Finally, Wayne Buck, the forensic chemist who conducted the laboratory analysis of the powder, testified that the appearance and weight of the bags was consistent with that of numerous bags that he had tested over a period of eleven years.
From this evidence, viewed in the light most favorable to the State, the jury could rationally have found beyond a reasonable doubt that Glover intended to sell or furnish cocaine for money and took a substantial step toward that end by selling or furnishing for money a substance that he believed to be cocaine. Despite Glover‘s contentions to the contrary, the jury was not compelled to believe his testimony that his only intent was to “rip off” Campbell by selling him baking soda, particularly when Glover already had possession of Campbell‘s $100 and had ample opportunity simply to run with it. Rather, the jury could easily have inferred that Glover himself was “ripped off” by the person from whom he made the purchase. A conviction based on circumstantial evidence is not for that reason less conclusive. State v. Lavigne, 588 A.2d 741, 744 (Me.1991).
The entry is:
Judgment affirmed.
McKUSICK, C.J., and WATHEN and CLIFFORD, JJ., concurring.
GLASSMAN, J., with whom ROBERTS and COLLINS, JJ., join, dissenting
I must respectfully dissent. Pursuant to the provisions of
WELLINGTON ASSOCIATES, INC. v. CAPITAL FIRE PROTECTION CO., INC.
Supreme Judicial Court of Maine.
Submitted on Briefs June 19, 1991. Decided July 29, 1991.