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State v. Donald Miller
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 182
Docket:	Han-99-138
Argued:	October 6, 1999
Decided:	December 8, 1999




	[¶1]  Donald J. Miller appeals from a judgment of conviction entered
in the Superior Court (Hancock County, Hjelm, J.) following a jury trial in
which he was found guilty of four counts of negotiating worthless
instruments and two counts of theft by deception.{1}  Miller contends that the
trial court made evidentiary errors and that the evidence was insufficient to
sustain the verdict.  We conclude that the evidence was sufficient to sustain
the verdict, and address only his argument regarding the admission of lay
opinion testimony regarding the identity of a person in a surveillance
photograph.  We affirm the judgment.
	[¶2]  On September 27, 1991, a person calling himself Robert John
Stephens opened two checking accounts in separate banks in Ellsworth, one
at Union Trust Company and the other at Bar Harbor Banking & Trust
Company, both in the name of Acadia Antiques.  On a single day in
November, Stephens deposited a number of checks in each of the Ellsworth
accounts.  The following day, Stephens withdrew cash totalling $24,845
from the accounts by cashing six checks, three at each bank.  On
November 29, 1991, all six checks were returned for insufficient funds.  By
that time, the banks were unable to locate Stephens.
	[¶3]  Stephens had been photographed cashing the checks by a
surveillance camera at Union Trust on November 22, 1991.  Shortly after
the crimes were committed, Harold K. Page of the Ellsworth Police
Department obtained an image of Stephens from the Union Trust camera
and showed it to Marlene Lloyd, an employee of Bar Harbor Banking & Trust. 
Lloyd identified the man in the picture as being the same Robert John
Stephens who had opened the Acadia Antiques account at Bar Harbor
Banking & Trust in September of 1991.
	[¶4]  Several years later, Donald L. Miller, then living in New York, 
became the focus of the investigation into the thefts.{2}  Lloyd was shown a
photo array and identified a 1993 photo of Miller as depicting the same man
who had opened the account in September of 1991.  Miller was eventually
arrested and indicted on four counts of negotiating a worthless instrument
in violation of 17-A M.R.S.A. § 708 (1983 & Supp. 1998) and two counts of
theft by deception in violation of 17-A M.R.S.A. § 354 (1983), all related to
the activities in Ellsworth.  At the ensuing jury trial, Miller did not dispute
that the crimes had been committed.  Moreover, through counsel, he agreed
that the 1993 photo shown to Lloyd was a picture of him.
	[¶5]  The only real issue for the jury was the identification of the man
who held himself out to be Robert John Stephens.  The State presented
three witnesses who identified Miller as the person in the surveillance
photos.  Those witnesses were Lloyd and two New York police detectives,
Anthony Zacarese and William Aylward.  Lloyd identified the surveillance
photos as depicting the man she knew as Robert John Stephens and
identified the 1993 photo of Miller as being the same person.{3}  Among other
things, the detectives testified that, in their opinions, Miller was the man in
the Union Trust surveillance photo.  Miller was convicted on all counts and
filed this appeal.
	[¶6]  Miller contends that the trial court erred when it allowed
Detectives Zacarese and Aylward to give their lay opinions that Miller was
the man pictured in the Union Trust surveillance photograph.  Because the
detectives did not meet Miller until several years after the crime was
committed-and the surveillance photos were taken-Miller argues that they
were in no better position to identify him as the Robert John Stephens
pictured in the photos than was the jury.  Miller did not object at trial to the
admission of the witnesses' opinions.  We therefore review the admission of
their testimony for obvious error affecting Miller's substantial rights.{4}
	[¶7]  The question presented may be framed as follows:  may a lay
witness who is a law enforcement official give an opinion regarding the
identity of a person in a photograph if that witness was not present at the
taking of the photograph?  The question requires an analysis under Maine
Rules of Evidence 701 and 403.{5}  Although we have not as yet addressed this
issue, a number of federal courts and a few state courts have ruled on similar
facts that admission of such testimony is proper if certain conditions are
A.  Application of Rule 701

	[¶8]  Before reaching the question of possible prejudice that may
occur when the witness is a law enforcement official, we address the basic
question of the admissibility of lay opinion testimony on photographic
identifications.  We recently addressed the subject of nonexpert opinion in
Chrysler Credit Corp. v. Bert Cote's L/A Auto Sales, Inc., 1998 ME 53, 707
A.2d 1311:
Pursuant to M.R. Evid. 701, if a witness is not testifying as an
expert, his testimony in the form of opinions or inferences is
limited to those which are rationally based on the perception of
the witness and which are helpful to a clear understanding of his
testimony or the determination of a fact in issue.  Thus, although
an opinion by a lay witness may be permissible if based on his
own perception, such perception must be "adequately grounded
on personal knowledge or observation just as would be the case
with simple statements of fact."
Id. ¶ 21, 707 A.2d at 1317 (quoting Field & Murray, Maine Evidence
§ 701.1 (4th ed. 1997)).  
	[¶9]  As with any other opinion by a lay witness, testimony regarding
the identity of a person depicted in a photograph must be relevant,
rationally based on the witness's own observations, and helpful to the jury. 
See M.R. Evid. 701.  These elements will be present when "the witness
possesses sufficiently relevant familiarity with the defendant that the jury
cannot also possess, and when the photographs are not either so
unmistakably clear or so hopelessly obscure that the witness is no better-
suited than the jury to make the identification."  United States v. Jackman,
48 F.3d 1, 4-5 (1st Cir. 1995) (citing United States v. Farnsworth, 729 F.2d
1158, 1160 (8th Cir. 1984)).  Although it is not fatal to the admission of the
testimony that the witness did not meet the defendant until sometime after
the photographs were taken, the admission of a lay witness's opinion
regarding the identity of the person in the photo may be "particularly
appropriate when the witness was familiar with the defendant at the time of
the crime and the defendant's appearance has changed by the time of trial." 
United States v. Towns, 913 F.2d 434, 445 (7th Cir. 1990).{7}  The change in
appearance need not be significant.  See id. (citing United States v. Jackson,
688 F.2d 1121 (7th Cir. 1982)). 
	[¶10]  Of paramount importance in determining whether the witness's
opinion will be helpful to the factfinder is the witness's opportunity to
observe the defendant in different settings, in different lighting, and under
different circumstances than the jury, in such a way that the witness's
scrutiny of the photograph at issue and comparison to the witness's
knowledge of the defendant's appearance will bring more to the jury's
assessment of the facts than they could glean from observation of the
defendant in the courtroom.  Such testimony will be more helpful to the jury
when the "witness has had substantial and sustained contact with the
person in the photograph" or when "the defendant's appearance in the
photograph is different from his appearance before the jury and the witness
is familiar with the defendant as he appears in the photograph."  United
States v. LaPierre, 998 F.2d 1460, 1465 (9th Cir. 1993).
	[¶11]  Here, Detective Zacarese testified that he had known Miller for
"coming up on two and a half to three years now," and that he had been in
Miller's presence for as many as seven hours over that time.  Detective
Aylward had known Miller long enough to recognize a photo of a "younger
version" of Miller.  By the time of trial Miller appeared heavier and his hair
was white, in contrast to an undisputed photo of Miller, taken in 1993, two
years after the events at issue, in which his hair was much darker.  Each
detective identified Miller as the defendant at trial and identified him as the
person depicted in both the 1993 photo recognized by the customer
services representative and the 1991 surveillance photos.  On these facts,
we cannot say that it was obvious error for the court to admit the opinions of
lay witnesses.

B.  Application of Rule 403

	[¶12]  We turn then to the possible prejudice to Miller created by the
fact that the witnesses offering the "lay" opinions were known to the jury to
be law enforcement officials, specifically, detectives from the Nassau County
Police Department in New York.{8}  Prejudice means more than merely
testimony that is damaging.  "'A party's case is always damaged by evidence
that the facts are contrary to his contentions; but that cannot be ground for
exclusion.  What is meant here is an undue tendency to move the tribunal to
decide on an improper basis, commonly, though not always, an emotional
one.'"  State v. Hurd, 360 A.2d 525, 527 n.5 (Me. 1976) (quoting Edward W.
Cleary, ed., McCormick's Handbook on the Law of Evidence 439 n.31 (2d ed.
	[¶13]  When the witness offering lay opinion testimony regarding a
photograph is a member of law enforcement, the trial court should carefully
review the possibility that the prejudice to the defendant may outweigh the
probative value of the opinion.  See M.R. Evid. 403.{9}  That prejudice may
come in the form of extraneous information regarding the defendant's
criminal history or may arise simply as a result of improper inferences the
jury may draw from the identification of the witness as a member of the law
enforcement community.  However, when the law enforcement witness will
also testify to other facts that require the jury to understand the witness's
occupation and the context of those facts, that context may reduce the
likelihood that the jury will speculate or draw improper inferences from the
identification of the witness as a law enforcement official.{10}  To the extent
that the jury does not need the specific context of the witness's knowledge,
it may be appropriate to exclude all evidence of the employment of the
witness.{11}  When that evidence is necessary for context, the court may
reduce the possibility of prejudice by restricting the State's inquiry in order
to avoid the inadvertent admission of other inadmissible information
regarding the defendant's contacts with law enforcement.{12}  Each such
decision is left to the sound discretion of the trial court.
	[¶14]  Here, the court did, in fact, restrict the State's inquiry. 
Because of a dispute regarding the applicability of Rule 404(b) to parts of the
detectives' proposed testimony, the court held a voir dire of each
detective.{13}  During the voir dire, Detective Zacarese testified that he came
to know Miller in the context of his own investigations into check cashing
crimes.  Detective Aylward testified that he had met Miller when Miller
came forward with information about possible murder plots regarding a New
York judge and a young woman.  Miller had hoped that his cooperation in
providing the information would eliminate or reduce charges pending
against him, including the charges pending in Maine.  In the course of
discussing the information with Miller, Aylward asked Miller where he could
be located after his release from incarceration in New York.  Miller
indicated that he might not be immediately released because he was wanted
in Maine.  He also indicated that he had lived in Augusta, Maine, with a
girlfriend at some undisclosed time.
	[¶15]  Following voir dire, the court appropriately limited the State's
inquiry into the circumstances of the detectives' meeting with Miller,
precluding the detectives from mentioning any hoped-for deals with the FBI
as well as any reference to other crimes or investigations of Miller's
activities in other states.  The court, however, found that Miller's statements
regarding his prior residence in Maine were relevant and admissible.{14}
	[¶16]  At trial, Zacarese was asked if he knew "a person by the name
of Donald Miller."  In compliance with the court's rulings, Zacarese did not
identify the nature of his relationship with Miller or disclose any prior
convictions.  Similarly, Aylward was simply asked if he knew Miller.{15} 
Although the court did not restrict Miller's counsel from inquiring about the
more benign contacts with the New York police related to Miller's
cooperation in an investigation not related to any crime alleged to have been
committed by Miller, Miller's counsel preferred to "sanitize" the references
to law enforcement contact as much as possible.
	[¶17]  By restricting the testimony of the detectives, the court limited
the possible prejudice to Miller.  We cannot find on this record that the
possible prejudice outweighed the probative value of the opinions.  In sum,
because the detectives' knowledge of Miller's appearance could reasonably
be found by the court to be helpful to the jury, and because the detectives'
testimony did not include information regarding other criminal
investigations of Miller or his criminal history, the admission of their
opinions was neither an abuse of discretion nor was it so highly prejudicial
as to virtually deprive Miller of a fair trial.  See Pelletier, 673 A.2d at 1330.
	The entry is:
Judgment affirmed.

Attorneys for State: James Billings, Law Student (orally) Michael E. Povich, District Attorney P O Box 722 Ellsworth, ME 04605 Attorney for defendant: Spencer Ervin, Esq., (orally) P O Box 383 Bass Harbor, ME 04653
FOOTNOTES******************************** {1} . Miller and the State entered into an agreement after trial, pursuant to which Miller withdrew his motions for acquittal and for a new trial and the State agreed not to seek any unsuspended jail time beyond that served by Miller while he was awaiting trial. On agreement of the parties, the court then sentenced Miller to three years on each count to be served concurrently, with all but time served of 194 days suspended, plus restitution of $24,845 and four years probation. {2} . Miller had a history of similar crimes in a multi-state area. {3} . By the time of trial, Lloyd could not identify Miller in the courtroom. {4} . When a defendant does not object to the admission of testimony, we review the admission for obvious error. See State v. Pelletier, 673 A.2d 1327, 1330 (Me. 1996). To vacate for obvious error, the error must be "so highly prejudicial and so taint[] the proceedings as virtually to deprive the defendant of a fair trial." Id. See also State v. Weisbrode, 653 A.2d 411, 415 (Me. 1995); State v. Magoon, 649 A.2d 1115, 1117 (Me. 1994); State v. True, 438 A.2d 460, 468 (Me. 1981); M.R. Crim. P. 52(b); M.R. Evid. 103(d). {5} . The rules provide as follows: RULE 701. OPINION TESTIMONY BY LAY WITNESSES If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue. M.R. Evid. 701. RULE 403. EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION, OR WASTE OF TIME Although relevant, evidence may be excluded if its probative value is substantially outweighed by 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. M.R. Evid. 403. {6} . When applying the Maine Rules of Evidence, we may look to cases applying the Federal Rules of Evidence. See State v. Wells, 443 A.2d 60, 63 (Me. 1982). Federal courts have addressed the question in a number of instances. See, e.g., United States v. Cobleigh, 75 F.3d 242, 249 (6th Cir. 1996) (construing the Federal Rules of Evidence); United States v. Jackman, 48 F.3d 1, 4-5 (1st Cir. 1995) (same); United States v. Maddox, 944 F.2d 1223, 1230-31 (6th Cir. 1991) (same); United States v. Stormer, 938 F.2d 759, 761-64 (7th Cir. 1991) (same); United States v. Towns, 913 F.2d 434, 445 (7th Cir. 1990) (same); United States v. Farnsworth, 729 F.2d 1158, 1160-61 (8th Cir. 1984) (same); United States v. Henderson, 68 F.3d 323, 325-27 (9th Cir. 1995) (same); Gibson v. State, 709 N.E.2d 11, 15 (Ind. Ct. App. 1999) (construing Indiana Rules of Evidence); Commonwealth v. Gagnon, 449 N.E.2d 686, 696 (Mass. App. Ct. 1983) (construing Massachusetts Rules of Evidence), rev'd on other grounds sub nom. Commonwealth v. Bourgeois, 465 N.E.2d 1180 (Mass. 1984); Rossana v. State, 934 P.2d 1045, 1048-49 (Nev. 1997) (per curiam) (construing Nevada Rules of Evidence). {7} . The few state courts that have addressed the "helpfulness" issue have ruled similarly. In Rossana, the Supreme Court of Nevada adopted federal jurisprudence and held that it was not an abuse of discretion to admit the lay opinion testimony of witnesses who knew the defendant at the time of the crime and where the defendant's appearance had since changed. See Rossana, 934 P.2d at 1048-49. In Gibson, the Court of Appeals of Indiana adopted the reasoning of the Seventh Circuit and allowed the lay opinion testimony of a police officer who had known the defendant since childhood. See Gibson, 709 N.E.2d at 15. The Massachusetts Appeals Court, in Gagnon, allowed a Canadian police officer who had known the defendants at the time of the crime to identify them in a surveillance photograph, where the defendants had since grown beards and changed hairstyles. See Gagnon, 449 N.E.2d at 127-28. {8} . Although the defendant did not challenge the admission of the detectives' opinions, he did ask that the court exclude or limit references to their occupations. We therefore review the admission of evidence regarding their occupations for abuse of discretion. See State v. Smith, 675 A.2d 93, 98 (Me. 1996). {9} . See United States v. Pierce, 136 F.3d 770, 775-76 (11th Cir. 1998); United States v. Henderson, 68 F.3d at 327; United States v. Butcher, 557 F.2d 666, 669-70 (9th Cir. 1977). {10} . Compare, e.g., Maddox, 944 F.2d at 1231 (holding it was proper to allow police officer to give lay opinion testimony as to identity of defendant when officer was involved in the raid by which defendant had been arrested) with United States v. Calhoun, 544 F.2d 291, 294-95 (6th Cir. 1976) (holding that lay opinion testimony by defendant's parole officer, where officer was called exclusively to identify defendant, was improper). {11} . See, e.g., United States v. Allen, 787 F.2d 933, 937 (4th Cir. 1986) (finding no error where there was no evidence from which the jury could infer that the witness was a law enforcement officer), rev'd on other grounds, 479 U.S. 1077 (1987). {12} . See Maddox, 944 F.2d at 1230-31 (finding that cross-examination of the lay opinion witness, a police officer, could be had without danger of introducing inadmissible matters prejudicial to the defendant); Cobleigh, 75 F.3d at 249 (same). {13} . The court ultimately determined that the pattern of other check cashing crimes committed by Miller, although possibly demonstrating a "signature-like similarity," citing State v. Joubert, 603 A.2d 861 (Me. 1992), were insufficiently identical to the crime at issue, and that the possible prejudice to the defendant would outweigh any probative value of evidence of similar crimes. It therefore excluded that evidence. {14} . Miller unsuccessfully moved for suppression of those statements. The court found that Miller's statements regarding his residence in Maine were voluntary beyond a reasonable doubt. We do not disturb that ruling. {15} . An inadvertent comment by Detective Aylward suggesting that he could better determine the date of certain photographs by checking "the booking date" was immediately met with a specific curative instruction from the court.