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State v. David Cross
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 95
Docket:	Cum-98-569	
on Briefs:	April 27, 1999	
Decided:	June 23, 1999




	[¶1]  Defendant David Cross appeals from judgments entered in the
Superior Court (Cumberland County, Kravchuk, J.) following a jury verdict
convicting him of burglary in violation of 17-A M.R.S.A. § 401 (1983 & Supp.
1998) and theft in violation of 17-A M.R.S.A. § 353 (1983).  Cross argues
that the court violated his constitutional rights by failing to require witness
Catherine Leavitt to invoke her Fifth Amendment privilege against self-
incrimination in the jury's presence and by excluding Leavitt's affidavit. 
Finding no violation of Cross's Sixth Amendment right to compulsory
process and Fourteenth Amendment right to due process, we affirm the
	[¶2]  The facts as developed at trial can be summarized as follows: 
Two employees of the Dunkin' Donuts on Route 302 in Westbrook testified
that when they opened the store on the morning of October 19, 1997, the
locks on the cash drawer lockers had been cut and approximately $512 was
missing from the prior day's cash.  The general manager of the store
testified that employee Catherine Leavitt, defendant's girlfriend, closed out
the shift on the night of October 18 and was responsible for moving the cash
drawers to the lockers.  Defendant had been an employee of Dunkin' Donuts
off and on for three years, but he had been fired approximately one month
before the theft.   Detective David Roubo of the Westbrook Police
Department testified that there were no signs of forced entry into Dunkin'
Donuts but that the padlocks on the lockers had been cut.  
	[¶3]  When questioned by the police, defendant admitted to the
burglary and theft and signed a statement that he had kept a key to the
loading door at Dunkin' Donuts after he was terminated and that he entered
the Dunkin' Donuts on the night of October 18 with the key and used bolt
cutters to cut the locks in order to steal the cash.  Defendant told Detective
Roubo that Leavitt was not involved in the burglary. 
	[¶4]  Following the close of the State's case-in-chief, defendant
named Leavitt as his sole witness.  Prior to the start of trial, Leavitt's
attorney had informed the court that Leavitt would assert her Fifth
Amendment privilege against self-incrimination and defendant agreed that
Leavitt had the right to assert the privilege.  Defendant conducted a voir dire
examination of Leavitt outside the jury's presence and established her
identity and current employment at Dunkin' Donuts.  Leavitt then asserted
the privilege and the court ruled that the privilege applied to her current
and former employment at Dunkin' Donuts.  Defendant asked to question
Leavitt and force her to claim the privilege in the presence of the jury.  The
court denied his request.  The court reiterated that defendant retained the
right to call Leavitt as a witness and ask her questions relating to matters
outside the scope of the privilege.  Defendant called Leavitt and established
her identity, but asked no other questions.  Upon conviction, defendant
	[¶5]  Contrary to defendant's contention, his constitutional rights
were not violated by the court's refusal to require Leavitt to claim her Fifth
Amendment privilege against self-incrimination in the presence of the jury. 
In State v. Robbins, 318 A.2d 51 (Me. 1974), we stated that "[i]t is desirable
that a witness' invocation of the privilege before the jury is to be avoided,
though it is not per se prejudicial."  Id. at 57.  We added that if, as in this
case, "there is a prior indication that a witness may seek to invoke the
privilege, the witness should be interrogated outside the hearing of the jury
by counsel, and by the Court if necessary."  Id.  
	[¶6]  Our evidentiary rules add further emphasis to this same
principle:  "In criminal cases tried to a jury, proceedings shall be
conducted, to the extent practicable, so as to facilitate the making of claims
or privilege without the knowledge of the jury."  M.R. Evid. 512(b).  We
endorse the view of the Supreme Judicial Court of Massachusetts that calling
a witness "to the stand in the face of his expressed intention to invoke his
privilege against self-incrimination would have produced no relevant
evidence, while inviting the jury to engage in unwarranted and
impermissible speculation."  Commonwealth v. Gagnon, 557 N.E.2d 728,
737 (Mass. 1990) (stating that "a trial judge has no discretion to permit a
witness to appear before a jury for the sole purpose of properly invoking his
or her privilege against self-incrimination").
	[¶7]  In the present case, the court committed no error in
preventing defendant from forcing the witness to invoke the privilege in the
presence of the jury.  Defendant's Sixth Amendment right to compulsory
process does not provide him with "an unfettered right to offer testimony
that is incompetent, privileged, or otherwise inadmissible under standard
rules of evidence."  Taylor v. Illinois, 484 U.S. 400, 410 (1988).  Neither
defendant's right to compulsory process nor his right to due process was
violated by the court's action in this case.
	[¶8]  Finally, the court did not violate defendant's constitutional
rights by excluding Leavitt's affidavit inculpating herself and exculpating
defendant because there were not sufficient corroborating circumstances to
ensure the trustworthiness of the statement as required by M.R. Evid.
804(b)(3).  See M.R. Evid. 804(b)(3) ("A statement tending to expose the
declarant to criminal liability and offered to exculpate the accused is not
admissible unless corroborating circumstances clearly indicate the
trustworthiness of the statement.").  
	The entry is:
				Judgments affirmed.

Attorneys for State: Stephanie Anderson, District Attorney Julia A. Sheridan, Asst. Dist. Atty. 142 Federal Street Portland, ME 04101 Attorney for defendant: Terri M. Kosoff, Esq. 277 Main Street Westbrook, ME 04092-4712