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State v. Robbins
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Decision: 1997 ME 21
Docket: SOM-96-186
Submitted on briefs January 16, 1997
Decided February 5, 1997






	[¶1]  	Carle A. Robbins, Jr. appeals from the judgments entered in the
Superior Court (Somerset County, Marden, J.) convicting him of an assault
on Keith Gould and of an habitual offender violation.  The sole issue raised on
appeal relates to the State's presentation of two rebuttal witnesses
previously unknown to either the defense or the prosecution.  We affirm the
	[¶2]  	In June of 1995 Robbins was looking for Gould to inquire about
Gould's stopping payment on a $500 check.  Robbins had helped Gould
secure a motor for his motor home and Gould found it too small.  After
getting no satisfaction from Robbins, Gould stopped payment and Robbins
was angry.  They met at the intersection of Huff Hill Road and Route 23 in
Hartland.  According to Gould, Robbins hit Gould in the chest and stopped
him from driving away by pulling the shift lever into park and breaking it off. 
Robbins was pushing Gould down on the seat with his shoulder when
Gould's son, Weston, and nephew, Maurice Gould, arrived at the scene. 
They pulled Robbins off and sent him from the scene.  Maurice testified to
seeing Robbins drive a blue AMC both before and after the altercation. 
Weston did not testify.
	[¶3]  	Robbins did not testify, but presented a friend to testify that she
was driving the blue AMC, that Robbins was a passenger, and that the
confrontation was entirely verbal until Weston or Maurice Gould hit Robbins
with Gould's door and knocked him on top of Gould.
	[¶4]  	Weston Gould advised the State at the end of the first day of trial
that one David Lyons was a witness to the altercation.  The State promptly
advised Robbins.  The next morning Weston produced an additional witness,
Lisa Dexter, and again Robbins was advised.  Both parties had an equal
opportunity to interview Lyons and Dexter before they were called in
rebuttal.  Robbins objected on the grounds of a discovery violation and
improper rebuttal evidence.
	[¶5]  	The court was satisfied that neither the State nor the
investigating officer had been aware of Lyons or Dexter.  After a conference
in chambers, the court ruled that both could testify, but limited that
testimony to the circumstances of the confrontation and whether the
defense witness was present at the scene or in the blue AMC.  Both Lyons
and Dexter, who are unrelated to Gould, testified they saw Robbins alone in
the blue AMC and they corroborated Keith Gould's version of the altercation.
	[¶6]  	On appeal Robbins attempts to create a due diligence standard
for the State's investigation.  Citing State v. Thurlow, 414 A.2d 1241 (Me.
1980) and State v. Ledger, 444 A.2d 404 (Me. 1982), Robbins argues that
the State had "a continuing duty to make a diligent inquiry as to the
existence of relevant information and witnesses."  Robbins accuses the State
of remaining "willfully ignorant of the evidence."
	[¶7]  	Contrary to the contention of Robbins, we have never stated that
M.R. Crim. P. 16 imposes a duty of due diligence in the conduct of police
investigations.  What we have required is that the State make a diligent
inquiry of police agencies whether automatically discoverable information
does exist in their files.  See Thurlow, 414 A.2d at 1244; Ledger, 444 A.2d
at 411.  In this instance there was neither a discovery violation nor any error
in permitting the rebuttal testimony.
	The entry is:
						Judgments affirmed.

Attorneys for State:

David W. Crook, District Attorney
Evert Fowle, Asst. Dist. Atty.
Court Street
Skowhegan, ME 04976

Attorney for defendant:

Janet T. Mills, Esq.
Wright & Mills. P.A.
P O Box 9
Skowhegan, ME 04976