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State v. Wallace
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Decision: 1997 ME 51
Docket: Cum-96-541
Submitted on Briefs March 7, 1997
Decided March 20, 1997


	[¶1]  Carl Wallace appeals from the judgment of conviction entered in
the Superior Court (Cumberland County, Cole, C.J.) on a jury verdict finding
him guilty of cruelty to animals, 17 M.R.S.A. § 1031(1)(B) (Supp. 1996).  As
the sole issue on appeal, Wallace argues that because of prosecutorial
misconduct the court was compelled to grant a mistrial.  We affirm the
	[¶2]  Wallace was accused of deliberately striking a dog with a
snowplow attached to his vehicle.  Robert Taddia described the incident and
testified further that Wallace pursued the dog with a gun and said he was
going to shoot the dog because it was vicious.  Taddia told Wallace that he
would call an animal control officer to take care of the dog but that shooting
it was not an option.  Wallace said the dog was vicious and called Taddia
	[¶3]  At the conclusion of the State's direct examination of Taddia, the
transcript reveals the following:
Q.[PROSECUTOR]:  Now, Mr. Taddia, isn't it true as a result of
this incident you were made the Channel 8 Person Of The

A.	(Witness nodded).  


THE COURT:  Sustain the objection.  The jury is to disregard
the question.  

[PROSECUTOR]:  Withdraw that.  

[DEFENSE COUNSEL]:  Can we come to sidebar please?

THE COURT:  You may.

(Conference at sidebar.)

[DEFENSE COUNSEL]:  The last question and answer were
entirely inappropriate, bolstering this witness's credibility, so
I'm going to move for a mistrial.  That was absolutely

[PROSECUTOR]:  Your Honor, I withdrew the question, you
told the jury to disregard it, I think they can pretty much.

THE COURT:  Well, you shouldn't have asked the question.  I
think I have adequately address[ed] it with the jury but let's
refrain from any future conduct.  The motion for mistrial is

(Open Court.)

[PROSECUTOR]:  Thank you.  Mr. Taddia, I have no further

	[¶4]  On appeal, Wallace argues that the improper question was not a
mere mistake because it was asked in a leading manner to prevent Wallace
from negating its effect by a timely objection.  Moreover, he states that the
assistant district attorney offered no rationale for the question's relevance,
immediately withdrew the question, and immediately ended direct
examination of the witness.  The State concedes the question was improper
but argues that it did not warrant a mistrial.  
	[¶5]  We agree with Wallace's contention that "the prosecutor engaged
in a deliberate, bad faith attempt to obtain a conviction through illegitimate
means."  As we have frequently stated, a prosecutor's duty is not simply to
obtain a conviction but rather to ensure that justice is done.  See, e.g., State
v. Bourgeois, 639 A.2d 634, 638 (Me. 1994).  We are unable to conceive any
rationale supporting the relevance of such a question and assume that the
district attorney would not condone such trial tactics.  
	[¶6]  Our disapproval of the prosecutor's conduct, however, does not
end the inquiry.  We must depend to a great extent on the trial court's
perception of prejudice.  We review for abuse of discretion and defer
generally to the judgment of the trial court.  The court immediately
sustained the objection and sua sponte instructed the jury to disregard the
question.  In State v. Bennett, 658 A.2d 1058, 1063 (Me. 1995), we were
confronted with "a deliberate and premeditated statement, obviously beyond
the parameters of proper argument and inconsistent with the State's
overriding obligation to see that the accused receive a fair trial."  The court
had offered to give a curative instruction to the jury for the challenged
statement.  In this case as in Bennett, we conclude that the court was not
confronted with the type of exceptionally prejudicial circumstance that
requires reversal of the trial court's decision.  Id. at 1063-64.  
	The entry is:
				Judgment affirmed.

Attorneys for State: Stephanie Anderson, District Attorney Julia Sheridan, Asst. Dist. Atty. 142 Federal Street Portland, ME 04101 Attorney for defendant: Peter E. Rodway, Esq. Rodway & Horodyski P O Box 874 Portland, ME 04104-0874