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State v. David McMahan

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 200
Docket:	Kno-00-51	
on Briefs:	October 18, 2000	
Decided:	November 13, 2000



	[¶1]  David McMahan appeals his conviction for assault (Class D),
17­p;A M.R.S.A. § 207 (1983 & Supp. 2000), after a jury waived trial by the
Superior Court (Knox County, Marsano, J.).  On appeal, McMahan contends
that:  (1) the court improperly interpreted and applied the evidence in
several respects relating to the issue of provocation and his self-defense
justification, 17-A M.R.S.A. § 108 (1983 & Supp. 2000); (2) the court erred
in excluding evidence of a civil suit against McMahan by Gerald Brown, the
victim of the assault, and in excluding other relevant evidence; and (3) the
court improperly refused to hear an offer of proof and directed that the
offer of proof occur in the court's absence during a recess.  Because the
court did not perform its required judicial function in first hearing and
then ruling on relevant evidence in McMahan's offer of proof, we vacate
the conviction.
	[¶2]  David McMahan and Gerald Brown were lobstermen who fished
the waters around Criehaven, a small island approximately 20 miles off
the Maine coast near Matinicus Island.  Brown and McMahan had apparently
had some professional differences, based on the view of Brown and some
other lobstermen that McMahan may have been fishing more traps than was
considered proper in the area.
	[¶3]  In March 1999, Brown discovered an obscene drawing on his
polyball.{1}  Brown believed that McMahan was responsible for the drawing. 
On April 1, 1999, as Brown was operating his boat, he saw McMahan
working on McMahan's dock.  A verbal confrontation ensued with, according
to the record, a number of salty, down-east expressions being exchanged. 
The confrontation escalated when Brown docked his boat and ultimately
went onto McMahan's dock to confront McMahan.  There the verbal
confrontation turned physical with McMahan using a gaff to hit Brown and,
according to McMahan, Brown using a pitchfork to jab at McMahan and
another lobsterman who was with him.  As a result of the confrontation,
Brown had a number of injuries and was bleeding from the head.  After
driving his boat to the mainland, with the assistance of his sternman,
Brown sold his lobsters, put his boat on its mooring, and then drove
himself to the hospital. 
	[¶4]  Brown reported the incident to the Knox County Sheriff's
Office.  McMahan was indicted by the Knox County Grand Jury on one count
of aggravated assault (Class B), 17-A M.R.S.A. § 208 (1983).{2}   McMahan
pled not guilty to the charge and waived a jury trial pursuant to M.R. Crim
P. 23(a).  
	[¶5]  A bench trial was held January 4-6, 2000.  At trial, the
principal issues were provocation and self-defense justification, 17-A
M.R.S.A. § 108(1) (1983),{3} with McMahan contending that he was provoked
and that he acted to defend himself from a physical assault.  With the
issues so raised, the State had the burden of proving assault and
disproving McMahan's justification beyond a reasonable doubt.  See State v.
Sullivan, 1997 ME 71, ¶ 6, 695 A.2d 115, 117; State v. Davis, 528 A.2d 1267,
1270 (Me. 1987). 
	[¶6]  During the trial, the court permitted some questioning of Brown
and testimony by McMahan regarding some history of the adversarial
relationships between McMahan and Brown and other fishermen who
worked the waters around Criehaven.  The court excluded questions to
Brown that asked when he had hired an attorney and who his attorney was,
but allowed McMahan to testify that after the incident Brown had
threatened to sue McMahan and that Brown wanted McMahan's fishing
rights in the Criehaven waters.  
	[¶7]  At one point during the trial, when defense counsel was
questioning Brown about problems that other fishermen were having with
McMahan and mentioned a 1992 occurrence, the court sua sponte ruled the
line of questioning irrelevant.  After a brief recess defense counsel
attempted to address "the reason why we object to the court's ruling." 
The court responded:  "I'm not interested in hearing argument.  I've made
my ruling [defense counsel].  We'll proceed.  Your rights are protected.  You
had an opportunity to make [a] statement on the record."  Defense counsel
responded:  "May I make a statement and give the court memoranda of
law?"  The court responded:  "Not at this time.  But I don't know what it's
about.  I made a ruling with respect to evidence, and I adhere to that
ruling.  You had an opportunity to put things on the record."
	[¶8]  Defense counsel then persisted in trying to get the court to
consider the memoranda of law that apparently had been prepared.  The
court declined to consider the memoranda, and it does not appear that the
court afforded defense counsel the referenced "opportunity to make a
statement on the record," other than the offer of proof discussed below.
	[¶9]  Shortly thereafter, defense counsel asked Brown about a 1993
incident.  The State objected.  The court sustained the objection.  Defense
counsel then asked:  "May I make an offer of proof?"  The court responded: 
"Yes.  You can do it during the luncheon recess."
	[¶10]  After approximately three-quarters of an hour of additional
testimony, mostly by a doctor who was called out of order, the court took
a noon recess and left the courtroom.  Defense counsel then made their
offer of proof without the court present.
	[¶11]  Review of the record of the offer of proof indicates that
certainly some of the materials in the offer were irrelevant.  However,
other materials in the offer of proof suggested an ongoing practice by
Brown and other fishermen to harass and drive out fishermen, such as
McMahan, who would not comply with rules Brown and his associates
attempted to impose.  The defense argued that evidence of prior practices
and threats by a group of fishermen, including Brown, was relevant to the
issue of the reasonableness of McMahan's actions and of his beliefs as to
what might occur when Brown came onto his wharf.  The defense also
urged, again without the court present, that this history of prior incidents
was relevant to the question of McMahan's knowledge of Brown's
reputation or propensity for violence.  See State v. Stanley, 2000 ME 22, ¶¶
8-15, 745 A.2d 981, 984-85; State v. Leone, 581 A.2d 394, 400 n.4 (Me.
1990); State v. Dutremble, 392 A.2d 42, 46-47 (Me. 1978).
	[¶12]  After the noon recess, the trial continued with testimony by
another doctor.  At the close of the State's case, the court ruled that the
State had not proven beyond a reasonable doubt the aggravated elements of
the assault charge, 17-A M.R.S.A. § 208, leaving only the question of the
misdemeanor assault, 17-A M.R.S.A. § 207, to be decided.  McMahan then
testified and was permitted to testify to some of the history of problems
with Brown and other fishermen that had been excluded in examination of
the State's witnesses.  After completion of the evidence and argument of
counsel, the court convicted McMahan of assault.  McMahan then brought
this appeal.
	[¶13]  As his first argument on appeal, McMahan urges that the court
did not properly evaluate the evidence and that there is insufficient
evidence to disprove McMahan's self-defense justification beyond a
reasonable doubt.  While the evidence included sharply differing versions
of the events and of how the assault incident was initiated, resolution of
such differences is a matter for the trial court.  On review, we must
consider the evidence, and any reasonable inferences that may be drawn
from the evidence, most favorably to the result reached by the trial court. 
See State v. Roussel, 2000 ME 185, ¶ 8, -- A.2d --; State v. Wilder, 2000 ME
32, ¶ 46, 748 A.2d 444, 455-56.  Reviewed by that standard, there is
sufficient evidence to support the assault conviction.  
	[¶14]  The other issue addressed on appeal is McMahan's challenge to
the court's permitting him to make an offer of proof, but not being present
when the offer of proof was made.  Offers of proof are addressed in M.R.
Evid. 103(a)(2) & (b).{4}  An offer of proof may be made in a variety of ways:
from a brief statement by counsel of the essence of the disputed evidence,
to a longer narrative, to providing the court documents outlining the
evidence at issue, to testimony.  See Field & Murray, Maine Evidence §
103.4 (2000 ed.).  The nature and scope of an offer of proof are matters
committed to the sound discretion of the trial court.
	[¶15]  One purpose of an offer of proof is to apprise the court of the
nature of the challenged evidence before it finally rules on the issue.  See
MacCormick v. MacCormick, 478 A.2d 678, 680 (Me. 1984); State v.
Williams, 462 A.2d 491, 492 (Me. 1983).  While offers of proof need not be
allowed in each instance if the nature of the evidence is apparent from the
question or the context of the trial, offers of proof when made are
directed to the court to increase the court's understanding of the issue. 
The rule necessarily assumes the presence and attention of the court.{5} 
Thus, in MacCormick, we held that a trial judge erred in a bench trial by
not permitting an offer of proof to be presented to the court. 
MacCormick, 478 A.2d at 681-83.  There we stated that:
The trial judge's remarks suggest that he believed it improper
for a judge sitting as factfinder to hear, through an offer of
proof, evidence that he had already ruled to be inadmissible;
that the impartiality of his factfinding would thereby be put at
risk.  Under our system of nonjury trials, however, the judge's
receipt of offers of proof is not only proper, but absolutely
necessary if he is to carry out his full judicial
Id. at 682.

	[¶16]  In Walter v. Wal-Mart Stores, Inc., 2000 ME 63, ¶ 38, 748 A.2d
961, 974, decided after the trial in this case, we criticized a practice of
directing counsel to make a record on matters they wished to address to
the court while the court was not present.  There we noted that, on
matters which are for the court to decide:  "Parties must be given the
opportunity to make their arguments to the court."  Id.  In Walter, we found
no prejudice from the court's practice, as the record to be made related to
legal issues incident to a jury instruction.  Id.
	[¶17]  Here, such a no prejudice determination is not possible.  Some
of the evidence addressed in the offer of proof was relevant to McMahan's
self-defense justification, which was the central contested issue in the
trial.  Trial courts are given considerable discretion to determine issues
of admissibility under M.R. Evid. 104 and to determine whether evidence
would be more prejudicial than probative or would be unduly repetitive
under M.R. Evid. 403.  See State v. Stoddard, 1997 ME 114, ¶ 12, 696 A.2d
423, 427; State v. Ledger, 444 A.2d 404, 415-16 (Me. 1982).  Had the court
considered the matters presented in McMahan's offer of proof and then
excluded the evidence, it is possible that on deferential review of the
whole record, we could have determined that the ruling either was not
error or was harmless error.  See State v. Witham, 1997 ME 77, ¶ 10, 692
A.2d 930, 934.  However, here the court refused to allow defense counsel
to make any statement in its presence regarding the substance of the
proffered evidence, and the court was not present for the offer of proof. 
Thus, the court did not apply any independent judicial judgment to the
proffered evidence such as would entitle the court's exclusion of the
evidence to deferential review.  Compare Witham, 1997 ME 77, ¶ 10, 692
A.2d at 934; State v. Case, 672 A.2d 586, 588 (Me. 1996).  
	[¶18]  A criminal defendant is entitled to admission of relevant
evidence, and the court's choice to exclude relevant evidence is
significantly limited.  See State v. Cloutier, 1997 ME 96, ¶ 5, 695 A.2d 550,
552.  Because the proffered evidence was relevant to the central issue in
the case and because it was excluded, we must view that exclusion as
error.  Further, we cannot say in the context of this case that exclusion of
evidence bearing upon the reasonableness of McMahan's belief that Brown
would assault him, and his knowledge of Brown's asserted reputation for
violence, was harmless error.  Accordingly, because the court did not
apply its considered, independent judicial judgment to the proffered
evidence, the court's exclusion and refusal to consider relevant evidence
was error which requires that we vacate the court's judgment.
	[¶19]  Because we vacate the judgment, we need not address
McMahan's other challenges to evidentiary rulings. 
	The entry is:
Judgment vacated.  Remanded for
further proceedings in accordance with
this opinion.

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