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State v. Almurshidy dissenting opinion & footnotes

WATHEN, C.J., with whom CLIFFORD, J., joins, dissenting.

	[¶33]  I must respectfully dissent.  In my judgment, we neither
adopted nor applied in State v. Robbins, 666 A.2d 85 (Me. 1995) the three-
part test used by the court in this case to determine the admissibility of a
photo array.  We simply observed in a footnote its use in another jurisdiction.
See Robbins, 666 A.2d at 88 n.7.  Instead, we found that the court erred in
admitting the photo array because it served no purpose.  See id. at 88. In
addition, we found in Robbins that the admission of the photo array was
harmless error.  See id.
	[¶34]  I would not adopt the three-part test.  I would continue to leave
the decision to the broad discretion of the trial court.  See id. at 87. 
Further, I would find any error harmless in this case as well.  The lines
behind the defendant in the picture did not so clearly identify the picture as
a "mug shot" to inform the jury that the defendant may have a prior criminal
record.  Even if jurors understand the significance of the lines, they are
intelligent enough to assume that the photo was undoubtedly taken when
the defendant was arrested on the pending charges.

Attorneys for State: Stephanie Anderson, District Attorney Julia Sheridan, Asst. Dist. Atty., (orally) 142 Federal St. Portland, Maine 04101 Attorney for defendant: William Maselli, Esq., (orally) 98 Court St. Auburn, Maine 04210
FOOTNOTES******************************** {1} . He was subsequently sentenced to twelve years imprisonment on the gross sexual assault charge, with all but eight years suspended and four years of probation. Concurrent sentences of five years and 364 days on the other two offenses were imposed. The sentences of imprisonment were ordered to be served consecutively to Almurshidy's sentence on a probation revocation of one year and eleven months. {2} . Although the manila folder appears to have been taped so that it would not be opened, there is nothing in the record to indicate whether it was taped when it went to the jury and whether it was taped when it came back from the jury. At some point the tape was cut. The opened folder displays additional booking information for each of the six individuals, and six matching side-view photos are revealed. In Almurshidy's picture is a sign reading "Almurshidy, A., ID No. 000000, Date 08/11/97, Cumberland County Sheriff's Office." Almurshidy did not make any objection relating to the inside of the folder or to what could be seen by the jurors if they opened the folder. Because there was no objection to the inside contents of the folder, we treat the exhibit as though the inside contents were not available to be viewed by the jurors. {3} . Almurshidy also argued that evidence of the prior rapes should have been admitted, pursuant to M.R. Evid. 106, to complete the staff member's testimony concerning the victim's report of the rape by Almurshidy. Rule 106 is inapplicable because "[i]t applies to writings and recorded statements but not to conversations." M.R. Evid. 106, advisers' note, Field & Murray, Maine Evidence 45 (4th ed. 1997). Even if an analogous rule applies to conversations, see State v. Ryder, 348 A.2d 1, 4 (Me. 1975), otherwise inadmissible evidence is not admitted simply to complete a written or oral statement. See Field & Murray § 106.1, at 46. {4} . A prior false accusation of rape may be admissible under Rule 608(b)(1) if the witness admits the falsity of the accusation, but Almurshidy did not suggest that the victim's accusations were false. Even if he had proof that they were false, pursuant to Rule 608(b)(1), extrinsic evidence to prove the falsity of the accusation is not admissible. See State v. Ellsworth, 613 A.2d 473, 474 (N.H. 1992) (trial court did not abuse discretion in excluding prior false accusation of rape because extrinsic evidence not admissible to prove falsity). {5} . Even if the trial court had found the prior rapes to be relevant evidence, it would not have abused its discretion in rejecting the evidence on the basis of M.R. Evid. 403. Rule 403 applies to the admission of evidence pursuant to Rule 608(b). See Capul v. Fleet Bank, 1997 ME 140, ¶ 12, 697 A.2d 66, 69-70. The court noted that evidence concerning the prior rapes was collateral, could be distracting and confusing to the jury, and would have prejudicial effect. In a similar case, we held the trial court did not abuse its discretion in preventing, pursuant to Rule 403, cross-examination of the victim regarding a prior rape allegation that the defendant claimed, but did not demonstrate, was false. See State v. Steen, 623 A.2d 146, 149-50 (Me. 1993). {6} . For example, the conduct of falsifying testimony is more probative of whether someone has a truthful or untruthful character than violating a bail condition. See State v. Willette, 402 A.2d 476, 478 (Me. 1979) (prior act of leaving state in violation of bail condition was not probative of truthfulness or untruthfulness). We have not had the occasion to rule on whether burglary and theft are acts that are probative of truthfulness or untruthfulness, but we have held that they are crimes involving "dishonesty or false statement" for purposes of M.R. Evid. 609. See State v. Calor, 585 A.2d 1385, 1387 (Me. 1991); see also United States v. Smith, 80 F.3d 1188, 1193 (7th Cir. 1996). {7} . At the time Almurshidy's counsel sought permission to question the victim about the burglary and theft, there was no explanation on the record as to the source of the information. Later, while the jury was deliberating, the court proceeded to hear the State's motion for revocation of Almurshidy's probation. The parties had previously agreed that the evidence presented during the trial was to be considered by the court in the probation revocation proceeding. In addition, the parties stipulated to several facts for purposes of the probation revocation only. One of those stipulations was that the victim stated to a caseworker that she was an accomplice two months prior to August 9 in a burglary and theft of a veterinarian's office during which a certain drug was stolen. {8} . If the court was inclined to allow the question about the burglary and theft a voir dire would be warranted because of the likelihood that the victim would invoke her Fifth Amendment privilege or at least want to speak with an attorney about whether she should invoke the privilege. We have said that when there is an indication that a witness will invoke the privilege, the witness should be questioned with the jury absent. See State v. Robbins, 318 A.2d 51, 57 (Me. 1974); M.R. Evid. 512(b). It would have been proper for the court to have briefly explained the privilege to the victim and, particularly because the victim was a minor at the time of trial, to have inquired of her if she wanted to consult an attorney before testifying on the matter. If she wanted to talk with a lawyer, the court could consider the further delay that would cause and the likelihood that a lawyer would advise her to claim her privilege.

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