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State v. Craig Brackett

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 54
Docket:	Fra-99-374	
Argued:	January  5, 2000
Decided:	March 30, 2000

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.
Majority:  WATHEN, C.J., and RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.
Dissent:	 CLIFFORD, J., and SAUFLEY, J.




STATE OF MAINE v. CRAIG BRACKETT


WATHEN, C.J.


	[¶1]  The State of Maine appeals, pursuant to 15 M.R.S.A. § 2115-A
(1980) and M.R. Crim. P. 37B, from an order entered in the Superior Court
(Franklin County, Mills, J.) denying its motion in limine to exclude
statements of past prostitution made by the alleged victim of a gross sexual
assault. The State argues that the evidence should have been excluded
pursuant to M.R. Evid. 412.  We dismiss the appeal as premature.
	[¶2]  Defendant Craig Brackett was indicted on one count of
kidnapping, (Class B), 17-A M.R.S.A. § 301 (1983); two counts of gross
sexual assault, (Class A), 17-A M.R.S.A. § 253(1)(A) (Supp. 1999); one count
of burglary, (Class C), 17-A M.R.S.A. § 401 (1983 & Supp. 1999); and two
counts of criminal threatening with the use of a dangerous weapon, (Class
C), 17-A M.R.S.A. § 209 (1252) (1983).  The State filed a motion in limine
requesting that, pursuant to M.R. Evid. 412, any evidence regarding the past
sexual behavior of the victim, including any reference to prostitution, be
excluded by the court.  After a non-testimonial hearing, the court denied the
State's motion and the State appeals.
	[¶3]  The only facts before the court were defendant's attorney's
recitation of the facts during the hearing and may be summarized as follows: 
Defendant met a woman at a social club in Lewiston. The social club is a
place where, among other things, prostitution takes place.  According to the
alleged victim, defendant and she went out to a car to smoke marijuana. He
then drove her approximately an hour and a half to a remote location and
subjected her to gross sexual assault. When they stopped for coffee and soda
at a convenience store on the way back, she tried to call a girlfriend, could
not reach her, and then called 911 and reported that the person with her
had raped her.  According to defendant, when defendant and the victim
were in the car smoking marijuana, he offered her money if she would
spend the night with him and she agreed. The alleged victim told the police
that she was a prostitute up until two years ago.  She told a friend that she
was a prostitute up until two months ago.  She had no visible means of
support, she had no job, she was at the social club, and she had a beeper.
	[¶4]  At the hearing on the motion in limine, defendant's attorney
argued that the statement made by the alleged victim to the investigating
officer concerning her past prostitution went to the core of his defense --
that defendant offered her money to have sex with him and that she
consented. He argued the evidence was also relevant because the statement
she made to the police officer that she was a prostitute two years ago and
the statement she made to her friend that she was a prostitute two months
ago were inconsistent.  The State argued that the evidence should have been
excluded pursuant to M.R. Evid. 412.{1} The State argued that reputation
evidence of past prostitution should be inadmissible on the issue of consent
of the victim when the defendant stands charged with gross sexual assault. 
Even if evidence could be excluded on the issue of consent pursuant to Rule
412, defendant argued that excluding the evidence of past prostitution
denies him the Sixth Amendment guarantees of confrontation and cross-
examination. The State argued that, because the evidence lacked probative
value, defendant's constitutional rights were not denied.  The State also
argued that, even if the evidence was relevant and probative, M.R. Evid. 403
should apply and that the prejudicial effect would outweigh the probative
value of it.  The court refused to accept any of the State's arguments and
denied its motion. 
	[¶5]   The State's right to appeal an interlocutory order is
established in section 2115-A(1), which provides in pertinent part as
follows:
	An appeal may be taken by the State in criminal cases on
questions of law from the District Court and from the
Superior Court to the law court:  . . . from any other order of
the court prior to trial which, either under the particular
circumstances of the case or generally for the type of order
in question, has a reasonable likelihood of causing either
serious impairment to or termination of the prosecution.
15 M.R.S.A. § 2115-A(1) (1980).   In order to determine whether an appeal
meets the requirements of section 2115-A(1), we look for "'any reasonable
likelihood that the State will be handicapped in trying the defendant.'" State
v. Patterson, 651 A.2d 362, 365 (Me. 1994) (citation omitted). As the State
argues, the admission of evidence regarding the past prostitution of the
victim is reasonably likely to cause serious impairment to the prosecution.
The Advisory Committee Note to Rule 412 notes that "[t]he danger in the
admission of such evidence is the likelihood that it will provoke moral and
emotional reactions in the trier of fact increasing the risk of unfair
prejudice." M.R. Evid. 412 advisory committee note to 1983 amend., Me.
Rptr., 449-458 A.2d LXX, Field & Murray, Maine Evidence 179 (2000 ed.
1999).
	[¶6]  We find, however, that the appeal is premature because it
comes to this Court on a motion in limine, which ruling is not final until the
evidence is offered at trial. See State v. Pinkham, 586 A.2d 730, 731 (Me.
1991).  We must examine each case "to determine whether entertaining the
appeal is consistent with the strong public policy against piecemeal appeals
and the impossibility of this court's serving as an advisory board to trial
lawyers and judges." State v. Doucette, 544 A.2d 1290, 1294 (Me. 1988),
cited in State v. Patterson, 651 A.2d 362, 365 (Me. 1994).  Moreover, in
criminal cases, we are also dealing with the following concerns:
"[T]he defendant has a constitutional right to a speedy trial,
see Me. Const. art. I, § 6; and obviously, the members of the
public, including both the victims of crime and taxpayers,
have a great interest in bringing persons accused of crime to
justice promptly and efficiently. Appeals taken by the State
from pretrial orders inevitably delay the commencement of
trial and add to the public cost. . . . The appeal [may] cause[]
unnecessary consumption of public resources, on the part of
the Law Court and also counsel for the State and for
defendants. . . ."
State v. Doucette, 544 A.2d 1290, 1293-94 (Me. 1988) (quoting State v.
Drown, 447 A.2d 466, 472 (Me. 1982), cited in State v. Patterson, 651 A.2d
at 368 (Glassman, J., dissenting).
	[¶7]  Appeals from motion in limine rulings may be appropriate in
some instances.  We have cautioned trial courts in particular, however, to
refrain from making Rule 403 rulings in limine without the benefit of a more
complete view of the evidence found at trial, see State v. Patterson, 651 A.2d
362, 367 (Me. 1994), and are hesitant to entertain appeals from motion in
limine rulings involving the relevancy, probative value and prejudicial effect
of the evidence for the same reasons.  We made an exception on the facts in
State v. Patterson, because it was known that the motion justice was to
preside at the trial to be held the following week and because the motion
justice told the defendant "he could go to the bank" with his ruling. Id. at
366.  That is not the case here.  The motion justice might not be the trial
justice in this case, and the trial justice may change a ruling made in limine
for good cause shown at trial.  See M.R. Crim. P. 12(c).  Once the trial
unfolds, the theoretical facts presented in the motion in limine may differ
from the actual facts presented at trial.  Those actual facts may influence and
change the trial justice's determination of the relevance, probative value or
prejudicial effect of the subject evidence. Therefore, although we recognize
the potential importance of the issues raised, it is premature for us to make
a determination without the benefit of the actual facts presented at the trial. 
	The entry is:	
					Appeal dismissed.


CLIFFORD, J., with whom SAUFLEY, J., joins, dissenting [¶8] Because, in my view, the order appealed from has more than a reasonable likelihood of causing serious impairment to the prosecution of the State's case within the meaning of 15 M.R.S.A. § 2115-A(1) (1980), and, although issued on a motion in limine, is not the kind of in limine order at all likely to be changed and will almost certainly govern the evidence in this case, and because the order is clearly contrary to M.R. Evid. 412, I respectfully dissent. [¶9] M.R. Evid. 412 provides as follows:
Rule 412.  Past Sexual Behavior of a victim.

	(a)  In a criminal case in which a person is accused of
rape, gross sexual assault, gross sexual misconduct, unlawful
sexual contact, or sexual abuse of a minor, reputation or opinion
evidence of past sexual behavior of an alleged victim of such
crime is not admissible.

	(b) In a criminal case in which a person is accused of rape,
gross sexual assault, gross sexual misconduct, unlawful sexual
contact, or sexual abuse of a minor, the only evidence of a
victim's past sexual behavior that may be admitted is the
following:

	(1)  Evidence of specific instances of sexual behavior with
persons other than the accused, offered by the accused upon the
issue of whether the accused was or was not, with respect to the
alleged victim, the source of semen or injury; or

	(2)  Evidence of specific instances of sexual behavior with
the accused offered by the accused on the issue of whether the
alleged victim consented to the sexual behavior with respect to
which the accused is charged.
Rule 412 excludes evidence of past sexual behavior of an alleged victim of a
sexual assault except in very limited circumstances not present here. 
Evidence of prior sexual activity on the part of an alleged victim of sexual
abuse is admissible on the issue of consent only if the evidence goes to
"specific instances of sexual activity with the accused."  M.R. Evid.
412(b)(2).  The Superior Court's order, however, allows the defendant to
use as evidence of consent admissions by the alleged victim that prior to the
assault she had worked as a prostitute, despite the fact that there is no
evidence of prior sexual activity between the alleged victim and the
defendant, and that the defendant was unaware of any such admissions at
the time of the alleged assault.
	[¶10]  The Superior Court's ruling is in clear violation of both the
letter and the spirit of Rule 412.  See State v. Philbrick, 551 A.2d 847, 851
(Me. 1988).  See also Field & Murray, Maine Evidence § 412.1 at 181-182
(2000 ed.) (admission of past sexual behavior of victim "often would convert
a rape or sexual assault case into a trial not of the accused, but of the
victim"); see also United States v. Saunders, 943 F.2d 388, 392 (4th Cir.
1991) ("intolerable to suggest that because the victim is a prostitute, she
automatically is assumed to have consented with anyone at any time").
	[¶11]  The State may appeal from a pretrial order in a criminal case
when that order "has a reasonable likelihood of causing . . . serious
impairment to . . . the prosecution."  15 M.R.S.A. § 2115-A(1) (Supp. 1999).{2} 
Section 2115-A(1) is to be liberally construed.  See 15 M.R.S.A. § 2115-A(6)
(Supp. 1999).  The State's case is seriously impaired if there is "'any
reasonable likelihood that the State will be handicapped in trying the
defendant.'"  See State v. Patterson, 651 A.2d 362, 365 (Me. 1994) (quoting
State v. Doucette, 554 A.2d 1290, 1292 (Me. 1988)).  Because evidence of
the alleged victim's past prostitution is likely to "provoke moral and
emotional reactions in the trier of fact increasing the risk of unfair
prejudice," see M.R. Evid. 412 advisory committee's note to 1983 amend.,
Field & Murray, Maine Evidence 179 (2000), it is clear that the State has
met the "serious impairment" standard in this appeal.
	[¶12]  The Court, however, declines to accept this appeal, concluding
it is premature because it comes to us as on appeal from an in limine ruling. 
Although it is true that an in limine ruling is not final and is subject to
change for good cause, see M.R. Crim. P. 12(C), motions in limine are very
useful tools to resolve questions of the admissibility of evidence prior to the
trial, see State v. Gagnon, 383 A.2d 25, 27 (Me. 1978).  Their use should be
encouraged.  See id.; see also State v. Barlow, 320 A.2d 895, 903
(Me. 1974); Gendron v. Pawtucket Mut. Ins. Co., 409 A.2d 656, 659,
(scholarly comment has consistently supported use of motions in limine);
United States v. Oakes, 565 F.2d 170, 173 (1st Cir. 1977) (trial courts
encouraged to use motions in limine to obtain advance rulings in proper
cases); Field & Murray, Maine Evidence § 103.7 at 23-24 (2000 ed.)
(admissibility of prior conviction of witnesses routinely determined by
motions in limine before witness testifies).
	[¶13]  I agree with the Court that we should not entertain an appeal
from an in limine ruling that is susceptible to being changed at trial.  The
ruling in this case, however, is similar to that in State v. Shellhammer, 540
A.2d 780 (Me. 1988), wherein we accepted the State's appeal of an adverse
ruling on the admissibility of the defendant's statement that he was the
operator of the vehicle.  See id. at 781.  Like the in limine ruling in
Shellhammer, the in limine ruling in this case is one made for the purpose
of governing the conduct of the trial.  See Gendron v. Pawtucket Mut. Ins.
Co., 409 A.2d at 659 (discussion of difference between in limine orders
intended to be "absolute" and those intended to be "preliminary" only,
subject to an additional final ruling).  The ruling appealed from in this case
is not dependent on what other evidence is admitted at trial, is very unlikely
to be changed by the trial court, and seriously impairs the prosecution.
	[¶14]  I would accept the State's appeal and vacate the Superior
Court's ruling on the admissibility of prior sexual activity on the part of the
victim. 
  
Attorneys for State: Norman R, Croteau, District Attorney James A. Andrews, Asst. Dist. Atty., (orally) 38 Main Street Farmington, ME 04938 Attorney for defendant: Walter Hanstein III, Esq., (orally) Joyce, Dumas, David & Hanstein, P.A. P O Box 31 Farmington, ME 04938-0031
FOOTNOTES******************************** {1} . Rule 412 provides in its entirety as follows: Rule 412. Past Sexual Behavior of Victim (a) In a criminal case in which a person is accused of rape, gross sexual assault, gross sexual misconduct, unlawful sexual contact, or sexual abuse of a minor, reputation or opinion evidence of past sexual behavior of an alleged victim of such crime is not admissible. (b) In a criminal case in which a person is accused of rape, gross sexual assault, gross sexual misconduct, unlawful sexual contact, or sexual abuse of a minor, the only evidence of a victim's past sexual behavior that may be admitted is the following: (1) Evidence of specific instances of sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury; or (2) Evidence of specific instances of sexual behavior with the accused offered by the accused on the issue of whether the alleged victim consented to the sexual behavior with respect to which the accused is charged. M.R. Evid. 412. {2} . Title 15 M.R.S.A. § 2115-A provides in pertinent part: 1. Appeals prior to trial. An appeal may be taken by the State in criminal cases on questions of law from the District Court and from the Superior Court to the law court: From an order of the court prior to trial which suppresses any evidence, including, but not limited to, physical or identification evidence or evidence of a confession or admission; from an order which prevents the prosecution from obtaining evidence; from a pretrial dismissal of an indictment, information or complaint; or from any other order of the court prior to trial which, either under the particular circumstances of the case or generally for the type of order in question, has a reasonable likelihood of causing either serious impairment to or termination of the prosecution. . . . . 6. Liberal construction. The provisions of this section shall be liberally construed to effectuate its purposes. . . . . 8. Fees and costs. The Law Court shall allow reasonable counsel fees an costs for the defense of appeals under this section.