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State v. David McCurdy
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2002 ME 66
Docket:	Was-01-287
on briefs:	December 20, 2001
Decided:	April 18, 2002	




	[¶1]  David McCurdy appeals from a judgment of conviction for operating
under the influence (OUI), 29-A M.R.S.A. § 2411, entered in the Superior Court
(Washington County, Hjelm, J.) following a jury trial.  McCurdy argues that (1)
there was insufficient evidence to convict him of the offense charged, (2) the
court improperly allowed a witness called by the State to testify about her
qualifications for determining intoxication and did not impose a sufficient
sanction for an alleged discovery violation by the State, and (3) the court
improperly excluded evidence of bias on the part of the arresting officer.  We
affirm the conviction.
	[¶2]  On November 6, 1999, McCurdy and Michael Tinker attempted to
enter the country through the Lubec port of entry on their way home from a
trip to Canada.  They were questioned at the customs station by U.S. Customs
Inspector James Doherty, and when they admitted to him that  they had been
drinking, Inspector Doherty asked them to pull into the Customs Office
parking lot and to come into the station.  Inspector Amy Jackson observed (but
did not overhear) the interchange from her nearby office.  Jackson went into
the front of the station when she saw the men park and come inside.
	[¶3]  About this time, Officer John Fuller, a deputy in the Washington
County Sheriff's Department, arrived at the entry port as part of his regular
patrol.  Although Fuller did not observe McCurdy driving or exiting the car, he
did see McCurdy walk across the parking lot to the office.
	[¶4]  Tinker told Officer Fuller that he had been driving, and Fuller did
not then ask either of the customs officers to confirm this.  Because Tinker
was acting intoxicated, Fuller arrested him for OUI.  He also arrested McCurdy
for drinking in violation of the conditions of his probation.{1}  The next day
Fuller went to get statements from the customs inspectors, and learned that
McCurdy had been driving the car.{2}  McCurdy was then charged with OUI.
	[¶5]  Prior to trial, the defense made a discovery request for all
information establishing the qualifications of any witness that the State
planned to have offer any expert opinions.  The State did not provide anything
to the defendant in discovery about the qualifications of Inspector Jackson or
Officer Fuller.{3}
	[¶6]  Jackson testified at trial about the symptoms McCurdy exhibited,
McCurdy objected to Jackson testifying about her qualifications as an expert
because the State had not provided anything in discovery about her
qualifications to determine intoxication.  The State responded that, although
it wanted to have Jackson testify about her qualifications to recognize
intoxication, it did not intend to have her offer a conclusion about whether
McCurdy was intoxicated.  The court overruled the objection on these grounds,
and Jackson testified to a variety of symptoms that she observed, and that she
had received training to detect intoxication.  Jackson, however, did not
actually give an opinion about whether McCurdy was intoxicated at the time of
his arrest.  The State did elicit from Jackson that, based on the symptoms she
observed, she would not have let McCurdy leave the office without having a
police officer come to examine him.
	[¶7]  McCurdy also objected to the testimony of Fuller that he had
received training to detect intoxication on the grounds that Fuller's
qualifications had not been provided in discovery prior to trial.  McCurdy urged
the court to prohibit Fuller from testifying about his training or offering an
opinion about whether McCurdy was intoxicated.  The court overruled the
objection.  Fuller then testified about his training to detect intoxication and
offered his opinion that McCurdy was intoxicated.
	[¶8]  McCurdy presented evidence that he had suffered severe
neurological injuries in an accident about twenty-five years earlier, and as a
result he has difficulty maintaining his balance, cannot walk straight, his eyes
are bloodshot, and he has difficulty speaking.
	[¶9]  McCurdy called Paul Kenney and attempted to question Kenney
about Officer Fuller and his relationship with and attitude toward McCurdy. 
After establishing that Fuller was well-known in the community, and that the
witness had a basis to know Fuller's reputation, McCurdy asked "[i]n terms of
Mr. Fuller's relationship with David McCurdy, are you aware of whether, in the
community, there is a reputation that Mr. Fuller has in dealing with Mr.
McCurdy?"{4}  The State objected, and the court called the attorneys to sidebar. 
At sidebar, McCurdy's counsel told the court that he intended to have Kenney
testify that he is "aware of a reputation in the community that [Fuller] has
hostility and bias toward" McCurdy.  The court informed McCurdy's attorney
that the evidence of bias, although admissible if presented in the proper form,
could not be presented in the form of reputation evidence.  The court made
clear that the witness could testify to specific incidents of which he had
personal knowledge that would suggest bias on the part of Fuller.  Thus, the
court sustained the State's objection to questions about Fuller's "reputation
for bias" against McCurdy.  There was no attempt on the part of McCurdy to
introduce evidence of specific events tending to show bias on the part of Fuller. 
The jury found McCurdy guilty of OUI.  McCurdy filed this appeal.
	[¶10]  McCurdy first contends that there was insufficient evidence to
convict him of OUI.  When reviewing the sufficiency of the evidence, we view
the evidence in "the light most favorable to the State to determine whether the
trier of fact rationally could have found beyond a reasonable doubt every
element of the offense charged."  State v. Turner, 2001 ME 44, ¶ 6, 766 A.2d
1025, 1027.  We will overturn a verdict for insufficient evidence "only when no
trier of fact rationally could have found the essential elements of the charged
offense beyond a reasonable doubt."  State v. Tai, 629 A.2d 594, 595 (Me. 1993). 
The weight of the evidence and the determinations of witness credibility are the
exclusive provinces of the factfinder.  State v. Harper,  675 A.2d 495, 497 (Me.
1996).  In an OUI prosecution, the State does not need precise evidence of a
person's blood alcohol content (such as would be provided by the results of an
intoxilyzer test) in order to prove that the person was under the influence of an
intoxicant: testimony that the defendant exhibited symptoms of intoxication
can be sufficient to support a finding that the defendant was under the
influence.  See State v. Griffin, 642 A.2d 1332 (Me. 1994); State v. Mendros, 622
A.2d 1178 (Me. 1993); see also State v. Worster, 611 A.2d 979, 981 (Me. 1992)
(testimony of game warden that he saw defendant smoking a marijuana
cigarette and that the defendant had "glassy and baggy eyes" sufficient to
support finding that defendant was under influence of marijuana while
	[¶11]  The State presented testimony that McCurdy and Tinker smelled
like alcohol, that McCurdy's face was flushed and his eyes were bloodshot, and
that McCurdy admitted he had been drinking, as well as Fuller's opinion that
McCurdy was intoxicated.  McCurdy contends that the evidence was
insufficient because a critical piece of the evidence-the opinion testimony of
Officer Fuller-was not based on a sufficient factual foundation.  We disagree. 
Fuller observed McCurdy sufficiently to offer an opinion as to his state of
intoxication.  Moreover, there is much other evidence on which the jury could
rely to support the conviction.{5}  Intoxication can be proven by evidence that a
person consumed some quantity of an intoxicating substance and then
exhibited signs of intoxication, even if there is no opinion testimony from an
expert who observed the defendant at the time of the alleged intoxication. 
Here the jury heard testimony from both Officer Fuller and Inspector Jackson
that McCurdy was exhibiting symptoms that are commonly understood to be
signs of intoxication, and McCurdy also admitted to Inspector Doherty that he
had consumed alcohol at some point before he reached the border station. 
This evidence is sufficient to support the jury's determination that McCurdy
was under the influence of intoxicating liquor at the time he operated a motor
	[¶12]  McCurdy also contends that the court abused its discretion by
allowing the testimony of Inspector Jackson and Officer Fuller because the
State did not provide to the defense, as part of discovery, their expert
qualifications.  We disagree.  Even if the failure to disclose their qualifications
had been a violation of the discovery order, the trial court had broad discretion
to decide on an appropriate sanction.  St. Paul Ins. Co. v. Haynes, 2001 ME 71,
¶ 7, 770 A.2d 611, 613.  McCurdy has not shown that the court acted outside
the bounds of its discretion by not disallowing the testimony as a sanction. 
He has not shown actual prejudice.  Moreover, opinion testimony concerning a
person's state of sobriety is not testimony that can be given only by expert
witnesses, and is routinely presented in OUI prosecutions.
	[¶13]  Finally, McCurdy contends that the court's refusal to allow him,
through his witness Paul Kenney, to present evidence that Fuller had a
"reputation for bias" against McCurdy was an abuse of the court's discretion. 
Evidence of bias is broadly admissible under the Maine Rules of Evidence.  See
Field & Murray, Maine Evidence § 607.2, 254 (1997) ("Bias is of great value in
assessing credibility and courts are very liberal in admitting evidence showing
relationships or circumstances tending to impair a witness's credibility."). 
Evidence of a witness's bias is usually admitted under Rule 607.{6}  Id. at 254-
57.  Pursuant to Rule 607, the defendant is free to present any facts that could
reasonably show that a State witness has an ulterior motive for testifying
against the defendant.  State v. Whitman, 429 A.2d 203, 205 (Me. 1981); State v.
Doughty, 399 A.2d 1319, 1323 (Me. 1979).  Despite the general rule favoring the
admission of relevant evidence of bias, such evidence may be excluded if it is
not presented in the proper form, or pursuant to Rule 403 if its probative value
would be outweighed by its prejudicial effect, or if presenting it would
constitute a waste of time.  State v. Powers, 609 A.2d 1167, 1169 (Me. 1992).   
	[¶14]  The court disallowed Kenney's testimony about the alleged bias of
Officer Fuller because it was presented in the form of testimony about Fuller's
reputation; there was no offer of proof that Kenney had first-hand knowledge of
such bias.{7}  Reputation evidence (which otherwise would be inadmissible
hearsay) must be admitted pursuant to Rule 608.  That rule, however, limits
reputation evidence to a witness's reputation for truthfulness or
	[¶15]  McCurdy cites no cases in which a witness was allowed to testify
that another witness has a "reputation for animosity" toward the defendant.{8} 
Further, nothing in the language of Rule 608 suggests that it was meant to
allow evidence of a "reputation of bias" against a defendant.{9}  Thus, there was
no error in the court's ruling that Kenney could not testify that Fuller had a
reputation in the community for being biased against McCurdy.
	The entry is:
			Judgment affirmed.
Attorneys for State: Michael E. Povich, District Attorney Carletta M. Bassano, Deputy Dist. Atty. P O Box 297 Machias, ME 04654 Attorney for defendant: Thomas J. Connolly, Esq. P O Box 7563 Portland, ME 04112-7563
FOOTNOTES******************************** {1} . The Superior Court found that this arrest was improper, and suppressed the intoxilyzer test later administered at the station. We do not address the correctness of that ruling. {2} . Inspector Doherty stated in the police report, and later testified at the trial, that McCurdy had been driving. McCurdy does not challenge this testimony. {3} . The parties refer to a discovery order but the record does not indicate that the discovery request was granted. M.R. Crim. P. 16(d)(3) requires the State to submit proposed expert testimony in writing prior to trial upon the request of the defendant. The State's failure to submit the names of Inspector Jackson and Officer Fuller as potential expert witnesses, however, does not appear to be a violation of the discovery order because opinion testimony as to a person's intoxication is generally not considered to be expert testimony. State v. Libby, 153 Me. 14, 133 A.2d 877 (Me. 1957); State v. Hamilton, 149 Me. 218, 100 A.2d 234 (Me. 1953); Stacy v. Portland Publ'g Co., 68 Me. 279 (Me. 1878). {4} . Fuller and McCurdy have known each other for a long period of time, and their relationship has not been cordial. Fuller has arrested McCurdy at least eight times over the past twenty years. He has also arrested McCurdy's son at least six times. McCurdy suggested that Fuller's hostility toward McCurdy results from the fact that they both had been married to the same woman at different times. {5} . McCurdy is not challenging Officer Fuller's qualifications as an expert. McCurdy did not object at trial to the admission of Fuller's opinion testimony on the basis of Fuller's qualifications and consequently did not preserve the issue. {6} . Rule 607 provides that "[t]he credibility of a witness may be attacked by any party, including the party calling him." {7} . McCurdy's contention that he was prevented from presenting any evidence of bias is not accurate. The court said at sidebar that evidence of bias could be admitted, but that it was improper for McCurdy to admit it in the form of reputation testimony by Kenney. Specifically, the Court told McCurdy's counsel that it did not "think bias would be developed through character reference." The court left the door open for McCurdy to present evidence of bias in an appropriate form. The court did not discuss Rule 403 or a balancing test. {8} . In the cases cited by McCurdy, witnesses were allowed to testify to facts of which they had personal knowledge when those facts tended to show bias of a State witness toward the defendant. {9} . The confrontation clause of the Fifth Amendment (as applied to the states through the Fourteenth) also limits a court's ability to exclude evidence of bias on the part of a prosecution witness. A criminal defendant has a constitutional right to present evidence that a State witness is biased, and improperly preventing the defendant from presenting evidence tending to show bias on the part of a State witness is a "constitutional error of the first magnitude and no amount of showing of want of prejudice [will] cure it." Davis v. Alaska, 415 U.S. 308, 318 (1974) (quoting Smith v. Illinois, 390 U.S. 129, 131 (1968)). Davis, however, does not eviscerate all evidentiary rules governing how evidence of bias gets to be admitted. The particular testimony in this case was excluded because it was not presented in a proper form. There is nothing in Davis that would suggest that a defendant may introduce evidence of bias in a form that would be otherwise unacceptable. If there were no evidentiary restrictions on the form of bias evidence, then defendants would be able to present blatant hearsay evidence as long as it related to the bias of a State witness. Davis does not suggest such a result.