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State v. Thurlow
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Decision: 	1998 ME 139
Docket: 	Cum-97-183
Argued: 	January 6, 1998  
Decided:	June 5, 1998

Concurring:	LIPEZ, J.


	[¶1]  Lee Thurlow appeals from the judgment entered in the Superior
Court (Cumberland County, Crowley, J.) following a jury trial in which he was
found guilty of unlawful sexual contact pursuant to 17-A M.R.S.A. § 255(1)(A)
(Supp. 1997), assault pursuant to 17-A M.R.S.A. § 207 (1983 & Supp. 1997),
and attempted gross sexual assault pursuant to 17-A M.R.S.A. § 253(1)(A)
(Supp. 1997).  Thurlow contends, inter alia, that the trial court erred in
excluding testimony concerning the victim's prior threats to falsify
allegations of rape against him.{1}  We agree and vacate the judgment.
	[¶2]	Lee Thurlow's convictions arise from an alleged incident
between Thurlow and his former girlfriend.  Thurlow allegedly arrived at the
victim's home, entered, and forcibly attempted to have sex with her.  The
testimony revealed that, about thirteen months prior to this incident, the
victim's relationship with Thurlow ended when she became aware that
Thurlow was having sexual relations with another woman.  The victim
became aware of Thurlow's indiscretion while the two were staying at the
apartment of Thurlow's friends, Larry Shumway and Susan McAleer.  On the
night that Thurlow and the victim ended their relationship, Thurlow
contends that the victim, angered by Thurlow's infidelity, told McAleer that,
"he [Thurlow] just fucked me and left.  I should call the police on him. 
That's rape."  
	[¶3]	During direct examination, the victim denied having made this
statement.  Thurlow was not permitted to present impeachment testimony
from McAleer concerning this conversation.  Thurlow made two arguments
in support of the admissibility of McAleer's testimony concerning the
victim's statements:  (i) they are prior inconsistent statements admissible
for the purpose of impeaching her testimony; and (ii) they are excited
utterances pursuant to M.R. Evid. 803(2).  The court rejected both
arguments and furthermore determined that, pursuant to M.R. Evid. 403,
the probative value of McAleer's testimony was outweighed by its potential
adverse impact on the jury and therefore should be excluded.  After a jury
verdict of conviction, Thurlow filed a motion for a new trial based on the
exclusion of the testimony concerning the victim's threat to fabricate a rape
charge against him.  The motion was denied and this appeal followed.
	[¶4]	The court correctly concluded that the victim's statements were
not excited utterances.  The court erred, however, in concluding that the
victim's alleged out-of-court statements to McAleer did not constitute prior
inconsistent statements.  A prior inconsistent statement is a statement
"offered not for the truth of the matter asserted but to demonstrate that the
witness has in the past told a different story and therefore his [or her] trial
testimony may not be reliable . . . ."  State v. Marr, 551 A.2d 456, 458 (Me.
1988).  We have enunciated "two preconditions to the admission of an out-
of-court statement under the prior inconsistent statement rule:  the out-of-
court statement must truly be inconsistent with the witness's trial testimony
. . . and the impeachment must be on a matter that is 'relevant' as opposed
to 'collateral.'"  Id. (quotations and citations omitted).  
	[¶5]  At trial, the victim denied that she had, about 13 months prior to
the present incident, threatened to falsify a rape charge against Thurlow in
the presence of McAleer.  Thurlow subsequently sought to introduce
testimony by McAleer that the victim did make this statement to McAleer. 
Such testimony would have described an out-of-court statement by the
victim that directly contradicted her trial testimony.  The court therefore
erred in not finding an inconsistency. 
	[¶6]  The trial court also erred in excluding McAleer's testimony on
the basis of M.R. Evid. 403.  Pursuant to M.R. Evid. 403, the trial court may
exclude evidence "if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury . . .
."  We review evidentiary rulings for clear error or abuse of discretion and
accord "wide discretion" to the trial court's evaluation of the potential for
unfair prejudice.  State v. Cloutier, 1997 ME 96, ¶ 5, 695 A.2d 550, 552; 
State v. Shuman, 622 A.2d 716, 718 (Me. 1993).  We have held, however,
that when evidence is proffered by a criminal defendant and the State
contends that the evidence is inadmissible, "the defendant's right to
confront and cross-examine the witnesses against him significantly
circumscribes the court's discretion to exclude the evidence."{2}  State v.
Graves, 638 A.2d 734, 737 (Me. 1994)      
 	[¶7]  "[T]he exposure of a witness' motivation in testifying is a proper
and important function of the constitutionally protected right of cross-
examination."  Davis v. Alaska, 415 U.S. 308, 316-17 (1974).  The right to
introduce evidence to expose motive assumes particular importance when
the criminal defendant faces damaging testimonial evidence from a witness
who might be motivated by "malice, vindictiveness, intolerance, prejudice,
or jealousy."  Davis, 415 U.S. at 317 n.4 (quoting Greene v. McElroy, 360
U.S. 474, 496 (1959)).  Thurlow theorizes that if the victim was capable of
threatening to falsify a rape charge against him then she is capable of
falsifying the present charges against him; he claims that she is motivated in
the present instance by the same malice, vindictiveness, and jealousy that
led her to contemplate a false rape charge in the past. 
	[¶8]  This case is functionally indistinguishable from Graves.  In
Graves, the trial court excluded evidence demonstrating possible bias of a
witness against the defendant who was accused of raping her.  Graves, 638
A.2d at 737.  This witness had sold t-shirts prior to trial depicting the
accused with his hands and penis in handcuffs and which stated "Ain't
gettin off . . . this time . . . they finally got 'the big one'."  Id. at 736 n.2.  The
trial court reasoned that the prejudicial value of this evidence outweighed its
probative value in light of the other evidence produced demonstrating the
witnesses dislike for the defendant.  Id. at 737.  We disagreed, noting that
the sale of t-shirts by the witness demonstrated a distinct level of bias
against the defendant and could not be characterized as cumulative bias
evidence.  Id.  The excluded testimony of McAleer, like that excluded in
Graves, was not merely cumulative evidence of the victim's dislike for
Thurlow; the excluded evidence demonstrated a distinct manifestation of
vindictiveness toward Thurlow -- a willingness to seriously contemplate a
false retaliatory charge of rape.
	[¶9]  The testimony of McAleer is "the proper subject for jury
consideration."  Graves, 638 A.2d at 739.  The victim was the State's
principal witness against Thurlow, and thus "evidence tending to impeach
her credibility ha[s] greatly enhanced probative value."  State v. Whitman,
429 A.2d 203, 205 (Me. 1981).  The adverse impact that this evidence may 
have on the jury cannot outweigh the probative value in these circumstances. 
See State v. Forbes, 445 A.2d 8, 12 (Me. 1982) ("[adverse impact] means
more than simply damage to the opponent's cause . . . [it is] an undue
tendency to move the tribunal to decide on an improper basis, commonly,
though not always, an emotional one") (citations omitted).  The trial court
exceeded the bounds of its discretion in excluding the testimony
concerning the victim's threat to fabricate a rape charge against Thurlow. 
Because we cannot say beyond a reasonable doubt that the exclusion of this
evidence did not affect the verdict, the error is not harmless and we vacate
the judgment on this ground.  See State v. Anaya, 438 A.2d 892, 894 (Me.
	The entry is:
Judgment vacated.  Remanded for further
proceedings consistent with the opinion herein.

LIPEZ, J., concurring [¶10] Although I agree with the Court's conclusions that the trial court erred in excluding evidence of the victim's statements and that this error was not harmless, I write separately to analyze in greater detail the court's alternative basis for the exclusion of the testimony of McAleer pursuant to M.R. Evid. 403. In my view, that exclusion reflects a common misapplication of Rule 403. [¶11] The court concluded erroneously that the victim's out-of-court statements to McAleer should be excluded pursuant to Rule 403 because they were too remote in time to be relevant. The defendant offered evidence of the victim's alleged willingness to make a false criminal report of rape against him to raise questions about the legitimacy of the charges in this case. Although remoteness may have diminished the probative value of the statements, it did not make proof of the victim's long-standing anger at the defendant irrelevant. Moreover, Rule 403 governs the court's discretion to exclude relevant evidence. Rule 403 does not apply to irrelevant evidence. [¶12] Despite the court's description of the victim's out-of-court statements as irrelevant, the court's summary reference to Rule 403 also suggests a concern that the statements of McAleer were somehow unfairly prejudicial to the State because they related to a separate incident involving the victim and the defendant that occurred over a year before the events that were the subject of the trial. Rule 403 states:
[a]lthough relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.
This rule sets forth six different grounds for excluding relevant evidence. 
Too often, courts and counsel invoke "unfair prejudice" as a basis for
exclusion pursuant to Rule 403 when that basis for exclusion is inapplicable
and the actual basis for exclusion is a different Rule 403 ground.  
"Unfair prejudice" has a specific meaning.  It is more than
simply damage to the opponent's cause.  A party's case is always
damaged by evidence that the facts are contrary to his
contentions; but that cannot be ground for exclusion.  What is
meant here is an undue tendency to move the tribunal to decide
on an improper basis, commonly, though not always, an
emotional one.
State v. Hurd, 360 A.2d 525, 527 n.5 (Me. 1976) (citation omitted)
(emphasis added).  Although the State may invoke "unfair prejudice"
pursuant to Rule 403 as a basis for excluding evidence offered by the
defendant in a criminal trial, see, e.g., United States v. James, 1998 WL
128489, *8 n.1, -- F.3d -- (9th Cir. Mar. 24, 1998) ("The rule is neutral as to
which side proffers the evidence; it does not say 'unfair prejudice to the
defendant.'"),{3} the State must demonstrate that the probative value of the
evidence is substantially outweighed by the risk that that evidence will have
an undue tendency to move the jury to acquit the defendant on an improper
	[¶13]  The State never demonstrated in this case what that improper
basis would be.  Indeed, the State complicated the judge's task by failing to
articulate a cogent basis for excluding McAleer's testimony.  Although the
exigencies of a trial will always limit the time for a careful analysis of
evidentiary issues, both counsel and the court should try to avoid shorthand
references to Rule 403 or to "unfair prejudice" in lieu of a brief but more
complete explanation of the basis for exclusion pursuant to Rule 403.  Such
an explanation may help to focus the analysis of counsel and the court, and
may reduce the likelihood of the kind of error we find here.

Attorneys for State: Stephanie Anderson, District Attorney Julia Sheridan, Asst. Dist. Atty., (orally) 142 Federal Street Portland, ME 04101 Attorney for defendant: Robert A. Levine, Esq., (orally) 17 South Street Portland, ME 04101
FOOTNOTES******************************** {1} Thurlow also claims that the verdict was unlawfully tainted by a juror's extra- judicial questioning of him concerning his decision not to testify. Because we vacate the judgment on the ground that the trial court improperly excluded Thurlow's proffered evidence regarding the victim's motive we need not reach the issue of the improper contact during trial between a juror and Thurlow. See Your Home, Inc. v. City of Portland, 432 A.2d 1250, 1256-57 (Me. 1981) ("[W]e avoid expressing opinions on constitutional law whenever a non- constitutional resolution of the issues renders a constitutional ruling unnecessary."). {2} This right of confrontation is secured by the United States and Maine constitutions. U.S. Const. amend. VI; Me. Const. art I, § 6. {3} See also 1 Wigmore, Evidence § 10a at 682-83 (Tillers rev. 1983 & Supp. 1991) (collecting cases); cf. State v. Albert, 495 A.2d 1242, 1244 (Me. 1985) (acknowledging that Rule 403 would apply to evidence offered by the defendant that qualified for admission pursuant to M.R. Evid. 412); United States v. Guardia, 135 F.3d 1326, 1329 (10th Cir. 1998) ("Rule 403 applies to all evidence admitted in federal court, except in those rare instances when other rules make an exception to it.").