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State v. Jackson & Moore
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1997 ME 174
Docket:	Cum-96-343
Argued:	June 13, 1997
Decided:	July 31, 1997

Panel:WATHEN, C.J., and ROBERTS, GLASSMAN, RUDMAN, and LIPEZ, JJ.





STATE OF MAINE v. JOSEPH JACKSON and JEREMIAH MOORE
ROBERTS, J.

	[¶1]  Joseph Jackson appeals from the judgment of conviction
entered in the Superior Court (Cumberland County, Saufley, J.) on a jury
verdict finding him guilty of manslaughter.  Jeremiah Moore appeals from
the judgment of conviction entered in the Superior Court (Cumberland
County, Delahanty, J.) on a jury verdict finding him guilty of murder. 
Although tried separately, both cases stem from the same incident and have
been consolidated on appeal.  Jackson argues the court erroneously
admitted certain evidence and miscalculated his sentence.  Moore argues
the court committed several evidentiary errors.  We affirm both judgments
and Jackson's sentence.  
	[¶2]  In the early morning hours of Sunday, April 16, 1995, Juan
Carlos Rodriguez was shot and killed in Lewiston.  For about three weeks
prior to the shooting, Rodriguez had been dealing in crack cocaine in an
apartment on Knox Street.  The day before the killing, Jackson and Moore
traded some marijuana with Rodriguez in return for a quantity of cocaine. 
Conflict developed among the parties when Rodriguez demanded the return
of some of the cocaine because he felt he had been shortchanged.  The
conflict was resolved only when another person contributed some of his own
cocaine to settle the dispute.  Later that evening, Jackson and Moore
smoked crack cocaine on at least two occasions.  Nancy Dyment, who was
with Jackson and Moore that night, testified that they spoke of "getting
ripped off by a Dominican" and taking revenge.  
	[¶3]  After midnight Jackson and Moore drove to the apartment
where Rodriguez was dealing.  En route they picked up two more men. 
They parked the car and three of the men entered the apartment building. 
Alfred Palmer, who occupied the apartment where Rodriguez was dealing,
allowed the men inside.  Sometime after entering the apartment, Jackson
brandished a handgun and moved toward Rodriguez, who was in the kitchen. 
Moore was behind Jackson at this time.  A scuffle ensued.  Rodriguez lunged
at Jackson with a sharp object.  Jackson fired three or four shots into
Rodriguez.  An additional shot was fired from behind Jackson.  Rodriguez
died as a result of the gunshot wounds.  
	[¶4]  Jackson and Moore were charged with murder and obtained
separate trials.  Jackson was acquitted of murder and convicted of the lesser
included offense of manslaughter (Class A).  17-A M.R.S.A. § 203 (Supp.
1996).  Moore was convicted of murder.  17-A M.R.S.A. § 201(1)(A) (1983). 
This consolidated appeal followed.  
I. Nancy Dyment's Testimony at the Jackson Trial
	[¶5]  Before the start of Jackson's trial, the court granted his motion
to sequester the witnesses.  Prior to Nancy Dyment's testimony, Jackson
became concerned about conversations Dyment had outside the courtroom
with another witness, Wendy Blouin, who had testified earlier the same day
at Moore's trial.  When questioned in the absence of the jury, Dyment said
the conversation lasted about five minutes and did not involve any discussion
of the substance of Blouin's earlier testimony.  The court denied Jackson's
motion to exclude Dyment's testimony on the ground that she violated the
sequestration order.  
	[¶6]  Jackson contends the court erred by denying his motion to
exclude Dyment's testimony.  We disagree.  The limited consequence of a
sequestration order, pursuant to M.R. Evid. 615, is that witnesses are
excluded from the courtroom until they have finished testifying.  State v.
Bennett, 416 A.2d 720, 726-27 (Me. 1980).  "The primary function of
sequestration is to prevent one witness from hearing the testimony of
another so as to be able to conform his own testimony to that given by the
other, especially that given in response to cross-examination."  State v.
Cloutier, 302 A.2d 84, 90 (Me. 1973).  A sequestration order "is not a
general prohibition against witnesses talking about the case."  Bennett, 416
A.2d at 727.  In the absence of any request for more stringent restrictions to
be imposed by the court, the sequestration order in the instant case did no
more than exclude witnesses from the courtroom until they were finished
testifying.  Thus the conversation that Dyment described between herself
and Blouin was not a violation of the order.  
II. Testimony at Jackson's Trial Concerning a Robbery Plan
	[¶7]  Geoffrey Motil testified that two and one-half weeks before the
killing he and Jackson, along with Moore and a fourth person, staked out a
house in Lewiston where crack cocaine was being sold.  Motil testified that
the group planned to enter the house with guns and rob a Dominican crack
dealer they believed to be inside.  Motil thought he heard someone mention
that the dealer's name was Carlos, which was one of the names used by
Rodriguez.  The group subsequently abandoned its plan.  
	[¶8]  Jackson argues that Motil's testimony was character evidence
inadmissible pursuant to M.R. Evid. 404(b).{1}  We disagree.  Evidence of prior
bad acts is not admissible to prove that a person acted on a particular
occasion in conformity with his past behavior.  Such evidence may be
admissible, however, when offered for another purpose such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.  See M.R. Evid. 404 advisers' note.  Motil's
testimony was admissible because it tended to establish that Jackson
planned to rob Rodriguez when he entered the apartment on Knox Street,
thus showing Jackson's intent at the time of the killing.  Consequently, the
testimony had a legitimate purpose rather than the illegitimate suggestion
that Jackson had a propensity to commit crimes.  
	[¶9]  Moreover, we are not persuaded by Jackson's argument that the
prejudicial effect of Motil's testimony rendered it inadmissible pursuant to
M.R. Evid. 403.{2}  The trial court has broad discretion to weigh the relevance
of evidence against the danger of unfair prejudice to the defendant.  See
State v. Case, 672 A.2d 586, 588 (Me. 1996) (decision to admit or exclude
evidence is reviewed for abuse of discretion because the question of
admissibility frequently involves weighing probative value against
considerations militating against admissibility); Field & Murray, Maine
Evidence § 403.1, at 99 (4th ed. 1997).  In this context, "prejudice" means
more than simply damage to the defendant's cause; the rule is intended to
proscribe evidence that has an "'undue tendency to move the tribunal to
decide on an improper basis, commonly, though not always, an emotional
one.'"  State v. Ardolino, 1997 ME 141, ¶ 10, --- A.2d --- (quoting State v.
Hurd, 360 A.2d 525, 527 n.5 (Me. 1976)).  We conclude that the court acted
within its discretion in ruling that the significant probative value of Motil's
testimony was not outweighed by the risk of unfair prejudice to Jackson.  
III. Jackson's Sentence
	[¶10]  In sentencing Jackson the court set a basic period of
incarceration of 25 years and arrived at a final sentence of 30 years based on
the presence of aggravating factors.  This basic period of incarceration falls
within the extended sentencing range for Class A crimes.  In 1987 the
Legislature increased the maximum sentence for Class A crimes from 20 to
40 years.  P.L. 1987, ch. 808 (codified at 17-A M.R.S.A. § 1252(2)(A) (Supp.
1996)).  In State v. Lewis, 590 A.2d 149, 151 (Me. 1991), we concluded that
the change was intended to create a 20- to 40-year sentencing range
reserved for only the "most heinous and violent crimes committed against a
person."  
	[¶11]  Jackson argues the court erred by selecting a basic period of
incarceration within the extended sentencing range.  We disagree.  In
deciding whether a sentence in the extended range is consistent with the
principles set forth in Lewis, we look at the entire record.  As noted by the
trial court, drugs and guns are a lethal combination, and Jackson chose to
indulge in both.  The evidence also suggests Jackson was motivated, at least
in part, by a desire for revenge, and planned to rob Rodriguez, a known
cocaine dealer.  Although not dispositive, the court may consider that
manslaughter, unlike some other Class A crimes, is a crime that results in
the death of a human being.  In these circumstances, we cannot say the
court erred by finding that Jackson's crime was among the "most heinous
and violent crimes committed against a person."  
IV. Alvin Houston's Testimony at the Moore Trial
	[¶12]  Alvin Houston testified that after the shooting on April 16,
Jackson and Moore came to his apartment and Moore said, "we smoked
him, man, we smoked that bastard," referring to Rodriguez.  In late April
1995, Houston and Moore shared a cell at the Androscoggin County jail, and
shortly thereafter Houston gave a statement to the police concerning the
evening of the shooting.  On cross-examination, Moore made an offer of
proof that Houston told the police he thought Moore was innocent.  The
court, however, refused to permit Moore to question Houston in that regard,
concluding that the issue of Moore's guilt or innocence was solely a matter
for the jury to resolve.  Moore objected to the court's ruling.  
	[¶13]  Moore contends the court erred by excluding Houston's
testimony about his statement to the police.  The decision to admit or
exclude evidence is within the discretion of the trial court.  State v. Case,
672 A.2d at 588.  We conclude the court exceeded the bounds of its
discretion by excluding the proffered testimony.  Houston's prior statement
that he thought Moore was innocent was relevant to the purpose of
impeaching his testimony; the statement tended to show Houston believed
Moore did not participate in the killing, which was at odds with Houston's
testimony.  See State v. Marr, 551 A.2d 456, 458 (Me. 1988) (evidence of a
prior inconsistent statement is proper impeachment pursuant to M.R. Evid.
607).  We conclude, however, that the exclusion of Houston's testimony was
harmless error because it would have added little to the thorough
impeachment to which he was otherwise already exposed.  State v. Pelletier,
673 A.2d 1327, 1330 (Me. 1996) (we will not vacate a judgment for an error
objected to at trial so long as it is highly probable that the jury's
determination of guilt was unaffected by the error).  Houston conceded he
originally did not tell the police about Moore's incriminating statement.  He
admitted his testimony was motivated, at least in part, by a desire to obtain
leniency with regard to outstanding state and federal drug charges.  He
acknowledged he had been convicted of numerous crimes and had been
smoking crack cocaine all day prior to his encounter with Moore.  In light of
all this evidence, the probative value of Houston's testimony concerning his
prior statement to the police was negligible.  
V. The In-Court Identification of Moore
	[¶14]  While many witnesses discussed Moore by name, none
identified him in the courtroom prior to the close of the State's case.  Over
Moore's objection, the court allowed the State to reopen its case for the
purpose of identifying him.  The State then recalled as a witness State Police
Detective Geoffrey Cummings, who testified that he worked on the case and
had come to know Moore in connection with his investigation.  Cummings
then identified Moore for the record.  
	[¶15]  Moore contends that Cummings's identification was insufficient
because he merely investigated the killing and was not an eyewitness to the
relevant events described by the other witnesses.  We disagree. 
Identification of the accused is an issue of fact that is properly submitted to
the jury.  State v. Guptill, 481 A.2d 772, 775 (Me. 1984).  The State may
establish the identity of the accused through purely circumstantial evidence. 
Id.  In the instant case, the testimony of the witnesses, who knew Moore
personally, even without the in-court identification by Cummings, presented
the jury with sufficient evidence on which to decide the issue of Moore's
identity.  
	[¶16]  Two other issues raised by Moore do not merit discussion.  
	The entry is:  
				As to Joseph Jackson:
				Judgment affirmed.  Sentence affirmed.

				As to Jeremiah Moore:
				Judgment affirmed.
                
Attorneys for State: Andrew Ketterer, Attorney General Nancy Torresen, Asst. Atty. Gen. (orally) 6 State House Station Augusta, ME 04333-0006 Attorneys for defendants: David L. Brandt, Esq. (orally) P O Box 837 Windham, ME 04062 (for Joseph Jackson) Stuart W. Tisdale, Jr., Esq. (orally) P O Box 572 Portland, ME 04112 (for Jeremiah Moore)
FOOTNOTES******************************** {1}. Rule 404(b) provides: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." {2}. Rule 403 provides: "Although 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."