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State v. D. Goodwin
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision: 1997 ME 69
Docket:  Som-95-125
Submitted on Briefs November 22, 1996	
Decided  April 4, 1997

Panel:WATHEN, C.J.,  ROBERTS, GLASSMAN, CLIFFORD, DANA, and LIPEZ, JJ. 
STATE OF MAINE v. DALE GOODWIN

ROBERTS, J.

	[¶1]  Dale Goodwin appeals from the judgment entered on February 3,
1995, following a jury trial in the Superior Court (Somerset County,
Marsano, J.) convicting him of unlawful sexual contact (Class C), 17-A
M.R.S.A. § 255 (Supp. 1996).  Goodwin contends that prosecutorial
misconduct during his cross-examination and a discovery violation deprived
him of a fair trial.  We affirm the judgment.  Goodwin also appeals from the
court's judgments entered the same day that revoked his probation on two
1993 convictions.  Because Goodwin's brief addresses no issue relating to
the probation revocations, we affirm those judgments.{1}  
	[¶2]  In June 1994, Goodwin was 27 years old and the victim was a 13-
year-old boy.  The two had been friends for about two years.  The offense
occurred while the two were swimming in Sibley Pond in Canaan.  The
victim testified that while they played in the water, Goodwin, on two
occasions, pulled off the victim's shorts and underwear and touched his
buttocks and penis.  The defense theory at the trial was that the victim had
misinterpreted some incidental touching because the victim had heard
rumors that Goodwin was homosexual.  On direct examination Goodwin
testified that some of the victim's clothing did come off while they were
playing in the water.  He stated that on the first occasion only the victim's
shorts came off.  He was not sure how that happened, but speculated he may
have caught his hand on them when he was throwing the boy up and out of
the water.  He testified that on the second occasion both the victim's shorts
and underwear were removed.  Goodwin testified they were playing tag, and
when Goodwin grabbed the victim's shorts the victim "wiggled right out of
them" while swimming away.  Goodwin also testified there was considerable
physical contact between them while they were playing in the water and
that Goodwin may have touched the boy's buttocks by accident while they
were feeling around in the water for the lost shorts and underwear.  
	[¶3]  On cross-examination the State questioned Goodwin about
inconsistencies between his testimony and the testimony of the victim and
the investigating officer, Sergeant Carl Gottardi.  On seven occasions the
State asked Goodwin whether the testimony given by the victim or Gottardi
was incorrect.  For example, the State asked, "Now, at this point, did [the
victim] tell you to stop it or cut it out or make any statement to you?" 
Goodwin answered, "No."  The State then asked, "So, is [the victim]
incorrect on this point?"  After Goodwin objected at a sidebar conference
that the jury is responsible for assessing credibility, the State responded,
"I'm being very careful not to use the [word lie]."  The court ruled that the
State could focus the jury's attention on whether there is a difference in
testimony.  
	[¶4]  Goodwin argued at the trial and again on his appeal that asking
the defendant whether another witness was incorrect is the same as asking
if the witness lied, citing State v. Bourgeois, 639 A.2d 634 (Me. 1994); State
v. Tripp, 634 A.2d 1318 (Me. 1994); and State v. Steen, 623 A.2d 146 (Me.
1993).  The State contends that it was merely attempting to call attention to
the differences in testimony and did nothing objectionable.  We disagree
with both contentions.  
	[¶5]  The practice of asking a defendant whether a witness is lying is
objectionable for two reasons.  First, it creates the impression that the jury
could believe the defendant only if the jury found another witness lied.  That
impression, whether conveyed in cross-examination or in final argument, is
manifestly erroneous.  See Tripp, 634 A.2d at 1320.  Second, the question
whether the defendant believes another witness lied is irrelevant. 
Evaluation of credibility is for the jury, and a lay witness's opinion on
credibility is simply not admissible.  "The jury are the judges of credibility
which is not restricted to veracity but relates also to such possible factors as
powers and opportunity for observation, recollection and accuracy of
observation, etc."  Lewis v. Knowlton, 1997 ME 12, ¶ 8, 688 A.2d 912
(quoting Carver v. Lavigne, 160 Me. 414, 421, 205 A.2d 159, 163 (1964)). 
In this case, the questions asked by the State are subject to objection only
on the second ground.  Goodwin's opinion whether the victim is mistaken
or incorrect is not relevant and not admissible pursuant to M.R. Evid. 401. 
	[¶6]  We agree with the State that it may identify or highlight
differences between the testimony of the defendant and the State's
witnesses.  For example, we accept the State's contention that it may
ascertain specifically areas in which the defendant disagrees with other
witnesses, if such questioning calls for a statement of fact rather than of
opinion.  Differences in testimony can be identified without asking the
defendant's opinion whether the other witnesses were incorrect, mistaken,
inaccurate, or suffered from poor memory.  For example, to ask Goodwin,
"Then you disagree with Officer Gottardi's statement that you admitted
accidentally pulling off [the boy's] shorts and underwear?" is different than
asking, "Then Officer Gottardi is incorrect?" and is a proper way to ask the
question.  Several other jurisdictions have recognized the distinction we
make today.  See, e.g., Commonwealth v. Littleton, 649 N.E.2d 162 (Mass.
App. 1995); State v. Flanagan, 801 P.2d 675 (N.M. App. 1990), cert. denied,
801 P.2d 659 (N.M. 1990); State v. Wright, 888 P.2d 1214 (Wash. App.),
review denied, 902 P.2d 163 (Wash. 1995).  In the circumstances of this
case, however, permitting the State to ask these irrelevant questions about
the defendant's opinion is harmless error.  M.R. Evid. 103.  
	[¶7]  Goodwin also contends that the court should have dismissed the
indictment because of a discovery violation.  Sergeant Gottardi testified that
he had received a report from Deputy Richard Emery along with a written
statement of the victim.  On inquiry in the absence of the jury, Sergeant
Gottardi explained that he was referring to a cover sheet attached to the
victim's statement but he could not recall its contents.  Based on the State's
assurance that the form would be located and submitted to the court, the
defendant's motion to dismiss was denied.  Unfortunately the State
neglected to submit the form during the approximately three weeks
between the trial and the entry of the judgment.  Some 16 months later we
granted the State's motion to supplement the record and submit the
missing cover sheet.  Nothing contained therein warrants vacating
Goodwin's conviction.  
	The entry is: 
				Judgments affirmed. 
 
Attorneys for State: David W. Crook, District Attorney Evert Fowle, Asst. Dist. Atty. Court Street Skowhegan, ME 04976 s Attorney for defendant: Emily A. Broadhead, Esq. Laskoff & Associates P O Box 7206 Lewiston, ME 04212-7206
FOOTNOTES******************************** {1}. Our decision affirms the judgments in Superior Court Docket Nos. CR-94-411, CR-93-5, and CR-93-341.