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STATE v. CLOUTIER7/28/1993
Edward H. Cloutier appeals from convictions of reckless or criminally negligent manslaughter, 17-A M.R.S.A. § 203(1)(A) (Supp. 1989); aggravated assault, 17-A M.R.S.A. § 208(1)(A) (1983); reckless conduct with a dangerous weapon, 17-A M.R.S.A. § 211 & 1252(4) (1983); and aggravated operating under the influence (OUI), 29 M.R.S.A. § 1312-B(1) & (2-A) (Supp. 1989), entered after a jury trial in the Superior Court (Hancock County, Pierson, J.). Cloutier asserts, inter alia, that the trial court violated his privilege against self-incrimination by allowing the State to question its own chemist about the availability of a blood sample for Cloutier to test and by asking Cloutier's expert whether he had been supplied a sample of Cloutier's blood and that the trial court abused its discretion by preventing Cloutier from impeaching one of the State's witness with a conviction resulting from a juvenile adjudication.
The facts, as presented at trial, may be briefly summarized as follows: On July 21, 1990, Cloutier consumed a number of alcoholic beverages in the afternoon and evening at the Chuck Wagon restaurant in Livermore Falls. Later that night, around midnight, Cloutier's vehicle collided with three other vehicles. One person was killed and several others suffered substantial injuries. Investigations after the accident revealed that Cloutier's blood-alcohol level at 1:39 AM was 0.19% and was estimated to have been between 0.21% to 0.24% at the time of the accident.
Cloutier was indicted on the above-mentioned charges and, after a jury trial in the Superior Court, guilty verdicts were returned on all four counts. Cloutier appeals.
I.
During the State's examination of its own chemist, the following exchange took place:
Q. . . . re both blood samples still at the Public Health
Lab?
A. Just one tube is still at the Public Health Lab.
Q. . . . id you give a sample of blood to someone?
[Cloutier's objection overruled.]
A. . . . I did give a tube of blood to someone, yes.
Q. Okay. Was it a representative of the defendant?
A. Yes, it was.
The State again mentioned Cloutier's blood samples during its cross-examination of Cloutier's chemist:
Q. And did the defense send you any blood test to be done with
Mr. Cloutier's name on it.
A. No, . . . ma'am.
After this exchange, Cloutier moved for a mistrial. The trial court denied this motion.
Cloutier argues that his privilege against self-incrimination was implicated when the trial court allowed the State to introduce evidence about the availability of the blood sample and whether Cloutier's expert had tested the sample. Cloutier relies on our decision in State v. Brewer, 505 A.2d 774 (Me. 1985) in which we held that:
n a criminal case the failure of a party to call a witness
does not permit the opposing party to argue, or the factfinder
to draw, any inferences as to whether the witness's testimony
would be favorable or unfavorable to either party.
Id. at 777. We explained:
To allow the missing-witness inference in a criminal case is
particularly inappropriate since it distorts the allocation of
the burden of proving defendant's guilt. The defendant is not
obligated to present evidence on his own behalf. The inference
may have the effect of requiring the defendant to produce
evidence to rebut the inference. If he fails to do so, the
missing-witness inference allows the state to create "evidence"
from the defendant's failure to produce evidence. Such a resul
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