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STATE v. CLOUTIER7/28/1993
t
is impermissible.
Id. Questions such as those asked by the State in this case are better avoided; the possibility exists that such questioning could create a missing-test-result inference similar to the missing-witness inference created in Brewer. Unlike Brewer, however, the State here did not ask the jury, during its closing argument, to draw an adverse inference based on the defendant's failure to introduce evidence of his blood alcohol content. State v. Brewer, 505 A.2d at 775. In fact, during its closing argument, the State made absolutely no comment on the availability of the blood sample and Cloutier's failure to introduce any blood test results. Nor did the trial court suggest to the jury that such an inference was permissible; in fact, the trial court instructed the jury that:
The burden is always upon the State to prove each element of
the offense charged beyond a reasonable doubt, and this burden
remains on the State throughout the case. A defendant is not
required to prove his innocence or produce any evidence, and no
inferences whatsoever may be drawn from the election of the
defendant not to testify.
(Emphasis added). Given the circumstances of this case, we conclude that no impermissible inference was created.
II.
At the trial, the State introduced the testimony of a former employee of the Chuck Wagon restaurant. During a recess in the witness's testimony, Cloutier discovered that the witness had been convicted of gross sexual misconduct in a closed proceeding six years earlier in Massachusetts when he was 14 years old. Cloutier wanted to introduce this conviction in evidence to impeach the witness but the trial court refused to allow it.
The impeachment of a witness with a juvenile adjudication is governed by M.R.Evid. 609(d) which provides that:
Evidence of a juvenile adjudication in proceeding open to
the public may be admitted under this rule. Evidence of a
juvenile adjudication in a proceeding from which the public was
excluded may be admitted under this rule only in another
juvenile proceeding from which the public is excluded.
M.R.Evid. 609(d). Cloutier asserts that, if the proceeding had been held in Maine it would have been open to the public and the witness's conviction would have been admissible pursuant to Rule 609(d). He concludes that the trial court, therefore, abused its discretion by refusing to admit the witness's conviction. The language of Rule 609(d) leads us to conclude that, since
We also reject Cloutier's contention that if the witness's conviction is barred by Rule 609, then the rule is unconstitutional as applied. Although we acknowledge that even if prohibited by M.R.Evid. 609(d), "a prior juvenile adjudication may be admissible to impeach the credibility of a witness if it demonstrates a strong tendency for bias," State v. Ouellette, 544 A.2d 761, 763 (Me. 1988) (citing Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)), the witness's adjudication for gross sexual misconduct at age 14 demonstrates no strong tendency for bias against Cloutier.
Cloutier's other contentions merit no discussion.
The entry is:
Judgment affirmed.
All concurring.
Page 1 2 Maine DUI Attorneys
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