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STATE v. HERBEST12/6/1988
se the issue is raised for the first time on appeal, our review of it is on an obvious error basis. M.R.Crim.P. 52(b). We find no obvious error. Although the trial justice did not make an express finding that Herbest's statements were voluntary, see M.R.Crim.P. 41A(d), the "voluntariness of the statements appears on the record with the unmistakable clarity required by Sims v. Georgia, [385 U.S. 538, 544, 87 S.Ct. 639, 643, 17 L.Ed.2d 593 (1967)]." State v. Snow, 513 A.2d 274, 276 (Me. 1986).
Herbest further claims that Trooper Ouellette's presence in the emergency room during which he overheard the statements made by Herbest, was an unreasonable search and seizure in violation of the Fourth Amendment to the United States Constitution. This claim is without merit. Herbest had no reasonable expectation of privacy in a reception area of a hospital emergency room when he made statements that could be overheard by everyone in the area. See State v. Bridges, 513 A.2d 1365, 1367-68 (Me. 1986) (citing Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967)). There was no error in the denial of Herbest's motion to suppress his statements.
II.
Herbest next contends that the trial justice erred in denying his two motions for a mistrial, both based on what Herbest asserts to be prosecutorial misconduct. Because of the superior vantage point of the justice presiding at a trial, the refusal to grant a mistrial will be overturned only if there is an abuse of discretion on the part of the trial justice. State v. Cormier, 535 A.2d 913, 915 (Me. 1987); State v. Jones, 523 A.2d 579, 581 (Me. 1987).
During the trial, the prosecutor objected to the cross-examination of a State's witness. In stating his objection the prosecutor asserted that Herbest's attorney was trying to confuse the jury. The court cautioned the jury to disregard the prosecutor's improper comment and denied Herbest's motion for a mistrial. A prosecutor's duty to seek convictions is balanced
Herbest testified at trial that he had been drinking prior to the accident and during most of the weekend preceding the accident. During cross-examination, the prosecutor asked Herbest if he had lost his job earlier that week or if something had happened to upset him. Herbest objected on the grounds that the State's line of questioning was a "fishing expedition" and that he was prejudiced by the questions, both of which were answered in the negative by Herbest. Although it may be improper to ask questions of a witness for which there is no basis, see Hebert, 480 A.2d at 749 n. 12; R. Field & P. Murray, Maine Evidence § 611.4, at 239 (2d ed. 1987), the prosecutor in this case represented that he had knowledge that some traumatic event had recently happened to Herbest, and that he believed it to be the loss of a job. In the absence of prosecutorial bad faith, not found by the trial justice here, or circumstances exceptionally prejudicial to Herbest, again, not present here, the trial justice did not abuse his discretion in refusing to grant a mistrial. Jones, 523 A.2d at 581; State v. Hilton, 431 A.2d 1296, 1302 (Me. 1981).
III.
Herbest next argues that it was an abuse of discretion for the trial justice after a voir dire examination to allow Trooper Brian Theriault of the Maine State Police to testify as an expert witness in accident reconstruction. Theriault examined the scene of the accident and observed a single-wheel skid mark, gouge marks and "critical speed" scuff marks on the surface of Route 16. The skid mark, a gradually darkening black line, began in the west-bound lane of Route 16 and continued for over 165 feet downhill and across the center line into the east
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