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STATE v. BREWER10/31/1985
Ricky Brewer appeals from a judgment of the Superior Court, Androscoggin County, affirming the judgment of the District Court, Livermore Falls, finding him guilty of operating a motor vehicle while under the influence of intoxicating liquor, in violation of 29 M.R.S.A. § 1312-B (Supp. 1984-1985), and operating a motor vehicle while his license to operate had been suspended, in violation of 29 M.R.S.A. § 2184 (Supp. 1984-1985). We agree with the defendant's contention that the trial court erred in drawing inferences adverse to the defendant from the defendant's failure to call a witness, and vacate the judgment.
I
Virginia Curtis advised the sheriff's department by telephone that there was an accident on the Line Road in Leeds. The accident had occurred within approximately
On arrival at the scene, the trooper found the truck a few feet from the Line Road lodged too close to a tree to permit the left door to open. The trooper observed tracks on the right side of the truck near the door. There was no one in the truck when the trooper arrived, and the trooper was unable to determine how many people had been in the truck when the accident occurred. In the trooper's opinion someone could have left the truck by the passenger door, reached the road and left the scene of the accident. The only evidence as to the direction of the footprints was the trooper's testimony "there weren't any leading off into the woods." The trooper also observed a star-shaped crack high on the windshield to the left of the driver's seat and fragments of glass from the shattered sunroof on both the driver's and passenger's seats. From the registration in the vehicle, the trooper determined that Andrew Pratt was the owner.
At the Curtis home the trooper observed that the defendant had a cut under his chin and scratches on his face. His breath smelled of alcohol, and his eyes were red and glassy with the eyelids drooping. The defendant insisted he had not been driving the truck. A breath test was administered that gave a
In response to the question — "You didn't contact Andrew Pratt, to see whether he had been using the [truck] that night, did you?" — the trooper testified that when Pratt came to "pick up" the defendant, he stated he had not been using the truck, but had gone to bed and left the keys on the table in the apartment that he and the defendant shared.
At trial in the District Court the defendant freely admitted his intoxication and the suspension of his license, but denied driving the truck. The defendant testified that he and Pratt had been drinking together at a bar in Lewiston. They left together and got into Pratt's truck. Pratt was driving, and the defendant had gone to sleep and did not awaken until after the accident. At that time he was alone in the truck.
Neither party called Pratt as a witness. In his closing argument the prosecutor asked the court to draw an inference adverse to the defendant based on the defendant's failure to call Pratt. In making findings of fact the court stated:
he defendant, while on the stand, admitted that he was under
the influence of alcohol or intoxicating liquor. . . . But the
question . . . revolves around the issue of operation. . . .
The Court does have the right to infer, that if someone else
was operating this car, as the defendant contends, then that
someone, Mr. Pratt, is the party who would be his — Brewer's
best alibi witness. He's not here today, . . . obviously he's
the witness who might clear him of this charge.
The court found the defendant guilty as charged, and the defendant appeals. The defendant contends on appeal, inter alia, that the evidence
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