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STATE v. BREWER10/31/1985
is insufficient to support the conviction and that the inference drawn by the trial court is improper.
II
When, as here, a defendant challenges the sufficiency of the evidence, we will set the conviction aside only if no trier of fact rationally could have found the elements of the crime beyond a reasonable doubt. State v. Reardon, 486 A.2d 112, 117 (Me. 1984). A conviction based on circumstantial evidence is not for that reason any less conclusive. State v. Snow, 464 A.2d 958, 961 (Me. 1983); State v. Crosby,
456 A.2d 369, 370 (Me. 1983). While the element of operation is a close question in this case, we cannot say on the facts presented that no trier of fact rationally could have found the elements of the crime beyond a reasonable doubt.
III
The defendant contends that it was improper for the trial court to draw any inference of the defendant's guilt by reason of the defendant's failure to call Pratt as a witness. We agree.
The facts of this case require us to reexamine, in light of the Maine Rules of Evidence, the practice of drawing an inference from a party's failure to call a witness. Nine decades ago the United States Supreme Court characterized this practice in the following terms:
f a party has it peculiarly within his power to produce
witnesses whose testimony would elucidate the transaction, the
fact that he does not do it creates a presumption that the
testimony, if produced, would be unfavorable.
Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 41, 37 L.Ed. 1021 (1893). See 2 Wigmore, Evidence § 286 (J. Chadbourn rev. 1979). The missing-witness inference was linked historically with the concept that a party "vouched" for the credibility of a witness called by him and thus was unlikely to call a witness whose testimony might be adverse. See State v. Fournier, 267 A.2d 638, 639 (Me. 1970); R. Field & P. Murray, Maine Evidence § 607.1 (1976). In effect, under the traditional practice the bare fact that a party did not call a witness who might have corroborated the party's testimony was treated as a relevant and admissible evidentiary fact that permitted the opposing party to argue and the factfinder to infer that the missing witness's testimony would be unfavorable since otherwise the party would have called the witness and vouched for him. See State v. Whitman, 429 A.2d 203, 208-209 (Me. 1981) (Roberts, J., joined by Godfrey, J., concurring).
Any inference as to the content of testimony not given presents grave dangers of speculation and conjecture. See McCormick, Law of Evidence § 272 at 657 (E. Cleary ed. 1972). Accordingly, even when we have permitted the inference, we cautioned that it can involve serious risks of unfairness to the accused. State v. Farris, 420 A.2d 928, 935 n. 5 (Me. 1980); State v. Bey, 342 A.2d 292, 298 (Me. 1975). We have held the drawing of an inference improper when neither party can be said to have greater power to produce the witness. Whitman, 428 A.2d at 206-208; Leek v. Cohen, 141 Me. 18, 22, 38 A.2d 460, 462 (1944). See also State v. Tompkins, 431 A.2d 619, 620-21 (Me. 1981) ("We do not suggest any inference from either party's failure to call the [escaped work-release prisoner's] employer as a witness").
The promulgation of the Maine Rules of Evidence removed any logical basis for the missing-witness inference by abolishing the practice of vouching. Rule 607 provides: "The credibility of a witness may be attacked by any party, including the party calling him." Under Rule 607 a party may call a witness, elicit the witness's testimony, and then freely attack the witness's credibility if the testimony proves to be adverse.
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