State v. Naoum

¶1dissenting.

¶2I am unable to agree with the opinion of the Court with respect to the in limine ruling concerning the testimony of Charles Elliot. I respectfully dissent.

¶3During the trial, Naoum informed the court of his intention to call as a witness, Charles Elliot, a former co-shareholder and co-worker of Naoum, for the purpose of imputing guilt to Elliot by establishing Elliot’s motive to set the fire. Naoum contended that recent bad feelings between the two men stemming from their business relationship provided a basis for Elliot’s motivation. In the motion, in which Gidney joined, defendants sought a ruling that, if defendants were to call Elliot as a witness to testify to his recent bad feelings for Naoum, the State would be precluded on cross-examination from inquiring into certain incidents of prior bad conduct engaged in by Elliot and Naoum. The presiding justice ruled that he would not limit cross-examination and therefore defendants chose not to call Elliot as a witness.

¶4The presiding justice based his ruling on two premises: one, that under M.R.Evid. 608(b), the State was allowed in this instance to inquire into prior bad conduct for the purpose of attacking the witness’s credibility and two, that if the jury was to hear any testimony concerning the relationship between Naoum and Elliot, it was entitled to hear the complete history of that relationship. I disagree with both conclusions.

¶5The premise that the testimony is admissible for impeaching the witness’s credibility under Rule 608(b) is inapplicable in this case. Although the presiding justice has the discretion to allow inquiry into prior bad acts for purposes of impeachment, in this case there was no feasible reason for the State to attempt to impeach this witness. The testimony that the State intended to elicit from Elliot, other than the impeachment testimony, would have strengthened its prosecution of defendants, and an attack on his credibility would have defeated the State’s purpose. It was an abuse of discretion to allow inquiry for the ostensible purpose of impeaching the witness’s credibility.

¶6With respect to the need for the jury to hear the complete history of the relationship, this presents a clear example of the probative value of evidence being substantially outweighed by the danger of unfair prejudice. M.R.Evid. 403.1 The testimony proposed for cross-examination would at most have suggested that the relationship between the two men was not always adversarial and that at least on one occasion cooperation and mutual trust existed between them. Evidence of a relationship based on cooperation rather than resentment does not refute defendants’ suggestion of motive. Such a relationship could be viewed as supporting defendants’ suggestion of motive and, in any event, the probative value of evidence allowed by the ruling would have been minimal. At the same time, the unfair prejudice to defendants would have been significant. The nature of the prior bad act of the witness would implicate Naoum in criminal conduct similar to the conduct for which he was standing trial.2 Defendants chose not to *127call the witness and were unable to impute the blame onto Elliot in an effort to create reasonable doubt as to their own guilt. Because the probative value of the evidence allowed by the court’s ruling was so tenuous and minimal and the danger of unfair prejudice was so extreme, I conclüde that defendants were erroneously deprived of a defense. I would vacate the convictions on the grounds of obvious error.