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556 A.2d 1098

State v. Diaz

Supreme Judicial Court of Maine

Decided April 10, 1989

Supreme Judicial Court of Maine · decided 1989-04-10

Cited by 1 later decisions — most recently May 1989

1 state decisions

Relies on State v. True · State v. Dube · State v. Pendexter

Good law ✅— No negative treatment on recordhow we know

Decided 1989-04-10

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COLLINS, Justice.

¶1Jody Diaz appeals from his conviction by a Superior Court jury (Penobscot County; *1099Silsby, J.) of operating under the influence or with excessive blood alcohol in violation of 29 M.R.S.A. § 1312 (1983 and Supp.1987) (Class D).

¶2Because we are reviewing for obvious error, we do not find that the prosecutor’s improper closing comments concerning Diaz’s expert witness warrant vacation of the judgment.1 State v. Dube, 522 A.2d 904, 907 (Me.1987). Regrettably, however, we once again find it necessary to remind the State of its overriding obligation to see that an accused receives a fair trial, State v. Pineau, 463 A.2d 779, 781 (Me.1983), and admonish against the use of personal opinions concerning a witness’ credibility. M.Bar.R. 3.7(e);2 State v. Pendexter, 495 A.2d 1241, 1241 (Me.1985).

¶3Furthermore, because evidence in the record supports the presiding justice’s determination that the intoxilyzer tests are “sufficiently reliable,” we reject Diaz’s contention that admission of the results into evidence constitutes an abuse of discretion. 29 M.R.S.A. § 1312(6); State v. Taber, 474 A.2d 877, 878 (Me.1984). Finally, in the absence of any objection by Diaz to the jury instructions, we fail to find “obvious error affecting substantial rights.” State v. True, 438 A.2d 460, 467 (Me.1981).

¶4The entry is: Judgment affirmed.

¶5All concurring.

¶6. During his closing argument, the prosecutor stated in part as follows:

[The Defendant's expert] came in here and he told you just what this man wanted him to say ... he could care less what the facts were.

¶7. M.Bar.R. 3.7(e) provides, inter alia, as follows: (2) In appearing in his professional capacity before a tribunal, a lawyer shall not:

(v) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any postion or conclusion with respect to the matters stated therein; or
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