State of Maine v. Gray

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STATE OF MAINE KENNEBEC, ss. 20D8JUN - Lf A If: 'Lf STATE OF MAINE iI, J:' t: l SUPERIOR COURT CIVIL ACTION DOCKET NO. CR-07-743 I' ( . .­ v. DECISION AND ORDER CHAD GRAY, Defendant In front of the court is Defendant's proffer of expert testimony for trial and suppression motion. Factual & Procedural Background: Defendant is charged with aggravated assault. The State's evidence is based greatly on eye-witness identifications of the defendant as the person who stabbed the victim. Defendant seeks suppression of the evidence on the theory that the identification procedure was unnecessarily suggestive. Defendant seeks funds to admit expert testimony of Bates College Associate Professor of Psychology, Amy Bradfield Douglass pertaining to the lack of reliability of eye-witnesses particularly defendant seeks Douglass's testimony regarding: 1) crossracial or own race bias which impairs the ability of a witness of one race to make correct identifications of persons of a different race; 2) the fact that the confidence of a witness does not necessarily imply correctness of a witness' identifications; 3) the phenomenon of weapons focus; 4) that high levels of stress negatively affect accuracy of eyewitness recall; 5) that consumption of alcohol by a witness can diminish the accuracy of 2 eyewitness identification and increase possibilities of susceptibility to suggestiveness; and 6) the presence of multiple witnesses identifying the suspect creates influence by one witness upon the others. Standard of Review: The admissibility of expert evidence is set forth in M.R. Evid. 702: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." In State v. Williams, 388 A.2d 500, 504, we stated: The controlling criteria regarding the admissibility of expert testimony, so long as the proffered expert is qualified and probative value is not substantially outweighed by the factors mentioned in Rule 403, are whether the sound judgment of the presiding Justice the testimony to be given is relevant and will assist the trier of fact to understand the evidence or to determine a fact in issue. State v. Irving, 2003 ME 31, <JI 11, 818 A.2d 204, 207. Discussion: 1. Motion to Suppress After extensive hearings at which four officers and four eyewitnesses testified, this court finds that there was no evidence adduced showing that procedures used were likely to increase the risk of misidentification, thus the defendant has failed to carry his burden of proof to show by a preponderance of the evidence that the identification procedure was unnecessarily suggestive. State v. True, 463 A.2d 946,950 (Me. 1983); Neil v. Biggers, 409 U.s. 188, 198 (1972). II. Admission of Expert Testimony Defendant notes from the outset that there is not precedent in Maine supporting the contention that failure to allow this expert testimony would create reversible error. In fact to the contrary, defendant points to three cases in which the Law Court found 3 that exclusion of such testimony was not in error. See State v. Lewisohn, 379 A.2d 1192, 1203 (" Absent a 'medical' condition affecting the ability of the witness to tell the truth, evidence may not be received to discredit the testimony of a witness in the nature of an expert's opinion that the events were such as to have so affected the mental capacity of such witness that his ability to make an accurate observation of the facts and to retain a true recollection thereof has been impaired and that his assertions respecting the details of the occurrence will necessarily or most probably be a distortion."); State v. Fernald, 397 A.2d 194, 197 (holding that trial court's exclusion of expert testimony regarding the effects of stress on eyewitnesses was not error.); and State v. Rich, 549 A.2d 742, 743 (holding that exclusion of expert testimony on 1) effects of stress; 2) effects of alcohol; 3) effects of post-incident confusion; 4) e{fects of identification by other witnesses; 5) lack of relationship between certainty and accuracy in identification, was not in error). Nonetheless, defendant argues that the trend of admitting this expert testimony reveals a change from when these cases were decided. He cites a number of out of jurisdiction cases to reveal this trend of reversing trial court exclusion of defense expert testimony on eyewitness identification. See e.g. U.S. v. Brownlee, 454 F.3d 131 (3rd Cir. 2006); U.S. v. Smithers, 212 F.3d 306 (6th Cir. 2000). The First Circuit has been "'unwilling to adopt a blanket rule that qualified expert testimony on eyewitness identification must be routinely admitted or excluded."' U.S. v. Stokes, 388 F.3d 21, 26 (lst Cir. 2004) (quoting U.S. v. Brien, 59 F.3d 274, 276 (lst Cir. 1995)). The proper course instead is to "examine each case one by one, taking into account such concerns as 'the reliability and helpfulness of the proposed expert testimony, the importance and the quality of the eyewitness evidence it addresses, and any threat of confusion, misleading the jury, or unnecessary delay."' !d. 4 The Court is convinced that the issues of weapons focus, effects of stress, and effects of alcohol on identification are well within the ken of the normal juror, and will easily be brought out on cross-examination. Further the issuse of cross-racial identification, confidence correlation and the effects of multiple witnesses do not here present a situation where expert testimony is beneficial and runs the risk of confusing the jury and creating unnecessary delay. The court is particularly convinced of this based on the strength of the testimony of Jillian Bolduc who will testify she was 3-5 feet away from the defendant, was not intoxicated, had seen the defendant weeks earlier, heard him identify himself by name, identified him at the scene as the individual who had stabbed the victim. Additionally, the court notes that Stacey Libby, the victim and Jessica Wheeler all identified the defendant not based on characteristics likely to implicate the veracity of their cross-racial identifications, but instead based on his clothing, including a red bandana or dew-rag. The court is aware that this is not the situation in which corroborating physical evidence is present. See State v. Kelly, 2000 ME 107, 752 A.2d 188. While such corroborating evidence would make this an easier decision it is not a necessity to the court's finding that expert testimony would not be helpful in this case. The entry is: Defendant's motion to suppress is DENIED. Defendant's motion for admission of expert testimony is DENIED. Dated: &/~!~ SUPERIOR COURT KENNEBEC, ss. Docket No AUGSC-CR-2007-00743 STATE OF MAINE vs CHAD GRAY 29 PLEASANT STREET GARDINER ME 04345 DOCKET RECORD DOB: 10/08/1982 Attorney: JAMES BILLINGS LIPMAN & KATZ & MCKEE, PA 227 WATER STREET PO BOX 1051 AUGUSTA ME 04332-1051 APPOINTED 08/15/2007 State's Attorney: EVERT FOWLE Filing Document: CRIMINAL COMPLAINT Filing Date: 08/13/2007 Major Case Type: FELONY (CLASS A,B,C) Charge(s) 1 AGGRAVATED ASSAULT Seq 630 17-A 208 (1) (B) GARDINER 08/10/2007 WATERVILLE Class B / WAT Docket Events: 08/13/2007 FILING DOCUMENT - CRIMINAL COMPLAINT FILED ON 08/13/2007 08/13/2007 Charge (s): 1 HEARING INITIAL APPEARANCE SCHEDULED FOR 08/13/2007 @ 1:00 NOTICE TO PARTIES/COUNSEL 08/14/2007 Charge (s): 1 HEARING - INITIAL APPEARANCE HELD ON 08/13/2007 NANCY MILLS , JUSTICE Attorney: SUSAN PAGE DA: DARRICK BANDA 08/14/2007 Charge(s): 1 PLEA - NO ANSWER ENTERED BY DEFENDANT ON 08/13/2007 08/14/2007 Charge (s): 1 HEARING - STATUS CONFERENCE SCHEDULED FOR 10/09/2007 @ 10:00 08/14/2007 BAIL BOND - $1,000.00 CASH BAIL BOND SET BY COURT ON 08/13/2007 NANCY MILLS , JUSTICE 08/14/2007 Charge(s): 1 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 08/13/2007 08/16/2007 Charge (s): 1 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 08/15/2007 COpy TO PARTIES/COUNSEL 08/16/2007 Party(s): CHAD GRAY ATTORNEY - APPOINTED ORDERED ON 08/15/2007 Attorney: JAMES BILLINGS Page 1 of 7 Printed on; 06/04/2008 CHAD GRAY AUGSC-CR-2007-00743 DOCKET RECORD 08/16/2007 Charge (s): 1 HEARING - STATUS CONFERENCE NOTICE SENT ON 08/15/2007 08/16/2007 OTHER FILING - PRETRIAL SERVICES CONTRACT FILED ON 08/16/2007 08/16/2007 MOTION - MOTION TO AMEND BAIL FILED BY STATE ON 08/16/2007 08/16/2007 MOTION - MOTION TO AMEND BAIL GRANTED ON 08/16/2007 COPY TO PARTIES/COUNSEL 08/16/2007 BAIL BOND - PR BAIL BOND SET BY COURT ON 08/16/2007 08/16/2007 BAIL BOND - PR BAIL BOND FILED ON 08/16/2007 Date Bailed: 08/16/2007 08/31/2007 Charge(s): 1 SUPPLEMENTAL FILING - INDICTMENT FILED ON 08/31/2007 08/31/2007 Charge (s): 1 HEARING - STATUS CONFERENCE NOT HELD ON 08/31/2007 09/07/2007 Charge (s): 1 HEARING - ARRAIGNMENT SCHEDULED FOR 09/12/2007 @ 8:00 09/12/2007 Charge (s): 1 HEARING - ARRAIGNMENT HELD ON 09/12/2007 NANCY MILLS , JUSTICE Reporter: TAMMY DROUIN Defendant Present in Court READING WAIVED. DEFENDANT INFORMED OF CHARGES. COPY OF INDICTMENT/INFORMATION GIVEN TO DEFENDANT. 21 DAYS TO FILE MOTIONS 09/12/2007 Charge (s): 1 PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 09/12/2007 09/12/2007 Charge(s): 1 TRIAL - DOCKET CALL SCHEDULED FOR 11/05/2007 @ 9:15 09/14/2007 MOTION - MOTION FOR FUNDS FILED BY DEFENDANT ON 09/14/2007 09/14/2007 MOTION - MOTION TO SUPPRESS FILED BY DEFENDANT ON 09/14/2007 09/14/2007 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 11/05/2007 @ 9:15 NOTICE TO PARTIES/COUNSEL 09/17/2007 MOTION - MOTION FOR FUNDS GRANTED ON 09/14/2007 COpy TO PARTIES/COUNSEL 09/18/2007 Charge (s): 1 MOTION - OTHER MOTION FILED BY DEFENDANT ON 09/18/2007 MOTION TO PRESERVE EVIDENCE 09/18/2007 HEARING - OTHER MOTION SCHEDULED FOR 10/04/2007 Page 2 of 7 @ 8:00 Printed on: 06/04/2008 CHAD GRAY AUGSC-CR-2007-00743 DOCKET RECORD MOTION TO PRESERVE EVIDENCE 09/18/2007 MOTION - OTHER MOTION FILED BY DEFENDANT ON 09/18/2007 MOTION FOR TESTING 09/18/2007 HEARING - OTHER MOTION SCHEDULED FOR 10/04/2007 @ 8:00 MOTION FOR TESTING HEARING - OTHER MOTION NOTICE SENT ON 09/18/2007 09/18/2007 MOTION FOR TESTING 09/18/2007 HEARING - OTHER MOTION NOTICE SENT ON 09/18/2007 MOTION TO PRESERVE EVIDENCE 10/15/2007 HEARING - OTHER MOTION HELD ON 10/04/2007 NANCY MILLS, JUSTICE MOTION FOR TESTING 10/15/2007 MOTION - OTHER MOTION GRANTED ON 10/04/2007 NANCY MILLS , JUSTICE MOTION FOR TESTING TO THE EXTENT THAT IT'S SCIENTIFICALLY POSSIBLE, THE STATE IS TO FINGERPRINT ALL KNIVES FOUND AT THE ALLEGED SIGHT ADN TO CONDUCT TESTING ON ANY BLOOD FOUND ON THE UTILITY KNOFE, CLOTHING AND PREMISES OF THE INCIDENT. 10/15/2007 HEARING - OTHER MOTION HELD ON 10/04/2007 NANCY MILLS , JUSTICE MOTION TO PRESERVE EVIDENCE 10/15/2007 Charge (s): 1 MOTION - OTHER MOTION GRANTED ON 10/04/2007 NANCY MILLS, JUSTICE MOTION TO PRESERVE EVIDENCE 10/15/2007 MOTION - MOTION FOR FUNDS FILED BY DEFENDANT ON 10/03/2007 EX PARTE MOTION FOR EXPERT WITNESS FUNDS 10/15/2007 Charge (8): 1 MOTION - MOTION FOR DISCOVERY FILED BY DEFENDANT ON 10/03/2007 10/15/2007 Charge (s): 1 HEARING - MOTION FOR DISCOVERY SCHEDULED FOR 11/05/2007 @ 9:15 NOTICE TO PARTIES/COUNSEL 10/15/2007 Charge(s): 1 HEARING - MOTION FOR DISCOVERY NOTICE SENT ON 10/15/2007 10/15/2007 Charge (8): 1 MOTION - MOTION TO SUPPRESS FILED BY DEFENDANT ON 10/03/2007 MOTION TO SUPPRESS EYEWITNES IDENTIFICATIONS 10/15/2007 Charge(s): 1 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 11/05/2007 @ 9:15 NOTICE TO PARTIES/COUNSEL 10/15/2007 Charge (s): 1 HEARING - MOTION TO SUPPRESS NOTICE SENT ON 10/15/2007 Page 3 of 7 Printed on: 06/04/2008 CHAD GRAY AUGSC-CR-2007-00743 DOCKET RECORD 10/15/2007 Charge (s): 1 MOTION - MOTION TO COMPEL FILED BY DEFENDANT ON 10/03/2007 10/15/2007 Charge (s): 1 HEARING - MOTION TO COMPEL SCHEDULED FOR 11/05/2007 @ 9:15 NOTICE TO PARTIES/COUNSEL 10/15/2007 Charge(s): 1 HEARING - MOTION TO COMPEL NOTICE SENT ON 10/15/2007 10/16/2007 MOTION - MOTION FOR FUNDS GRANTED ON 10/15/2007 NANCY MILLS , JUSTICE COPY TO PARTIES/COUNSEL $400 APPROVED COPY TO ATTY BILLINGS 10/29/2007 Charge (s): 1 MOTION - MOTION TO CONTINUE FILED BY DEFENDANT ON 10/29/2007 10/31/2007 Charge (s): 1 MOTION - MOTION TO CONTINUE GRANTED ON 10/31/2007 COPY TO PARTIES/COUNSEL 10/31/2007 Charge (s): 1 HEARING - MOTION TO COMPEL CONTINUED ON 10/31/2007 10/31/2007 HEARING - MOTION TO COMPEL SCHEDULED FOR 12/11/2007 @ 1:00 NOTICE TO PARTIES/COUNSEL 10/31/2007 HEARING - MOTION TO COMPEL NOTICE SENT ON 10/31/2007 10/31/2007 Charge(s): 1 HEARING - MOTION TO SUPPRESS CONTINUED ON 10/31/2007 10/31/2007 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 12/11/2007 @ 1:00 NOTICE TO PARTIES/COUNSEL 10/31/2007 HEARING - MOTION TO SUPPRESS NOTICE SENT ON 10/31/2007 10/31/2007 Charge (s): 1 HEARING - MOTION FOR DISCOVERY CONTINUED ON 10/31/2007 10/31/2007 HEARING - MOTION FOR DISCOVERY SCHEDULED FOR 12/11/2007 @ 1:00 NOTICE TO PARTIES/COUNSEL 10/31/2007 HEARING - MOTION FOR DISCOVERY NOTICE SENT ON 10/31/2007 10/31/2007 HEARING - MOTION TO SUPPRESS CONTINUED ON 10/31/2007 10/31/2007 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 12/11/2007 @ 1:00 NOTICE TO PARTIES/COUNSEL 10/31/2007 HEARING - MOTION TO SUPPRESS NOTICE SENT ON 10/31/2007 Page 4 of 7 Printed on: 06/04/2008 CHAD GRAY AUGSC-CR-2007-00743 DOCKET RECORD 10/31/2007 Charge(8): 1 TRIAL - DOCKET CALL CONTINUED ON 10/31/2007 10/31/2007 Charge (8): 1 TRIAL - DOCKET CALL SCHEDULED FOR 01/09/2008 @ 9:15 12/06/2007 MOTION - MOTION TO CONTINUE FILED BY DEFENDANT ON 12/06/2007 12/13/2007 MOTION - MOTION TO CONTINUE GRANTED ON 12/11/2007 COPY TO PARTIES/COUNSEL 12/13/2007 HEARING - MOTION TO SUPPRESS CONTINUED ON 12/11/2007 12/13/2007 HEARING - MOTION FOR DISCOVERY CONTINUED ON 12/11/2007 12/13/2007 HEARING - MOTION TO SUPPRESS CONTINUED ON 12/11/2007 12/13/2007 HEARING - MOTION TO COMPEL CONTINUED ON 12/11/2007 12/13/2007 Charge (8): 1 MOTION - MOTION FOR DISCOVERY GRANTED ON 12/11/2007 NANCY MILLS , JUSTICE COPY TO PARTIES/COUNSEL 12/13/2007 Charge (8): 1 MOTION - MOTION TO COMPEL GRANTED ON 12/11/2007 NANCY MILLS , JUSTICE COpy TO PARTIES/COUNSEL INFO REQUETED IN PARA 5 WILL BE PROVIDED IF IT EXISTS. INFORMATION REQUESTED IN PARA'S 6 AND 7 IS NOT ADDRESSED UNTIL FURTHER EFFORTS BY DEFENSE COUNSEL. HE MAY BRING THIS MOTION FORWARD AGAIN IF HIS EFFORTS ARE UNSUCCESSFUL. 12/13/2007 Charge (8): 1 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 02/05/2008 @ 2:00 NOTICE TO PARTIES/COUNSEL 12/13/2007 Charge (8) : 1 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 02/05/2008 @ 2:00 NOTICE TO PARTIES/COUNSEL 01/09/2008 MOTION - MOTION EXPERT WITNESS REPORT FILED BY STATE ON 01/03/2008 01/10/2008 OTHER FILING - OTHER DOCUMENT FILED ON 01/10/2008 DEFENSE OBJECTION TO STATE'S MOTION FOR PRODUCTION OF EXPERT REPORT 01/10/2008 HEARING - CONFERENCE SCHEDULED FOR 01/11/2008 @ 8:30 JOSEPH M JABAR , JUSTICE NOTICE TO PARTIES/COUNSEL 01/11/2008 MOTION - MOTION TO AMEND BAIL FILED BY DEFENDANT ON 01/11/2008 02/01/2008 HEARING - CONFERENCE HELD ON 01/11/2008 02/12/2008 Charge(8): 1 HEARING - MOTION TO SUPPRESS HELD ON 02/05/2008 JOSEPH M JABAR , JUSTICE Page 5 of 7 Printed on: 06/04/2008 CHAD GRAY AUGSC-CR-2007-00743 DOCKET RECORD Defendant Present in Court HEARING NOT CONCLUDED, NEEDS SOME MORE TIME. 02/12/2008 Charge(s): 1 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 02/26/2008 @ 1:00 NOTICE TO PARTIES/COUNSEL 02/21/2008 MOTION - MOTION TO CONTINUE FILED BY STATE ON 02/14/2008 02/21/2008 MOTION - MOTION TO CONTINUE GRANTED ON 02/19/2008 JOSEPH M JABAR , JUSTICE COPY TO PARTIES/COUNSEL 02/21/2008 Charge (s): 1 HEARING - MOTION TO SUPPRESS CONTINUED ON 02/21/2008 02/22/2008 Charge(s): 1 HEARING - MOTION TO SUPPRESS HELD ON 02/05/2008 JOSEPH M JABAR , JUSTICE Attorney: JAMES BILLINGS DA: ALAN KELLEY Reporter: MAUREEN WHITEHOUSE Defendant Present in Court 02/29/2008 Charge (s): 1 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 04/08/2008 @ 1:00 JOSEPH M JABAR , JUSTICE NOTICE TO PARTIES/COUNSEL 02/29/2008 Charge(s): 1 HEARING - MOTION TO SUPPRESS NOTICE SENT ON 02/29/2008 02/29/2008 MOTION - MOTION TO AMEND BAIL GRANTED ON 01/11/2008 JOSEPH M JABAR , JUSTICE COPY TO PARTIES/COUNSEL AFTER CONSIDERATION MOTION TO AMEND BAIL IS GRANTED. DEFENDANT'S MAINE PRETRIAL SERVICES CONTRACT AND DEFENDANT'S BAIL CONDITIONS SHALL BE AMENDED SO THAT HE NMAY ENTER THE MIDNIGHT BLUES NIGHT CLUB IN WATERVILLE, ON ONE OCCATSION IF ACCOMPANIED BY PRIVATE INVESTIGATOR TOM CUMLER FOR INVESTIGATIVE PURPOSES. IT MUST BE A SATURDAY EVENING BETWEEN THE HOURS OF 9 PM TO Il-J. 04/16/2008 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 05/05/2008 @ 1:00 JOSEPH M JABAR , JUSTICE NOTICE TO PARTIES/COUNSEL 04/16/2008 Charge (s): 1 HEARING - MOTION TO SUPPRESS CONTINUED ON 04/08/2008 04/16/2008 Charge(s): 1 TRIAL - DOCKET CALL HELD ON 01/09/2008 Defendant Present in Court 05/05/2008 HEARING - MOTION TO SUPPRESS HELD ON 05/05/2008 JOSEPH M JABAR , JUSTICE Attorney: JAMES BILLINGS DA: ALAN KELLEY Reporter: JANETTE COOK Defendant Present in Court 05/05/2008 Charge(s): 1 MOTION - MOTION TO SUPPRESS UNDER ADVISEMENT ON 05/05/2008 Page 6 of 7 Printed on: 06/04/2008 CHAD GRAY AUGSC-CR-2007-00743 DOCKET RECORD JOSEPH M JABAR , JUSTICE 05/05/2008 MOTION ­ MOTION TO SUPPRESS UNDER ADVISEMENT ON 05/05/2008 JOSEPH M JABAR , JUSTICE 05/12/2008 ORDER - TRANSCRIPT ORDER FILED ON 05/09/2008 Attorney: JAMES BILLINGS COpy SENT TO MAUREEN BRADFORD AND JANET COOK 05/12/2008 Charge(s): 1 TRIAL - DOCKET CALL SCHEDULED FOR 06/02/2008 @ 9:15 OS/21/2008 MOTION - MOTION TO REVOKE BAIL FILED BY STATE ON OS/20/2008 OS/21/2008 WARRANT - VIOLATION OF BAIL REQUESTED ON OS/20/2008 OS/21/2008 WARRANT - VIOLATION OF BAIL ORDERED ON OS/21/2008 OS/21/2008 BAIL BOND OS/21/2008 WARRANT - NO BAIL ALLOWED SET BY COURT ON OS/21/2008 VIOLATION OF BAIL ISSUED ON OS/21/2008 06/03/2008 Charge(s): 1 TRIAL - DOCKET CALL HELD ON 06/02/2008 JOSEPH M JABAR , JUSTICE Defendant Present in Court TAPE #800 06/03/2008 Charge(s): 1 TRIAL - JURY TRIAL SCHEDULED FOR 06/06/2008 @ 8:30 NOTICE TO PARTIES/COUNSEL 06/04/2008 Charge(s): 1 MOTION - MOTION TO SUPPRESS DENIED ON 06/04/2008 JOSEPH M JABAR , JUSTICE COPY TO PARTIES/COUNSEL 06/04/2008 MOTION - MOTION TO SUPPRESS DENIED ON 06/04/2008 JOSEPH M JABAR , JUSTICE COPY TO PARTIES/COUNSEL A TRUE COPY ATTEST: Clerk Page 7 of 7 Printed on: 06/04/2008

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