MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2018 ME 162 Docket: Pen-18-2 Argued: September 12, 2018 Decided: December 11, 2018
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
STATE OF MAINE
v.
ROBERT BURTON
HJELM, J.
[¶1] In the early hours of June 5, 2015, Robert Burton entered the home
of his former girlfriend and shot her three times in the back, killing her. He fled
into the woods and evaded law enforcement officials for sixty-eight days before
turning himself in. Burton was charged with, and found guilty of, intentional or
knowing murder, 17-A M.R.S. § 201(1)(A) (2017), and possession of a firearm
by a prohibited person (Class C), 15 M.R.S. § 393(1)(A-1) (2017). Burton
appeals from the resulting judgment of conviction (Penobscot County,
Mullen, J.), presenting two arguments. He first asserts that the court erred by
rejecting six questions that he sought to have included in the written jury
selection questionnaire and by not giving the prospective jurors the option of
answering any of the questions with “not sure” as an alternative to “yes” or “no.” 2
Second, Burton contends that the court erred by admitting evidence of two
prior burglary convictions to impeach his trial testimony. See M.R. Evid. 609.
Finding no error, we affirm the judgment.
I. BACKGROUND
[¶2] “Viewing the evidence in the light most favorable to the State, the
jury rationally could have found the following facts beyond a reasonable
doubt.” State v. Fortune, 2011 ME 125, ¶ 3, 34 A.3d 1115.
[¶3] Burton and the victim began a romantic relationship in the spring
of 2013. Shortly thereafter, Burton moved into the victim’s home in Parkman,
where they lived together with her two children. By May of 2015, Burton was
acting increasingly suspicious of the victim’s activities. After a confrontation
on May 30, the victim ended their relationship and directed Burton to move out
of her home.
[¶4] Burton then began living in his truck in the woods. On June 5, 2015,
shortly after midnight, Burton left his truck parked on a tote road and walked
to the victim’s house. Armed with a knife and wearing a shirt to which he had
affixed strips of duct tape, Burton entered the victim’s house through a
bedroom window. A struggle between Burton and the victim ensued, and
Burton fatally shot the victim three times in the back with the victim’s own 3
handgun. Burton, who sustained a minor gunshot wound during the
altercation, fled into the woods. Despite an intensive search by law
enforcement officers, it was two months before he was arrested, after emerging
from the woods clean-shaven and with his gunshot wound nearly fully healed
and turning himself in to the Piscataquis County Jail.
[¶5] Three days after the homicide, while Burton was still at large, he
was charged by complaint with one count of intentional or knowing murder.
See 17-A M.R.S. § 201(1)(A). That October, the Piscataquis County grand jury
indicted Burton for that charge and one count of possession of a firearm by a
prohibited person. See 15 M.R.S. § 393(1)(A-1). Burton pleaded not guilty to
each charge. The court later granted Burton’s motion to change venue, and the
case was transferred to the Unified Criminal Docket in Penobscot County. As
part of the pretrial proceedings, Burton moved in limine for the court to exclude
evidence of his prior criminal convictions for impeachment purposes, see M.R.
Evid. 609, and the parties agreed to defer the issue to the time of trial.
[¶6] The trial was held in late September and early October of 2017.
Burton elected to have the court adjudicate the firearms charge and proceeded
with a jury trial on the murder charge. 4
[¶7] Jury selection encompassed two days. Burton submitted a list of
twenty-one voir dire questions that he requested the court include in a written
questionnaire that was to be distributed to the members of the jury pool. Each
of Burton’s proposed questions was followed by three possible answer choices:
“yes,” “no,” and “not sure.” Over Burton’s objection, the court declined to
include “not sure” as an answer and also declined to include the following six
questions proposed by Burton that are at issue on this appeal:
3. Do you believe that because a police officer has arrested someone for murder it means the person arrested is likely guilty? . . .
5. Do you feel or believe Mr. Burton looks like he may be guilty of the charge of murder? . . .
10. Would you have any difficulty in finding Mr. Burton not guilty if you had a reasonable doubt that he was guilty?
11. If you have a reasonable doubt as to Mr. Burton's guilt, but think he may have probably committed a crime, would you be able to follow the law and find him not guilty?
12. Do you believe that too many defendants that stand trial in criminal cases are found not guilty? . . .
21. The law allows a person to use deadly force against another person in self-defense. Do you have any beliefs or opinions that would prevent you from applying the law of self-defense if the Court provided such an instruction in this case?
[¶8] The written questionnaire distributed to members of the jury pool
explained the presumption of innocence, the State’s burden to prove the charge
beyond a reasonable doubt, and the legal recognition of the justification of
self-defense. Additionally, the questionnaire asked the potential jurors to state
whether they would be able to apply the law as explained by the court despite
any personal disagreements with the law. After the court and the parties
reviewed the answers to the written questions, the court conducted individual
voir dire of a number of potential jurors regarding their answers. During that
process, the court permitted both Burton and the State to ask questions of those
potential jurors. None of the jurors who were eventually seated was challenged
for cause by either party.
[¶9] The jury was impaneled, and the court proceeded to hold an
eight-day trial. After the State rested its case-in-chief, and with the parties’
anticipation that Burton would testify, the court heard argument from the
parties on the admissibility of evidence of Burton’s prior criminal convictions
to impeach his testimony. See M.R. Evid. 609. The State identified ten prior
convictions, all entered against Burton in 2003, that satisfied the criteria for
admissibility prescribed in Maine Rule of Evidence 609: possession of a firearm
by a prohibited person; criminal threatening with a dangerous weapon; four 6
burglaries; and four thefts, three of which were punishable by at least one year
in prison and the fourth by less than one year of incarceration. Of the ten
convictions, the State agreed not to seek the admission of evidence of the
convictions for possession of a firearm by a prohibited person and the lesser
theft. Beyond that, the court excluded evidence of the conviction for criminal
threatening with a dangerous weapon, finding that it was too similar to the
crime charged and not sufficiently probative of Burton’s credibility as a witness.
Over Burton’s objection, the court ruled that, if he were to testify, it would admit
evidence of convictions for two burglaries and two thefts.
[¶10] In conjunction with its ruling to admit evidence of those four
convictions, the court offered to give the jury a limiting instruction—that
evidence of Burton’s prior convictions could be considered only in assessing
the credibility of his testimony—when the evidence was presented or as part
of its final instructions to the jury. Burton requested the latter.
[¶11] Burton testified the next day, and on direct examination defense
counsel elicited evidence of the four prior convictions that the court allowed.
During its lengthy cross-examination of Burton, the State did not inquire into
his convictions, nor did it directly address that evidence in its closing argument. 7
[¶12] The jury found Burton guilty of murder, and the court found him
guilty of the firearms charge. After a sentencing hearing held in December of
2017, the court imposed a fifty-five-year prison sentence on the murder charge
and a concurrent four-year sentence on the firearms violation. Burton filed a
timely appeal from the judgment. See 15 M.R.S. § 2115 (2017); M.R.
App. P. 2B(b)(1).
II. DISCUSSION
[¶13] Burton challenges the trial court’s decision not to include in the
juror voir dire questionnaire six of his proposed juror questions and, in
addition to the “yes” and “no” answer choices on the written questionnaire, a
third option of “not sure.” He also challenges the admission of evidence of the
two burglary convictions for purposes of impeachment. See M.R. Evid. 609. We
discuss these arguments in turn.
A. Juror Voir Dire
[¶14] Burton does not challenge the inclusion of any particular juror on
the jury panel but rather asserts that the court erred in the way it conducted
voir dire. Challenges to the way a court conducts voir dire are reviewed for an
abuse of discretion. State v. Roby, 2017 ME 207, ¶ 11, 171 A.3d 1157. 8
[¶15] We have held that “the purpose of the voir dire process ‘is to detect
bias and prejudice in prospective jurors, thus ensuring that a defendant will be
tried by as fair and impartial a jury as possible.’” Id. (quoting State v. Lowry,
2003 ME 38, ¶ 7, 819 A.2d 331). In conducting voir dire, the court is also
responsible for “balancing the competing considerations of fairness to the
defendant, judicial economy, and avoidance of embarrassment to potential
jurors.” Id. ¶ 12 (quotation marks omitted). Accordingly, so long as the voir
dire process is “sufficient to disclose facts that would reveal juror bias,” id. ¶ 13
(quotation marks omitted), the court has “[c]onsiderable discretion over the
conduct and scope of juror voir dire,” id. ¶ 12 (alteration in original) (quotation
marks omitted).
[¶16] We first address Burton’s assertion that the court erred by
declining to include six of Burton’s twenty-one proposed questions in the juror
questionnaire.1 Burton argues that the questions were carefully designed to
detect juror bias because they invoked details of a case of which he has superior
knowledge and that, by declining to include those questions, the court
“prohibited him from fully exploring areas of bias and prejudice with the jurors
1 The court also declined to use several other voir dire questions proposed by Burton, but Burton
limits his appellate assertion of error to the six questions described above. See supra ¶ 7. 9
that heard his case and ultimately convicted him.” See State v. Lovely, 451 A.2d
900, 902 (Me. 1982).
[¶17] In making its determination regarding the content of the jury
questionnaire, the court consulted extensively with both Burton and the State.
The record confirms that, in this way, Burton had full opportunity to explain the
reasons for presenting the proposed questions to the jury pool. See id. at
901-02 (vacating a judgment where the court rejected defendant’s voir dire
question without inquiring about the reason for which it was requested).
Further, the concepts underlying the questions at issue are not obscure or
subtle. Rather, they relate to the presumption of innocence, the State’s burden
to prove guilt beyond a reasonable doubt, and the principle of self-defense.2
The questionnaire used by the court—which included other questions
proposed by Burton—contained explanations of these concepts that were
sufficient to reveal any juror bias. See Roby, 2017 ME 207, ¶ 13, 171 A.3d 1157;
Lowry, 2003 ME 38, ¶ 11, 819 A.2d 331. When the court rejected the six specific
2 We note in particular that the written questionnaire used by the court addressed the principle
of self-defense in verbiage that was almost identical to Burton’s proposed question, see supra ¶ 8, but that stated the law more accurately: “The law allows in certain circumstances a person to use deadly force against another person in self-defense or in defense of premises. Do you have any beliefs or opinions that would prevent you from applying the law of self-defense or defense of premises if the Court provided such an instruction in this case?” (emphasis added). See State v. Roby, 2017 ME 207, ¶ 14, 171 A.3d 1157 (stating that the court did not err by declining to use proposed voir dire questions that did not correctly state the law). 10
queries that were already adequately covered by the questions posed to the
members of the jury pool, the court acted well within the discretion it has “to
appropriately craft questions probing for juror bias.” State v. Collin, 1999 ME
187, ¶ 7, 741 A.2d 1074.
[¶18] Similarly, the court acted within its discretion by not including
Burton’s proposed third answer choice, “not sure,” in the juror questionnaire.
We recently held that the trial court did not abuse its discretion by declining to
present the prospective jurors with four possible answer choices—“strongly
agree,” “agree,” “disagree,” and “strongly disagree.” Roby, 2017 ME 207, ¶¶ 3-4,
13, 171 A.3d 1157 (concluding that the court is “not required to[ ]‘voir dire the
jury in the exact manner requested’” by the defendant so long as the questions
and methods used by the court are sufficient to uncover juror bias. (quoting
Collin, 1999 ME 187, ¶ 8, 741 A.2d 1074)). Here, the court reasonably
concluded that the options of “yes” and “no” on the questionnaire were
sufficient to reveal juror bias. See id. ¶ 13.
[¶19] Moreover, the court permitted the parties to follow up with
individual voir dire of jurors whose answers to the questionnaire triggered a
need for further inquiry, thereby providing an additional opportunity to
uncover potential juror bias and prejudice that may have been suggested by 11
their answers. See Lowry, 2003 ME 38, ¶¶ 4, 10, 819 A.2d 331 (vacating a
judgment where potential jury members indicated during voir dire some
experience with violent crimes or the criminal justice system, but were not
excused or questioned individually in camera to determine the nature of the
experiences). The court’s exclusion of “not sure” as a possible response was not
an abuse of its discretion.
B. Admission of Burton’s Prior Convictions
[¶20] Burton next contends that although the court correctly excluded
evidence of six prior convictions—two by agreement of the State but four
others that the State sought to admit3—the court erred by admitting evidence
of convictions for two burglaries.4 “[W]e review a trial court’s determination
that prior convictions are admissible for an abuse of discretion.”5 State v. Gray,
2000 ME 145, ¶ 23, 755 A.2d 540.
3 The court excluded evidence of Burton’s convictions for criminal threatening with a dangerous
weapon, possession of a firearm by a prohibited person, two thefts, and two burglaries. See supra ¶ 9. 4 The court also admitted evidence of two theft convictions. Burton does not challenge that ruling
on appeal. See supra ¶ 9. 5 Burton’s trial counsel meticulously preserved this issue for appeal. Burton challenged the
admissibility of evidence of prior convictions in a way that put the State and the court on notice of the issue. Then, after the parties presented their arguments and the court ruled that some conviction evidence would be admitted, Burton made clear that, as a strategic matter, he himself would elicit that evidence during direct examination but that, by doing so, he was not acquiescing in the court’s ruling or otherwise waiving the issue for appellate review. The court accepted this approach, and the State explicitly acknowledged on the record that it regarded the issue as preserved. 12
[¶21] Rule 609(a) of the Maine Rules of Evidence authorizes the court to
admit evidence of a witness’s prior conviction “[f]or a crime that . . . was
punishable by death or by imprisonment for more than one year; or . . . [f]or any
crime if the court can reasonably determine that establishing the elements of
the crime required proving—or the witness admitting—a dishonest act or false
statement.” Further, evidence of a prior conviction may be admitted only if
“[l]ess than 15 years has passed since the conviction; or . . . [l]ess than 10 years
has passed since the witness was released from confinement for the
conviction.” M.R. Evid. 609(b).
[¶22] Even if evidence of a prior conviction satisfies these criteria, the
court must then engage in a discretionary analysis to determine whether “its
probative value outweighs its prejudicial effect on a criminal defendant . . . .”
M.R. Evid. 609(a). We have stated that a proper Rule 609 analysis accounts for
factors such as the recency or remoteness of the prior conviction, the gravity of
the offense, and whether—and to what extent—the nature of the prior
conviction is suggestive of untruthfulness, see State v. Hanscome, 459 A.2d 569,
Beyond that, to preserve an appellate challenge to the admission of a defendant’s prior convictions for impeachment purposes, the defendant must testify. See State v. Gray, 2000 ME 145, ¶ 23, 755 A.2d 540. Burton did testify, and thereby met this additional requirement for preserving the argument for appeal. 13
572 (Me. 1983); the cumulative effect of multiple convictions, see id. at 570,
572; cf. Gray, 2000 ME 145, ¶¶ 22, 24, 755 A.2d 540 (rejecting the defendant’s
argument that he was unfairly prejudiced by evidence of fourteen prior
convictions, in part because that evidence was probative of his credibility);
and—the factor to which Burton primarily points—the similarity between the
prior conviction and the pending charge, see State v. Braley, 2003 ME 125, ¶ 8,
834 A.2d 140 (“When prior convictions are for the same crimes as those
currently charged, there exists a serious risk that introduction of the evidence
of those convictions will result in the jury treating the information as evidence
of a predisposition to commit the crime charged.”); State v. Wright, 662 A.2d
198, 201 (Me. 1995) (stating that “[t]he similarity of the prior conviction [to]
the crime charged substantially increases the potential for misuse of the
evidence by the jury.”).
[¶23] Burton contends that, although he was not charged with burglary
in this case, the similarity between the burglary conduct for which he was
previously convicted and the State’s evidence of the circumstances leading to
the homicide—which, he asserts, amounts to the crime of burglary6—required
6 “A person is guilty of burglary if . . . [t]he person enters . . . a structure knowing that that person
is not licensed or privileged to do so, with the intent to commit a crime therein.” 17-A M.R.S. § 401(1)(A) (2017). 14
the court to exclude evidence of the prior burglary convictions pursuant to the
Rule 609 balancing test. He argues that because the jury could have found that
Burton burglarized the victim’s residence by entering without her permission
and with the intent to commit a crime inside, the jury could have improperly
treated evidence of Burton’s prior burglary convictions as propensity
evidence—in other words, that he had a predisposition to commit the crime.
[¶24] Contrary to Burton’s assertion, the court’s determination that
evidence of two burglary convictions was admissible pursuant to the Rule 609
balancing test was within the bounds of its discretion. The record in this case
shows that the court thoughtfully and thoroughly examined the admissibility of
Burton’s prior convictions that otherwise qualified pursuant to Rule 609, and
in fact the court excluded evidence of a number of convictions on that basis.
Indeed, Burton acknowledges that the court took into account the appropriate
factors that bear on a proper Rule 609 analysis and challenges only the court’s
ultimate determination of admissibility. The following factors demonstrate
that admission of evidence of the two burglary convictions was not error.
[¶25] First, Burton was the only witness who could testify directly about
the circumstances of the homicide, and so, as the court reasoned, Burton’s
“credibility . . . is especially important.” We have stated that acts of burglary 15
and theft “are crimes involving dishonesty or false statement for purposes of
M.R. Evid. 609.” State v. Almurshidy, 1999 ME 97, ¶ 30 n.6, 732 A.2d 280
(quotation marks omitted); see also Wright, 662 A.2d at 201. But see Linskey v.
Hecker, 753 F.2d 199, 201 (1st Cir. 1985). The court was entitled to conclude
that the jury could find evidence of Burton’s prior burglary convictions to be
material in its assessment of his credibility as a witness.
[¶26] Second, the court explicitly considered the temporal relationship
of the convictions to the time of trial, when Burton’s credibility would be at
issue. Burton was convicted of the crimes in 2003 but was released from
incarceration on those charges in 2012, only five years before the trial. The
court also accounted for the cumulative effect of multiple convictions, which
can result in unfair prejudice to the defendant, and for that reason admitted
evidence of only two of Burton’s four burglary convictions.
[¶27] Finally, the court heard and considered Burton’s concern about the
similarity of the State’s evidence to the prior convictions for burglary and was
thereby equipped to consider that factor in its calculus. We have “clearly
rejected the notion that evidence of conviction of the same or a similar crime is
per se inadmissible under M.R. Evid. 609.” State v. Chubbuck, 406 A.2d 282, 283
(Me. 1979). In order to ameliorate any such prejudice, in accordance with our 16
previous holdings, the court explicitly prohibited the parties from explaining
the elements of the crime of burglary before the jury, thus avoiding any
overemphasis of the evidence and the risk that the jury would improperly
compare the details of the prior convictions to those of the current case. See
State v. Chase, 490 A.2d 208, 210 (Me. 1985) (stating that “[a]lthough this threat
[of prejudice] may be more obvious in situations where the prior conviction is
for a crime identical or very similar to the offense presently charged, its shadow
over the trial may also be evident whenever the details of the prior conviction
are exposed to the jury.”); see also State v. Roy, 385 A.2d 795, 797-98 (Me. 1978).
And in a further effort to ensure that the jury considered that evidence for its
proper purpose, the court appropriately gave a proper limiting instruction,
which we must assume the jury heeded. See State v. Ardolino, 1997 ME 141,
¶ 18, 697 A.2d 73; see also State v. Hall, 2017 ME 210, ¶ 22, 172 A.3d 467.
[¶28] Therefore, after carefully assessing the admissibility of evidence of
a significant number of convictions, the court drew on relevant considerations
and in a principled way admitted evidence of several of those convictions. The
admission of this impeachment evidence fell within the bounds of the court’s
discretion. 17
III. CONCLUSION
[¶29] The court committed no error in the way it conducted voir dire,
and the admission of evidence of two burglary convictions pursuant to
Rule 609(a) was not an abuse of the court’s discretion. We therefore affirm the
judgment of conviction.
The entry is:
Judgment affirmed.
Jeremy Pratt, Esq. (orally), and Ellen Simmons, Esq., Camden, for appellant Robert Burton
Janet T. Mills, Attorney General, and Donald W. Macomber, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine
Penobscot Unified Criminal Docket docket number CR-2016-1567 FOR CLERK REFERENCE ONLY