State v. Naoum

548 A.2d 120, 1988 Me. LEXIS 248
CourtSupreme Judicial Court of Maine
DecidedSeptember 13, 1988
StatusPublished
Cited by18 cases

This text of 548 A.2d 120 (State v. Naoum) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Naoum, 548 A.2d 120, 1988 Me. LEXIS 248 (Me. 1988).

Opinions

CLIFFORD, Justice.

Defendant Anthony Naoum appeals from convictions of arson, and conspiracy to commit arson 17-A M.R.S.A. §§ 802, 151 (1983 & Supp.1987), and attempted theft by deception 17-A M.R.S.A. §§ 152, 354 (1983), and defendant Marion Gidney appeals from convictions of arson and conspiracy to commit arson 17-A M.R.S.A. §§ 802, 151, following a consolidated jury trial in Superior Court, Kennebec County. On appeal, defendants contend that the Superior Court erred in making various evi-dentiary rulings and in denying motions to dismiss the indictment and for a mistrial. Finding no reversible error, we affirm the judgment.

The relevant facts may be summarized as follows: On July 16, 1985, in the early morning, a building on Water Street in Gardiner owned by defendant Naoum was destroyed by fire. Investigation revealed that the fire had been deliberately set and that the building’s sprinkler system had been disabled before the fire. There was evidence of Naoum’s tampering with the system a few days before the fire. The building housed Naoum’s business, Business Systems, which at the time of the fire was in financial difficulty. Substantial money was owed to the Small Business Administration (S.B.A.), and the S.B.A. was scheduled to do an inventory of the business on the day of the fire. The inventory and the real estate were both covered by fire insurance, and after the fire Naoum applied to recover the insurance proceeds. Naoum was the sole shareholder of the corporation, having purchased the interest of two other shareholders, one of whom was Charles Elliot, during a corporate bat tie for control. Naoum claimed that Elliot set the fire as revenge against Naoum.

Within a short time of the explosion that occurred when the fire started, a woman [122]*122was seen running from the doorway of the business building. A witness, Kenneth Johnson, later observed a woman walking at a quick pace in an area near the fire, climb over a fence and disappear. Johnson later identified the woman as Gidney, the girlfriend of Naoum. Gidney was found in the early morning hours of July 16, under a bush on Brunswick Avenue in Gardiner at the home of Linda Naoum, Naoum’s sister. Naoum claimed that he and Gidney were in Kittery at the time the fire was set, but Gidney’s first story told to the police was inconsistent with that.

Naoum and Gidney and Linda Naoum1 were charged with arson (Count I), conspiracy to commit arson (Count II), and Naoum with theft by deception (Count III), in relation to the fire. In addition, Naoum was charged with theft by deception, insurance fraud (24-A M.R.S.A. § 2178), and making a false report (17-A M.R.S.A. § 509) in regard to an alleged claim for burglary of business property for which he received insurance proceeds, occurring in 19832 (Counts IY, V and VI), and with theft by deception and insurance fraud involving a 1984 claim of damage to business property to collect insurance proceeds (Counts VII and VIII). Counts IV through VIILwere severed from Counts I through III. Na-oum and Gidney were convicted on Counts I and II, and Naoum on Count III.

I.

Defendant Naoum challenges the Superior Court’s denial of his motion to dismiss the indictment. The motion was based on the State’s alleged violation of M.R.Crim.P. 6. On September 6, 1985, Linda Naoum was in the Kennebec County Courthouse waiting to testify before the grand jury, when she was asked to step into the grand jury hearing room, apparently for the purpose of allowing a witness who was there testifying before the grand jury, to determine if he could identify her as the female he had reported seeing near the scene of the fire. She stood momentarily just inside the grand jury hearing room door. Nothing was said by anybody during the brief period she stood near the door. After she left the room, the witness could not identify her as the person he had seen near the fire. M.R.Crim.P. 6 provides:

(d) Presence During Proceedings
While the grand jury is taking evidence, only the attorneys for the State, the witness under examination, and, when ordered by the court, an interpreter and a court reporter may be present. While the grand jury is deliberating or voting, only the jurors may be present.

The motion justice found that Linda Na-oum’s brief entry into the grand jury hearing room was not an unauthorized presence within the meaning of Rule 6(d) and that, even if it were, none of the reasons for grand jury secrecy were compromised.3 Further, in denying the motion to dismiss, the motion justice found no prejudice to have been suffered by defendant Naoum. We agree. While there may have been a violation of the language of Rule 6(d), defendant Naoum has shown no prejudice to him, nor a serious compromise of grand jury secrecy, and the denial of the motion to dismiss was well within the discretion of [123]*123the motion justice. See State v. Clough, 49 Me. 573, 576-77 (1861).

II.

The testimony of Barry Norris, an expert witness who gave his opinion that the fire was deliberately set, included the following:

The biggest indicator to tell us that it was deliberately set was the sprinkler system. Had it been other than deliberately set — normal people for revenge, whether it’s a grudge, whatever the reasons, will go in, set a fire, and, yes, they will use a flammable combustible liquid.

Norris further testified that he did not know who set the fire. The trial court sustained Naoum’s objection to that part of Norris’ testimony and instructed the jury that they should disregard the witness’ comments as to who may have set the fire or what the motive of the person who set the fire may have been.

Naoum contends that in the above-quoted testimony Norris actually was giving his opinion that the fire did not appear to be a revenge fire, and because that was beyond his expertise and that it disputed Naoum’s defense that the fire was a revenge or grudge fire, that the court abused its discretion in denying Naoum’s motion for mistrial.

Because the trial court has a “superior vantage point in assessing the impact of objectionable testimony,” we review a ruling on a motion for mistrial only for abuse of discretion, State v. Jones, 523 A.2d 579, 581 (Me.1987), and we find none here. Contrary to Naoum’s contention, the testimony of Norris was ambiguous as to whether this was a revenge or grudge fire. Moreover, the court instructed the jury to disregard any of Norris’ testimony as to who may have set the fire, or what the motive may have been. We presume that a jury will follow a curative instruction, and such an instruction will be considered inadequate “[o]nly where there are exceptionally prejudicial circumstances or prosecutorial bad faith.” State v. Hilton, 431 A.2d 1296, 1302 (Me.1981). There being no such exceptional circumstances or prosecutorial bad faith here, the court’s curative instruction was adequate, and its denial of the mistrial motion was well within its discretion.

III.

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State v. Naoum
548 A.2d 120 (Supreme Judicial Court of Maine, 1988)

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Bluebook (online)
548 A.2d 120, 1988 Me. LEXIS 248, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-naoum-me-1988.