State v. Nason

498 A.2d 252, 1985 Me. LEXIS 813
CourtSupreme Judicial Court of Maine
DecidedSeptember 3, 1985
StatusPublished
Cited by18 cases

This text of 498 A.2d 252 (State v. Nason) 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. Nason, 498 A.2d 252, 1985 Me. LEXIS 813 (Me. 1985).

Opinion

GLASSMAN, Justice.

The defendant, Sharon Eberhart Nason, appeals from a judgment of the Superior Court, Penobscot County, after a jury conviction of unlawful trafficking in a schedule W drug, a Class B crime. See 17-A M.R.S.A. § 1103 (1983). We affirm the judgment.

I.

In response to reports that a large number of people, were coming and going from the defendant’s residence in Bangor, the Bangor Police Department began surveillance of the house in June 1983. For two weeks the police watched the house where the defendant lived with her husband and small child, counting in eleven days 171 visitors whose visits lasted less than forty-five minutes. 1 At times the police observed visitors entering the house with money in their hands and visitors leaving carrying paper bags they had not carried into the house. On one occasion, police overheard the defendant’s husband tell two visitors in a car: “Tell me what you want and I can get it.”

On one particular evening while the defendant was at home, the police observed thirty-five people paying very brief visits to the defendant’s house between 6:30 and 9:00 p.m. Most of the same individuals returned for somewhat longer visits after the defendant’s husband came home shortly after 9:00 and entered the house carrying a medium sized box.

On July 8, 1983, the police executed a search warrant. As a result of the search the police found 27.6 grams of cocaine and 41.6 grams of marijuana. On a dresser in *254 the bedroom the defendant shared with her husband the police found a small amount of marijuana, a set of scales and a kitchen spoon that bore traces of a cocaine residue, and a box containing the 27.6 grams of cocaine. Behind the dresser were boxes of plastic bags and a box of cornstarch with a spoon in it. The police also seized ledgers, telephone bills, and over $1700 in cash found in the defendant’s pocketbook.

The defendant was arrested and charged with two counts of unlawful trafficking in scheduled drugs in violation of 17-A M.R. S.A. § 1103. The Superior Court denied the defendant’s motion to suppress from evidence the property seized during the search of her house. After trial, the jury returned a guilty verdict on the count charging the defendant with trafficking in cocaine, while acquitting her of trafficking in marijuana. The defendant raises six issues in her appeal to this court.

II.

At trial, the defendant sought to call her brother-in-law as a witness. The defendant stated that the witness had resided in the home of the defendant and her husband during a large part of the time in question and could testify to arguments and conversations he had overheard between the defendant and her husband 'and about his knowledge of the defendant’s efforts to leave her husband. At the earlier trial of the defendant’s husband before the same trial justice, involving virtually the same circumstances presented by the instant case, the witness had invoked the privilege against self-incrimination and refused to answer questions about his own use and possession of drugs.

This defendant anticipated that the witness would again invoke the fifth amendment in response to such questions. In the defendant’s voir dire examination of the witness conducted in the jury’s absence, the witness confirmed that he would again assert the privilege if he were questioned about his involvement with drugs. The defendant sought to secure the testimony of the witness by requesting the court to instruct both counsel to refrain from inquiring into the witness’s use and possession of drugs. Counsel for the State indicated during the voir dire that it considered the potentially taboo areas of inquiry relevant to its case. Without objection from the defendant, the court denied the requested restriction by ruling that the witness could not testify for the defendant. Two other witnesses who were confidantes of the defendant subsequently testified to her arguments with her husband and her attempts to move out of the house.

The defendant now alleges that the Superior Court’s exclusion of the witness violated her right to a fair trial under the sixth and fourteenth amendments of the United States Constitution and article I, sections 6 and 6-A of the Constitution of the State of Maine. 2 Notwithstanding the defendant’s failure to preserve the issue by objection, we will review the record for “obvious errors or defects affecting substantial rights.” See M.R.Crim.P. 52(b); see also State v. Smith, 472 A.2d 948, 950-51 (Me.1984); State v. Durepo, 472 A.2d 919, 922 (Me.1984). Our examination of the record discloses no error.

Maine has long followed the wide-open rule governing the scope of cross-examination. See Falmouth v. Windham, 63 Me. 44, 45 (1873); M.R.Evid. 611(b) advisers’ note. The rule provides: “A witness may *255 be cross-examined on any matter relevant to any issue in the case, including credibility. In the interests of justice, the court may limit cross-examination with respect to matters not testified to on direct examination.” M.R.Evid. 611(b). By the voir dire examination, the defendant in effect made an offer of proof conditioned on restriction of cross-examination.

Limiting the scope of cross-examination is within the broad discretion of the trial justice. See State v. White, 456 A.2d 13, 15 (Me.1983); M.R.Evid. 611(b). On appeal, we will uphold the court’s exercise of discretion unless it clearly interfered with the defendant’s right to a fair trial. State v. White, 456 A.2d at 15. The ruling barring the witness from the stand was within the court’s discretion and affected no substantial rights of the defendant. Other defense witnesses provided the testimony the defendant sought from her brother-in-law. The error, if any there was in the preclusion of his testimony, was neither so obvious nor so prejudicial as to require a new trial. See State v. True, 438 A.2d 460, 468-69 (Me.1981).

III.

The defendant contends the court should have granted her pretrial motion to suppress evidence seized during the search of her home. The defendant argues that the surveillance that yielded the facts in the affidavit was itself an illegal search. The defendant alleges the affidavit underlying the search warrant was insufficient to show probable cause to believe there was criminal activity occurring in her home. We reject the position of the defendant. There is no allegation the Bangor police conducted their surveillance of the defendant’s home from a vantage point where they had no right to be. The defendant had no reasonable expectation of privacy in activities that were exposed to the public outside her house. See Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967); State v. Littlefield,

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498 A.2d 252, 1985 Me. LEXIS 813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nason-me-1985.