VIOLETTE, Justice.
After a jury trial in Superior Court, Knox County, Francis White, Sr. was found guilty of the murder, 17-A M.R.S.A. § 201(1)(A) & (B), of his two-month old son, Francis, Jr. On appeal, White raises numerous claims of error. We affirm his conviction.
FACTS
In April 1980, Francis White, Jr. was born to defendant and Margo McKenna, an unmarried couple living together in Gard-iner. Early on the morning of June 11, 1980, White ran from their phoneless apartment to request emergency medical help at the Gardiner Public Safety Building. A rescue squad responded and found the baby warm but not breathing and without a pulse. Cardiopulmonary resuscitation (CPR) was immediately administered and the baby rushed to the hospital, where he lived on a respirator until his death on July 29. -
Emergency room physicians noted no external signs of trauma and their original diagnosis was near miss crib death (SIDS— sudden infant death syndrome). X-rays, however, revealed numerous (32) fractures, which were determined to have resulted from at least three episodes; one occurring the night the baby was admitted to the hospital, one about three weeks prior to that date, and one about four to six weeks prior to admission. The baby had suffered arm and leg fractures, rib fractures, and “avulsion” fractures (fractures at the joints of the long bones caused by violent shaking). Cause of death was listed as multiple bone fractures with post traumatic cerebral necrosis (brain damage due to lack of oxygen).
White was indicted for murder and McKenna for manslaughter. At the close of all the evidence in their joint trial, the presiding justice, upon McKenna’s motion, ordered a judgment of her acquittal.
I. Depraved Indifference Murder Statute
White’s indictment charged him with either “intentionally or knowingly” having caused the death of Francis White, Jr.1 or “engag[ing] in conduct which manifested a depraved indifference to the value of human life and which in fact caused the death of Francis White, Jr.”2 At trial, White unsuccessfully moved for the dismissal of the “depraved indifference” charge, claiming that it was unconstitutional as applied to him. Following his conviction under both alternatives, White again raises constitutional objections to Maine’s depraved indifference murder statute.
First, White contends that depraved indifference murder is not rationally distinguishable from the crime of manslaughter, 17-A M.R.S.A. § 203, and that the more severe penalty possible for depraved indifference murder is thus necessarily arbitrary [1020] and therefore invalid. In State v. Crocker, 435 A.2d 58, 63-67 (Me.1981), however, we explicitly rejected such an attack. In Crocker, we discussed the differences between the two crimes and concluded that, although they differ only by “a matter of degree,” id. at 67, they are constitutionally distinguishable.
White’s second argument is that “ ‘a person of ordinary intelligence’ could not ‘reasonably understand’ ” that his conduct was prohibited by the depraved' indifference statute. See State v. Parker, 372 A.2d 570, 573 (Me.1977) (quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989, 996 (1954)). He contends that, in light of medical testimony that many persons are not aware that vigorous shaking may be harmful to a baby, “the ordinary person ... could hardly have been expected to know that the risk was substantial.”
That extremely vigorous shaking of a baby can, alone, constitute depraved indifference is noted in W. LaFave & A. Scott, Jr., Criminal Law § 70 at 543 (1972). From the evidence presented at trial, moreover, the jury could have concluded that White shook the baby with “severe to very, very, very severe” force, that he did so on at least three occasions, and that the baby had, at least once before, briefly stopped breathing. We therefore conclude that the depraved indifference statute gave the defendant adequate notice that his conduct in question was proscribed.
II. Incriminating Statements
On October 7, 1980, following his indictment for the baby’s death, White was arrested by State Police Detective Richard Cook and taken to the Kennebec County Sheriff’s Office. Cook, despite knowing that White was represented by counsel and that White’s counsel had requested Cook not to question White, then asked White if he understood the nature of the charges against him. As White began to cry and make incriminating statements, Cook took out his note pad to record White’s remarks and suggested that White “probably should hold his statements back.”3
Before trial, White moved to suppress his statements on the grounds that they violated both his Sixth Amendment right to counsel and his Fifth Amendment privilege against self-incrimination. Following a hearing in chambers, the presiding justice denied White’s motion, holding that Detective Cook’s initial question to White did not constitute interrogation and that “[wjhatever happened thereafter was blurted out by the defendant and consently [sic] given, and I find that [White’s statements] were voluntarily given beyond a reasonable doubt.”
A. Sixth Amendment Right to Counsel
The Sixth Amendment requires suppression of statements made when the [1021] State intentionally creates a situation likely to induce a defendant to make incriminating statements without the assistance of counsel. United States v. Henry, 447 U.S. 264, 274, 100 S.Ct. 2183, 2189, 65 L.Ed.2d 115, 125 (1980); see Brewer v. Williams 430 U.S. 387, 400-01, 97 S.Ct. 1232, 1240-41, 51 L.Ed.2d 424, 437-38 (1977) Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246, 250 (1964).
On appeal, the presiding justice’s ruling on the admissibility of a confession will be upheld if “the evidence in the record provides rational support for the conclusions he reached.” State v. Bleyl, 435 A.2d 1349, 1358 (Me.1981); see State v. Collins, 297 A.2d 620, 625 (Me.1972). Our review of this record fails to convince us that the presiding justice erred in finding no violation of White’s Sixth Amendment rights.
Although the presiding justice did not explicitly frame his ruling in terms of Henry, he did rule that Detective Cook’s asking whether White understood the charges against him “was a proper question” and that White’s statements were all given voluntarily. The justice would have been warranted to conclude that Cook’s initial question to White was a routine formality and that Cook’s suggestions that White refrain from speaking absent his attorney, while not exceptionally vigorous, were not at all intended to elicit incriminating responses. Cook’s remark that “you had to be careful when you are handling children” did not constitute exemplary police conduct; we do not, however, find that as a matter of law it was “deliberately and designedly set out to elicit information” from White. See Brewer v. Williams, 430 U.S. at 399, 97 S.Ct. at 1240, 51 L.Ed.2d at 436-37.
B. Fifth Amendment Privilege Against Self-Incrimination
White also argues that his statements were involuntary and were the result of custodial interrogation in violation of his right to counsel. Again, however, we find that the record provides ample support for the presiding justice’s conclusions that White’s statements were both voluntary and not the result of interrogation. Cf. State v. Theriault, 425 A.2d 986, 989 (Me.1981).
White notes that, in State v. Estes, 418 A.2d 1108, 1111 (Me.1980), we cited the Supreme Court’s holding in Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297, 307-08 (1980), that “interrogation” refers “not only to express questioning, but also to any words or actions on the part of police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect.” In Estes, however, we also noted that “[bjrief, routine questions posed to a suspect during ‘booking’ procedures, for example, do not constitute ‘interrogation.’ ” 418 A.2d at 1111 (quoting State v. Simoneau, 402 A.2d 870, 873 (Me.1979)). The presiding justice did not err in categorizing Detective Cook’s remarks under the latter heading.
Finally, White contends that his statements were not “the product of free will and rational intellect,” State v. Caouette, 446 A.2d 1120, 1123 (Me.1982), and therefore not voluntary. See Collins, 297 A.2d at 626. The only evidence of White’s mental state, however, is that he began crying after Detective Cook asked if he understood the charges. This, alone, is insufficient to negate the presiding justice’s conclusion that White’s statements were voluntarily given.
III. Surprise Witnesses
On Friday, September 24, 1981, two days into White’s trial and after the State had presented most of its medical testimony, the State announced that it had just located two additional witnesses.4 Ralph Robbins and Shirley Flye had lived above White and McKenna’s apartment and were to testify that they heard White, during [1022] several arguments with McKenna, threaten the baby’s life. After that disclosure, the State made the witnesses available to the defendants.
The presiding justice noted that the testimony was extremely damaging to White’s case and took White’s objections to its admission under advisement. On Monday, the justice heard the witnesses’ voir dire testimony and decided to permit the testimony to be admitted; he further ordered a continuance of the trial until that Thursday. White appeals from the denial of his motions to exclude the witnesses’ testimony, for a mistrial, and for a longer continuance.
Each of White’s motions was addressed to the discretion of the presiding justice. See State v. Stinson, 424 A.2d 327, 332 (Me.1981) (motion for continuance); State v. Baker, 423 A.2d 227, 231 (Me.1980) (motion for mistrial); State v. Rich, 395 A.2d 1123, 1130 (Me.1978), cert. denied, 444 U.S. 854, 100 S.Ct. 110, 62 L.Ed.2d 71 (1979) (motion to exclude); State v. Ifill, 349 A.2d 176, 181 (Me.1975) (motion for continuance).
In each case, we find no abuse of that discretion. Even with the surprise introduction of the new witnesses, White still had six days to prepare for their testimony. Cf. Rich, 395 A.2d at 1131 (a week was sufficient time to prepare for surprise witnesses); Ifill, 349 A.2d at 181 (same). Further, the presiding justice voir dired the witnesses, giving White a full opportunity to cross-examine them, and then granted a two-day continuance to allow White further preparation time. Finally, in response to the justice’s request for details of how the new testimony prejudiced White’s defense strategy, White gave no specific reasons but only suggested broad areas of law that might otherwise have been explored.
IV. Withdrawal of Counsel
At the time of trial, State’s witness Shirley Flye was a client of White’s co-counsel Stephen O’Donnell in an unrelated civil matter. Claiming that White was entitled “to counsel free of conflict and from any appearance of conflict,” both Stephen O’Donnell and White’s other co-counsel, Joseph O’Donnell, moved to withdraw from their representation of White. Finding no indication of actual prejudice or conflict of interest, we affirm the presiding justice’s denial of their motion. See Zuck v. Alabama, 588 F.2d 436, 438-40 (5th Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979); United States v. DiCarlo, 575 F.2d 952, 957 (1st Cir.1978); United States v. McClean, 528 F.2d 1250, 1257-58 (2nd Cir.1976); United States v. Jeffers, 520 F.2d 1256, 1264-66 (7th Cir.1975), cert. denied, 423 U.S. 1066, 96 S.Ct. 805, 46 L.Ed.2d 656 (1976); Commonwealth v. Geraway, 364 Mass. 168, 170-74, 301 N.E.2d 814, 815-18 (1973); cf. Geraway, 364 Mass. 176-86, 301 N.E.2d at 819-25 (Tauro, C.J., dissenting).
Flye’s cross-examination was conducted wholly by Joseph O’Donnell. He did not represent Flye at the time of trial, apparently never had represented her, and he was, at no relevant time, a partner or associate of Stephen O’Donnell. No direct or vicarious conflict of interests thereby required that Joseph O’Donnell be granted leave to withdraw. Moreover, because Stephen O’Donnell was not professionally affiliated with Joseph and because Stephen took no part in Flye’s cross-examination, there could be no conflict of interest arising from Stephen’s dual representation of Flye and White. Finally, our review of the record persuades us that White’s counsel did, in fact, fully and vigorously cross-examine Flye.
V. Motion to Reopen
After the close of the evidence, White moved to reopen the case to call Margo McKenna as his witness. As an offer of proof, White presented a statement taken by a State Police officer from a fellow prisoner of McKenna who claimed to have spoken with McKenna about White and the baby. Although we find that the presiding justice’s refusal to reopen the case constituted error, we find the error harmless.
White’s motion to reopen was controlled by M.R.Crim.P. 26(c): “A party who has [1023] rested his case cannot thereafter produce further evidence ... unless by leave of court.” Our review on appeal is limited to determining whether the presiding justice’s ruling constituted an abuse of discretion. State v. Colomy, 407 A.2d 1115, 1119 (Me.1979); Hathaway v. Williams, 105 Me. 565, 566-67, 75 A. 129, 130 (1909); 3 Glassman, Maine Practice: Rules of Criminal Procedure Annotated § 26.15 (1967).
In ruling on a motion to reopen, a presiding justice should consider several factors. The decision to reopen the evidence necessarily involves a weighing process; no one element will be dispositive. Among the factors the justice should weigh are (1) the potential prejudice to the opposing party, Hill v. Finnemore, 132 Me. 459, 474, 172 A. 826, 834 (1934); United States v. Larson, 596 F.2d 759, 778 (8th Cir.1979); (2) the probative value of the proffered evidence, including the new witness’s vulnerability on cross-examination, Sellars v. United States, 401 A.2d 974, 980 (D.C.1979); see Hill, 132 Me. at 472, 172 A. at 832; State v. Wolf, 44 N.J. 176, 188-92, 207 A.2d 670, 677-79 (1965); State v. Allen, 19 N.C.App. 660, 662-63, 199 S.E.2d 706, 707-08 (1973); and (3) the moving party’s excuse for the untimeliness of its offer. United States v. Bayer, 331 U.S. 532, 538-39, 67 S.Ct. 1394, 1397, 91 L.Ed. 1654, 1659 (1947); Larson, 596 F.2d at 778; Hill, 132 Me. at 474, 172 A. at 834.
In the instant case, there is no evidence in the record, and the State does not argue, that admission of McKenna’s testimony would have prejudiced the State’s case. There is also no evidence in the record that the presiding justice ever weighed the probative value of the proffered evidence.
The presiding justice apparently rested his refusal to reopen the case on the tardiness of White’s motion to reopen.5 While the record does not articulate the justice’s analysis, there are two potential bases for such a ruling. First, as the State argues, perhaps White should have called McKenna during his case in chief, despite the possibility that she might have invoked her Fifth Amendment rights in refusing to testify. Second, the justice may have concluded that White’s motion was untimely because McKenna’s motion for judgment of acquits tal was granted immediately following noon recess on a Friday, while White’s motion to reopen was not made until Monday morning after a discussion in chambers about jury instructions in the case.
White, however, need not have established McKenna’s unavailability by attempting to call her to the stand during his case-in-chief. McKenna’s failure to take the stand in her own behalf during the trial amply justified a conclusion that she was also unavailable as a witness for White. Further, it was the presiding justice’s own error that resulted in McKenna remaining a defendant, and therefore unavailable, throughout the trial. Although McKenna moved for a judgment of acquittal at the close of the State’s case-in-chief, the justice reserved his ruling until the close of all the evidence. As we have previously noted, however, “the mandatory language in M.R. Crim.P. 29(a) plainly contemplates that the Superior Court shall rule upon such a motion before the defendant has to decide whether to proceed with his defense.” State v. Smith, 389 A.2d 314, 316 (Me.1978) (emphasis in original).
[1024] From the Friday afternoon when the presiding justice granted McKenna’s motion for judgment of acquittal until White’s motion to reopen on the following Monday, the only action taken by the court was a discussion among the parties and the justice about the justice’s jury instructions. Closing arguments, the instructions, and jury deliberations all lay in the future. Sole reliance on the passage of the weekend, without any showing whatever of prejudice to the State, as a ground for refusing White’s motion must constitute an abuse of discretion. See generally 6 Wigmore on Evidence §§ 1877-80 (Chadbourn rev. 1976) (discussing different standards for reopening as trial progresses through final stages).
Although the presiding justice erred in denying White’s motion to reopen the evidence, we must disregard as harmless any error which does not affect White’s “substantial rights.” M.R.Crim.P. 52(a). Here, because we find it highly probable that the presiding justice’s error did not affect the judgment, we conclude that the error was harmless. See State v. True, 438 A.2d 460, 467 (Me.1981); R. Traynor, The Riddle of Harmless Error 35, 49-51 (1970).
According to White’s offer of proof following his motion to reopen, McKenna told a fellow prisoner “I never saw [White] do anything to the child, and I was mostly with the child myself.”6 Such evidence might be important if the identity of the person who caused the baby’s fatal injuries was at issue, or if there was a question of White’s opportunity to have injured the child. In this case, however, White did not raise any such possibilities, despite having a full opportunity, before resting his case, to develop alternative defense theories.7 Rather, his defense focused almost entirely on whether his conduct was intentional, knowing, or manifested depraved indifference. In closing argument, for example, White’s counsel summarized the case as follows:
In my opening statement, I said to you this was a case of child abuse, and I don’t intend to minimize or condone that aspect of this case. But the issue, Ladies and Gentlemen, before you, and this is what I set out at the beginning, is Francis White guilty of the crime of murder. Has the State carried its burden to prove to you beyond a reasonable doubt that Francis White intended to kill his child, or knew that his conduct would kill his child, or what the State has now emphasized, did he act with depraved indifference. I think he did not, and I think the evidence shows that.
We have here that there were three or four [shaking] incidents. Now, let me [1025] suggest to you, Ladies and Gentlemen, that this did happen that way — that out of frustration, that out of ignorance, that this man shook this child. And maybe he shook it hard to cause these injuries — he grabbed it by the chest.
But how many of you, before you came here, knew the dangers of shaking a child? How many of you knew that it could have the repercussions that it had in this type of case?
Although the testimony presented in White’s oral offer of proof is, in the abstract, exculpatory, we must review it in the context of the trial record. After considering all the evidence produced at trial, we are convinced that the proffered evidence was not at all probative on the central issue in the case: the nature of White’s conduct, not his opportunity to have injured the child.
We also find that the evidence contained in White’s offer of proof does not, alone, create a sufficient doubt as to whether a jury might have concluded that White was not responsible for the baby’s death. White suggests that, had he been permitted to put McKenna on the stand, he might have gathered more evidence to support a “whodunit” case. White did, however, present an offer of proof regarding McKenna’s expected testimony. We therefore refuse to indulge in speculation about what else she might have testified to. Because we conclude that it is highly probable that McKenna’s testimony would not have resulted in a judgment of acquittal for White, we find the presiding justice’s error in not reopening the evidence to be harmless.
VI. Prosecutorial Tactics
At several points during the trial, White objected to remarks made by the prosecutor. He now contends that each of these incidents requires that we reverse his conviction.
First, during the voir dire of prospective jurors, the prosecutor asked two of them who indicated that they had a transportation problem whether, “[i]f you were chosen as a juror and we were able to provide some kind of transportation for you back and forth to the courthouse, would that take care of the problem for you?” White moved to exclude for cause those jurors who heard the prosecutor’s questions. After the presiding justice denied the motion, White and his co-defendant McKenna exercised twelve of their peremptory challenges on those jurors.
During trial, the prosecutor referred to the baby as “little guy” and “little baby”. When she referred to the “little guy” again, White objected. The presiding justice cautioned the prosecutor against use of the phrase but did not give the jury any curative instructions. The prosecutor thereafter refrained from further use of either term.
Finally, during her summation, the prosecutor apologized to two jurors by name for possible rudeness to them during trial that she claimed was necessitated by her duty to remain impartial. White’s motions for curative instructions or a mistrial were both denied.
As we have previously pointed out, the prosecutor has a duty “to see that the accused has a fair trial [as well as the duty] to bring about a just conviction of the guilty.” State v. Reilly, 446 A.2d 1125, 1128 (Me.1982) (quoting State v. Wyman, 270 A.2d 460, 463 (Me.1970)). Although we do not condone the prosecutor’s tactics in this case, however, we do not find that her remarks were of such a nature as to unduly influence the jury. We therefore conclude that the presiding justice did not err in overruling White’s objections.
VII. Other Issues
Our review of the record convinces us that other issues raised by the defendant on appeal, including the sufficiency of the evidence, are without merit.
The entry is:
Appeal denied.
Judgment affirmed.
McKUSICK, C.J., and GODFREY and WATHEN, JJ., concur.