receipt by sentencing justice of unsolicited letter from fire inspector that included allegations of wrongdoing against defendant with sentence recommendation did not taint proceedings where judge, after making contents known to defendant, allowing cross-examination of fire inspector and refutation of letter’s contents, did not consider allegations in passing sentence
How later courts described this case
- receipt by sentencing justice of unsolicited letter from fire inspector that included allegations of wrongdoing against defendant with sentence recommendation did not taint proceedings where judge, after making contents known to defendant, allowing cross-examination of fire inspector and refutation of letter’s contents, did not consider allegations in passing sentence
- sentencing judge’s immediate notification to both parties of crime inspector’s letter regarding sentencing provided the parties full opportunity to respond and mitigated any due process violations
- defendant’s statement showing consciousness of guilt admissible over objection that statement was unfairly prejudicial
- when trial court received fire inspector’s letter which included allegations of wrongdoing and sentence recommendation it allowed cross-examination of fire inspector
Written by the judges who cited it.
The opinion
NICHOLS, Justice
(concurring).
I concur in the judgment entered by our Court this day.
In my view, however, the Court erred in grounding the admissibility of Strickland’s testimony as to the meaning of the words “smudge sale” used by the Defendant on M.R.Evid. 702, rather than basing admissibility on M.R.Evid. 701.
*687 We do well in the context of this case to treat the two rules, which are identical to their federal counterparts, as mutually exclusive.
M.R.Evid. 702 relates only to testimony by a witness able to qualify as an expert because he has some specialized knowledge, skill or experience that is not in the possession of the factfinders. Strickland was not testifying as an expert, and the State made no attempt in this case to qualify him as such. He was a lay witness and nothing more.
M.R.Evid. 701, on the other hand, relates solely to testimony by such a lay witness. This rule provides:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
Traditionally, it was the rule that after a witness testified as to the words • another used in a conversation with him, he could not be asked what he supposed that other intended by those words. Whitman v. Freese, 23 Me. 185, 187 (1843).
With the promulgation of M.R.Evid. 701 and its federal counterpart the orthodox rule was relaxed. Where it would be helpful to a clear understanding of his testimony by the factfinders the lay witness has, for example, been allowed to testify as to what another person whom he knows believed or understood. United States v. Smith, 550 F.2d 277, 281 (5th Cir. 1977); John Hancock Mut. Life Ins. Co. v. Dutton, 585 F.2d 1289, 1294 (5th Cir. 1978).
Basically, M.R.Evid. 701 is a rule of discretion, replacing the traditional rule of exclusion with a rule which enables the trial judge, on the basis of the posture of a particular case, to determine whether concreteness, abstraction, or a combination of the two will be most helpful to the factfind-ers in ascertaining the truth and reaching a just result. It recognizes that many witnesses can clarify what they mean only by sprinkling their testimony with opinions and inferences. As Judge Learned Hand observed long ago, the line between opinion and fact is at best only one of degree, and often depends in part upon the mentality of the witness. Central Railroad Co. v. Monahan, 11 F.2d 212, 214 (2d Cir. 1926). The emphasis belongs on what the witness knows and not on how he is expressing himself. 3 Weinstein’s Evidence 702[02] (1978).
I am disinclined to subscribe to the view, that once Strickland responded to the trial judge’s question by indicating he knew the local meaning of “smudge sale,” Strickland became, ipso facto, an expert, and his explanation became admissible as the opinion of an expert pursuant to M.R.Evid. 702.
I suggest we should reject such a bootstrap approach.
Rather than straining to find in the record before us minimal foundation for expert testimony, we would do better to recognize that the traditional rule has been changed and that today Strickland may be treated as a lay witness without restricting his right to voice the challenged testimony. See State v. Lagasse, Me., 410 A.2d 537 (1980).
We should, I submit, invoke M.R.Evid. 701 as the basis of admissibility.