State of Maine v. Robert Burton

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
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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?

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[¶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