State v. Brackett

CLIFFORD, J.,

with whom SAUFLEY, J., joins, dissenting.

[¶ 8] Because, in my view, the order appealed from has more than a reasonable likelihood of causing serious impairment to the prosecution of the State’s case within the meaning of 15 M.R.S.A. § 2115-A(1) (1980), and, although issued on a motion in limine, is not the kind of in limine order at all likely to be changed and will almost certainly govern the evidence in this case, *340and because the order is clearly contrary to M.R. Evid. 412, I respectfully dissent.

[¶ 9] M.R. Evid. 412 provides as follows: Rule 412. Past Sexual Behavior of a victim.
(a) In a criminal case in which a person is accused of rape, gross sexual assault, gross sexual misconduct, unlawful sexual contact, or sexual abuse of a minor, reputation or opinion evidence of past sexual behavior of an alleged victim of such crime is not admissible.
(b) In a criminal case in which a person is accused of rape, gross sexual assault, gross sexual misconduct, unlawful sexual contact, or sexual 'abuse of a minor, the only evidence of a victim’s past sexual behavior that may be admitted is the following:
(1) Evidence of specific instances of sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury; or
(2) Evidence of specific instances of sexual behavior with the accused offered by the accused on the issue of whether the alleged victim consented to the sexual behavior with respect to which the accused is charged.

Rule 412 excludes evidence of past sexual behavior of an alleged victim of a sexual assault except in very limited circumstances not present here. Evidence of prior sexual activity on the part of an alleged victim of sexual abuse is admissible on the issue of consent only if the evidence goes to “specific instances- -of sexual activity with the accused.” M.R. Evid. 412(b)(2). The Superior Court’s -order, however, allows the defendant to use as evidence of consent admissions by the alleged victim that prior to the assault she had worked- as a prostitute, despite the fact that there is no evidence of prior sexual activity between the alleged victim and the defendant, and that the defendant was unaware of any such admissions at the time of the alleged assault.

[¶ 10] The Superior Court’s ruling is in clear violation of both the letter and the spirit of Rule 412. See State v. Philbrick, 551 A.2d 847, 851 (Me.1988). See also Field & Murray, Maine Evidence § 412.1 at 181-182 (2000 ed.) (admission of past sexual behavior of victim “often would convert a rape or sexual assault case into a trial not of the accused, but of the victim”); see also United States v. Saunders, 943 F.2d 388, 392 (4th Cir.1991) (“intolerable to suggest that because the victim is a prostitute, she automatically is assumed to have consented with anyone at any time”).

[¶ 11] The State may appeal from a pretrial order in a criminal ease when that order “has a reasonable likelihood of causing ... serious impairment to ... the prosecution.” 15 M.R.S.A. § 2115-A(1) (Supp.1999).2 Section 2115-A(1) is to be liberally construed. See 15 M.R.S.A. § 2115-A(6) (Supp.1999). The State’s case is seriously impaired if there is “ ‘any reasonable likelihood that the. State will be handicapped in trying the defen*341dant.’” See State v. Patterson, 651 A.2d 362, 365 (Me.1994) (quoting State v. Doucette, 544 A.2d 1290, 1292 (Me.1988)). Because evidence of the alleged victim’s past prostitution is likely to “provoke moral and emotional reactions in the trier of fact increasing the risk of unfair prejudice,” see M.R. Evid. 412 advisory committee’s note to 1983 amend., Field & Murray, Maine Evidence 179 (2000), it is clear that the State has met the “serious impairment” standard in this appeal.

[¶ 12] The Court, however, declines to accept this appeal, concluding it is premature because it comes to us as on appeal from an in limine ruling. Although it is true that an in limine ruling is not final and is subject to change for good cause, see M.R.Crim. P. 12(C), motions in limine are very useful tools to resolve questions of the admissibility of evidence prior to the trial, see State v. Gagnon, 383 A.2d 25, 27 (Me.1978). Their use should be encouraged. See id.; see also State v. Barlow, 320 A.2d 895, 903 (Me.1974); Gendron v. Pawtucket Mut. Ins. Co., 409 A.2d 656, 659, (scholarly comment has consistently supported use of motions in limine); United States v. Oakes, 565 F.2d 170, 173 (1st Cir.1977) (trial courts encouraged to use motions in limine to obtain advance rulings in proper cases); Field & Murray, Maine Evidence § 103.7 at 23-24 (2000 ed.) (admissibility of prior conviction of witnesses routinely determined by motions in limine before witness testifies).

[¶ 13] I agree with the Court that we should not entertain an appeal from an in limine ruling that is susceptible to being changed at trial. The ruling in this case, however, is similar to that in State v. Shellhammer, 540 A.2d 780 (Me.1988), wherein we accepted the State’s appeal of an adverse ruling on the admissibility of the defendant’s statement that he was the operator of the vehicle. See id. at 781. Like the in limine ruling in Shellhammer, the in limine ruling in this case is one made for the purpose of governing the conduct of the trial. See Gendron v. Pawtucket Mut. Ins. Co., 409 A.2d at 659 (discussion of difference between in limine orders intended to be “absolute” and those intended to be “preliminary” only, subject to an additional final ruling). The ruling appealed from in this case is not dependent on what other evidence is admitted at trial, is very unlikely to be changed by the trial court, and seriously impairs the prosecution.

[¶ 14] I would accept the State’s appeal and vacate the Superior Court’s ruling on the admissibility of prior sexual activity on the part of the victim.

. Title 15 M.R.S.A. § 2115-A provides in pertinent part:

1. Appeals prior to trial. An appeal may be taken by the State in criminal cases on questions of law from the District Court and from the Superior Court to the law court: From an order of the court prior to trial which suppresses any evidence, including, but not limited to, physical or identification evidence or evidence of a confession or admission; from an order which prevents the prosecution from obtaining evidence; from a pretrial dismissal of an indictment, information or complaint; or from any other order of the court prior to trial which, either under the particular circumstances of the case or generally for the type of order in question, has a reasonable likelihood of causing either serious impairment to or termination of the prosecution.
6. Liberal construction. The provisions of this section shall be liberally construed to effectuate its purposes.
8. Fees and costs. The Law Court shall allow reasonable counsel fees an costs for the defense of appeals under this section.