State of Maine v. Andrew B. Maderios

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 155
Docket: Som-15-492
Argued: September 14, 2016
Decided: October 18, 2016

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

STATE OF MAINE

v.

ANDREW B. MADERIOS

MEAD, J.

[¶1] Andrew B. Maderios appeals from a judgment of conviction

entered by the trial court (Somerset County, Mullen, J.) after a jury found him

guilty of two counts of aggravated assault (Class B), 17-A M.R.S. § 208(1)(C)

(2014),1 and two counts of domestic violence assault (Class D), 17-A M.R.S.

§ 207-A(1)(A) (2015). Maderios contends that the court erred in (1) declining

to allow three of the victim’s former romantic partners to testify to her alleged

propensity to make false accusations when relationships ended against her

wishes; (2) admitting, over Maderios’s best evidence objection, audio

recordings and photographs made by the victim; and (3) declining to order a

1
Title 17-A M.R.S. § 208(1)(C) has since been amended. P.L. 2015, ch. 358, § 1 (effective
Oct. 15, 2015) (codified at 17-A M.R.S. § 208(1)(C) (2015)).
2

mistrial as a result of statements made by the prosecutor during the State’s

closing and rebuttal arguments. We affirm the judgment.

I. BACKGROUND

[¶2] On September 4, 2014, Maderios was indicted for alleged crimes

committed against the victim, his then-girlfriend. The indictment charged

Maderios with three counts of aggravated assault (Class B), 17-A M.R.S.

§ 208(1)(C) (Counts I, IV, VI); one count of aggravated assault (Class B),

17-A M.R.S. § 208(1)(A) (2014)2 (Count IX); four counts of domestic violence

assault (Class D), 17-A M.R.S. § 207-A(1)(A) (Counts II, V, VII, VIII); and one

count of obstructing report of crime or injury (Class D), 17-A M.R.S.

§ 758(1)(A) (2015) (Count III).

[¶3] Before trial, Maderios moved to allow two of the victim’s former

boyfriends and her ex-husband to testify to what Maderios claimed was the

victim’s pattern of making false accusations when relationships ended on

terms not to her liking. He supported his motion with a detailed offer of proof.

2
Title 17-A M.R.S. § 208(1)(A) has since been amended. P.L. 2015, ch. 358, § 1 (effective
Oct. 15, 2015) (codified at 17-A M.R.S. § 208(1)(A) (2015)).
 3

[¶4] Maderios also moved in limine, relying on M.R. Evid. 1002,3 to

exclude audio recordings of alleged assaults that the victim made on her cell

phone, as well as photographs of injuries allegedly resulting from those

assaults that she took with the phone, all of which were later transferred to

her computer before the phone was returned to her cell phone carrier and

became unavailable for trial. The State moved in limine, relying on M.R. Evid.

1004(a),4 to allow the evidence, asserting in part that Maderios himself had

deleted the recordings and photographs from the victim’s phone before it was

returned to the carrier.

[¶5] On August 28, 2015, the court held a hearing on the pretrial

motions. The court denied Maderios’s motion to allow the testimony of the

victim’s former partners on the ground that its admission would create “a

classic example of . . . a trial within a trial,”5 and was therefore properly

3 Maine Rule of Evidence 1002, the “best evidence” rule, provides that “[a]n original writing,

recording, or photograph is required in order to prove its content unless these rules or a statute
provides otherwise.”

4 An exception to the best evidence rule provides: “An original is not required and other

evidence of the content of a writing, recording, or photograph is admissible if . . . [a]ll the originals
are lost or destroyed, and not by the proponent acting in bad faith[.]” M.R. Evid. 1004(a).

5 The State called two witnesses who testified at the hearing that their dating relationships with

the victim ended without incident.

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excluded pursuant to M.R. Evid. 403.6 The court further ruled that Maderios’s

challenge to the audio recordings and photographs went to their weight, and

therefore they were admissible but subject to Maderios’s cross-examination of

the victim at trial.

[¶6] The case went to trial on August 31-September 4, 2015. The audio

recordings that the victim made of a January 25, 2014, incident, which was the

basis of Counts IV and V of the indictment, and of a March 23, 2014, incident,

which was the basis of Counts VI and VII, were admitted and played for the

jury. Several photographs taken by the victim with her cell phone showing

injuries resulting from those incidents were also admitted.

[¶7] The jury returned verdicts of guilty on Counts IV, V, VI, and VII, and

not guilty on the remaining counts. At the sentencing hearing the court

denied Maderios’s motion for a new trial, entered judgment on the verdicts,

and imposed consecutive sentences on the aggravated assault convictions

resulting in an aggregate sentence of fifteen years’ imprisonment, with all but

three years suspended, and six years of probation. On the domestic violence

6 The rule provides: “The court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” M.R. Evid. 403.
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assault convictions, the court imposed a sentence of six months to be served

concurrently with the other sentences. Maderios appealed.

II. DISCUSSION

A. Evidence of Prior Relationships

[¶8] Maderios argues that evidence of how the victim acted in prior

relationships was admissible to show that she had motive, intent, and a plan

to make false accusations against him when their relationship was ending.

The trial court’s ruling that the evidence was not admissible is reviewed for an

abuse of discretion. State v. Ericson, 2011 ME 28, ¶ 19, 13 A.3d 777.

[¶9] Although “[e]vidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show that on a particular

occasion the person acted in accordance with the character,” M.R. Evid.

404(b), we have said that “evidence of prior bad acts is admissible for limited

purposes other than to prove propensity, in that Rule 404(b) does not render

inadmissible evidence of other crimes, wrongs, or acts if the evidence is

offered to demonstrate motive, intent, identity, absence of mistake, or the

relationship of the parties,” State v. Pratt, 2015 ME 167, ¶ 24, 130 A.3d 381

(quotation marks omitted). It is not clear that the evidence concerning the

victim’s prior relationships proffered by Maderios would qualify for
6

admission under one of those exceptions, or that it would survive the State’s

challenge to it as improper character evidence.7 We need not reach those

questions, however, because we conclude that the court did not err by

excluding the evidence pursuant to Rule 403.

[¶10] The trial court is “afforded wide discretion to make Rule 403

determinations.” State v. Filler, 2010 ME 90, ¶ 17, 3 A.3d 365 (quotation

marks omitted). Even if “evidence tending to show that a witness has a

motive for falsifying or exaggerating trial testimony is relevant to credibility,

relevant evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, among other grounds,” including instances where

“[p]resenting evidence related to the truth or falsity of the victim’s allegations

. . . would have confused the issues, creating a trial within a trial regarding

whether the victim or [another witness] was telling the truth.” Ericson, 2011

ME 28, ¶ 22, 13 A.3d 777 (citations and quotation marks omitted).

[¶11] Here, for several reasons, the court did not abuse its broad

discretion in ruling that admission of the evidence contained in Maderios’s

offer of proof would be “a classic example of . . . creating a trial within a trial,”

7 Maine Rule of Evidence 608(b) provides, in part, that “[e]xcept for a criminal conviction . . .

extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to
attack or support the witness’s character for truthfulness.”
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and that “any probative value is substantially outweighed by confusion of the

issues, misleading the jury [and] unfair prejudice.”

[¶12] First, unlike in Filler, where we concluded that it was an abuse of

discretion to limit the defendant’s cross-examination of his accuser

concerning evidence of contemporaneous events relevant to her motivation to

fabricate allegations of abuse against him, 2010 ME 90, ¶ 19, 3 A.3d 365, here

Maderios sought to have third-party witnesses testify concerning the victim’s

alleged motivation to make accusations against those witnesses—not against

Maderios. Second, the three witnesses would have testified about

relationships that had ended between four and ten years earlier, lessening any

potential relevance. Third, resolving the question of which witnesses were

accurately describing the victim’s conduct when her prior relationships ended

would, as demonstrated by the State calling two witnesses at the motion

hearing to contradict the three prospective witnesses discussed in Maderios’s

offer of proof, require what the court accurately described as “a classic

example of . . . a trial within a trial.”

[¶13] Finally, again unlike the situation in Filler, where the “relevant

evidence would have required only a few minutes of trial time to be fully

explored,” id. ¶ 20, here the court was faced with at least five witnesses, apart
8

from the principal parties, who would contradict each other concerning the

victim’s alleged character trait for vindictiveness and her propensity to make

false allegations in the face of a failing relationship. That prospect posed an

obvious danger of “confusing the issues” for the jury, M.R. Evid. 403, which

was not tasked with determining which of those witnesses were credible

concerning the victim’s character, but rather with the central question of

whether Maderios had assaulted the victim as alleged in the indictment.

[¶14] For these reasons, the court did not abuse its “wide discretion,”

Filler, 2010 ME 90, ¶ 17, 3 A.3d 365, in excluding the prospective testimony of

the witnesses discussed in Maderios’s offer of proof pursuant to M.R. Evid.

403.

B. Best Evidence Rule

[¶15] Maderios next contends that the court abused its discretion in

denying his motion to exclude the audio recordings and photographs on the

ground that their admission violated the “best evidence” rule, which states

that “[a]n original writing, recording, or photograph is required in order to

prove its content unless these rules or a statute provides otherwise.” M.R.

Evid. 1002; see LDC Gen. Contracting v. LeBlanc, 2006 ME 106, ¶ 8, 907 A.2d

802 (“It is within the discretion of the trial judge to decide whether an
 9

exception to the best evidence rule applies in a given instance. His decision is

reviewable only for an abuse of that discretion.” (quotation marks omitted)).

[¶16] The record reveals no error in the court’s decision. By rule, “[a]n

original is not required and other evidence of the content of a writing,

recording, or photograph is admissible if . . . [a]ll the originals are lost or

destroyed, and not by the proponent acting in bad faith.” M.R. Evid. 1004(a).

The victim testified at the motion hearing that she made audio recordings of

the January 25, 2014, and March 23, 2014, incidents on her cell phone, and

that in June she transferred the recordings and photographs to her computer

after she began having trouble with the phone and her cell carrier advised her

to do so. Subsequently, on July 4, 2014, Maderios returned home from a

vacation and, during an argument with the victim, he deleted the recordings

and photographs from her phone. The victim testified that she did not tamper

with or alter the recordings or photographs after they were copied to her

computer, and that the copies she gave the State were fair and accurate

representations of what had occurred. The phone was eventually returned to

the cell carrier so that she could get a replacement.

[¶17] The court found that “the State has negated bad faith to the

extent it’s alleged.” That finding is supported by the victim’s testimony at the
10

hearing. Accordingly, Rule 1004(a) was satisfied, and the court’s decision to

admit the evidence over Maderios’s best evidence objection, subject to the

jury’s evaluation of its weight at trial, was not an abuse of the court’s

discretion.

[¶18] Furthermore, when Maderios testified at trial he did not dispute

the accuracy of the recordings; rather, he said that he was not touching the

victim when she made gagging noises and said “you strangled me,” “ow, ow,

ow,” etc.—in other words, Maderios said that what the jury heard on the

recordings was the victim’s attempt to make it sound as if an assault were

occurring. We have said that “[a]ny deviation from the best evidence rule is

harmless error, unless an actual dispute exists as to the terms of the document

at issue.” LDC Gen. Contracting, 2006 ME 106, ¶ 8, 907 A.2d 802. Here it was

not the contents of the recordings that were at issue, but their context.

C. Prosecutorial Misconduct

[¶19] Maderios finally asserts that statements made by the prosecutor

during the State’s closing and rebuttal arguments constituted misconduct and

required the court to declare a mistrial. Before closing arguments began, the

court reminded the attorneys of our review in State v. Dolloff, 2012 ME 130,

¶¶ 42-43, 58 A.3d 1032, of conduct that may be regarded as improper.
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[¶20] Despite the trial court’s sound, timely guidance, the prosecutor

made statements that could be characterized as giving her personal opinion

concerning the evidence and/or vouching for the credibility of witnesses. The

court responded with immediate, correct, and strongly-worded curative

instructions, however, that the jury is presumed to have followed. Id. ¶ 72.

In Dolloff, we said that

[w]hen an objection has been made to a prosecutor’s statements
at trial, we review to determine whether there was actual
misconduct, and, if so, whether the trial court’s response
remedied any prejudice resulting from the misconduct. We
generally defer to the determination of a presiding Justice, who
has the immediate feel of what is transpiring, that a curative
instruction will adequately protect against the jury’s giving
consideration to matters which have been heard but have been
stricken as evidence. Any concern created by improper
statements made by a prosecutor is likely to be cured by a prompt
and appropriate curative instruction, especially when such an
instruction is specifically addressed to the prosecutor’s
misconduct. Finally, we determine whether, if error exists, it was
harmless. Only where there are exceptionally prejudicial
circumstances or prosecutorial bad faith will a curative
instruction be deemed inadequate to eliminate prejudice.

Id. ¶ 32 (citations, footnote, and quotation marks omitted).

[¶21] Here the court declined to grant a mistrial, ruling, “I don’t find the

[p]rosecutor’s conduct was deliberate, and I don’t think it is likely any

prejudice could survive the instruction or could [a]ffect the outcome of the

case.” On this record, where the court found that exceptionally prejudicial
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circumstances or prosecutorial bad faith were not present, its decision not to

grant a mistrial was within its discretion.8 See State v. Frisbee, 2016 ME 83,

¶ 28, 140 A.3d 1230 (“[W]e review the trial court’s decision on whether or not

to grant a mistrial under the familiar standard of abuse of discretion.”).

The entry is:

Judgment affirmed.

On the briefs:

Leonard I. Sharon, Esq., Leonard I. Sharon, Esq., P.C.,
Auburn, and Elliott L. Epstein, Esq., Andrucki and King,
Lewiston, for appellant Andrew B. Maderios

Maeghan Maloney, District Attorney, Prosecutorial District
IV, Skowhegan, for appellee State of Maine

At oral argument:

Leonard I. Sharon, Esq., for appellant Andrew B. Maderios

Maeghan Maloney, District Attorney, for appellee State of
Maine

Somerset County Unified Criminal Docket docket number CR-2014-987
FOR CLERK REFERENCE ONLY

8 We remind the bar that we review closely instances of misconduct of the kind that we
discussed at length in State v. Dolloff, 2012 ME 130, 58 A.3d 1032. Had the trial court in this case
not diligently and proactively protected Maderios’s right to a fair trial, our result might have been
different. Protecting a defendant’s right to a fair trial is the responsibility of attorneys as well as the
court, and a court’s curative instruction must not be relied on as a way to inject, strategically or
carelessly, improper comments that we have repeatedly cautioned attorneys not to make.