State v. Gary Elwell
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MAINE SUPREME JUDICIAL COURT			Reporter of Decisions
Decision:	2002 ME 60
Docket: 	Ken-01-385
Argued:  	February 6, 2002
Decided:	April 10, 2002

Panel: 	CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.

STATE OF MAINE

v.

GARY F. ELWELL

CALKINS, J.

	[¶1]  Gary Elwell appeals from a judgment of conviction entered after a
jury trial and verdict of guilty in the Superior Court (Kennebec County, Mills,
C.J.) on assault with a firearm (Class C), 17-A M.R.S.A. § 207(1) (1983);
criminal threatening with a firearm (Class C), id. § 209(1); and reckless
conduct with a firearm (Class C), id. § 211(1).  Elwell contends that the court's
exclusion of the audiotape recording of the victim's 911 telephone call was
error.  Elwell further challenges the Superior Court's (Marden, J.) denial of his
motion to suppress items seized in the execution of a search warrant.  We
affirm the denial of the suppression motion, but we vacate the judgment on the
ground that the exclusion of the 911 tape was prejudicial error.  We do not
reach Elwell's claim that the trial court erred by allowing two jurors who had
not yet finished deliberating in another case to serve on Elwell's jury without
permitting voir dire of those jurors.     

I.  FACTS

	[¶2]  The basic facts as presented by the State are the following.  Gary
Elwell and Robin Miller were involved in a relationship for over twenty years. 
They never married, but lived together for substantial periods and had three
daughters.  During the summer of 1998, the couple's relationship deteriorated,
and Miller moved out of Elwell's house, with the three girls, into an apartment
across the street.  
	[¶3]  On January 16, 1999, Elwell asked Miller to come to his house to
talk.  When Miller entered Elwell's house, she did not see him and so she
called aloud.  Elwell answered, and as Miller walked around a corner, he
grabbed her arm and pulled out a gun.  Miller struggled for the gun, and,
during the struggle, she fell to the floor.  Elwell stuck the gun in her face and
told her that they were going to have sex for the last time.  Elwell placed the
barrel of the gun within an inch or two of Miller's face and attempted to make
her suck it.  Miller testified that she believed that Elwell was going to kill her. 
She pushed the gun away and told Elwell that she could not have sex with the
gun around.  Elwell wiped the barrel of the gun with a white cloth, and placed
the gun and cloth on the dining room table.  The two went upstairs where
Miller's participation in sexual intercourse consisted of "playing dead" until
Elwell was finished.  Elwell subsequently allowed Miller to dress and leave the
house.  
	[¶4]  At home Miller thought over her options and tried to reach the rape
crisis center.  When she was unable to do so, she called 911.  Thereafter, Miller
met with Officer Niedner at the Hallowell Police Department.  
	[¶5]  The dispatcher called Elwell and asked him to meet two officers in
front of his house.  The officers had him lie down on the ground while they
searched him for weapons, but found none.  They questioned Elwell, and they
and Elwell went into Elwell's house where they saw a gun with ammunition
and a white cloth.  The police later obtained and executed a search warrant
and seized the gun, ammunition, and the white cloth.  
	[¶6]  Elwell was found guilty of assault, criminal threatening, and
reckless conduct, all with the use of a firearm.  He was sentenced to five years
in prison, with all but two and one-half years suspended, and four years
probation. 

II.  EXCLUSION OF 911 AUDIOTAPE

	[¶7]  The position of the defense was that Miller had invented the
January 16 incident as a means of removing Elwell from her life.  Thus, it was
crucial for the defense to impeach Miller's credibility.  Officer Niedner of the
Hallowell Police Department testified that he met with Miller during the
evening of January 16 after her 911 call.  During his cross-examination, he
testified that he obtained the 911 tape shortly after the incident and that he
listened to the tape.  
	[¶8]  Elwell requested that the court allow the jury to hear the audiotape
of Miller's 911 call.  The State objected on hearsay grounds, but Elwell
explained that the tape was not being offered for the truth of the matter
asserted; instead, Elwell was offering it to demonstrate to the jury Miller's flat
vocal inflection and calm tone of voice during the call.  The State then objected
on the ground of relevance stating that Officer Niedner was not an expert and
would not be able to opine whether Miller's tone of voice was inconsistent with
the facts she reported.  Elwell responded that he would not be asking the
officer any further questions.  The officer had already testified, without
objection, that the manner in which a person relates an incident can be as
important as what is said.  Finally, the State suggested that the tape would
confuse the jury and should be excluded under M.R. Evid. 403.  The court
declined to permit Elwell to play the tape. 
	[¶9]  None of the objections raised by the State is a valid basis for
exclusion of the 911 tape.  The hearsay objection was not pertinent because
the defendant was not offering the tape for the truth asserted in any of the
statements on the tape.  Elwell expressly stated that he was offering it for the
jury to hear Miller's vocal inflection.  The tape did not meet the definition of
hearsay, and, therefore, the hearsay objection missed the mark.  M.R. Evid.
801(c).  
	[¶10]  The second objection was lack of relevance because the officer was
not an expert on tone of voice.  We have never required an expert to explain to
a jury what a witness's lack of emotion may signify.  The evaluation of a
witness's demeanor, including the witness's out-of-court statement, is
particularly within the province of the factfinder.  A jury is competent to
evaluate the demeanor of a witness without an expert to assist in the
evaluation.  See State v. Rizzo, 1997 ME 215, ¶ 19, 704 A.2d 339, 344 (noting
probative value of spontaneity of statements on tape of 911 call).  The tape was
not inadmissible on the basis that it would be irrelevant without an expert.  
	[¶11]  The State's final objection was that the evidence might confuse the
jury and was inadmissible under M.R. Evid. 403.  Apparently, the State meant
that the tape would confuse the jurors without expert testimony, but as stated
above, expert testimony was not required for the jury to evaluate whether
Miller's credibility was impeached or enhanced by her tone of voice on the 911
tape.  The possibility that the jury would be confused without expert testimony
was not a viable basis for exclusion of the tape.
	[¶12]  The State offers two additional grounds for the exclusion of the
tape in its argument on appeal.  The State claims that Elwell did not make an
appropriate offer of the tape in that he did not state specifically what Miller
said on the tape or how she said it.  We disagree that the offer of proof was
insufficient.  The court had already heard from Miller and Officer Niedner that
Miller called the 911 number to report the assault.  Elwell offered the tape and
stated that the purpose of admitting the tape in evidence was to let the jury
hear Miller's tone of voice as she made the call.  The substance of the evidence
was apparent from the context of the offer and the testimony that had been
given about the tape.  See M.R. Evid. 103(a)(2).
	[¶13]  Lastly, the State argues that Elwell did not establish the
authenticity of the tape.  The State did not suggest at trial or on appeal that
the tape was other than what Elwell purported it to be.  Officer Niedner
testified that he obtained the 911 tape shortly after it was made.  The inference
from his testimony was that he had the tape until he turned it over to the
prosecutor's office two days before trial.  Niedner also conversed with Miller on
the evening that she had made the 911 call, and Niedner listened to the tape. 
The burden of authentication is to show that the evidence is what it purports
to be.  M.R. Evid. 901(a).  That is, in this case Elwell had to show that the
offered tape was a recording of the 911 phone call that Miller made.  In the
absence of any suggestion that the tape was not authentic and not what it
purported to be and where (1) Miller testified that she made the call; (2) the
officer who was familiar with her voice had listened to the tape; and (3) it can
be inferred from the officer's testimony that the tape was in the custody of the
police and the prosecutor, Elwell satisfied the burden of authentication.
	[¶14]  We conclude that it was an abuse of discretion to exclude the
tape.  The State has not argued that the exclusion of the tape was harmless
error.  Indeed, where the verdict of guilty depended upon the jury's finding
Miller credible, the exclusion of admissible evidence that had a tendency to
undermine her credibility is prejudicial.  We cannot conclude that it is highly
probable that the exclusion did not affect the jury's verdict.  See State v. Kalex,
2002 ME 26, ¶ 22, 789 A.2d 1286, 1292.  Because the 911 tape should not have
been excluded, we vacate the conviction.

III.  MOTION TO SUPPRESS

	[¶15]  Elwell has also challenged the denial of his motion to suppress
evidence obtained from the execution of a search warrant.  Although we vacate
the judgment, we reach this issue because it is determinative of whether the
seized evidence can be offered at a retrial.  Elwell actually filed three motions
to suppress.  One motion sought to suppress Elwell's statements to the police
on the ground that the police obtained the statements in violation of Elwell's
Miranda rights.  The State conceded that Elwell's statements were obtained in
violation of Miranda, and the Superior Court granted that motion.  
	[¶16]  The other two motions sought to suppress the gun and other
objects seized at Elwell's house on the ground that the affidavits supporting
the request for the warrants contained Elwell's statements that were obtained
in violation of Miranda.  The court denied these two motions, finding that
without the use of Elwell's statements, the affidavits contained sufficient
information for a determination that there was probable cause to believe that
the gun, cloth, and other items described in the warrants would be found in
Elwell's home.  Elwell only appeals the denial of the motion seeking to
suppress the warrant that was issued and executed on January 17.
	[¶17]  The affidavit in support of the January 17 warrant recited in
detail, in several paragraphs, Miller's report of what had taken place between
herself and Elwell at Elwell's residence on January 16.  It described Elwell's
conversation with Miller; the assault downstairs; the sexual assault upstairs;
the gun and the manner that Elwell used it; and Elwell's act in covering the
gun with the white cloth.  Elwell argues that Miller's description contained in
the affidavit consisted of nothing more than unsubstantiated accusations
which cannot form the basis of probable cause.  Elwell is incorrect.  An
affidavit containing a detailed description of the commission of a crime as
reported by the victim can be sufficient for a magistrate to find that probable
cause exists to believe that the weapon used in the crime will be where the
victim has indicated.  The Superior Court did not err in denying the motion to
suppress the gun and other objects obtained as the result of the execution of
the search warrant on January 17, 1999.
	The entry is:
		Judgment vacated.
Attorneys for State:

David W. Crook, District Attorney
Alan P. Kelley, Deptuy Dist. Atty. (orally)
95 State Street
Augusta, ME 04330

Attorneys for defendant:

Matthew P. Mastrogiacomo, Esq.  (orally)
Elliott L. Epstein, Esq.
Isaacson & Raymond
P O Box 891
Lewiston, ME 04243-0891