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	
                                                                                       3	

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?	
      	
                                                                                            5	

       [¶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	
