MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2020 ME	61

Docket: Lin-19-293

Submitted

On	Briefs: April	14,	2020

Decided: May	12,	2020

Panel: GORMAN,	JABAR,	HUMPHREY,	HORTON,	and	CONNORS,	JJ.

STATE	OF	MAINE

v.

SHAWNA	GATTO

JABAR,	J.

[¶1]	 	 Shawna	 Gatto	 appeals	 from	 a	 judgment	 of	 conviction	 of	 murder,	

17-A	 M.R.S.	 §	 201(1)(B)	 (2020),	 entered	 by	 the	 trial	 court	 (Lincoln	 County,	

Stokes,	J.)	following	a	jury-waived	trial. Gatto	contends	that	the	trial	court	erred	

in	finding	her	guilty	of	murder	pursuant	to	17-A	M.R.S.	§	201(1)(B)	because	the	

State	did	not	present	 sufficient	evidence	 such	 that	 the	 fact-finder	could	have	

found	each	element	proved	beyond	a	reasonable	doubt. Gatto	also	argues	that	

the	 trial	 court	 erred	 and	 abused	 its	 discretion	 when	 it	 limited	 her	

cross-examination	 of	 the	 State’s	 Chief	 Medical	 Examiner.	 	 We	 affirm	 the	

judgment.	
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I.		BACKGROUND

A. Facts

[¶2]		Viewing	 the	evidence	in	 the	light	most	 favorable to	 the	State,	 the	

fact-finder	 could	 have	 found	 the	 following	 facts	 beyond	 a	 reasonable	 doubt.		

State	v.	Cummings,	2017	ME	143,	¶	3,	166	A.3d	996.		In	December	2017	Gatto	

was	forty-three years	old	and	living	in	Wiscasset.		She	lived	in	a	mobile	home	

with	her	fiancé	and	her fiancé’s	four-year-old	granddaughter,	the	victim.		

[¶3]		Gatto	and	her	fiancé	cared	for	the	victim full-time,	and	had	done	so	

for	 more	 than	 two	 years.	 Gatto	 also	 provided	 daily	 childcare	 for	 her	 two	

biological	grandchildren. Gatto’s	fiancé	worked	full-time	at	Bath	Iron	Works.

On	the	days	he	worked,	he	left	the	house	around	6:00	a.m.	and	returned	around	

3:30	p.m.		

[¶4]	 	On	December	 8,	 2017,	 Gatto’s	 fiancé	 arrived	 home	 from	work	 at	

approximately	 3:25	 p.m. When	 he	 entered	 the	 house,	 Gatto’s	 grandchildren	

were	in	the	living	room	and	Gatto	was	in	the	kitchen.		Gatto	told	her	fiancé	that	

the	victim	was	in	the	tub	because	she	had	soiled	herself,	and	directed	him	not	

to	go	into	the	bathroom	because	the	victim	was	in	timeout.	 After	working	in	his	

bedroom	for	a	few	minutes,	Gatto’s	fiancé left	the	house	to	go	to	the	hardware	
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store.		At	4:28	p.m.,	before	he left	the	property,	Gatto	called	him	and	told	him	to	

come	back	to	the	house	because	something	was	wrong	with	the	victim.	

[¶5]		Gatto’s	fiancé	reentered	the	house	and	went	to	the	back	bathroom.1		

He	 found	the	 victim lying	 motionless	 and	 naked	 on	 the	 bathroom	 floor. He	

moved	the	victim to	the	living	room	and	began	performing	CPR.	 Gatto’s	fiancé

suggested	that	someone	needed	to	call	911,	and	then	moved	the	victim again,	

this	time	to	the	master	bathroom,	where	he	continued	performing	CPR.

[¶6]		At	4:35	p.m., Gatto’s	fiancé called	911,	telling	the	dispatcher	that	the	

victim was	unresponsive.		The	dispatcher	spoke	to	Gatto	and	to	Gatto’s	fiancé,

and	instructed	them	in	performing	CPR.		Emergency	responders	arrived	a	few	

minutes later.	 	 When	 they	 entered	 the	 house, they	 found	 Gatto’s	 fiancé

performing	CPR	 on	the	 victim in	 the	master	bathroom.	 The	 first	 responders	

found	the	victim cold	to	the	touch.	 Her	face	was	heavily	bruised,	and	her	head	

was	 misshapen	 and	 swollen.	 The	 first	 responders	 transported	 her	 to	 the	

hospital,	where	she	was	declared	dead	at	5:43	p.m.	Neither	the	first	responders	

 1 The	mobile	home	where	Gatto	lived had two	bedrooms	and	two	bathrooms.	 One	end	of	 the	

home	 held the	 bedroom	 where	 the	 children	 slept,	 along	 with	 a	 small	 bathroom	 (the	 children’s	

bathroom). This	small	bathroom	was where	Gatto’s	fiancé first	found	the	victim.		The	other	end	of	

the	home	held the	master	bedroom	and	bathroom. This	master	bathroom	was where	Gatto’s	fiancé

eventually	brought	the	victim to	perform	CPR	and	where	first	responders	found	the	victim.	
4

nor	 the	 emergency	 room	 physicians	 ever	 detected	 any	 signs	 of	life from	the

victim.	

[¶7]	 	Gatto	 gave	 several	 statements	 to	 law	 enforcement	 regarding	the	

victim’s	injuries.		While	on	the	phone	with	the	911	dispatcher,	Gatto	said	that	

the victim had	fallen	two	days	ago	but	was	“fine”	just	ten	minutes	before	she	

found	 her	 unresponsive	 in	 the	 tub. After	the victim was	 transported	 to	 the	

hospital,	Gatto	rode	with	a	detective	to	the	Lincoln	County	Sheriff’s	Department.		

She	told	the	detective	that	the victim was	very	accident	prone,	fell	often,	and	

did	not	protect	herself	when	she	fell.		She	also	claimed	that	the victim had	been	

perfectly	happy	and	active	all	during	that	day,	and	again	stated	that	the	victim	

was fine	just	moments	before	Gatto	found	her	in	the	tub.

[¶8]		Later	that	evening,	a	Maine	State	Police	detective	interviewed	Gatto	

at	the	Lincoln	County	Sheriff’s	Department. Asked	to	describe	the victim,	Gatto	

painted	 a	 picture	 of	 an	injury-prone	 child	whose	 clumsiness	 and	lack	 of	 any	

self-protective	instincts	led	to	bumps,	bruises,	and	cuts	on	a	daily	basis. Gatto	

listed	several	recent	instances	in	which	the victim had	serious	falls	that	resulted	

in	black	eyes,	cuts,	 and	bruises. The	detective asked	 Gatto	 to	describe	what	

happened	 on	December	 8.		According	 to	Gatto,	the victim had	 soiled	herself,	

which	 she	 said	was	 a	 common	 occurrence,	 and	 Gatto	 had	 put	 her	in	 the	 tub	
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without	water.		Gatto	said	that	she	went	to	fetch	the victim a	drink	and	returned	

moments	later	to	find	the victim unresponsive	in	the	tub.		

[¶9]		Late	on	 the	night	of	December	8,	detectives	with	 the	Maine	State	

Police	 searched	 Gatto’s	 home pursuant	 to	 a	 search	 warrant.	 	 In	 the	 child’s	

bathroom	they	found	evidence	of	blood	and	signs	of	an	attempt	to	clean	up	the	

blood. They	identified	blood	stains	on	a	sponge	and	shirt	in	the	tub,	on	paper	

towels	in	a	 trash	bag,	on	 towels	and	bedding,	and	on	a	set	of	child’s	pajamas	

found	soaking	in	a	bucket	of	water. Detectives	noticed	a	dent	in	the	drywall	of	

the	 back	 bedroom	 in	 the	 shape	 of	 a	 child’s	 head,	 stained	 with	 blood	 and	

embedded	with	hair. The	hair	belonged	to	the	victim.

2

[¶10]		The	State	of	Maine’s	Chief	Medical	Examiner, Mark	Flomenbaum,

M.D.,	conducted	an	autopsy	of	the victim’s	body. He	documented	at	least	fifteen	

injuries	 to	 the victim’s	 head	 and	 face,	 including	 serious	 bruises	 and	 deep	

lacerations.		He	found	that	the	victim was	very	small	for	her	age,	with	patchy,	

thin	hair. He	also	determined	that	although	her	skull	was	not	fractured,	she	had	

a	significant	accumulation of	blood	under	her	scalp	and	a	buildup	of	scar	tissue	

from	 a	 head	 injury.	 	 Her	 brain	 had	 swollen	 due	 to	 oxygen	 deprivation.	 He	

opined	that	the	victim suffered	from	Child	Abuse	Syndrome	and	had	sustained	

 2 Detectives	also	identified	the	victim’s	blood	on	objects	throughout	the	bedroom	and	bathroom.	
6

numerous	 nonfatal	 injuries	 that	 contributed	 to	 her	 death	 from	 a	 separate,

ultimately-fatal	injury.	

[¶11]	 	 The	 autopsy	 also	 revealed	 that	 the victim’s	 abdomen	 was	

distended,	 but	 did	 not	 show	 bruises	 or	 other	 external	 signs	 of	 injuries.	

Dr. Flomenbaum concluded that	internal	injuries	resulted	in	internal	bleeding,	

and	 that	 about	 one-third	 of	 the victim’s	 blood	 had	 accumulated	 in	 her	

abdominal	cavity,	along	with	gastric	contents.	Her	intestines	were	torn	and	her	

pancreas	lacerated. The	loss	of	blood	had	caused	her	brain	 to be starved for	

oxygen	and	swell,	and	eventually	caused	her	heart	to	stop.3		

[¶12]	 	 The	 Maine	 State	 Police	 detective interviewed	 Gatto	 again	 on	

December	10.		Gatto	repeated	her	story	regarding	her	 final	minutes	with	the

victim. She	explained	the victim’s	many	bruises	and	injuries	with	a	litany	of	

stories	about	the victim’s	clumsiness	and	frequent	falls,	but	reported	that	she	

never	felt a	need	to	take	the victim to	a	doctor.	 She	denied	inflicting	any	of	the

victim’s	injuries.	

 3 Dr.	Flomenbaum	and	John	Daniel, M.D., a pathologist	called	by	Gatto	as	an	expert	witness,	agreed	

as	to the	nature	of	the	victim’s	injuries	and	the	manner	and	cause	of	death. They	disagreed,	however,	

on	the	timing	of	her	internal	injuries	relative	to	her	death.	Dr.	Flomenbaum	testified	that	the	victim’s	

internal	injuries	were	inflicted	between	one	and	twelve	hours	prior	to	her	death,	and	that	they	most	

likely	occurred	between	three	and	six	hours prior	to	death.		Dr.	Daniel	disagreed,	testifying	that	the	

victim’s	abdominal	injuries—the	fatal	injuries—were	likely	inflicted	between	sixteen	and	thirty-two	

hours,	and	perhaps	has	much	as	three	days,	before	she	died.
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B. Procedure

[¶13]		On	January	13,	2018,	a	Lincoln	County	grand	jury	indicted	Gatto	

on one	count	of	murder,	17-A	M.R.S.	§	201(1)(B).		Gatto	pleaded	not	guilty	and	

waived	her	right	to	a	jury	trial.		M.R.U.	Crim. P. 23(a).		On	July	13,	2018,	Gatto	

moved	in	limine	to	be	permitted	to	cross-examine	Dr.	Flomenbaum	regarding	

his	termination	from	the	Office	of	the	Chief	Medical	Examiner	in	Massachusetts,	

and	 to	 be	 permitted	 to	 introduce	 extrinsic	 evidence	 regarding	 Dr.	

Flomenbaum’s	termination	if	the	need	arose.		The	trial	court	took	the	motion	

under	advisement,	but	deferred	ruling	until	the	matter	was	closer	to	trial.		The	

trial	court	held	a	five-day	trial	between	April	1	and	April	8,	2019.		After	the	State	

completed	its	direct	examination	of	Dr.	Flomenbaum,	the	court	heard	argument	

from	 the	parties	regarding	Gatto’s	motion	in	limine	and	subsequently	denied	

the	motion.

[¶14]		On	April	30,	2019,	the	trial	court	returned	its	verdict,	finding	Gatto	

guilty	 of	depraved	indifference	murder	 pursuant	 to	17-A	M.R.S.	 §	201(1)(B).

The	 court later	 sentenced	 Gatto	 to	 fifty	 years’	 imprisonment.	 	 Gatto	 timely	

appealed	from	the	judgment	of	conviction.

4 M.R.	App.	P.	2B(b)(1).	

 4 Gatto	applied	for	review	of	her sentence.	 M.R.	App.	P.	20(a)(1). The	Sentence	Review	Panel	

denied	her	application	 for	sentence	review.		M.R.	App.	P.	20(f);	15	M.R.S.	§	25152	(2020);	State	v.	

Gatto,	No.	SRP-19-294	(Me. Sent.	Rev.	Panel	Sept.	5,	2019).	
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II.		DISCUSSION

A. Sufficiency	of	the	Evidence

[¶15]		Gatto	contends	 that	 the	 trial	court	erred	in	 finding	her	guilty	 of	

murder	as	defined	in 17-A	M.R.S.	§	201(1)(B)	because	the	State	did	not	present	

sufficient	evidence	to	support the	fact-finder’s	determination	that	the	State	had	

proved	each	element	beyond	a reasonable	doubt.	Specifically,	Gatto	argues	that	

the	trial	court	could	not	have	found	her	guilty	without	direct	evidence	linking	

her	 conduct	 to	 the	 infliction	 of	 the	 victim’s fatal	 injury.	 Contrary	 to	 her	

contentions,	however,	 the	record	evidence	is	sufficient	 to	support	 the	court’s	

findings,	even	absent	direct	evidence	 that	Gatto	inflicted	the fatal	injury. See	

Cummings,	 2017	 ME	 143,	 ¶	 14,	 166	 A.3d	 996 (holding	 that	 reasonable	

inferences	 based	 on	 circumstantial	 and	 DNA	 evidence	 may	 be	 sufficient	 to	

affirm	a	conviction	for	murder).

1. Legal	standard

[¶16]		“When	reviewing	a	judgment	 for	sufficiency	of	 the	evidence,	we	

view	the	evidence	in	the	light	most	favorable	to	the	State	to	determine	whether	

the	fact-finder	could	rationally	have	found	each	element	of	the	offense	beyond	

a	reasonable	doubt.”		Id. ¶	12	(alterations	omitted)	(quotation	marks	omitted).		

“We	defer	to	all	credibility	determinations	and	reasonable	inferences	drawn	by	
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the	fact-finder,	even	if	those	inferences	are	contradicted	by	parts	of	the direct	

evidence.”	 Id.	(quotation	marks	omitted).		

[¶17]		A	person	is	guilty	of	depraved	indifference	murder	if	the	person

“engages	 in	 conduct	 that	 manifests	 a	 depraved	 indifference	 to	 the	 value	 of	

human	 life	 and	 that	 in	 fact	 causes	 the	 death	 of	 another	 human	 being.”

17-A M.R.S.	§	201(1)(B).		“A	person	acts	with	depraved	indifference	to	the	value	

of	human	life	in	Maine	if	the	person’s	conduct,	objectively	viewed,	created	such	

a	 high	 tendency	 to	 produce	 death	 that	 the	law	 attributes	 to	 him	 the	 highest	

degree	 of	 blameworthiness.”5	 	Cummings,	 2017	 ME	 143,	 ¶	 16,	 166	 A.3d	 996	

(quotation	 marks	 omitted).	 	 The	 State	 must	 prove	 both	 that	 the	 defendant	

“should	have	known	[her conduct]	would	create	a	very	high	degree	of	risk	of	

death	 or	 serious	 bodily	 injury”	 and	 that	 the	 conduct	 was	 “particularly	

outrageous,	revolting,	brutal,	or	shocking.” State	v.	Crocker,	435	A.2d	58,	63,	65	

(Me.	1981) (quotation	marks	omitted).

2. Evidence	that	Gatto	Caused	the	Victim’s	Death	

[¶18]		In	its	written	decision,	the	trial	court	divided	its	analysis	into	two	

discrete	 issues:	 first,	 whether	 Gatto	 in	 fact	 caused	 the	 victim’s death;	 and	

 5 We	have interpreted	Maine’s	statute	defining	depraved	indifference	murder	not	to	require	any	

culpable	mental	state	on	 the	part	of	the	defendant. Cummings,	2017	ME	143,	¶	19,	166	A.3d	996;	

State	v.	Lagasse,	410	A.2d	537,	540	(Me.	1980).
10

second,	whether	Gatto	engaged	in	conduct	that,	viewed	objectively,	manifested	

a	depraved	indifference	to	the	value	of	human	life.		

[¶19]		In	its	detailed	and	lengthy	analysis,	the	trial	court	acknowledged	

the	possibility	that	someone	other	than	Gatto,	specifically	Gatto’s	fiancé, caused	

the	 victim’s fatal	 injuries.	 The	 trial	 court	 ultimately	 discounted	 this	 theory,	

concluding	that	it	was	Gatto	who	killed the	victim.		The	record	evidence,	viewed	

in	the	light	most	favorable	to	the	State,	fully	supports	the	trial	court’s	finding	

that	Gatto	caused	the	victim’s death.	

[¶20]		Both	Gatto	and	her	fiancé cared	for	the	child,	but	Gatto	provided	

the	vast	majority	of	the	childcare.		Gatto	did	not	actually	suggest	to	the	court	

that	 her	 fiancé might	 have	 hurt	 the	 victim,	 and	 that	 possibility	 is	 all	 but	

foreclosed	by	the	fact	that	Gatto	claims	to	have	been	personally	present	every	

time	 the	 victim allegedly injured	 herself.	 Her	 detailed,	 if	 implausible,	

explanations	for	each	and	every	bruise	and	cut	on	the	victim’s battered	body	do	

not	square	with	a	conclusion	that	the	victim’s injuries	actually	stemmed	from	

abuse	inflicted	by	Gatto’s	fiancé.	 The	trial	court	was	entitled	to	reject	Gatto’s	

alternative	explanations	for	the	victim’s injuries.		See	State	v.	Saenz,	2016	ME	

159,	¶	24, 150	A.3d	331 (holding	that	the	record	contained	sufficient	evidence	
11

to	 support	 a	 conviction	 for	 depraved	 indifference	 murder	 where	 defendant	

argued	that	victim’s	injuries	were	accidental	and	self-inflicted).	

[¶21]		The	record	evidence	does	not	support	Gatto’s	assertions	that	the	

victim’s	 injuries were	 all	 accidental	 and	 self-inflicted.	 	 The	 expert	 witnesses	

agreed	that	the	victim was	an	abused	child	and	that	her	fatal	abdominal	injuries	

were	inflicted	by	some	sort	of	massive	 squeezing	pressure.		Gatto’s	behavior	

prior	 to	the	 victim’s death	 suggests	 that	she	 recognized	 the	absurdity	 of	her	

explanations	for	the	victim’s appearance—she	and	her	fiancé were	reticent	to	

take	the	victim out	in	public	for	fear	that	someone	would	recognize	the	obvious	

signs	of	abuse. The trial court	concluded	 that the testimony	of	Gatto’s	fiancé	

was	 credible,	 but	 found Gatto’s	 statements	 to	 police	 regarding	 the	 victim

“utterly	unworthy	of	belief.” Because	the	court	reasonably	concluded	that	Gatto	

was	 the	 only	 person	who	 hurt	the	 victim,	it	was	 unnecessary	 to	 resolve	 the	

dispute	regarding	the	timing	of	the	fatal	injury	relative	to	the	victim’s death—

whenever	the	injury	was	inflicted,	it	was	inflicted	by	Gatto.	

3. Evidence	that	Gatto	Acted	with	Depraved	Indifference	

[¶22]		Ample	record	evidence	supports	the	trial	court’s	finding	that	Gatto	

engaged	in	 conduct	 that	 created	 a	 very	 high	 degree	 of	 risk	 of	 serious	 bodily	

injury	or	death.		See	Crocker,	435	A.2d	at	63,	65.	 Evidence	of	the	long	period	of	
12

abuse	 supports	 this	 conclusion,	 as	 does	 evidence	 of	 the	 mechanism	 of	 the	

victim’s fatal	 injury. The	 forensic	 evidence	 suggests	 that	 Gatto	 imposed	 an	

extremely	 high	 level	 of	 violence	 on	 the	 victim over	 the	 course	 of	 weeks	 or	

months.	 	 This	 evidence	 includes	 a	 head-shaped	 dent	 in	 the	 wall that	 was	

impregnated	 with	 the	 victim’s hair	 and	 blood; blood	 spatter	 evidence	

throughout	the	victim’s bedroom; deep	bruising	all	over	the	victim’s face	and	

body; evidence	of	hemorrhaging	under	the	victim’s scalp; and	signs	of	chronic	

stress	in	the	victim’s brain.	 The	degree	of	violence	imposed	and	the	physical	

characteristics	of	the	victim	support	the conclusion	that	Gatto	knew	or	should	

have	known that her	conduct	carried	with	it	a	very	high	risk	of	serious	bodily	

injury	or	death.		See	Crocker,	435	A.2d	at	63,	65.	

[¶23]		Furthermore,	the	mechanism	by	which	the	victim’s fatal	injuries	

were	inflicted support	a	similar	conclusion.		The	expert	witnesses	agreed	that	

a	 very	 strong	 squeezing	 action	 caused	 the	 victim’s pancreas	 to	 be	 pushed	

against	her	spine	and	lacerate.	 The trial	court	was	found that	this	injury	was	

purposely	inflicted,	not	accidental,	and	the	forensic	evidence	demonstrates	that	

such	an	injury	could	be	caused	only	by	a	slow	and	concerted	application	of	force

and	that	such	application	of force	was	sure	to	involve a	high	degree	of	risk	of	

bodily	injury.	
13

[¶24]	 	 Finally,	 record	 evidence	 underpins	 the	 trial	 court’s	 finding	 that	

Gatto’s	 death-producing	 conduct	 was	 “outrageous,	 revolting,	 shocking,	 and	

brutal.”	 Crocker,	435	A.2d	at	65.	 The	duration of	 the	abuse,	its	violence,	 the	

helplessness	of	the	child,	and	Gatto’s	denial	of	medical	attention	to	the	victim

were properly	 characterized	by	 the	 trial	 court	 as	 “cruel”	 and as	 constituting

“torture.”

[¶25]		Viewing	the	evidence	in	the	light	most	favorable	to	the	State,	and	

deferring	 to	 the	 trial	 court’s	 reasonable	 inferences	 and	 determinations	 of	

witness	 credibility,	 the	 record	 is	 sufficient	 to	 support	 the	 trial	 court’s	

conclusion	 that	 the	 State	 had	 proved	 all	 elements	 of	 depraved	 indifference	

murder	beyond	a	 reasonable	doubt.		See Cummings,	2017	ME	143,	¶	12,	166	

A.3d	996.		The	law	does	not	compel	a	judgment	of	acquittal,	as	Gatto	contends,	

where	the	State	does	not	present	direct	evidence	that	the	defendant	caused	the	

victim’s	 fatal	injury. See	id.	¶	14.		The	 trial	court	was	entitled	 to	 rely	 on	 the	

overwhelming	circumstantial	evidence	in	making	its	findings.		Id.

B. Limitation	of	Cross-Examination

[¶26]		Gatto	argues	 that	 the	 trial	court	erred	and	abused	its	discretion	

when	 it	 limited	 her	 cross-examination	 of	 Dr.	 Flomenbaum,	 specifically	 by	

precluding	 her	 from	 asking	 about	 his	 removal	 from	 the	 Office	 of	 the	 Chief	
14

Medical	 Examiner	 in	 Massachusetts.6	 	 She	 contends	 that	 this	 evidence	 was	

probative	 of	 his	 character	 for	 truthfulness,	 necessary	 to	 challenge	 his	

qualification	as	an	expert	witness,7 and	relevant	to	show	bias.

1. Character	for	Untruthfulness

[¶27]	 The	factors	that	guide	a	trial	court’s	analysis	of	proffered evidence	

under	Rule	608(b),	which	governs	 the	admissibility	 of	 specific	instances	 of	a	

witness’s	conduct	to	attack	or	support	the	witness’s	character	for	truthfulness,

do	 not	 compel	 a	 conclusion	 that	 the	 evidence	 at	 issue	 should	 have	 been	

admitted,	 and	 do	 not	 support	 a	 conclusion that	 the	 trial	 court	 abused	 its	

discretion. M.R.	Evid.	608(b); Haji-Hassan,	2018	ME	42,	¶	14,	182	A.3d	145.		We	

have	 noted	 that	 the	 decision	 to	 admit	 evidence	 of	 Dr.	 Flomenbaum’s	 prior	

removal	is	to	be	made	based	on	the	individual	factors	present	in	each	case:		

 6 We	have considered several	appeals	regarding	the	extent	to	which	criminal	defendants	may	be	

permitted	to	impeach	Dr.	Flomenbaum	regarding	his	prior	removal	from	employment. See State	v.	

Haji-Hassan,	2018	ME	42,	¶¶	13-24,	182	A.3d	145;	State	v.	Coleman,	2018	ME	41,	¶¶	22-26,	181	A.3d	

689.		We	have also	considered	whether	a	criminal	defendant	may	cross-examine	Dr.	Flomenbaum	

regarding	a	Connecticut	matter	in	which	a	trial	judge	found	Dr.	Flomenbaum’s	expert	testimony	not	

to	be	credible.	 See Coleman,	2018	ME	41,	¶¶ 16-21,	181	A.3d	689.		Gatto	did	not seek	to	introduce	

evidence	or to cross-examine	Dr.	Flomenbaum	regarding	the	Connecticut	matter.

7 Gatto	argues	for	the	first	time	on	appeal	that	evidence	of	Flomenbaum’s	firing	in	Massachusetts	

was	also	relevant	to	challenge	his	credentials	as	an	expert	witness,	pointing	in	particular	to Coleman,	

2018	ME	41,	¶	24,	181	A.3d	689.		However,	the	trial	court	correctly	distinguished	the	facts	of	this	

case	 from	 those	of	Coleman,	at	least	with	 regard	 to	 the	issue	of	 the	 foundation	 for	Flomenbaum’s	

qualification	as	an	expert	witness.	 The	trial	court	did	not	commit	obvious	error	in	not	admitting	this	

evidence	 on	 these	 grounds.	 See	 State	 v.	 Fahnley,	 2015	 ME	 82,	 ¶	 15,	 119	 A.3d	 727 (stating	 that	

unpreserved	claims	of	error	are	reviewed	for	obvious	error).	
15

This	is	properly	a	case-by-case	determination,	and	we	announce	no	

blanket	 rule	 on	 the	 admissibility	 of	 this	 evidence	 in	 other	 cases.	

The	trial	courts	must	exercise	their	discretion	in	the	particularized	

context	 of	 each	 case	 to	 admit	 or	 exclude	 such	 evidence	 after	

evaluating	 the	 extent	 of	 any	 relevance	 it	 may	 have,	 and,	 if	 it	 is	

deemed	relevant,	weighing	its	probative	value	against	the	dangers	

listed	in	Rule	403.	

Haji-Hassan,	2018	ME	42,	¶	24,	182	A.3d	145.		Although	Gatto’s	offer	of	proof	

put	forth	a	colorable	argument	that	the	line	of	questioning	could	be	probative	

of	 truthfulness,	 the	 trial	court	properly	considered	 the	countervailing	 factors	

that	 pointed	 toward	 exclusion.	 	 The	 trial	 court	 expressed	 concern	 that	 the	

cross-examination	 would	 not	 actually	 elicit	 evidence	 of	 specific	 instances	 of	

conduct.	 	 Id. ¶	 21	 (“[L]ack	 of	 candor	 and	 failure	 to	 communicate	 fully	 and	

frankly	are	not	specific	instances	of	untruthful	conduct,	but	are	more	akin	 to	

extrinsic	opinions	of	a	third	party .	.	.	.”	(quotation	marks	omitted)).	 The	trial	

court	also	worried	that	this	line	of	questioning	would	devolve	into	a	“retrial	of	

the	removal	case”	that	would	waste	significant	time	with	no	attendant	benefit.		

Because	 the	proffered	 evidence	 did	not	 fit	within	Rule	 608(b)’s	definition	 of	

specific	instances	of	conduct,	risked	wasting	time,	and	was	arguably of	limited	

probative	value,	the	trial	court	did	not	abuse	its	discretion	in	declining	to	admit	

this	evidence	pursuant	to	Rule	608(b).	
16

2. Bias

[¶28]	 	 In	 addition	 to	 her	 argument	 that	 she	 should	 be	 permitted	 to	

cross-examine	 Dr.	 Flomenbaum	 under	 Rule	 608(b)	 regarding	 his	 prior	

removal,	Gatto	also	argued	at	trial	that	the	evidence	was	admissible	because	it	

tended	to	show	bias	or	prejudice.		Because	Dr.	Flomenbaum	had	been	removed	

from	his	job	in	Massachusetts,	Gatto	argued,	he	held	his	current	position	more	

dearly,	and	would	be	willing	to	offer	evidence	favorable	to	the	State	in	order	to	

avoid	another	such	removal.

[¶29]		“Evidence	of	bias,	hostility	and	personal	interest	of	a	witness	may	

be	shown	by	the	introduction of	independent	evidence	to	that	effect,	and	is	not	

limited	 to	 cross-examination	 of	 the	 witness,	 and	 no	 preliminary	 foundation	

need	 be	 laid	 for	 its	 admissibility.”	 	 State	 v.	 Doughty,	 399	 A.2d	 1319, 1324

(Me. 1979).		Despite	 this	broad	and	general	 rule,	we	have previously	 opined	

that	evidence	of	Dr.	Flomenbaum’s	removal	does	not	tend	to	show	bias:	

The	 connection	 between	 Dr.	 Flomenbaum’s	 removal	 and	 his	

alleged	bias	in	favor	of	the	State	of	Maine	to	maintain	his	current	

employment	is	speculative	at	best,	and its	probative	value,	if	any,	is	

slight.	 The	 evidence	 is	 no	 more	 probative	 of	 bias	 than	 the	 fact,	

taken	alone,	that	he	is	currently	employed	by	the	State.

Haji-Hassan,	2018	ME	42,	¶	21,	182	A.3d	145.		Given	the	deferential	standard	of	

review	applied	to	determinations	of	admissibility,	the	minimal	probative	value	
17

of	the	evidence,	and	the	trial	court’s	thorough	knowledge	of	the	circumstances	

of	Dr.	Flomenbaum’s	prior	removal,	the	trial	court	did	not	abuse	its	discretion	

in	declining	to	allow	Gatto	to	pursue this	line	of	questioning	to	show	bias.		

III.	 CONCLUSION

[¶30]		Viewing	the	evidence	in	the	light	most	favorable	to	the	State,	the	

record	is	 sufficient	 to	 support	 the	 trial	 court’s	 conclusion	 that	 the	 State	 had	

proved	 all	 elements	 of	 depraved	 indifference	 murder	 beyond	 a	 reasonable	

doubt.		Cummings,	2017	ME	143,	¶	12,	166	A.3d	996.		Furthermore,	 the trial	

court	 did	 not	 abuse	 its	 discretion	 in	 limiting	 Gatto’s	 cross-examination	 of	

Dr. Flomenbaum.

The	entry	is:

Judgment	affirmed.	

Jeremy	 Pratt,	 Esq.,	 and	 Ellen	 Simmons,	 Esq.,	 Camden,	 for	 appellant	 Shawna	

Gatto

Aaron	M.	 Frey,	 Attorney	 General,	 and	Donald	W.	Macomber,	 Asst.	 Atty.	 Gen.,	

Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine

Lincoln	County	Unified	Criminal	Docket	docket	number	CR-2017-877

FOR	CLERK	REFERENCE	ONLY