72 A.3d 523 (Me. 2013), Yor-11-440, State v. Twardus

Docket Nº:Yor-11-440
Citation:72 A.3d 523, 2013 ME 74
Opinion Judge:SILVER, J.
Party Name:STATE OF MAINE v. JASON TWARDUS
Attorney:On the briefs: Daniel G. Lilley, Esq., and Tina Heather Nadeau, Esq., Daniel G. Lilley Law Offices, P.A., Portland, for appellant Jason Twardus. Janet T. Mills, Attorney General, and William R. Stokes, Dep. Atty. Gen., Office of Attorney General, Augusta, for appellee State of Maine. At oral argu...
Judge Panel:Panel: SAUFLEY, C.J., and SILVER, MEAD, GORMAN, and JABAR, JJ.
Case Date:August 06, 2013
Court:Supreme Judicial Court of Maine
 
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Page 523

72 A.3d 523 (Me. 2013)

2013 ME 74

STATE OF MAINE

v.

JASON TWARDUS

No. Yor-11-440

Supreme Judicial Court of Maine

August 6, 2013

Argued May 15, 2013

Judgment affirmed.

Page 524

On the briefs: Daniel G. Lilley, Esq., and Tina Heather Nadeau, Esq., Daniel G. Lilley Law Offices, P.A., Portland, for appellant Jason Twardus.

Janet T. Mills, Attorney General, and William R. Stokes, Dep. Atty. Gen., Office of Attorney General, Augusta, for appellee State of Maine.

At oral argument: Daniel G. Lilley, Esq. for appellant Jason Twardus.

William R. Stokes, Dep. Atty. Gen., for appellee State of Maine.

Panel: SAUFLEY, C.J., and SILVER, MEAD, GORMAN, and JABAR, JJ.

OPINION

Page 525

SILVER, J.

Jason Twardus appeals from a decision of the trial court ( Brennan, J. ) denying his two motions for a new trial following his conviction of murder, 17-A M.R.S. § 201(1)(A) (2012), after a jury trial. Twardus argues that the court erred and abused its discretion in concluding that neither the State's alleged failures to disclose evidence pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), nor the discovery of new evidence after trial pursuant to M.R. Crim. P. 33, entitled Twardus to a new trial. We affirm the judgment.

I. BACKGROUND

A. Factual Background

Sometime between the night of August 7, 2007, and the morning of August 8, 2007, the victim disappeared. The victim, who was thirty years old at the time of her disappearance, was last seen on the night of August 7 at her apartment in Alfred. Nearly a month later, on September 2, 2007, the victim's body was found buried in Stewartstown, New Hampshire, on property belonging to Twardus's father.

Twardus, who was twenty-six years old at the time of the victim's disappearance, had been in a romantic relationship with the victim on and off since 2005. In 2006, Twardus moved in with the victim at her apartment, which was located on the property of John and Nancy Durfee in Alfred. That October, Twardus and the victim were engaged to be married. The couple discussed a wedding date of August 4, 2007. In January 2007, however, the victim broke off the engagement. The two continued to live together until June 2007, when the victim asked Twardus to move out. Twardus moved in with his father in Rochester, New Hampshire. Twardus and the victim continued to speak on the phone and go biking together.

In late July, however, the victim began a romantic relationship with Calvin Degreenia, who had just moved into another apartment on the Durfee property where the victim lived. Degreenia had met John Durfee in prison, and took a job with Durfee's paving company upon his release. Degreenia and the victim began

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spending time together and became intimate. On the night of August 7, 2007, the victim, Degreenia, and Durfee had a cookout and drinks together on the Durfee property. That night was the last time the victim was seen alive. 1

The victim did not go to work the following day, August 8, nor did she call to explain her absence. Because this was out of character for the victim, her supervisor became concerned and called the police that night, and called the victim's mother the following morning. The victim's mother also became concerned because she regularly spoke with her daughter, and could not reach her on the phone. On the morning of August 9, the victim's mother went to her daughter's apartment in Alfred. When the victim did not answer the door, her mother unlocked the door using her spare key and went inside. There was no sign of the victim, but her keys were on the kitchen table and her car was outside. The victim's four dogs, which she cared for regularly, had defecated inside the apartment. There were no signs of a struggle or forced entry. The victim's mother called the police. She also called Twardus to ask if he had heard from the victim. At the request of the victim's mother, Twardus called the victim and left a voicemail. He never called the victim again, despite having called her many times in the weeks leading up to her disappearance.

The police first interviewed Twardus in connection with the victim's disappearance on August 11, 2007. Asked when he had last come to Maine, Twardus told police that on the night of Monday, August 6, 2007, he had gone fishing at Biddeford Pool. He said that he had arrived at Biddeford Pool late on Monday night because he wanted to fish at high tide and that he had fished for several hours and arrived home in Rochester early in the morning of Tuesday, August 7, 2007. Tide charts admitted at trial showed that it was low tide around the time that Twardus said he had arrived, not high tide. Twardus also told the police that he had called in sick Tuesday, slept all day, and did not go out at all.

Following that interview, however, police learned that Twardus's car had been seen in the vicinity of the victim's apartment on Monday, August 6. A resident had called the police that night at 9:12 p.m. to report an unfamiliar vehicle parked near her home, a short distance from the victim's apartment. An officer responded to the call at 9:41 p.m., and found a green 1997 Subaru Impreza parked on the side of the road. Not seeing any operator nearby, the officer ran the car's plates and discovered that it was registered to Twardus. One of the more distinctive features of the car was that it did not have a passenger-side mirror.

Police again interviewed Twardus and asked if he had made any stops on his way to Biddeford Pool on the night of August 6. Twardus replied that he had stopped at a store to buy a drink, but did not recall stopping anywhere else. When police asked if there was any reason that someone would have reported seeing his vehicle, Twardus admitted that he had stopped in Alfred, near the victim's apartment, to urinate in a wooded area off of the road. When police later questioned this story, Twardus claimed that he was also smoking marijuana. At trial, however,

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several of Twardus's friends testified that he did not smoke marijuana. Twardus also claimed in his first several interviews with police that he had been at home on the following night, August 7. Later, he told police that he had in fact gone fishing the night of August 7 at Rye Beach, and arrived home early the next morning.

On August 30, 2007, with the victim still missing, police executed a search warrant for the home of Twardus and his father in Rochester and for Twardus's green Subaru. A human head hair, later determined to be the victim's, was found in Twardus's trunk. Police also learned that Twardus's father owned property in Stewartstown, New Hampshire, some 160 miles north of Rochester. Twardus had been to the Stewartstown property in the past, including a camping trip with the victim in 2005.

On September 1, police proceeded to the Stewartstown property. With some difficulty and the aid of a tax map, they managed to locate the unmarked Twardus lot, which has no street address and is located in a remote area where many roads are unmarked. There, they discovered an area of recently disturbed earth covered with branches. Police returned to the property the following day with a search warrant and excavated the disturbed ground. Not far below the surface, they discovered the victim's body, barefoot and wrapped in a comforter. Nancy Durfee later identified the comforter as having come from the victim's apartment. 2

Buried along with the victim's body, police found three pairs of women's underwear, a bra, a bag that the victim used as a purse, the SIM card to the victim's cell phone, and a shoebox full of photographs belonging to the victim's sister. Inside the shoebox, police also discovered a plastic baggie containing several family photographs taken around Christmas 2006, including a photograph of the victim and Twardus. Twardus's fingerprints were found on the baggie and one of the photographs inside it. Also found in the grave was a plastic baggie containing a white powder, later identified as crushed tablets of the prescription medication Requip. 3 Twardus's father took Requip for restless leg syndrome at that time, and had a bottle of it in his medicine cabinet in Rochester. An autopsy of the victim's body was performed, and the cause of her death was determined to be strangulation. A sample of blood taken from the victim's body did not indicate the presence of Requip.

Twardus had told police that he was at home during the day of August 8, or that he only went out to get a haircut. Twardus's father saw his son in bed at their home in Rochester when he left for work that day at 6:10 or 6:15 a.m. But shortly thereafter, at 7:06 a.m., Twardus was filmed at a drive-through ATM in Rochester. Bank records showed that Twardus withdrew $100 in cash, which appeared to be unusual for Twardus, as he generally used his debit card, even for small purchases. Twardus was wearing an orange hooded sweatshirt, and there was an object on the passenger seat next to him. Several witnesses later identified the object as a two-tone Myrtle Beach hat that Twardus bought on a trip with the victim.

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Twardus testified at trial that he did not know what the object was, and that it could be a crumpled paper bag.

After the discovery of the victim's body, police visited a Big Apple convenience store in Colebrook, New Hampshire, seven miles from the burial site, and obtained the store's security camera footage for August 8, 2007. 4 The black and white footage showed a car pull in from the direction of Stewartstown around noon. The car appeared to lack a passenger-side mirror. The driver of the vehicle, a male, entered the store, wearing what appeared to be a hooded sweatshirt...

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