State v. Ardolino, Docket No. P

• Decision Date: 30 June 1997
• Docket Number: Docket No. P
• Citation: 1997 ME 141,697 A.2d 73
• Parties: STATE of Maine v. Robert ARDOLINO. en-96-294.
• Court: Maine Supreme Court

Page 73

697 A.2d 73

1997 ME 141

STATE of Maine v. Robert ARDOLINO.

Docket No. Pen-96-294.

Supreme Judicial Court of Maine.

Argued May 12, 1997.

Decided June 30, 1997.

Andrew Ketterer, Attorney General, Donald W. Macomber (orally), William R. Stokes, Asst. Attys. General, Augusta, for State.

Peter L. Murray, Stuart W. Tisdale, Jr., Daniel G. Lilley, Mary A. Davis, Portland, for defendant.

Before GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.

GLASSMAN, Justice.

¶1 Robert Ardolino appeals from the judgment entered in the Superior Court (Penobscot County, Kravchuk, J.) on a jury verdict finding him guilty of depraved indifference murder in violation of 17-A M.R.S.A. § 201(1)(B) (1983). ¹ He contends that the trial court erred by (1) denying his motion for a bill of particulars, (2) certain of its evidentiary rulings, and (3) denying his motion for a judgment of acquittal. He also contends that the State committed prosecutorial misconduct in its summation and that it was a misapplication of principle for the trial court to impose a sentence greater than twenty-five years. We affirm the judgment and the sentence. ²

¶2 The record reveals the following undisputed facts: Matthew, born October 3, 1983, and Daniel, born July 13, 1981, had resided exclusively with Ardolino from the date of the separation of their parents, Robert Ardolino and Nan Ardolino, in February 1992. In the early morning hours of June 27, 1993, Matthew died from a massive abdominal infection resulting from a delayed rupture of his intestine that occurred approximately twenty-four hours before his death. The rupture was caused by trauma to his abdomen that could have occurred within twenty-four hours of the rupture and within forty-eight hours of his death. At approximately four o'clock in the morning of June 27, Daniel was awakened by Ardolino, with whom he was sharing a downstairs bedroom, and told to check on Matthew who had retired to an upstairs bedroom. Daniel discovered Matthew's body, covered with a blanket, on the sofa in the living room.

¶3 The August 10, 1994, indictment charging Ardolino with the death of Matthew stated:

On or about June 27, 1993, in the County of Washington, State of Maine, Robert Ardolino did engage in conduct which manifested a depraved indifference to the value of human life and which did, in fact, cause the death of Matthew Ardolino, all in violation of 17-A M.R.S.A. § 201(1)(B) (1983).

Following extensive discovery pursuant to M.R.Crim.P. 16 and 16A, Ardolino filed a motion seeking a bill of particulars from the State, pursuant to M.R.Crim.P. 16(c)(1). After a hearing, the court denied his motion. At the trial, the court denied Ardolino's motions for a judgment of acquittal. The jury returned a verdict of guilty on the charged offense of depraved indifference murder. Following a hearing, the court denied Ardolino's motion for a new trial and a judgment was entered on the jury verdict,which Ardolino now appeals. Pursuant to 15 M.R.S.A. § 2152 (Supp.1996),the Sentence Review Panel of the Supreme Judicial Court granted Ardolino leave to appeal the thirty-five year sentence imposed by the trial court.

I. Bill of Particulars

¶4 Ardolino first contends that the trial court's erroneous denial of his motion for a bill of particulars deprived him of a fair trial. He argues, as he did before the trial court, that prior to the trial he was entitled to know the time and the precise nature of his conduct allegedly causing Matthew's death, which he was unable to discern from the language of the charge or the voluminous discovery materials provided to him by the State. We disagree.

¶5 M.R.Crim.P. 16(c)(1) provides:

The court for cause may direct the filing of a bill of particulars if it is satisfied that counsel has exhausted the discovery remedies under this rule or it is satisfied that discovery would be ineffective to protect the rights of the defendant. The bill of particulars may be amended at any time subject to such conditions as justice requires.

"The purpose of a bill of particulars is to enable the defendant to prepare an adequate defense, to avoid prejudicial surprise at trial, and to establish a record upon which to plead double jeopardy if necessary." State v. Cote, 444 A.2d 34, 36 (Me.1982) (citing State v. Larrabee, 377 A.2d 463, 465 (Me.1977)). Because a motion for a bill of particulars is addressed to the discretion of the trial court, we review the denial of the motion for an abuse of that discretion. Id. In considering whether the court properly denied the motion, we examine the record to determine what facts were known to the defendant prior to the trial. Id. We have previously noted that it is not the function of a bill of particulars to disclose in detail the evidence on which the State will rely at the time of the trial or to disclose the theory on which the State will proceed at the trial. State v. Hickey, 459 A.2d 573, 581 (Me.1983).

¶6 In the instant case, the record discloses that on the date of the hearing on his motion for a bill of particulars, approximately one year prior to the trial of this case, Ardolino had a copy of the indictment setting forth the charge against him ³ and a voluminous amount of discovery material that disclosed, inter alia, Matthew had died as a result of acute peritonitis resulting from a blunt force trauma to his abdomen on either June 24 or 25, 1993; Ardolino was the sole adult caretaker of Matthew on those dates; Ardolino was verbally and physically abusive to Matthew, including blows to his abdomen with his fist, his foot and with a baseball bat both before and after those dates; when angry with the children during such periods he charged them with being "just like your mother"; on the morning of June 26, a witness, who was clamming on mud flats near the Ardolino residence where Ardolino and the children were also clamming, heard Ardolino yelling and cursing at Matthew about lying and stating, "if you don't stop your effing lying to me, I'll shut you up for good"; Matthew's body was covered with more than one hundred bruises and abrasions of varying ages, including bruises on his stomach, chest, left side and hip, of which Ardolino was aware; there was no evidence of a non-criminal agency to explain the injury to Matthew's abdomen; Ardolino was aware that Matthew was lethargic and vomiting bile on June 26, 1993, and did not seek medical treatment for him. In addition, Ardolino had a copy of his statements relating to the discovery of Matthew's body and that Daniel had told him Matthew had fallen from a tree or tree house the day before his death.

¶7 At the hearing on Ardolino's motion, the State advised the court that it would be relying on circumstantial evidence to establish that on June 24 or 25 Ardolino struck the fatal blow to Matthew's abdomen and that it lacked knowledge of the specific time or nature of the death-causing blow by Ardolino. Based on this record, we cannot say the trial court abused its discretion when determining that Ardolino had failed to show cause for the State to file a bill of particulars.

II. Evidentiary Issues

A. Allegations of sexual abuse

¶8 Ardolino contends that it was an abuse of the trial court's discretion to admit evidence, over his objection, that he had manipulated Daniel and Matthew to lodge false claims of sexual abuse against their mother and grandfather. Although Ardolino's objection to the evidence at the time of the trial was on the ground that it was irrelevant, he now argues that it was improper character evidence in violation of M.R. Evid. 404(b) and that, pursuant to M.R. Evid. 403, the evidence should have been excluded because its probative value was substantially outweighed by the danger of unfair prejudice to him. ⁴ We disagree.

¶9 M.R.Evid. 404(b) provides: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith." We have previously stated that evidence of other acts "is admissible when offered to prove something other than that the defendant was acting in conformity with a character trait elucidated by such and when not deemed more prejudicial than probative by the trial [court]." State v. Lindsey, 447 A.2d 794, 795 (Me.1982). See, e.g., State v. Huntley, 681 A.2d 10, 13 (Me.1996) (uncharged sexual acts admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident); State v. Valentine, 443 A.2d 573, 578 (Me.1982) (evidence of prior beating of murder victim by defendant admissible to show intent); State v. Silva, 153 Me. 89, 98, 134 A.2d 628, 632 (1957) (evidence of old abnormal injuries admissible to rebut defendant's claim of accident). See also Field & Murray, Maine Evidence § 404.4 at 128 (4th ed. 1997) ("The list of purposes for which prior acts evidence may be admitted is not exhaustive, nor is it conclusive. The factors in each case are so varied that no verbal formula can be applied with precision."); McCormick, 1 McCormick on Evidence § 190 at 799-800 (4th ed.1992) (evidence of other crimes admissible to "complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings .... [t]o prove the existence of a larger plan, scheme, or conspiracy, of which the crime on trial is a part.").

¶10 M.R.Evid. 403 provides, in pertinent part, that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ...." As we have previously stated, "prejudice, in this context, means more than simply damage to the opponent's cause. A party's case is always damaged by evidence that the facts are contrary to his contention; but that cannot be ground for exclusion. What is meant here is an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one." State v. Forbes, 445 A.2d 8, 12 (Me.1...