State v. Barden
| Decision Date | 17 July 1981 |
| Citation | 432 A.2d 404 |
| Parties | STATE of Maine v. Robert J. BARDEN. |
| Court | Maine Supreme Court |
Henry N. Berry, III, Dist. Atty., Peter G. Ballou, Deputy Dist. Atty., (orally), Richard Currier, Law Student Intern, (orally), Portland, for plaintiff.
Hewes, Culley, Feehan & Beals, George W. Beals, (orally), Portland, for defendant.
Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS and ROBERTS, JJ.
The Defendant, Robert J. Barden, appeals from a judgment of conviction entered September 25, 1979, in Superior Court, Cumberland County, upon a jury's verdict finding him guilty of robbery while to his knowledge an accomplice was armed with a dangerous weapon (Class A; 17-A M.R.S.A. § 651(1)(E)). He raises three issues here:
(1) Whether the presiding justice erred in excluding the alleged accomplice's out-of-court statement.
(2) Whether the presiding justice's decision to allow the prosecution to use at trial evidence which had been withheld from the Defendant in violation of court-ordered discovery, denied the Defendant a fair trial.
(3) Whether the presiding justice erred in refusing to instruct the jury on the lesser included offense of robbery.
We affirm the judgment of the Superior Court.
The facts may be briefly stated. The victim of the robbery was Carleton G. Foster, of Poland Springs. On December 14, 1978, after attending a Christmas party in Portland, Foster went to the Club Night Life, an all-night bar in Portland. While "table-hopping" there, he engaged in a conversation with the Defendant and the Defendant's friend, Michael Grant. He had not previously met these two men. After a time, Foster, the Defendant and Grant left the bar together. Foster got into the back seat of the Defendant's automobile; the Defendant drove and Grant sat in the front passenger seat. Unknown to Foster, the Defendant was carrying a loaded .357 magnum revolver in a holster on his hip under a large overcoat.
Foster testified that he accompanied the two men because they had offered to take him to a better all-night club. He said he dozed periodically and had no accurate recollection of how long they drove before they stopped in a remote area (of Falmouth). Someone switched on the dome light, and Grant turned and pointed a gun at him. The Defendant warned Grant not to shoot, Foster testified, but told Foster to give them everything he had. After Foster handed over his wallet, the Defendant reached over the back seat and took Foster's checkbook and keys from his coat pocket. They then let him out of the automobile and told him to start walking. As they drove away, he heard two gun shots. Within minutes he was picked up on the road by a Falmouth police officer.
Foster's testimony thus given at trial was entirely consistent with a detailed written statement he had given the Falmouth police four days after the incident. On cross-examination, however, defense counsel sought to impeach Foster with a prior written statement he had made at the Falmouth police station during the early morning of December 15, 1978, only a few hours after the incident. 1 In several respects the December 15 statement conflicted with Foster's testimony at trial. The major differences were (a) that the three men left the bar together "to find a real nice broad" (rather than to find a better bar); (b) that it was "the passenger" (rather than the Defendant) who told the victim to hand over everything he had and (c) that after the victim handed over his wallet, checkbook and cash, "both men got back in the car." (In the subsequent statement and at trial, Foster insisted that the entire incident took place inside the automobile).
The Defendant testified in his own defense. He denied participating in the robbery. He said that when the three left the bar, he drove to Dunkin Donuts, and finding no women there, he decided to drive to a friend's house on Auburn Terrace, in Portland. He said that Foster did not doze, but instead engaged in a heated argument with Grant. The argument distracted him to such a degree that he missed the Auburn Terrace turn off Washington Avenue, missed another right turn which he meant to take to correct the initial mistake, turned left instead and ended up driving out the Blackstrap Road toward Falmouth. When he realized where he was going, he decided to turn around at the dump in Falmouth. As they drove along, Grant suddenly pulled the Defendant's gun from under the passenger seat and pointed it at Foster. The Defendant said that he stopped the car when he saw the gun, and that Grant immediately pulled Foster out of the car. When the Defendant heard Grant threaten to blow Foster's head off, he got out of the car to stop Grant from hurting Foster. He convinced Grant to leave, and they drove off, leaving Foster on the road. He denied any knowledge that a robbery took place during the incident. 2
The Defendant contends that the presiding justice committed reversible error in excluding an out-of-court statement of Michael Grant, his companion at the time of this incident. The factual difference between the victim's trial testimony, his December 15 written statement and the Defendant's version of the events are central to the Defendant's first point on appeal.
At trial the Defendant called as a witness Duane Dyer, a close friend of his for about twenty years. Mr. Dyer testified that in January, 1979, he was in the recreation room at the Defendant's residence in Portland when Michael Grant arrived. Defense counsel inquired "did the subject of this incident ... come up in conversation?" The prosecutor objected on the grounds that this conversation and any statement made by Grant was inadmissible hearsay.
Thereupon defense counsel duly made an offer of proof that Dyer would testify that he heard the alleged accomplice, Grant, state that on the night in question he pulled the victim out of the car, put the gun up to him and severely scared him. Defense counsel contended that Grant's statement to Dyer was admissible under M.R.Evid. 804(b)(3) as a declaration against penal interest offered to exculpate the Defendant. 3
Defense counsel urged that it was crucial to his client's defense to present evidence that the incident with the gun and the robbery all occurred outside the automobile and before the Defendant intervened. As an offer of proof on the matter of corroborating circumstances, defense counsel claimed that Foster's December 15 written statement corroborated Grant's statement that the incident with the gun occurred outside the automobile. Although the Defendant had not yet testified, defense counsel told the Court that the Defendant was "going to testify that as soon as the gun was pulled out he hit the brakes, and while (Foster and Grant) were arguing, Michael Grant pulled (Foster) out of the car and robbed him."
The State rejoined that M.R.Evid. 804(b)(3) could not be invoked because Grant's statement did not exculpate the Defendant. The State argued that in any event there were insufficient corroborating circumstances to justify admitting the hearsay statement under this exception to the hearsay rule.
The court excluded the statement, specifically finding that:
(T)he issue imposed by this question or the relevance of this question relates to the fact that it took place outside rather than the fact that Michael Grant was the assailant which is in effect admitted by everyone. So, the corroborative circumstances that the court must look to are as to whether it was corroborated that it did in fact take place outside of the car. 804(b)(3) says that it's to be admitted only if the corroborating circumstances clearly indicate the truthworthiness (sic) of this statement. The court is not satisfied that the corroborating circumstances in this case as they relate to the location of the assault as opposed to the identity of the assailant clearly indicate that that statement was trustworthy, and hence, the court would sustain the objection and preclude you from asking that question.
The determination of the admissibility of hearsay under M.R.Evid. 804(b)(3) is left to the sound discretion of the trial court. State v. Holt, Me., 391 A.2d 822, 825 (1978); M.R.Evid. 104(a). The standard for appellate review of a decision to exclude a hearsay statement under this rule is whether the trial court abused its discretion. Id.; United States v. Metz, 608 F.2d 147, 156 (5th Cir. 1979); U. S. v. Satterfield, 572 F.2d 687, 690 (9th Cir. 1978).
Our Court had occasion to discuss in depth the operation of M.R.Evid. 804(b) (3) in State v. Smith, Me., 415 A.2d 553 (1980). There we observed that:
(T)he rule thus sets forth three requirements for an accused who offers an out-of-court statement exculpatory of himself: (1) the declarant must be unavailable as a witness; (2) the statement must so far tend to subject the declarant to criminal liability that a reasonable person in her position would not have made the statement unless she believed it to be true; and (3) the statement must be corroborated by circumstances that "clearly" indicate its trustworthiness.
In the case now before us, as in Smith, the first of these requirements was readily met. Grant became unavailable as a witness under the provisions of M.R.Evid. 804(a)(1), when he invoked his constitutional privilege against self-incrimination. See also State v. McDonough, Me., 350 A.2d 556, 561 (1976); State v. O'Clair, Me., 292 A.2d 186, 195 (1972).
As to the second of the three requirements, we conclude that the offered testimony was sufficiently inculpatory of the declarant Grant "that a reasonable man in his position would not have made the statement unless he believed it to be true." Although Grant's statement did not require the conclusion that he alone committed the alleged offense or that the Defendant did not participate, the fact that the offered testimony was not a categorical confession to the...
To continue reading
Request your trial
-
State v. Bryant
...at 25; United States v. Hoyos, 573 F.2d 1111, 1115 (9th Cir.1978); Laumer v. United States, 409 A.2d 190, 200 (D.C.1979); State v. Barden, 432 A.2d 404, 409 (Me.), cert. denied, 454 U.S. 1088, 102 S.Ct. 648, 70 L.Ed.2d 624 It is evident that there was significant evidence of the corroborati......
-
Ross v. State
...50 L.Ed.2d 794 (1977); United States v. Metz, 5th Cir., 608 F.2d 147, 157 (1979). No such showing has been made. 25 See State v. Barden, Me.Supr., 432 A.2d 404 (1981); People v. Wallach, 110 Mich.App. 37, 312 N.W.2d 387 Third, the inmate was permitted to testify that Kreider told him that "......
-
State v. Rosado, 13692
...451; State v. Gold, supra, 180 Conn. at 630-31, 431 A.2d 501; Laumer v. United States, 409 A.2d 190, 200 (D.C.App.1979); State v. Barden, 432 A.2d 404, 409 (Me.), cert. denied, 454 U.S. 1088, 102 S.Ct. 648, 70 L.Ed.2d 624 (1981); State v. Smith, 415 A.2d 553, 560 (Me.1980); State v. Higginb......
-
Boyce v. Commissioner, Maine Dept. of Corrections, Civil No. 01-162-B-S.
...first. No law is cited in support of this proposition. Indeed, 17-A M.R.S.A. § 13-A(1) (1982), Maine case law, see, e.g., State v. Barden, 432 A.2d 404, 412 (Me.1981), and logic dictate that an instruction on the greater offense charged be provided first, and the jury then told that the fai......