State v. Boucher, 7099

• Decision Date: 23 December 1994
• Docket Number: Docket No. K,No. 7099,7099
• Citation: 652 A.2d 76
• Parties: STATE of Maine v. Michael M. BOUCHER, Sr. DecisionLawen-91-378.
• Court: Maine Supreme Court

Page 76

652 A.2d 76

STATE of Maine v. Michael M. BOUCHER, Sr.

Decision No. 7099.

Law Docket No. Ken-91-378.

Supreme Judicial Court of Maine.

Argued Oct. 5, 1994.

Decided Dec. 23, 1994.

Linda J. Conti (orally), Asst. Atty. Gen., Augusta, for State.

S. Campbell Badger (orally), Drummond, Woodsum, Plimpton & MacMahon, Portland, for defendant.

Before WATHEN, C.J., and GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.

RUDMAN, Justice.

Michael M. Boucher appeals from his conviction of murder, 17 M.R.S.A. § 2651 ¹, entered on a jury verdict in the Superior Court (Kennebec County, Chandler, J.). The murder occurred on September 16, 1973. The victim's body was found beside her car in Litchfield later that day. A pathologist testified that she had been beaten and strangled and that some of her wounds suggested that the weapon was a carpenter's hammer. The State connected Boucher to the incident with his own statements to various people over approximately 13 years. He was convicted on July 16, 1992, and sentenced to life imprisonment.

Privilege and Waiver

We first address Boucher's contention that the trial court abused its discretion in admitting the testimony of Boucher's two ex-wives, Anita Boucher (Anita) and Norma Boucar, finding that Boucher had waived the marital privilege ² by revealing in non-privileged communications much of what he had told them. See State v. Dechaine, 572 A.2d 130, 133 (Me.1990) (explaining abuse of discretion standard as applied to the admissibility of evidence). Maine Rule of Evidence 510 provides:

A person upon whom these rules confer a privilege against disclosure waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is privileged.

Following a voir dire proceeding on the State's motion in limine, during which the court heard the testimony of Anita, Norma Boucar, Anita's sister and brother-in-law, Boucher's half-sister, and a former co-patient with Boucher at a substance abuse treatment center, the trial court stated that Boucher had revealed "a significant portion of the privileged communications" and thus had waived the privilege. The court heard testimony that Boucher had acknowledged that he had killed a girl who would have been the age of Anita's sister and revealed that Anita had helped him in some unspecified way. The trial court found that in disclosing to third parties the "key element" of his communications to Anita and Boucar Boucher waived protection as to all communications relating to the incident. The record in this case does not compel a finding to the contrary.

Nor did the court abuse its discretion in admitting the testimony of a former co-patient with Boucher at a substance abuse treatment center. The witness testified to statements Boucher made to him outside the context of group therapy. The psychotherapist-patient privilege, M.R.Evid. 503 ³, does not cover such a communication. See State v. Boobar, 637 A.2d 1162 (Me.1994) (finding the privilege did not extend to disclosures made to peer counselors or in self-help groups).

Rule 804(b)(3)

We turn to the question whether the trial court erred in excluding certain statements of Howard Johnson, whom the police investigated soon after the murder, on the grounds that the statements lacked sufficient indicia of trustworthiness pursuant to M.R.Evid. 804(b)(3) ⁴.

The court properly divided the questions pertaining to the admissibility of Johnson's statements and the admissibility of evidence related to the investigation of Johnson. It analyzed the admissibility of Johnson's statements pursuant to M.R.Evid. 804(b)(3), and the admissibility of evidence pertaining to Johnson as an alternate suspect pursuant to State v. Dechaine, 572 A.2d 130 (Me.1990). We review only the 804(b)(3) ruling, as evidence pertaining to the investigation was admitted. We review for abuse of discretion. State v. Priest, 617 A.2d 537, 538 (Me.1992).

The court held a voir dire hearing on the admissibility of Johnson's statements. Terrence St. John, at the time of the incident a Portland police officer, testified that on September 18, 1973, Howard Johnson approached him and another officer in a Portland restaurant. Johnson's behavior was strange, and his statements were somewhat disjointed and incoherent. Nonetheless, a number of statements and discoveries led the police to investigate Johnson as a possible suspect. Specifically, he spoke of having buried some hammers, and of having had a fight with a woman in Lewiston. He gave a description of this woman's age, hair color and clothing that approximated the description of the victim.

The most coherent core of Johnson's statements was that he had had a fight in Lewiston with a woman whose description matched in some respects the victim of a recent crime. Surrounding this were a number of incoherent remarks, including that he had buried a number of items because they were "monkey business," that one of these items was the watch of his dead brother, and that he had done this because too many people were being hurt and killed. There is no indication that Johnson knew that these statements would subject him to liability. See United States v. Hoyos, 573 F.2d 1111, 1115 (9th Cir.1978) ("While the reach of Rule 804(b)(3) is not limited to direct confessions of criminal responsibility ... the declarant's statements must, in a real and tangible way, subject him to criminal liability.") (Citation omitted).

The trial court rested its decision on a careful analysis of the trustworthiness of the statements. The court found the circumstances in which the statements were made to indicate that they were not trustworthy. The court specifically considered Johnson's appearance and manner when he approached the officers, that many of his statements were simply "off the wall," and that many were simply incorrect. The court stated that the circumstances "strongly indicate that any rational person would place absolutely no trust in these statements of Mr. Johnson at all."

In State v. Priest, we reiterated the factors for consideration of the third prong of 804(b)(3), the trustworthiness factor. They are:

(1) the time of the declaration and the party to whom it was made;

(2) the existence of corroborating evidence in the case;

(3) whether the declaration is inherently inconsistent with the accused's guilt; and

(4) whether at the time of the incriminating statement the declarant had any probable motive to falsify.

State v. Priest, 617 A.2d at 539. The court in the instant case could have found the bulk of the evidence uncorroborative of the statements. The potentially inculpatory statements were buried within comments to the officers that either made no sense or contradicted the incriminating ones. For example, Johnson described being in a park in Lewiston, but the description he gave was most likely of a park in Portland. In a subsequent interview, Johnson said he had been in Camden the day before he approached the officers, and that he had never been in Lewiston. William Gene Bickford, who then worked for the Maine State Police, testified, based on a report written by a now-deceased officer, that an investigation determined that the tire treads on Johnson's vehicle did not match those at the crime scene. With nothing to connect Johnson to the crime, Bickford said, Johnson was dismissed as a suspect.

The question of admissibility pursuant to Rule 804(b)(3), however, is committed to the discretion of the trial court. United States v. Hoyos, 573 F.2d at 1115. In United States v. Barrett, the First Circuit stated with respect to the federal rule:

[T]here is no question but that Congress meant to preclude reception of exculpatory hearsay statements against penal interest unless accompanied by circumstances solidly indicating trustworthiness. This requirement goes beyond minimal corroboration. Trial judges will have to make an assessment case by case.... In cases that are open to reasonable differences, this court is unlikely to substitute its judgment for that of the district court.

United States v. Barrett, 539 F.2d 244, 253 (1st Cir.1976). See also State v. Smith, 415 A.2d 553, 560 (Me.1980); United States v. Hoyos, 573 F.2d at 1115. We cannot conclude in the instant case that the trial court abused its discretion in excluding the statements.

Even if the court erred in not admitting the statements, much of the evidence Boucher sought to introduce pursuant to Rule 804(b)(3) came in anyway and was properly considered by the jury as to whether there was reasonable doubt as...