State v. Casale

• Decision Date: 01 December 1954
• Citation: 110 A.2d 588,150 Me. 310
• Parties: STATE of Maine v. Anthony CASALE.
• Court: Maine Supreme Court

Page 588

110 A.2d 588

150 Me. 310

STATE of Maine v. Anthony CASALE.

Supreme Judicial Court of Maine.

Dec. 1, 1954.

Alexander A. LaFleur, Atty. Gen., Neal A. Donahue, Asst. Atty. Gen., for plaintiff.

Stanley L. Bird, Augusta, for defendant.

Before WILLIAMSON, TIRRELL, WEBBER, and BELIVEAU, JJ.

BELIVEAU, Justice.

On motion for new trial. The respondent was indicted at the September 1951 Term of the Superior Court for Cumberland County on a charge of transporting one Marilyn Sargent 'with intent and purpose to induce and entice the said female to become a prostitute'.

The respondent was put on trial at the January Term 1952 and convicted. Marilyn Sargent Morris testified for the State that on January 3 or 4, 1951, she was transported by the respondent to Melody Ranch at Old Orchard to a house of prostitution and there held a prisoner. Until she escaped She was engaged in prostitution with men brought to her room by the operator of the establishment. The case was submitted to the jury on the State's evidence and no defense offered. Several exceptions were taken during the trial.

At the same term of Court a motion for a new trial on the grounds of newly discovered evidence was filed by the respondent. Testimony on this motion was taken at Portland April 28, 1952. The exceptions and motion for a new trial were argued before this Court and both overruled. State v. Casale, 148 Me. 312, 92 A.2d 718, 772.

The Court in that opinion said:

'The tests to be applied to this motion for a new trial, on the ground of newly discovered evidence, are (1) that the evidence is such as will probably change the result if a new trial is granted, (2) that it has been discovered since the trial, (3) that it could not have been discovered before the trial by the exercise of due diligence. (4) that it is material to the issue, and (5) that it is not merely cumulative or impeaching, unless it is clear that such impeachment would have resulted in a different verdict.'

The Court discussed, in detail, evidence offered in support of the motion and decided that, first, it did not deny the charge in the indictment, and second, that much of the evidence, if not all of it, would be admissible only within the discretion of a presiding Justice and that this evidence was known to the respondent before the trial, or could have been found by the exercise of reasonable diligence.

It was further ruled that no injustice was done at the trial and no injustice would be done by the denial of the motion for a new trial.

Another motion for a new trial on grounds of newly discovered evidence was filed February 10, 1954. Testimony in support of this motion was taken at Portland on March 29, 30, 31, 1954, again on July 12 and 13 of the same year, and is now before this Court for decision.

Much of the evidence heard on this last motion was largely repetition of the old script with additional actors. It was cumulative to that given on the first motion for a new trial.

Our Court in State v. Casale, supra, in discussing similar evidence ruled it did not stand the legal tests applicable. This ruling applies with equal force to the evidence taken on this motion, which for the most part, has for its purpose an attempt to furnish an alibi for the respondent. Other testimony, heard on this motion for a new trial, other than that of Morris and his wife was inadmissible and immaterial.

Tonly Casale, the respondent, in his testimony on first motion for a new trial, testified he went to Boston on December 31, 1950 and remained there until he returned to Maine, January 5, 1951. He gave then as his reason for not providing witnesses at the trial, 'I didn't bother about it. It was none of my business. I thought maybe the State would not prosecute.' He testified he did not offer himself as a witness on the advice of counsel.

On the pending motion, he gave as a reason, 'I thought the State would be fair enough to bring their witnesses forward.'

It is well known to those familiar with trial work that trial strategy is usually discussed and planned. It goes without saying that much discussion was had between counsel, as to strategy to be followed in the trial, and between counsel and the respondent. It was decided by them that they would offer no testimony in defense and would submit the case to the Jury on the evidence produced by the State. If that is so, then the respondent will not be granted his motion for a new trial, so that he may have an opportunity to do now what he should have done at his trial. He cannot complain that the strategy was not successful.

In order for this Court to grant the motion it must be satisfied from all the evidence that Marilyn Sargent Morris was not telling the truth when she testified against the respondent in January 1952 and that the recantation has the stamp of truth.

It would appear from the record that she first gave this information to Captain Edward M. Kochian, of the Portland Police, at her home in the spring of 1951. Captain Kochian called there on another matter and while at the house, the husband requested she tell the Captain the whole story about the Casale affair and she is quoted by the Captain as saying, 'No, I don't want to go through that. I don't want to repeat anything that went on. I want to forget the whole thing.' The husband repeated his request and she finally told Kochian about the episode. As a result she went to the office of the County Attorney the next day, repeated to that official, with others present, what she had told Captain Kochian the night before and gave a written and signed statement to that effect.

Nothing else was done until she appeared before the Grand Jury in Portland in September 1951, at which term the Grand Jury returned the indictment on which Casale was tried and convicted. She appeared before the Grand Jury at the November 1951 Term of the Superior Court at Alfred and gave the same testimony there. She again gave like testimony at the trial of the respondent at the January 1952 Term in Portland, as before stated.

The cross-examination of Mrs. Morris, at the respondent's trial, was relentless and gruelling and every device of the cross-examiner was tried to trip the witness. She accused the cross-examiner of 'bellowing' at her and gave that as her reason for crying during some of the cross-examination.

It is probably true that the Jury, after listening to this kind of cross-examination, was satisfied that Mrs. Morris was telling the truth. As is sometimes the case, the cross-examination, as it appears from the cold record alone, served to emphasize, elaborate and give in greater detail the events involved in the transportation of Mrs. Morris to Melody Ranch. It shows no contradiction and would seem, if anything, to make her testimony more certain, convincing and effective.

The record discloses that Mrs. Morris' direct and redirect testimony covers 16 pages, while the cross-examination and recross covers 73 pages.

Mrs. Morris' testimony, given under oath, prior to September 25, 1953, covering the several occasions she testified, seems consistent.

No hint of any recantation or change in testimony is suggested until sometime after new counsel employed by the respondent had completed his investigation and not until after several interviews with Morris and his wife.

It is admitted by counsel for the respondent that he was employed in June 1953; that he made a lengthy investigation, which was completed about September 25, 1953, after which time he called on Marilyn Sargent Morris in Lewiston. There he talked with Mr. and Mrs. Morris and told them about the results of his investigation. Apparently, on that visit, the conversation was between counsel and Morris, the husband. Counsel attempted to convince the husband that his wife had not told the truth when she testified. He went over with Morris, piece by piece, the alleged evidence discovered in Boston but the husband would not be convinced and the suggestion was made that the wife had lied to her husband in order that he might believe she had not gone to Melody Ranch of her own accord. Counsel came back four or five days later and attempted, as he had before, to convince the husband that his wife had lied to him and had done other things which the husband did not know about. After this had been going on for some time, and apparently the husband had not yet been convinced, sexy pictures were mentioned. Morris became angry. His wife ran into the bedroom and he after her. This was the occasion, as testified later by the wife, that she was choked by the husband. He came out of the bedroom and informed counsel his wife had been lying, that he would talk to her and come back in a few days.

The husband came to the office of the attorney for Casale in Waterville on March 16, 1954 and inquired if something could not be done to straighten out the case and avoid the necessity of his wife's or his presence at Portland on the 29th of March.

At the same interview the husband suggested the payment, to him, of $800 by counsel so they could leave town. Counsel says as to that, 'I didn't say yes or I didn't say no.'

Within a day or two after this conversation, Morris called at counsel's office in Waterville with an itemized account of these expenses, in the neighborhood of $1,200. Counsel knew Morris was coming to his office with the statement and before this meeting withdrew from a bank in Waterville the sum of $1,100. When Morris entered his office, $1,000 of this money was in plain sight and as Morris entered the office counsel testified, 'I was slowly counting it out as he came into the room.' Counsel stated the reason for this display of money was to induce the husband to confess his part in this affair. If such a confession was made, according to counsel, then he planned to give him a manila envelope, made up of dummy packages of newspaper money. Counsel readily admitted there was no question but that Morris dominated his wife...