State v. Chesnel

• Citation: 734 A.2d 1131,1999 ME 120
• Parties: STATE of Maine v. Brad CHESNEL.
• Decision Date: 29 July 1999
• Court: Supreme Judicial Court of Maine (US)

734 A.2d 1131

1999 ME 120

STATE of Maine v. Brad CHESNEL.

Supreme Judicial Court of Maine.

Argued June 8, 1999.

Decided July 29, 1999.

Andrew Ketterer, Attorney General, Donald W. Macomber, Asst. Atty. Gen. (orally), Fernand Larochelle, Asst. Atty. Gen., Augusta, for State.

William Maselli (orally), Auburn, for defendant.

Before WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.

ALEXANDER, J.

[¶ 1] Brad Chesnel appeals from the judgments entered in the Superior Court (Androscoggin County, Delahanty, J.) following a jury trial at which he was found guilty of murder in violation of 17-A M.R.S.A. § 201(1)(A) (1983)¹ and robbery (Class A) in violation of 17-A M.R.S.A. § 651(1)(E) (1983).² Chesnel contends that the trial court erred by: (1) denying his motion for a change of venue because of the publicity surrounding the homicide and a previous aggravated assault for which he pled guilty; (2) denying his motion to sever the trial; (3) denying his motion for a new trial based on assertions of juror misconduct; (4) failing to grant a mistrial when the prosecutor allegedly asserted personal opinions during closing arguments; and (5) admitting hearsay statements of the deceased. After review of the issues raised, we affirm.

I. CASE HISTORY

[¶ 2] On the morning of April 29, 1997, an employee of the Holiday Motel in Lewiston found the body of Michael Allen lying on the floor of a motel room. According to the Chief Medical Examiner, Dr. Henry Ryan, the cause of Allen's death was blunt head injury. Allen's jaw, nose, and facial bones were fractured and his face, hands, legs, and back contained abrasions and lacerations. In Dr. Ryan's opinion, the injuries were inflicted with a fist as well as with a steel weapon such as a tire iron.

[¶ 3] Chesnel and an acquaintance, Leroy Tomah, both admitted being present on April 28, when the fatal assault occurred. In conflicting statements, each accused the other of conducting the fatal attack. Both stated that following the attack, Chesnel took jewelry and other items from Allen's body. They then drove Allen's truck to Old Orchard Beach, where they abandoned the truck and disposed of the weapon and Allen's belongings. They rented a hotel room in Old Orchard Beach, stayed for an hour, then took a cab to a hotel near the bus station in Portland. The next morning they took a bus to California. After several days, Tomah contacted detectives in Maine and turned himself in to the police.

[¶ 4] Chesnel and Tomah were indicted on charges of robbery and murder in connection with Allen's death and were tried together in the Superior Court. The jury found both men guilty on both counts. Chesnel was sentenced to life in prison on the murder charge and 40 years on the robbery charge. Tomah was sentenced to 47 years on the murder charge and 14 years on the robbery charge. Each appealed their convictions. Tomah's conviction was affirmed, State v. Tomah, 1999 ME 109, 736 A.2d 1047.

II. MOTION TO CHANGE VENUE

[¶ 5] Pretrial publicity about a case will require a change of venue only where (i) the pretrial publicity is so extensive and pervasive that prejudice will be presumed, or (ii) actual prejudice is demonstrated. See State v. Johnson, 479 A.2d 1284, 1286 (Me.1984)

. Prejudice will be presumed where the pretrial publicity so taints the atmosphere surrounding the trial that a presumption of prejudice is necessary under due process principles. See id.; see also Rideau v. Louisiana, 373 U.S. 723, 724-26, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). To support a change of venue on presumption of prejudice grounds, a defendant must demonstrate "`intensive and extensive pretrial publicity of an invidious nature tending to arouse general ill will and vindictiveness against the accused.'" State v. Cooper, 617 A.2d 1011, 1014 (Me.1992) (quoting State v. Addington, 518 A.2d 449, 451 (Me.1986)).

[¶ 6] Alternatively, to demonstrate actual prejudice on the part of the jury venire, the focus is not on the number of jurors who know of the case or the ratio of the jurors who know of the case to the panel as a whole, but the impartiality of the available panel members, with review for an abuse of discretion. See State v. Corson, 572 A.2d 483, 485 (Me.1990)

; Johnson, 479 A.2d at 1287-88.

[¶ 7] In support of his efforts to change venue, Chesnel produced copies of thirteen articles from Lewiston newspapers. Four of the articles appeared in July and August of 1996 and discussed a beating that occurred in Sabattus with a hammer and the search for, and apprehension of, Chesnel and a codefendant in connection with the beating. The remaining nine articles appeared between April and June of 1997 and discussed the Allen homicide, the search for, and apprehension of, Chesnel and Tomah in connection with the homicide, and references to the victims of the earlier hammer attack in Sabattus in which Chesnel had participated. Looking at the articles as a whole, they were published over an extended period of time, the most recent approximately eight months before jury selection, and they did not call for specific action or express opinions as to guilt. They cannot be said in total to constitute pretrial publicity with the immediacy, the intensity, or the invidiousness sufficient to arouse general ill will and vindictiveness against the accused at the time of the jury selection. See State v. Clark, 386 A.2d 317, 319-20 (Me.1978)

; State v. Littlefield, 374 A.2d 590, 593-594 (Me.1977). Therefore, prejudice per se or presumed prejudice is not demonstrated.

[¶ 8] With respect to the issue of actual prejudice, the record reflects that the trial court extensively examined jurors about their knowledge of the case. In this inquiry, the trial court included questions requested by the defense. Further, the trial court gave the defense the opportunity to suggest additional questions and, ultimately, the defense did not suggest any more questions. After challenges for cause were exercised, with the court granting most of the defense's challenges for cause, a panel of 63 jurors remained, whom the trial court determined could be impartial. A total of only 48 jurors were needed to pick a jury, considering the number of peremptory challenges which had been allowed.³ All jurors ultimately chosen to serve asserted that they could remain impartial.

[¶ 9] Given the large number of jurors that were available for selection after questioning and the exercise of challenges for cause, Chesnel has not demonstrated actual prejudice in the jury panel or that the trial court abused its discretion in denying his motion to change venue. See Corson, 572 A.2d at 485

.

III. MOTION TO SEVER TRIALS

[¶ 10] Prior to trial, Chesnel filed a motion to sever his trial from that of the codefendant, Tomah. The grounds for the motion appear to be (i) the anticipated offering by the State of statements by Tomah, and (ii) the anticipated antagonistic defenses of the two defendants. Tomah objected to Chesnel's motion to sever. After a hearing, the court denied Chesnel's motion to sever, "provided that any statements attributable to defendant Tomah offered by the State or by Tomah during the State's case in chief shall be redacted to apply only to the conduct of defendant Tomah."

[¶ 11] From the record, it does not appear that the statement to which the trial court's concern was directed was ever presented by the State. Further, as Tomah testified at trial and was subject to cross-examination, any Bruton⁴ problems, were effectively avoided. See State v. Drake, 1999 ME 91, ¶ 9, 731 A.2d 858

.

[¶ 12] Chesnel also argued that the antagonistic defenses which the defendants would offer justified severance. An allegation that two codefendants will present antagonistic defenses and point the finger at each other is not sufficient to require severance of a joint trial. See Zafiro v. United States, 506 U.S. 534, 538-40, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993)

. In Zafiro, the United States Supreme Court faced a similar case where a defendant was seeking severance on the grounds that each defendant claimed innocence and would accuse the other of the crime. See id. at 539-40, 113 S.Ct. 933. The Court did not find prejudice in that situation, reasoning that a defendant is not entitled to severance just because a defendant is more likely to receive an acquittal through a separate trial. See id. at 540-41, 113 S.Ct. 933. The Court noted that any risk of prejudice could be cured by instructions to the jury that they must separately determine each defendant's guilt beyond a reasonable doubt. See id. Here, the trial court properly instructed the jury as suggested by Zafiro.

[¶ 13] A trial court's grant or denial of a motion to sever a trial of two defendants is reviewed for abuse of discretion. See State v. Johnson, 472 A.2d 1367, 1370 (Me.1984)

. In determining whether to grant a motion to sever, the trial court "`must balance the general policy in favor of joint trials against the prejudice to a defendant which may result.'" State v. Boucher, 1998 ME 209, ¶ 9, 718 A.2d 1092, 1094 (quoting 1 Cluchey & Seitzinger, Maine Criminal Practice § 8.9 at III-65 (1995)). The trial court did not abuse its discretion in denying Chesnel's motion to sever.

IV. ASSERTIONS OF JUROR MISCONDUCT

A. Juror Contact History

[¶ 14] After the jury panel was questioned about their knowledge of "the case" and whether they could be impartial, some jurors were asked individual follow-up questions, and some jurors were excused for cause. Then in a side bar discussion, counsel for Chesnel asked the court to question the panel further as to any details of news reports they recalled, leading to the following discussion:

(Counsel for Chesnel): I would also ask if any of the jurors are familiar with media reports involving any details concerning Mr. Chesnel or Mr. Tomah related to any topic which really picks up from the other case,⁵ because the question you asked....

(The Court): Do you want

...