State v. Doody

• Decision Date: 11 September 1981
• Parties: STATE of Maine v. Constance DOODY.
• Court: Maine Supreme Court

Page 523

434 A.2d 523

STATE of Maine v. Constance DOODY.

Supreme Judicial Court of Maine.

Argued June 18, 1981.

Decided Sept. 11, 1981.

Anita St. Onge (orally), Wayne S. Moss, Charles K. Leadbetter, Asst. Attys. Gen., Augusta, for plaintiff.

Bither & Goodwin, Thomas L. Goodwin (orally), Houlton, for defendant.

Before WERNICK ^*, GODFREY, NICHOLS, ROBERTS and CARTER, JJ.

GODFREY, Justice.

The defendant, Constance Doody, lived with her husband, Michael Doody, in Caribou. Their relationship with Norma Bennett, Constance's mother, was dominated by frustration, anger, and hatred. On the night of October 7, 1979, Norma Bennett was shot and killed at her trailer home. Constance was not present at the scheme, but Michael was. About two hours later, local police arrested Michael for murder, a crime of which he was later convicted. On July 25, 1980, Constance Doody was charged in a two-count indictment for soliciting the murder, 17-A M.R.S.A. § 153 (1980), and for the murder itself on a theory of accomplice liability, 17-A M.R.S.A. §§ 57, 201 (1980).

The solicitation count was based on the State's evidence that about two weeks before the murder, in a local bar with Michael present, Constance offered $300 to William Fitzherbert, a man both she and her husband knew, if Fitzherbert would kill her mother. The count for murder was based on a series of episodes, including the incident with Fitzherbert, before and after the murder which the State argues established her complicity in the crime committed by Michael. After the Superior Court denied her motion for a separate trial on each count, M.R.Crim.P. 14, ¹ Constance waived her right to trial by jury.

Doody appeals from the judgment of the Superior Court holding her guilty as charged, both of solicitation of murder and of murder as an accomplice. On this appeal, Doody argues that the Superior Court abused its discretion in denying her Rule 14 motion for separate trial of the counts and challenges the sufficiency of the evidence to support the judgment on each count. We affirm the judgment on both counts.

I. Separate Trial of the Counts

An order of the Superior Court in response to a Rule 14 motion is subject to review on appeal only for abuse of discretion. State v. Bradley, Me., 414 A.2d 1236, 1239 (1980); State v. Littlefield, Me., 389 A.2d 16, 19 (1978). ² Appellant argues that the presiding justice abused his discretion for two reasons. First, she contends that evidence of Norma Bennett's death was irrelevant to the solicitation charge and would have been inadmissible in a separate trial for solicitation. Second, she contends that even if evidence of Norma Bennett's death was relevant, it would have been excludible in a trial for solicitation alone because of its potential for unfair prejudice.

Maine Rule of Evidence 401 defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Relevant evidence is generally admissible. M.R.Evid. 402. ³ Moreover M.R.Evid. 404(b) ⁴ does not exclude evidence of other crimes where such evidence is relevant to proof of the defendant's intent, State v. Littlefield, supra, at 19. ⁵

The provisions of 17-A M.R.S.A. § 153(1) are as follows:

A person is guilty of solicitation if he commands or attempts to induce another person to commit murder or a particular Class A or Class B crime, whether as principal or accomplice, with the intent to cause the commission of the crime, and under circumstances which the actor believes make it probable that the crime will take place.

Under those provisions, the State was required to prove that the defendant attempted to induce Fitzherbert to murder Norma Bennett, that she intended thereby to cause the commission of the crime, and that she solicited Fitzherbert in circumstances which she believed made it probable that the crime would take place. The fact that Norma was ultimately murdered by a participant in the conversation in which Constance made her offer to Fitzherbert was one circumstance of this case that could be rationally perceived as tending to show that Constance's offer was not made lightly or in jest and was not so understood by those present. That circumstance was at least some evidence that she meant seriously what she said and that the others knew it; in other words, that she had the intent to cause the commission of the crime.

If any evidence should be produced at trial tending to show complicity by Constance Doody in the ultimate murder of her mother by Michael Doody, that evidence would also be relevant to whether Constance really intended by her offer to induce Fitzherbert to kill Norma Bennett. Because evidence of the circumstances leading up to the murder might be thus relevant to appellant's intent under the solicitation charge and therefore possibly admissible in a separate trial on the solicitation count alone, the Superior Court's denial of the motion for separate trials cannot be deemed an abuse of discretion on the ground that the evidence was certain to be irrelevant. State v. Bradley, supra at 1239 (1980); State v. Littlefield, supra at 19 (1978).

Nor can we conclude that admission of the evidence relating to the murder of Norma Bennett would have obviously been unfairly prejudicial under M.R.Evid. 403. Rule 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Appellant's principal concern seems to be that the factfinder was seriously prejudiced in assessing her conduct with reference to the solicitation charge by evidence that the murder occurred even though the fact that the crime actually occurs is not an element of criminal solicitation under section 153. As noted above, however, from the trial justice's point of view as he weighed the motion to sever, evidence tending to show appellant's complicity in the murder itself could turn out to be relevant to at least one element of the solicitation offense. Accordingly, denial of the motion to sever was not an abuse of discretion merely because possibly forthcoming evidence tending to show that appellant was an accomplice in the murder might tend to establish an element of the crime of solicitation. State v. Barker, Me., 387 A.2d 14, 21 (1978); State v. Littlefield, supra at 19 (1974).

Some risk of confusion of the factfinder may be present in any case where somewhat similar offenses are prosecuted in one proceeding. See generally Drew v. United States, supra, note 5, at 90-92. But some similarity in the offenses prosecuted is inevitable in any trial on multiple counts inasmuch as such a trial is provided for by M.R.Crim.P. 8 in those very cases where the offenses charged "are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions which are connected or which constitute parts of a common scheme or plan." As our opinion in State v. Bradley, supra at 1239, shows, the trial justice has considerable discretion, on a motion for separate trials of multiple charges, to determine whether severance is necessary in the interest of avoiding prejudice and confusion of issues. This Court will not reverse the trial justice's decision to deny the motion unless the case is one in which the potential for confusion or prejudice is obviously serious.

In the instant case, when the motion for severance was under consideration, it was not apparent from the nature of the two crimes charged or the state of the pleadings that a factfinder would be unable, despite proper instruction, "to treat the evidence relevant to each crime separately and distinctly." State v. Bradley, supra at 1239. The gravamen of each count was factually distinct: Constance's offer to Fitzherbert was separated in time and place from the ultimate murder of Norma Bennett two weeks later. The Superior Court did not abuse its discretion in denying Constance Doody's motion for relief from prejudicial joinder under Rule 14.

II. Sufficiency of Evidence of Solicitation

Appellant challenges the sufficiency of the evidence supporting one element of the solicitation conviction. Unquestionably, sufficient evidence exists to support the Superior Court's finding that Constance Doody ostensibly attempted to induce William Fitzherbert to kill her mother by offering him $300. She argues, however, that the evidence was insufficient to support findings that she thereby intended to cause the commission of the murder or that her attempt was made under circumstances which she believed made it probable that the crime would take place. The offer to Fitzherbert was made in the course of conversation at a local bar among the defendant, her husband, and Fitzherbert. Appellant contends that the record reveals only that the offer was casual barroom talk induced by a history of dislike for Norma Bennett and that neither the relationship among the people privy to that conversation nor the context in which the offer was made tended to show that she really meant to cause the commission of the crime or that she believed the circumstances made it probable that the crime would take place.

In reviewing the sufficiency of the evidence to support the finding appellant challenges, we must determine whether, on our examination of the evidence relevant to that finding in the light most favorable to the State, the factfinder could have reasonably found, beyond a reasonable doubt, that appellant's offer to Fitzherbert to pay him $300 to kill her mother was made with the intent to cause the commission of the crime and under circumstances which appellant believed made it probable that the crime would take place. See State v. Perfetto, Me., 424...