State v. Franco

• Decision Date: 19 November 1976
• Citation: 365 A.2d 807
• Parties: STATE of Maine v. Robert J. FRANCO.
• Court: Maine Supreme Court

Page 807

365 A.2d 807

STATE of Maine v. Robert J. FRANCO.

Supreme Judicial Court of Maine.

Nov. 19, 1976.

Robert S. Raymond, Asst. Atty. Gen., Richard S. Cohen, Deputy Atty. Gen., Augusta, for plaintiff.

Libhart and Ferris by Joel Deaborn, Brewer, Marshall A. Stern, Jerome B. Goldsmith, Bangor, for defendant.

Before DUFRESNE, C. J., and POMEROY, WERNICK and ARCHIBALD, JJ.

WERNICK, Justice.

An indictment returned on January 7, 1974, to the Superior Court (Penobscot County) charged that by killing Theodore J. Townsend, defendant Robert J. Franco had committed the crime of felonious homicide punishable as murder. Defendant was found guilty as charged by a jury and has appealed from the judgment of conviction entered on the verdict.

The appeal, which we deny, raises several issues pertaining to the admissibility of particular evidence and the sufficiency of the totality of the evidence to support the conviction.

The following facts could justifiably have been found by the jury.

In August, 1973, defendant made a deal with Theodore Townsend and William McAllister to give them fifty pounds of marijuana on 'consignment.' Several days after delivery, the marijuana disappeared from the McAllister home and defendant was never paid. Defendant became increasingly disturbed because the marijuana did not reappear.

By late September and early October, defendant threatened McAllister and another person, one Taylor, with a gun, demanding to know what had happened to the marijuana. Eventually, having concluded (apparently without factual basis) that Townsend had stolen the marijuana, defendant began to tell a number of his friends that he intended to 'injure', 'shoot', or 'kill' Townsend if he did not get back his marijuana.

On November 2, 1973, the day before Townsend was killed defendant, accompanied by his friend Thomas Peatie, drove from Connecticut to Lincoln, Maine, to spend the weekend with defendant's girlfriend, Sharon Cunningham. Defendant told Peatie that he was going to get the money Townsend owed him for the drugs. The next morning, defendant and Peatie engaged in some shooting practice in Lincoln, using a cedar stump as a target. During the day, they went to Bangor and attempted to find Townsend.

That night, defendant told Peatie that he wanted 'really' to hurt Townsend either by using an ax handle or by shooting him in the leg. Defendant, carrying the 22 magnum pistol used earlier in target practice, and Peatie, with a 38 caliber pistol, then drove to Townsend's apartment on Spring Street in Bangor. When Townsend came out of the building, defendant confronted him, demanded to be paid, and hit him with the ax handle. Townsend then started running away, and defendant drew his gun and fired twice. Townsend fell, as defendant and Peatie ran to their car. Townsend then arose, however, and as he began to run away, defendant thinking that he had missed, fired a third shot. Townsend again fell to the ground.

Later that night, back at the Cunningham house, defendant 'nervously' hid the guns in the cellar. The next day, when defendant and Peatie became aware that Sharon Cunningham had mistakenly believed she had seen Townsend's car, they immediately became upset and went into the cellar. Defendant told Sharon's brother that they had roughed up someone in Bangor in order to collect some money.

On Monday morning, defendant and Peatie arose early and bought a newspaper which reported that Townsend was dead. Immediately, they 'nervously' began packing. Defendant got the 22 pistol from the cellar and put it in a paper bag. Sharon Cunningham then took defendant and Peatie to a wooded area where Peatie disposed of the bag containing the gun. Defendant, then obviously upset, admitted to Sharon: 'I shot Teddy (Townsend), and I didn't mean to.' Shortly thereafter, defendant and Peatie left the State.

The deceased was identified by his father as 'Theodore J. Townsend.' An autopsy revealed that the cause of death was a gunshot wound. Fragments of a 22 magnum bullet were taken from Townsend's body.

Defendant raises three issues on appeal concerning admissibility of evidence.

The first point involves testimony relating to a 22 magnum bullet allegedly extracted from a log found in Lincoln. Although the bullet itself was never admitted in evidence (because there had been a break in the chain of custody of the log), defendant argues that the admission in evidence of testimony about the bullet prejudiced defendant since proof was lacking to connect defendant with the bullet.

In his direct examination of the State's bullet identification expert, the prosecutor asked a number of questions concerning the bullet fragments removed from the body of the deceased. On cross-examination, defense counsel elicited, for the first time, testimony that a 'second bullet', also examined by the expert, 'matched' the bullet found in the deceased's body. Defense counsel asked a number of questions with regard to the significance of these matching bullets, the questions emphasizing that the expert did not know where the second bullet was discovered. On redirect examination, over defendant's objection, the expert indicated that he received a tree stump at the same time he received the second bullet. Later in the trial, the State attempted to clarify this testimony by a showing that the second bullet was taken from a tree stump found in the area where defendant and Peatie had engaged in shooting practice on the day of the homicide.

Even if we accept defendant's contention that the State's evidence concerning the second bullet was irrelevant and immaterial because the State failed to connect defendant to the second bullet, we nevertheless reject the argument that the admission of the evidence was error requiring reversal of the conviction.

When one party introduces irrelevant and prejudicial evidence, even though it is admitted without objection, it is within the presiding Justice's discretion to permit the other party to introduce evidence to remove the unfair prejudice which could otherwise be produced by the original evidence. State v. Witham, 72 Me. 531 (1881). ¹ In the instant case, defense counsel's persistent questioning of the bullet expert concerning the unexplained existence of a second matching bullet opened the door to the introduction of evidence attempting to explain any doubts with regard to the matching bullet. ²

Further, the probative value of the testimony concerning the second bullet outweighed the danger of prejudice. Although the murder weapon was never found, the bullet removed from Townsend's body was identified as fired from a 22 magnum pistol. Peatie testified that defendant used a 22 magnum to practice shooting at a cedar log in Lincoln and to kill Townsend later that same day. On information also supplied by Peatie, Officers Mandel and Vigue located and seized a cedar log in Lincoln which appeared to have been used for target practice. The log was later given to Officer Stevens who transported it from Bangor to Augusta. In Augusta, Officers Stevens and Vigue removed a bullet from a large cedar log. The bullet taken from the log was given to a bullet expert who, with 'absolute certainity', identified the bullet as fired from the same gun as was the bullet removed from Townsend's body.

The evidence tended to prove a connection between the defendant and the 22 magnum which was used to kill Townsend. While there was a one day break in the chain of the log's custody during its transportation by Officer Stevens to Augusta, this minor break in the chain of custody goes to the weight of the evidence, not its admissibility. State v. Cress, Me., 344 A.2d 57, 61 (1975). The purpose of the chain of custody requirement is to provide reasonable assurance that the exhibit is the same and in the same condition as when originally found, State v. Cress, supra. Officer Vigue's removal of a bullet from a large cedar log, after the break in the chain of custody, and only one day after his discovery (in Lincoln) of a cedar log supposedly used by the defendant for target practice, authenticated the evidence by virtue of Vigue's implicit recognition of the significance and distinctive characteristics of the log. Moreover, the inherent self-authenticating characteristics of the two matching bullets, as made evident by the expert's testimony that every gun leaves its own unique markings on its bullets when fired, substantiates the physical continuity of the evidence. Since the murder weapon was never discovered, it is highly unlikely that the matching bullet could have been fired into the log during the break in the chain of custody.

The presiding Justice did not err, but acted within the appropriate bounds of a sound discretion, in admitting testimony concerning the 'second bullet' notwithstanding that he had excluded from eivdence the second bullet itself.

As a second point on appeal, defendant argues that the presiding Justice erred in admitting testimony as to admissions allegedly obtained from the defendant in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)....