State v. Fredette

• Decision Date: 28 June 1983
• Citation: 462 A.2d 17
• Parties: STATE of Maine v. Nancy A. FREDETTE.
• Court: Maine Supreme Court

Page 17

462 A.2d 17

40 A.L.R.4th 498

STATE of Maine v. Nancy A. FREDETTE.

Supreme Judicial Court of Maine.

Argued Nov. 13, 1981.

Reargued Jan. 7, 1983.

Decided June 28, 1983.

James E. Tierney, Atty. Gen., William R. Stokes (orally), Charles K. Leadbetter, Asst. Attys. Gen., Augusta, for plaintiff.

Glassman, Beagle & Ridge, Caroline Glassman (orally), C. Alan Beagle, Cloutier & Woodman, James F. Cloutier, Portland, for defendant.

Before McKUSICK, C.J., GODFREY, NICHOLS, ROBERTS, CARTER, VIOLETTE, and WATHEN, JJ., and DUFRESNE, A.R.J.

VIOLETTE, Justice.

Defendant, Nancy A. Fredette, appeals from a judgment convicting her of murder, 17-A M.R.S.A. § 201 (1983), after a jury trial in Superior Court (Lincoln County). She contends, among other things, that the trial justice committed prejudicial error by admitting hearsay testimony from three prosecution witnesses. We agree and remand for a new trial.

About 7:15 a.m. on May 26, 1978, Frederick Fredette was shot several times in the bedroom of his dwelling in Biddeford, Maine. He died the following day as a result of those gunshot wounds. At the time of the shooting, his wife and five of their six children were also present in the house. All of them were in bed except for Mrs. Fredette when the shots were fired. She testified that she was in the bathroom at that time. After hearing the shots, she claimed that she could not immediately get out of the bathroom because the door was somehow jammed. While stuck in the bathroom, she heard someone run through the kitchen and out the side door of the house. She was not able to see this person. She told the police essentially this same story, then became a prime suspect based on the police investigation following the murder. In September of 1978, a York County Grand Jury indicted Mrs. Fredette for the murder of her husband. Her first trial commenced on December 3, 1979, in Superior Court (Somerset County). This trial ended in a mistrial on December 20, 1979, because the jury was unable to reach a unanimous verdict. Her retrial commenced on June 9, 1980, in Superior Court (Lincoln County) and she was found guilty as charged. She then appealed to this Court.

I. Double Jeopardy

At the outset, defendant raises a threshold issue that the retrial violated her right to be free from double jeopardy under Art. I, § 8 of the Maine Constitution and the fifth amendment of the United States Constitution. ¹ After approximately ten hours of deliberation, the jury sent the trial justice a note that they could not reach a unanimous decision. Rather than declaring a mistrial on that basis, he met with counsel for both sides in his chambers and sought their views. Approximately one hour later, after consulting with counsel and contacting the jury through notes, he once again instructed the jury in open court as to the procedure to arrive at a verdict. After the jury deliberated approximately three more hours, the trial justice informed counsel that he would ask the jury in open court whether there was any reasonable probability that a verdict could be reached on further deliberations. The trial court also informed counsel that he would excuse the jury if he found they were still deadlocked; defense counsel made no objection. The jury was thereupon returned to the courtroom and the foreman informed the court, in the presence of all jurors and counsel, that the jury was unable to reach a verdict and that there was no reasonable probability of reaching one upon further deliberations. The trial justice then excused the jury. Defendant again did not object.

Although defense counsel did not move for a mistrial, the record makes clear that the defendant did consent to the mistrial. The trial justice sought the views of defense counsel, and defense counsel actively participated in the decision whether to grant a mistrial. At the point when the trial justice decided he would discharge the jury if they felt they could not reach a verdict, he made this known to defense counsel who offered no objection. Accordingly, we hold that defendant consented to the discharge of the jury and she, therefore, cannot now raise the bar of double jeopardy. State v. McConvey, 459 A.2d 562, 565 n. 2 (Me.1983); State v. Linscott, 416 A.2d 255, 260 n. 7 (Me.1980); State v. Small, 381 A.2d 1130, 1132 n. 3 (Me.1978). Assuming arguendo that defense counsel's silence did not manifest consent, we conclude that the trial justice did not abuse his discretion in declaring a mistrial and that there was "manifest necessity" for the mistrial. See State v. Henderson, 435 A.2d 1106 (Me.1981); Cf. State v. Linscott, 416 A.2d 255 (No manifest necessity where jury was deliberating less than two hours, the court received only a single communication indicating an inability to arrive at unanimous verdict and defense counsel was given no opportunity to participate in decision whether to grant a mistrial).

II. Testimony Admitted as Prior Consistent Statements or Statements Against Interest

At defendant's second trial, Gerard (Gus) Laverriere, a witness for the State, was declared unavailable and his entire testimony given at the first trial was admitted into evidence. ² At that first trial, Laverriere testified as follows on direct examination. Sometime in January of 1977, Mr. Fredette asked him to appraise his fire damaged home. Mr. Fredette promised to pay him $5,000 on the condition that he would receive approximately $75,000 from his insurance company as a result of the appraisal. Although Laverriere performed the appraisal and the Fredettes received about $73,500, he was never paid by Fred Fredette. Laverriere then testified to a meeting that he had with Mrs. Fredette in October of 1977. He walked into a cafe that he frequented in Biddeford and saw Mrs. Fredette sitting at a table. He sat at the counter and placed an order. Sometime thereafter Mrs. Fredette asked if she could speak with him in private. After he finished eating, he left the cafe and Mrs. Fredette followed. They got into her car and drove towards the Saco-Old Orchard Beach area. At some point during their travels, Mrs. Fredette offered him $3,500 to find someone to kill her husband; he accepted the offer, never intending to fulfill his promise. She agreed to give him the money on the following Saturday (three or four days later). Prior to receiving the money on Saturday, he testified that he told, among others, Archie Droggitis, Anthony Frenette and Herschel Lerman about his conversation with Mrs. Fredette. On that Saturday, he testified that Mrs. Fredette gave him the $3,500 and requested that he find somebody to kill her husband.

Before the cross-examination of Laverriere was read into evidence at the second trial, counsel for both sides met with the trial justice in chambers to discuss defense counsel's objections to reading the entire cross-examination into evidence. During the cross-examination at the first trial, defense counsel impeached Laverriere's direct testimony by establishing that he told the police in June of 1978 and subsequently testified before the grand jury that his meeting with Mrs. Fredette occurred in November of 1977. At the first trial, the trial justice ruled that, pursuant to M.R.Evid. 801(d)(1), ³ these witnesses could testify to prior consistent statements made by Laverriere to rebut a charge of recent fabrication arising from defense counsel's attack on the inconsistent dates. Defense counsel sought a ruling whether the trial justice would allow Droggitis, Lerman and Frenette to testify to Laverriere's prior statements if defendant deleted this portion of the cross-examination.

The trial justice first ruled that, notwithstanding his prior ruling, the statements would also be admissible to rebut the impending charge that Laverriere had an improper motive. His reasons for this ruling are not entirely clear. He seemingly accepted the State's argument that the cross-examination would imply Laverriere had a motive to point the finger at Mrs. Fredette to avoid taking the blame for Mr. Fredette's murder. Therefore, because these statements were made prior to the murder, he concluded that they were admissible to rebut the charge of improper motive. He alternatively ruled that the statements made by Laverriere to Frenette, Lerman and Droggitis were admissible as statements against interest pursuant to M.R.Evid. 804(b)(3). Subsequently, over defendant's objections in each case, Frenette, Lerman and Droggitis were allowed to testify in the State's case in chief to statements by Laverriere concerning his meeting with Mrs. Fredette and her solicitation that he find somebody to kill her husband. On appeal, defendant claims the trial justice erred by allowing these witnesses to testify to those statements by Laverriere.

a. Statements against Interest ⁴

The trial justice did not clearly state his basis for admitting these statements as statements against Laverriere's penal interest. He seemingly ruled that the statements would tend to subject Laverriere to a charge of theft by deception, 17-A M.R.S.A. § 354 (1983), because Laverriere told Frenette, Lerman and Droggitis that he would take the money from Mrs. Fredette without intending to fulfill his promise to find someone to kill her husband if Mrs. Fredette came up with the money. In the circumstances of this case, we conclude that the trial justice erroneously admitted these statements as statements against penal interest.

To be admissible under Rule 804(b)(3), the statement must be against interest at the time it is made. Jolicoeur v. Kennebec Water District, 356 A.2d 193, 195 (Me.1976); Field & Murray, Maine Evidence § 804.4, at 240 (1976); See also Merritt v. Chonowski, 58 Ill.App.3d 192, 15 Ill.Dec. 588, 373 N.E.2d 1060 (1978); State v. Haywood, 295 N.C. 709, 728-30, 249 S.E.2d 429, 441-42 (1978) (addressing this requirement in context of declarations against penal interest offered to exculpate defendant); 5 Wigmore, Evidence §...