State v. Gagne

• Decision Date: 21 July 1976
• Parties: STATE of Maine v. Gregory GAGNE.
• Court: Maine Supreme Court

Page 166

362 A.2d 166

STATE of Maine v. Gregory GAGNE.

Supreme Judicial Court of Maine.

July 21, 1976.

Donald H. Marden County Atty., Joseph M. Jabar, Dist. Atty., Robert S. Raymond, Asst. Atty. Gen., Fernand Martineau, Law Student Intern, Augusta, for plaintiff.

Alan C. Sherman, Waterville, for defendant.

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

DELAHANTY, Justice.

A Superior Court (Kennebec County) jury found Gregory Gagne guilty of armed assault and battery ¹ and assault with intent to kill by one armed with a dangerous weapon ² in connection with an incident which took place in Augusta on Christmas Eve in 1973. The presiding Justice sentenced Gagne to serve two concurrent terms at State Prison of not less than ten nor more than twenty years. The defendant has appealed both convictions to this Court.

We deny the appeal.

The jury could have found these facts:

At approximately 6:00 p.m. on December 24, 1973, Frederick Larrabee locked the door of his fish market ('Augusta Sea Food') on North Belfast Avenue in Augusta and, accompanied by two acquaintances, William and Ernest O'Conner, turned to walk to his truck which was parked along one side of the building. Larrabee had the fruits of the day's business-including over $5,000 in cash-on his person. Larrabee and Ernest O'Conner reached the truck first and seated themselves in the driver's and passenger's seats, respectively. As William O'Conner prepared to enter the vehicle, he noticed a man, subsequently identified as Gregory Gagne, emerge from behind a service station across the street and run quickly in the direction of the truck with one hand extended toward the truck. Sensing trouble, William O'Conner prudently secreted himself in some conveniently-situated bushes. When the man whom William O'Conner had observed, reached the truck, he swung open the door on the passenger's side, warned Ernest O'Connor to mind his own brsiness, and pointed a handgun directly at Larrabee. Larrabee leaped from the truck and attempted to flee. After he had travelled a short distance, he slipped on some ice. When he arose, he was once again face-to-face with the man with the gun. As Larrabee turned to run in the opposite direction, he was shot in the left side of his back and fell to the ground. The bullet penetrated the victim's body and exited through his chest. When Larrabee got up, his assailant had vanished. The victim managed to make his way back to the fish market, pick up the phone and request an ambulance before losing consciousness.

Several hours before the above-described events occurred, Gagne had made a remark in the presence of several of his cohorts to the effect that 'if he pulled an armed robbery and somebody didn't give up the money, . . . he would blow their chest off, or put a hole in their chest, or something.'

On the evening of December 26, 1973-two days after the incident at Augusta Sea Food occurred-Gagne was heard by two of his colleagues to admit that he was the individual who had shot Larrabee.

The defendant was separately indicted for armed assault and battery, assault with intent to kill by one armed with a dangerous weapon, and 'attempted armed robbery.' The latter indictment was dismissed on the defendant's motion during the course of the trial after the court brought to defense counsel's attention the fact that such indictment was generally vague.

We may now turn to the several points of appeal raised by the appellant. ³

I.

Before one Gerald Barber, a witness for the State, took the stand, the defendant's counsel notified the presiding Justice that Barber would testify as to an incriminating remark allegedly made by the defendant on the afternoon of December 24, shortly before the shooting took place, and apparently requested that the court conduct a hearing, out of the presence of the jury, to determine the admissibility of such testimony. ⁴ The Justice declined to adopt this procedure, stating 'I cannot see any benefit to be gained by having this testimony stated to myself in the absence of the jury . . ..' There then followed this colloquy between defense counsel and the court:

MR. DAVIAU: I am protected on the record as far as my objection is concerned?

THE COURT: Yes. Your objection is noted, that you object to this testimony, and when we come to it, too, just rely on what you have been saying. You just get up and make an objection at that time, that this is the particular testimony you would like to object to and, of course, I will have a chance to hear exactly what was said, which may be a little different than what I have gotten in conference in chambers, and I will rule on it then.

On direct examination of Barber by the State, this exchange took place:

MR. MARDEN: And whether or not on that day, the afternoon of the 24th, you had any discussion with (the defendant) in regard to armed robberies?

MR. DAVIAU: Objection, for the record.

THE COURT: The objection is overruled and you may answer.

THE WITNESS: Yes, I did.

MR. MARDEN: And what was that discussion? Where were you at that time?

THE WITNESS: We were leaving Nielson's Sporting Goods Store. We were just pulling out actually. He was talking about, talking to everybody in the car in general, that if he pulled an armed robbery and somebody didn't give up the money, he said he would blow their chest off, or put a hole in their chest, or something.

The appellant has in shotgun fashion presented us with a variety of reasons why this testimony by Barber ought to have been excluded. We need only respond that we have considered the defendant's arguments and find each and every one to be without merit.

As a general matter, '(E)vidence of antecedent threats is admissible when they are directed at the victim for whose assault the defendant is being prosecuted or at a class to which the victim belongs.' State v. Eaton, Me., 309 A.2d 334, 338 (1973). Insofar as it was a necessary part of the State's case to prove Gagne's intent at the time he committed the acts of which he stood accused, Barber's testimony as to the threatening statement made by the defendant shortly before the shooting was pertinent to the defendant's subsequent intent. ⁵ There was clearly a 'close logical connection,' Eaton, supra, between the threat made by Gagne and the offenses for which he was on trial.

The admissibility of this evidence ultimately raises a question of relevancy. Eaton, supra. The relevancy of evidence is a determination which is for good reason left to the discretion of the presiding Justice. State v. Westphal, Me., 349 A.2d 168, 171 (1975). The Justice here did not abuse his discretion by permitting Barber to testify as to the defendant's antecedent threat.

II.

Gerald Barber testified on direct examination that on December 26, 1973, Gagne admitted to his that he had shot Larrabee. During cross-examination by the defense, the witness was asked, 'Do you recall when you first told the police about this?' This exchange ensued:

THE WITNESS: Yes, I believe I do.

MR. DAVIAU: All right.

THE WITNESS: Do you want to hear when it was?

MR. DAVIAU: Yes.

THE WITNESS: I believe the first time I told them was the day I took a polygraph test at the State Police Barracks.

Defense counsel moved for a mistrial at this juncture, which motion was denied by the presiding Justice with this comment:

The Jury will disregard the statement made by the witness concerning the takng of a polygraph test, and we don't know what it was about, whether it concerned something else or what, so I don't think it means a mistrial.

The defendant argues that his motion for a mistrial should have been granted. Our inquiry, of course, is limited to whether the Justice below abused his discretion in denying the motion. State v. Kelley, Me., 357 A.2d 890, 898 (1976); State v. Gagne, Me., 349 A.2d 193, 198 (1975). We find no abuse of judicial discretion in the denial of the instant motion.

The defendant's position seems to be that he should automatically have been granted a mistrial upon Barber's mention that he had taken a polygraph examination. We decline to adopt such a mechanical approach. While this Court has taken a firm stand against the admission into evidence of results of lie detector tests, State v. Mower, Me., 314 A.2d 840 (1974), we have not gone so far as to hold that a defendant be awarded a new trial merely because a witness for the State refers to the fact that he has taken such a test. See State v. Gagne, Me., 343 A.2d 186, 190-92 (1975).

Barber simply stated that at some time prior to the trial he had taken a lie detector test. There was no suggestion, as the presiding Justice quickly pointed out to the jury, that the polygraph examination which was administered to Barber bore any relation whatsoever to the instant case. Nor did Barber indicate whether he had 'passed' or 'failed' the test. In these circumstances, it seems to us that the possibility that the defendant was prejudiced by the reference to the polygraph examination is minimal. In any event, 'The presiding Justice was present and could better judge whether the incident would be likely to adversely affect the defendant than may this Court from the cold stark pages of the record or the assertions of counsel by way of oral argument.' Gagne, supra, 349 A.2d at 198.

Finally, and although we would sustain the presiding Justice's denial of the motion for a mistrial even if Barber's mention of the lie detector test were inadvertent, we cannot overlook the distinct impression which emerges from the record that the witness's reference was 'invited' by the defense. The record is clear that the defense had been informed prior to trial that Barber had been administered a polygraph examination. The context in which the reference was made suggests that Gagne's counsel knew all too well what answer to expect when he asked Barber to relate the circumstances under which he had informed the police of Gagne's statement that he...