State v. Gagne

• Decision Date: 11 August 1975
• Citation: 343 A.2d 186
• Parties: STATE of Maine v. Gregory GAGNE.
• Court: Maine Supreme Court

Page 186

343 A.2d 186

STATE of Maine v. Gregory GAGNE.

Supreme Judicial Court of Maine.

Aug. 11, 1975.

Donald H. Marden, County Atty., Joseph M. Jabar, Dist. Atty., Augusta, for plaintiff.

Alan C. Sherman, Waterville, for defendant.

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

WEATHERBEE, Justice.

In March of 1974 a Kennebec County jury found the defendant guilty of robbery while armed with a firearm ¹ and of assault while armed with a firearm. ² The two offenses were tried together and the victims alleged were a son and father, respectively. On appeal, the defendant claims prejudicial error involving the testimony of two of the State's witnesses, a Mr. Barber and a Miss Grant, each of whom testified that the defendant had described to them his direct participation in the crimes. We deny appeals.

Apart from the testimony of Mr. Barber and Miss Grant, there was evidence from which the jury could have found as follows:

In the early evening of December 7, 1973, Timothy Cote, a 16-year-old boy, was collecting rental money from his father's tenants on Autumn Street in Gardiner. As he stepped out of one particular building into the darkness he had in one hand four copies of receipts he had given and in the other a bank bag containing some $700.00 in money. He was suddenly confronted by a man whose face was covered by a nylon stocking and who displayed a handgun and demanded the money. The boy surrendered the money bag and also handed the robber the receipts. The robber ordered the boy to crawl under the boy's pickup truck. As the boy was complying two things happened. The robber abruptly peeled off the nylon stocking, the friction causing his somewhat light hair, which was 'fairly long', to 'stand out straight'. Another vehicle which the boy recognized as that of his father drove into the yard. The robber turned and ran out to the street and then north down the side of the street. Mr. Cote backed his car into the street and pursued the robber, losing him at the corner of Autumn and Spring Streets. Then, seeing a car parked on Spring Street, he drove up beside it. He observed this to be a red car with a black top, a two-door sedan or coupe, and saw that a man with 'very bleached bushy hair' sat behind the wheel. Mr. Cote left his car and had started towards this person when another man appeared, standing on the opposite side of the red and black car, aiming a handgun at Mr. Cote over the top of the car. This person told Mr. Cote, profanely, to leave the scene and as Mr. Cote got back into his car he heard two gun shots and the sound of two bullets striking his vehicle. As he drove away, he saw the robber's car turn and disappear up Spring Street.

In the meantime, an observant lady living on Spring Street had looked out of her window toward the corner of Autumn and Spring Streets. She saw a young man running fast down Autumn Street with his hair 'sticking all up straight from his head.' As he turned the corner he nearly ran into a tree. Mr. Cote's vehicle appeared in view only seconds behind him. Seconds later, she heard two gunshots and she law Mr. Cote's vehicle driving away and a red and black car was turning around and then drove off in the other direction past her house. This lady had made a hobby of identification of makes and models of automobiles and she believed this car to be a Ford manufactured in 'the late 60's'.

A police officer who arrived soon at the scene found the four rent receipts lying in Autumn Street in front of the house from which the lady had made her observations.

There was admitted into evidence a certified copy of the 1973 registration of a 1969 Ford Torino red and black two-door convertible in the name of Gregory Gagne.

Neither Mr. Cote nor his son identified the defendant as the robber, whom each had seen only momentarily in the darkness. The boy admitted that his impression was that the robber was older and larger (200 pounds) than the defendant appeared to be He explained, '. . . (B)ut I was scared. I just looked at that gun a lot.' Mr. Cote had seen the man briefly in the lights of his car while he was running down the street and again briefly at the red and black car. His impression was that the robber was much smaller (140 to 145 pounds) than his son had described him and that his hair was dark. The record does not show the defendant's height or weight or the color of his hair.

It is safe to say that the jury could not properly have found the defendant guilty of either offense but for the testimony of either Mr. Barber or Miss Grant. Because of the crucial nature of their testimony, we must analyze with particular care its significance and the manner in which the portions now in question came to be presented to the jury.

Defendant's Contention That the State Was Permitted to 'Bolster' the Credibility of its Witness Barber

The jury could find that:

The robbery took place at about 5:30 p. m., December 7, 1973. Shortly after this, Mr. Barber was convicted of an unrelated felony and was confined to jail as a result of his inability to furnish bail. About four or five days later, he was admitted to bail but on December 26 his bondsmen returned him to the Sheriff. Soon after this, the police came to the jail and asked him if he had any information concerning the Cote robbery. Mr. Barber told them that the defendant had told him of his commission of the crime and that he, Barber, would testify to what he knew about it if the police would assist him in getting his bail reduced.

The police indicated a willingness to co-operate but nothing came from this proposal as on December 31 Mr. Barber was able to furnish bail in the original amount. On January 2, Mr. Barber was arrested on another charge in Piscataquis County and was being held in jail there on January 18 when Augusta Police took him from the jail temporarily to bring him to Augusta for a polygraph test concerning another, unrelated crime. Following this, Mr. Barber was taken to the Augusta Police Department where he made and signed a statement in which he said that within an hour or an hour and a half after the Cote robbery he met the defendant and one Wheelock in the Colonial Restaurant and that the defendant told him, in some detail (which Barber related), that he and Wheelock had just committed the Cote robbery. The police, in return, with the County Attorney participating, agreed to help him get reduced bail in Piscataquis County and he was released there on January 21. On January 29 he was back in jail on another charge. He frankly admitted that his motive for aiding the police was to get out of jail.

At trial, Mr. Barber testified at length concerning his conversation with the defendant and then the County Attorney proceeded to inquire concerning the agreement Mr. Barber and the law enforcement officers had made that Mr. Barber would testify in consideration for the State's help concerning bail. At this point, the defendant's counsel objected, contending that

'He is bolstering his witness by showing this is all above board, and in an effort to steal the thunder from the defense, which is prejudicial. This testimony was educed as a result of promises made, which I would guess is what he is trying to get into.'

Defense counsel's frank statement was matched in candor by the County Attorney's statement:

'No. No, I am trying to disclose fully that this man has an agreement with the County Attorney's office for his testimony, and charges were brought against him, and questions of bail were determined in his favor at the time that he made this written statement.'

The presiding Justice permitted the testimony concerning the agreement to be given to the jury. There was no error.

The circumstances under which the witness was giving this testimony were relevant to the witness's credibility and were matters proper for the jury's consideration. The defendant's objection is, in essence, that he was not permitted to be the first to disclose it.

The disclosure by either party could be expected to effect some reduction of the witness's credibility. If the State had not been permitted to disclose the circumstances of the witness's willingness to testify and if the defense revealed it on cross-examination, the jury would very likely have also received the impression that the State had tried to deceive the jury by concealing the self-serving nature of the informant's motivation. Such an impression would have been contrary to the actual situation and a hindrance to an informed and reasoned evaluation of the testimony by the jury. The effect of the Justice's ruling was not to permit the State to 'bolster' the credibility of the witness but to place in their true light the circumstances under which Mr. Barber's testimony was offered by the State. The Justice did not abuse his discretion in admitting it.

The Witness's Reference to Another Crime

In the course of divulging through Mr. Barber the agreement the law enforcement officers had made with Mr. Barber, the County Attorney asked the witness what he recalled about a discussion between the witness and the law enforcement officers in the Waterville Police Station concerning the consideration the County Attorney's office would give Mr. Barber in exchange for a statement from him relating to the Cote robbery, and the witness answered:

'There was a discussion on Larrabee's Fish Market.'

Defense counsel immediately moved for a mistrial, asserting to the Justice at side bar that there had been a robbery of Larrabee's Fish Market less than three months before and that the defendant was under indictment for that crime also. The Justice denied the motion stating that he felt no prejudice had resulted to the defendant, that he, himself, had been unaware that the defendant had been one of those charged with participation in it and that he had drawn no such conclusion from the witness's statement. We agree with the Justice's evaluation of...