State v. George

• Decision Date: 03 May 2012
• Docket Number: Docket No. YOR–10–577.
• Citation: 52 A.3d 903,2012 ME 64
• Parties: STATE of Maine v. Darlene GEORGE.
• Court: Maine Supreme Court

52 A.3d 903

2012 ME 64

STATE of Maine

v.Darlene GEORGE.

Docket No. YOR–10–577.

Supreme Judicial Court of Maine.

Argued: Feb. 16, 2012.

Decided: May 3, 2012.

Stuart W. Tisdale, Jr., Esq. (orally), Tisdale & Davis, P.A., Portland, on the briefs, for appellant Darlene George.

William J. Schneider, Attorney General, and Donald W. Macomber, Asst. Atty. Gen. (orally), Augusta, on the briefs, for appellee State of Maine.

Stuart W. Tisdale Jr., Esq., argued, for appellant Darlene George.

Donald W. Macomber, Asst. Atty. Gen., argued, for appellee State of Maine.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

ALEXANDER, J.

[¶ 1] Darlene George appeals from a judgment of conviction of intentional or knowing murder, 17–A M.R.S. § 201(1)(A) (2011),¹ and conspiracy to commit murder (Class A), 17–A M.R.S. § 151(1)(A) (2011), ² entered in the Superior Court (York County, Brennan, J.) following a joint jury trial.³

[¶ 2] George argues on appeal that (1) the court erred when it denied her motion to suppress her grand jury testimony; (2) the court erred in denying Jeffrey L. Williams's motion to sever the trial; (3) the indictment was insufficient; (4) the evidence was insufficient to support the conviction of murder and conspiracy to commit murder; and (5) because the State relied heavily on the testimony of a cooperating witness, the conviction was fundamentally unfair.

[¶ 3] George also argues, similarly to Williams's arguments on appeal, that the court erroneously prohibited cross-examination of the cooperating witness regarding his prior arrests and the prosecutor improperly vouched for the cooperating witness's credibility. Because we addressed these issues in detail in the companion opinion, State v. Williams, 2012 ME 63, ¶¶ 41–48, 52 A.3d 911, we do not discuss them further in this opinion.

[¶ 4] We affirm the judgment.

I. CASE HISTORY

[¶ 5] The history of this case is described in greater detail in State v. Williams, 2012 ME 63, 52 A.3d 911, which is published concurrently with this opinion. On June 20, 2008, at approximately 1:00 a.m., during a simulated home invasion, two intruders murdered George's husband in his home in Old Orchard Beach. Approximately one week prior to the murder, George had conspired with Williams, her brother, and Rennie Cassimy, a self-described “gigolo” with whom she was having an affair, to execute the simulated home invasion with the intent to murder the victim.

[¶ 6] During the course of the investigation, George testified, pursuant to subpoenas, before the York County grand jury on July 7, 2008, and on September 2, 2008. At each proceeding, George was not advised of her right to decline to answer questions because of a risk of self-incrimination, and she was not informed that she was a potential suspect in the case. By the time of her grand jury appearance on September 2, George was a focus of the State's investigation as a potential suspect in the homicide.

[¶ 7] Following the grand jury proceedings, Williams and Cassimy were indicted for the intentional or knowing murder, 17–A M.R.S. § 201(1)(A), or depraved indifference murder, 17–A M.R.S. § 201(1)(B), of the victim on September 5, 2008. In a superseding indictment on March 4, 2009, they were charged with an additional count of conspiracy to commit murder, 17–A M.R.S. § 151(1)(A). George was also indicted on March 4, 2009, for the intentional or knowing murder, 17–A M.R.S. § 201(1)(A), or depraved indifference murder, 17–A M.R.S. § 201(1)(B), of the victim and conspiracy to commit murder, 17–A M.R.S. § 151(1)(A). George, Williams, and Cassimy pleaded not guilty to both counts.

[¶ 8] After George's indictment, pursuant to M.R.Crim. P. 8(b), the State filed a notice of joinder to join George, Williams, and Cassimy as codefendants in one trial. Williams filed a motion to sever his trial from George and Cassimy's trial, which the motion court denied.

[¶ 9] On August 5, 2009, George filed a motion to suppress her grand jury testimony on the grounds that (1) she was not advised of her right to decline to answer questions; (2) she was not informed that she was a “target” in the case; (3) her testimony was compelled; (4) she did not have the benefit of counsel; and (5) as a result, her testimony was involuntary. After a hearing, the court denied George's motion to suppress her grand jury testimony. The court reasoned that “[t]here is no constitutional requirement that a subpoenaed witness, including a potential target witness of grand jury action, be given the equivalent of a Miranda warning before testifying ... [and] Ms. George had access to legal counsel concerning Grand Jury matters before her appearance.”

[¶ 10] George and Williams's trial began in June 2010. Cassimy, who had entered an agreement to plead guilty to conspiracy and cooperate with the State, testified in detail to the codefendants' conspiracy and their role in the murder of the victim. George exercised her right not to testify; Williams did testify. Williams testified that he traveled to Maine to visit George on June 19, 2008; however, on the night the victim was murdered, he was in a motel sleeping. He also testified that he had no knowledge regarding who murdered the victim.

[¶ 11] In addition to the charges of murder and conspiracy for which George was indicted, the court instructed the jury on the elements of accomplice liability, pursuant to 17–A M.R.S. § 57(3) (2011).⁴ The jury returned a verdict finding George and Williams guilty on both counts. The court sentenced George to forty years for murder and thirty years for conspiracy, to be served concurrently. The court sentenced Williams to life in prison for murder and thirty years for conspiracy, also to be served concurrently. Both defendants filed timely appeals.

II. LEGAL ANALYSIS

A. Denial of Motion to Suppress

[¶ 12] George argues that the court erred in denying her motion to suppress her grand jury testimony because her statements were involuntary. In support of this, George asserts that she was not advised of her privilege against self-incrimination, she was not informed that she was a suspect, she testified under compulsion, and the grand jury proceeding is an inherently coercive setting.

[¶ 13] “We review the denial of a motion to suppress for clear error as to factual findings and de novo as to issues of law.” State v. Dodge, 2011 ME 47, ¶ 10, 17 A.3d 128.

1. Grand Jury Witnesses and the Privilege Against Self–Incrimination

[¶ 14] The Fifth Amendment to the United States Constitution provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. In the Maine Constitution, Article I, section 6 guarantees that “[t]he accused shall not be compelled to furnish or give evidence against himself or herself.” Me. Const. art. I, § 6.

[¶ 15] The privilege against self-incrimination extends to grand jury proceedings. United States v. Washington, 431 U.S. 181, 186, 97 S.Ct. 1814, 52 L.Ed.2d 238 (1977); Counselman v. Hitchcock, 142 U.S. 547, 562, 12 S.Ct. 195, 35 L.Ed. 1110 (1892) (providing that the objective of the privilege against self-incrimination is “to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime”). Because “the Constitution does not forbid the asking of criminative questions,” the grand jury witness must invoke the privilege to benefit from its protection. United States v. Mandujano, 425 U.S. 564, 574, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976); see State v. Richard, 1997 ME 144, ¶ 12, 697 A.2d 410. That said, the privilege against self-incrimination“does not preclude a witness from testifying voluntarily in matters which may incriminate him.” United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 87 L.Ed. 376 (1943).

[¶ 16] The United States Supreme Court has indicated that the Fifth Amendment does not require that a grand jury witness be given the full panoply of warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), prior to testifying before the grand jury. See Mandujano, 425 U.S. at 580–82, 96 S.Ct. 1768. Further, there is no constitutional mandate that a grand jury witness be informed that she is a “target” of an investigation that is subject to grand jury consideration. See Washington, 431 U.S. at 189, 97 S.Ct. 1814 (“Because target witness status neither enlarges nor diminishes the constitutional protection against compelled self-incrimination, potential-defendant warnings add nothing of value to protection of Fifth Amendment rights.”).

[¶ 17] Whether the Constitution requires that a witness who is, in fact, a target of a grand jury investigation, but has not yet been charged with a crime, be issued a warning informing her of her Fifth Amendment right not to answer incriminating questions during the investigation has not been decided. See Washington, 431 U.S. at 190, 97 S.Ct. 1814 (“Since warnings were given, we are not called upon to decide whether such warnings were constitutionally required.”); Mandujano, 425 U.S. at 582 n. 7, 96 S.Ct. 1768 (“[t]he fact that warnings were provided in this case to advise respondent of his Fifth Amendment privilege makes it unnecessary to consider whether any warning is required”); see also United States v. Myers, 123 F.3d 350, 360 (6th Cir.1997) (stating that the issue of what warnings may be required for grand jury target witnesses has not been decided); United States v. Gillespie, 974 F.2d 796, 802–03 (7th Cir.1992) (“Given the state of flux on this issue, we must determine whether the Advice of Rights form Gillespie received provided a constitutionally sufficient warning.”); 3 Wayne R. LaFave, Criminal Procedure § 8.10(d) at 258–61 (3d ed.2007).

[¶ 18] Although not compelled by precedent, the U.S. Department of Justice has instituted an internal policy that requires that a “target” of an...