State v. Harnish

• Decision Date: 08 June 1989
• Parties: STATE of Maine v. Ronald Allen HARNISH.
• Court: Maine Supreme Court

Page 5

560 A.2d 5

STATE of Maine v. Ronald Allen HARNISH.

Supreme Judicial Court of Maine.

Argued Nov. 14, 1988.

Reargued May 2, 1989.

Decided June 8, 1989.

James E. Tierney, Atty. Gen., Leanne Robbin, (orally), Asst. Atty. Gen., Augusta, for plaintiff.

Perry O'Brian (orally), Vandermeulen, Goldman, Allen & O'Brian, Bangor, for defendant.

Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD, HORNBY and COLLINS, JJ.

HORNBY, Justice.

From a jury trial in Superior Court (Penobscot County, Beaulieu, J.), Ronald Allen Harnish appeals his conviction of murdering Frederick Desjardins. We affirm.

Between 7:00 and 7:30 p.m. on March 22, 1986, while walking their dog, Mr. and Mrs. Barry, Frederick Desjardins's next-door neighbors, heard two loud noises come from his house. Immediately thereafter they saw two people walk out of Desjardins's house, one following the other. Mr. Walton, Desjardins's next-door neighbor on the other side, also heard two loud noises resembling a slamming door come from Desjardins's house sometime between 7:00 and 8:00 P.M., but closer to 7:00. At approximately 10:00 P.M., Ms. Wentworth, a friend of Desjardins, discovered his body on the floor of his house with blood around his head. She called the police. When the police arrived they checked the body for signs of life and found it cold and stiff. The medical examiner testified that gunshot wounds to Desjardins's neck and abdomen caused his death. It was later determined that the weapon was a .41 magnum handgun.

The police found some ripped-up paper in Desjardins's trash. It contained a list of names with dollar figures. On the list the figure of $1,065 was written next to the name Ron. Ronald Harnish testified that around March of 1986 he may have owed Desjardins $1,065 for cocaine and marijuana. Donald Coffin testified that he and Harnish purchased cocaine from Desjardins on credit and paid him back as they sold the cocaine.

Donald Coffin testified to the following account of the murder. While at Coffin's trailer at 6:30 on the evening in question, Harnish took a .41 magnum handgun that Coffin kept in the desk drawer. Harnish told Coffin that he wanted to kill Desjardins. Coffin and Harnish left the trailer and drove to Desjardins's house in Orono. When they arrived at approximately 7:00 P.M., they went into the living room where the television was on. Harnish went into the bathroom. A few moments later, Desjardins went into the room adjacent to the bathroom. In rapid succession Coffin heard a shot, a scream from Desjardins, and a second shot. Harnish told Coffin to take Desjardins's wallet, and he did so. Coffin wanted to go home but Harnish told him that they had to be seen. They went to the home of Pat Almenas where they arrived at approximately 7:45, and later to a succession of other places.

Harnish gave a different version of the evening's events in his testimony. After the day's activities, he and Coffin arrived back at the trailer at 6:00 P.M. and remained there until approximately 7:00 P.M. While at the trailer Harnish took a shower and changed his clothes. He denied taking Coffin's handgun and denied saying that he was going to kill Desjardins. Harnish testified that from the trailer he and Coffin went directly to Pat Almenas's house. Harnish further testified that he did not learn that Desjardins had been shot until Nancy Langan called him on Sunday, March 23, at his parents' home. Nancy Langan testified that when she told Harnish that Desjardins had been shot and killed, Harnish "couldn't believe it any more than the rest of [them]." She also testified that after she accompanied Harnish to the police barracks, Harnish told her that "Fred had been shot in the side and in the mouth, and that apparently a bullet grazed his leg," and that he had been shot with "either a .44 or a .41 caliber." Harnish testified that he acquired this knowledge from the police during his interview. Detective Zamboni, who conducted the interview, testified that he never informed Harnish of either detail.

Negative Fingerprint Report

The State neglected to turn over a police fingerprint analysis to Harnish until after the trial, an admitted discovery violation. The analysis involved 29 items seized from Desjardins's house. None of them revealed any of Harnish's fingerprints. The report was prepared by a detective before the trial, but due to a vacation was not typed up and made available to the prosecution until after the trial. It thus did not reach Harnish's lawyer. The trial court denied Harnish's motion for a new trial.

As Harnish recognizes, the imposition of sanctions for a breach of M.R.Crim.P. 16 is committed to the discretion of the trial court. State v. Reeves, 499 A.2d 130, 133 (Me.1985). We find no abuse of discretion in the court's refusal to grant a new trial here. During the trial, Harnish's lawyer asked a detective on the stand how many items were seized and sent for fingerprint analysis. Then, in his closing argument, he pointed out to the jury that the State had not provided any fingerprint evidence resulting from the analysis. At the hearing on the motion for a new trial, Harnish's trial lawyer testified that the negative fingerprint report would not have helped the defense, because the fingerprints were not taken from items in areas where Donald Coffin had placed Ronald Harnish during the events in the house. ¹ Thus, the discovery violation was not so prejudicial that the trial court was required to grant a new trial. State v. Landry, 459 A.2d 175, 177 (Me.1983).

Likewise, we find no violation of Harnish's due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because we conclude that the report was not material:

The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.

United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). The absence of Harnish's fingerprints on these five items simply does not rise to that level.

Polygraph Reference

During the testimony of Nancy Langan, the prosecution questioned her regarding Harnish's reaction to his interview with the police.

Q. ... And did he say anything to you when he was finished with his interview?

A. That he was upset.

Q. Did he say why he was upset?

A. They were trying to say that--they wanted him to take a lie detector test.

No objection was raised. After posing several additional questions, the prosecution asked:

Q. Now, you said that after this interview he came out, and I guess you were already done, and he said that he was upset?

A. Yes.

Q. Did he say why he was upset again?

At this point Harnish's lawyer requested a sidebar conference, objected to the question and moved for a mistrial because of the polygraph reference. He explained that he had not moved for a mistrial earlier in order to avoid focusing the jury's attention on the remark. The prosecutor explained that he had anticipated that the witness would testify that Harnish said he was upset because the police had accused him of involvement in the homicide. The presiding justice responded, "You're skating on thin ice, .. Do you want to withdraw the question?" The prosecutor withdrew the question, no curative instruction was requested and the court denied Harnish's motion for a mistrial.

Under our precedents, "the results of polygraph tests and a party's willingness or unwillingness to take such a test are inadmissible," State v. Trafton, 425 A.2d 1320, 1322 (Me.1981), because of our view that such tests have a "non-existent value" when it comes to determining credibility. Heselton v. Wilder, 496 A.2d 1063, 1066 (Me.1985) (quoting State v. Mottram, 158 Me. 325, 330, 184 A.2d 225, 228 (1962)). Nevertheless, we have refused to adopt any per se rule "requiring a mistrial for any reference by a witness to the fact that he or she has taken such a test." State v. Edwards, 412 A.2d 983, 984 (Me.1980) (emphasis supplied). Instead, we have stated that if the reference to a polygraph is inadvertent, "there is cause for a mistrial if, but only if, the reference to the test raises an inference about the result that substantially prejudices the defendant's case." Id. at 985 (citations omitted).

In reviewing denials of mistrials, we review solely for abuse of discretion because of the trial court's "superior vantage point in assessing the impact of objectionable testimony." State v. Jones, 523 A.2d 579, 581 (Me.1987). Such an abuse occurs "only where there is a reasonable possibility that the objectionable evidence might have been a contributing factor productive of a guilty verdict." State v. Hilton, 431 A.2d 1296, 1302 (Me.1981). We have stated repeatedly that:

The trial court should deny a motion for mistrial except in the rare case when the trial cannot proceed to a fair result and no remedy short of a new trial will satisfy the interests of justice. The determination by the trial court of whether the exposure to potentially prejudicial extraneous evidence incurably tainted the verdict of the jury stands unless clearly erroneous.

State v. Mason, 528 A.2d 1259, 1260 (Me.1987); accord, State v. Allard, 557 A.2d 960 (Me.1989); State v. Baker, 423 A.2d 227, 231 (Me.1980). These are strong words and we see no reason to step back from them when considering references to a possible polygraph test.

Applying the analysis of our case law, we first observe in accordance with Edwards that the polygraph inference here was unintentional: the testimony at trial concerning a test was a surprise to everyone. Second, under Edwards the evidence raises no inference about possible test results: there was absolutely no reference to test results or unwillingness to take the test or even faltering by Harnish when asked to take a test....