State v. Marshall

• Decision Date: 25 April 1985
• Citation: 491 A.2d 554
• Parties: STATE of Maine v. Michael E. MARSHALL and Robert A. Marshall.
• Court: Maine Supreme Court

Page 554

491 A.2d 554

STATE of Maine v. Michael E. MARSHALL and Robert A. Marshall.

Supreme Judicial Court of Maine.

Argued March 13, 1985.

Decided April 25, 1985.

Charles K. Leadbetter, Wayne S. Moss, (orally), Asst. Attys. Gen., Augusta, for plaintiff.

Ricky L. Brunette, (orally), Portland, for Michael Marshall.

John S. Jenness, Jr., (orally), Craig E. Turner, South Paris, for Robert Marshall.

Before McKUSICK, C.J., and NICHOLS, VIOLETTE, WATHEN, GLASSMAN and SCOLNIK, JJ.

WATHEN, Justice.

Michael E. Marshall and Robert A. Marshall appeal from jury verdicts in the Superior Court (Oxford County) convicting them of the murder of Truman Dongo. 17-A M.R.S.A. § 201(1)(A) (1983). On appeal, each defendant contends that the Superior Court erred in the following respects: 1) in denying their motions to dismiss without prior review of the grand jury minutes to determine if the grand jury's indictment was founded upon probable cause; and 2) in denying their motions to exclude witness Michael Perry's testimony. Defendant Robert Marshall also argues that the Superior Court 1) erred in denying his motion for arrest of judgment and part of his motion for a new trial; and 2) in denying his motion for a new trial on the grounds of newly discovered evidence. We find no error and deny the appeal.

I.

On September 21, 1983, Truman Dongo disappeared from his home in Falmouth, Maine. He was last seen by his son, Kenneth, and Sabrina Shaw at his home in the company of the defendants and Lisa Morelli in the early morning hours of September 21, 1983.

On October 15, 1983, Truman Dongo's body was found near a logging road in Stow, Maine. Authorities performing an autopsy and forensic examination determined that Truman Dongo died on or about September 21, 1983 of three or four gunshot wounds from at least two weapons. On October 17, 1983, the Portland police received a telephone call from a Michael Perry of Florida, who said he knew who had killed Truman Dongo. He implicated Michael E. Marshall, Robert A. Marshall, and Lisa Morelli, and all three were subsequently arrested. Lisa Morelli subsequently gave a statement to the police. Upon the State's motion, her trial was severed from that of Michael Marshall and Robert Marshall.

At the defendants' four-day trial in May 1984, Lisa Morelli and Michael Perry supplied the bulk of the State's evidence against the defendants. From their testimony and the other evidence admitted at trial, the following facts were presented. Michael Marshall was an associate of Truman Dongo's in the cocaine business and he owed Truman approximately eight thousand dollars. Approximately a week or ten days before September 21, 1983 Truman had tied Michael and held him at gunpoint because of that debt. On September 21, 1983, Lisa Morelli was with Michael Marshall at Truman Dongo's house, where Kenneth Dongo and Sabrina Shaw were also visiting. Later, Kenneth Dongo and Sabrina Shaw left and Robert Marshall arrived, leaving Truman Dongo alone with the defendants and Lisa Morelli. During the evening, everyone drank alcoholic beverages and used cocaine. At some point, Michael Marshall pulled out a pistol, told Truman Dongo that he was tired of his "bull," and tied him up. Michael told Lisa and Robert to search the townhouse; the two found and seized money and cocaine. Although Truman's hands were tied, he voluntarily walked out to a black Trans Am and someone directed him to the back seat. Lisa sat between Michael, who was driving, and Robert, in the front seat. During the drive, the group used "lines" of cocaine and conversed about "old times" between Michael and Truman. Eventually, Robert untied Truman and there were several stops made for soft drinks and beer.

The group arrived at Stow and pulled onto a logging road. Everyone, including Truman, got out of the car and walked around, looking for an earring that Lisa had lost. Lisa, Michael, and Robert were all armed. The group walked about fifty or sixty feet down the road from the car. At this point, Michael asked Lisa whether she was "going to do it." Michael posed this question four times, after which Lisa raised the gun and fired in the "general direction [of Truman]." She dropped her gun, which went off again, screamed, and ran back to the car. She then heard shots and observed Michael and Robert dragging Truman's body into the woods. Michael, Robert, and Lisa then left the scene and disposed of the guns. They proceeded to the Royal Hotel in South Portland where they counted Truman's money and got high on cocaine.

In the month before their arrest on October 18, 1983, Michael, Robert and Lisa stayed together at various hotels in Maine, New Hampshire, and Massachusetts. On approximately October 2, 1983, while staying in Peabody, Massachusetts, the three met with Michael Perry, an old friend of Michael Marshall's, who had arrived from Florida. Perry testified that he had journeyed to Boston at Michael Marshall's request. Shortly after arriving, he went with Michael Marshall to a motel room and joined Lisa Morelli and Robert Marshall. During the visit everyone "free-based" cocaine. Perry testified to certain inculpatory remarks made by each member of the trio while in the presence of the others.

On May 29, the jury returned verdicts of guilty as to each defendant. Before defendants were sentenced, on July 13, 1984, the separate trial of Lisa Morelli was held. At the Morelli trial, Michael Marshall testified for the first time concerning the facts underlying the charge contained in the indictment. Robert Marshall thereafter sought a new trial claiming his brother's testimony in the Morelli trial as newly discovered evidence. The Superior Court denied all motions and entered a judgment of conviction and sentence as to each defendant. The defendants now appeal to this Court.

II.

At the outset, both defendants argue that the presiding justice erred in denying their motions to dismiss the indictment and erred in failing to arrest judgment. The defendants argue that because the court refused to inquire into the sufficiency of the evidence presented to the grand jury, the proceedings against them were constitutionally flawed. We find no merit in this argument. We have repeatedly held that courts in this jurisdiction are not authorized to inquire into the sufficiency of the evidence on which the grand jury acted. State v. Heald, 307 A.2d 188, 190 (Me.1973); State v. Perkins, 275 A.2d 586, 587 (Me.1971); State v. Fitzherbert, 249 A.2d 760, 761-762 (Me.1969). We see no reason to depart from this well-established policy. ¹

III.

Each defendant contends that the presiding justice erred in denying his motion to exclude Michael Perry's testimony as to the remarks of the other defendant and Lisa Morelli while in the motel room. After an in camera examination of Michael Perry, the presiding justice ruled that the statements were admissible against each defendant as an adoptive admission.

During the in camera examination, Michael Perry testified that he, Michael Marshall, Robert Marshall, and Lisa Morelli were together at the motel room. Perry explained that he and Michael Marshall were sitting in chairs, and Robert Marshall was standing behind Michael Perry near the door to the bathroom; Lisa Morelli was picking up dirty laundry near the beds. Michael Marshall told Perry that he was with Lisa, Robert, and Truman in the woods, and that he (Michael) was planning to scare Truman, but that Lisa got out of control and shot Truman first. Perry further testified that Lisa affirmed that she had shot Truman first and had shot him "in the balls." Perry related that Michael Marshall stated his troubles were over. Toward the end of the conversation, Perry suggested "something about turning themselves in." In response, Robert picked up a bushmaster rifle from under the sheets and said, "[N]o one is going to take us in." Perry testified that throughout the conversation Robert Marshall was in the motel room and could hear the conversation. He did acknowledge the possibility that Robert might have stepped into the bathroom momentarily.

A. ADOPTIVE ADMISSIONS-ROBERT

The court ruled that Robert Marshall, by his statement, "[N]o one is going to take us in", had adopted all of the motel room statements of Michael Marshall and Lisa Morelli and "that Mr. Perry is going to be allowed to testify as to what he heard in that motel room, statements by Michael Marshall, Lisa Morelli, and Robert Marshall." Before the jury, Michael Perry gave essentially the same testimony he had given in the in camera hearing.

Defendant Robert Marshall contends that the presiding justice erred in admitting Lisa's and Michael Marshall's statements as against him, because that justice did not find beyond a reasonable doubt that Robert had adopted those statements.

Whether under M.R.Evid. 801(d)(2)(B) ² a party has manifested his assent to another person's statement is a preliminary question for the judge; the burden of proof is on the proponent to show that an adoption was intended. Field & Murray, Maine Evidence, § 801.5 at 194 (1976). In our previous cases interpreting adoptive admissions under M.R.Evid. 801(d)(2)(B), however, we have not expressly defined the proponent's burden of proof. ³ See, e.g., State v. Johnson, 472 A.2d 1367, 1371 (Me.1984); State v. McKenney, 459 A.2d 1093, 1097 (Me.1983); State v. Elwell, 380 A.2d 1016, 1020-21 (Me.1977).

At the outset, we note that the majority of appellate courts, in keeping with the general evidentiary principles governing preliminary questions, permit the trial judge to rule on the basis of his or her own factual inquiry. See, e.g., McCormack, Evidence § 270 at 653, § 53 (2d ed. 1972); 4 Weinsteins Evidence, p 801(d)(2)(B) at 801-200 (1984); United States v. Giese, 597 F.2d 1170, 1196 (9th Cir.1979), cert. denied 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979). The court should make a threshold determination that sufficient facts have been introduced...