State v. McDonough

Decision Date12 January 1976
Citation350 A.2d 556
PartiesSTATE of Maine v. John McDONOUGH.
CourtMaine Supreme Court

Henry N. Berry III, Dist. Atty., Richard J. Kelly, Peter G. Ballou, Asst. Dist. Attys., Portland Alvaro Smith-Ruiz, Law Student, for plaintiff.

Bennett, Kelly & Zimmerman, by Peter J. DeTroy III, Portland, for defendant.



On March 4, 1974, at approximately 8:30 P. M., a man masked by a nylon stocking entered the P & J variety store in Portland, Maine. His right arm was extended and his hand was covered by a newspaper. The only other person in the store was a clerk, whom the masked man ordered to empty the cash drawer. After the robber fled with the proceeds of his crime, the clerk notified the police and identified the defendant, John McConough, as the robber. The defendant was arrested shortly thereafter.

After the clerk's reluctance to testify forced the postponement of the trial, the defendant was finally convicted of robbery in the Superior Court for Cumberland County. The only evidence against the defendant was the clerk's identification and testimony by the owner of the store that he had seen the defendant standing on the sidewalk in front of the store when he briefly visited the building about fifteen minutes before the robbery. He said the defendant was still there when he looked twice through the window, and the third time he looked the defendant was not in sight. The owner then left to go home and about five minutes later the robbery took place. Because of the crucial quality of the clerk's testimony, the defendant attempted to call its accuracy into question, stressing particularly the resemblance between the defendant and other members of his family. The clerk, however, repeatedly stated his certainty as to the identity of the robber and the defendant was found guilty.

A month after the trial and immediately before sentencing, the defendant presented his brother, Patrick McDonough, to the Court. Patrick McDonough informed the Court that it was he who had committed the robbery and that he was willing to plead guilty if a charge was brought against him. The skeptical presiding Justice tested Patrick's sincerity by telling him he would receive 10 to 20 years in the State Prison. At this, Patrick retreated from his original position, now saying that he would want a trial. The Justice, unconvinced of Patrick's ingenuousness, recognized the possibility that if he 'let this defendant off because his brother says he did it, then the brother goes to trial, then this defendant will say he did it.'

The Justice sentenced the defendant to 2 1/2 5 years in prison and stayed execution of sentence 30 days to give defense counsel 'an opportunity to do something about the brother.' He suggested that the County Attorney present the evidence as to Patrick's claim to the grand jury. We know only that Patrick has never been indicted.

The defendant entered an appeal and several months later he filed a motion for new trial based upon the confession of his brother. The Court, after hearing, denied the motion on the ground that Patrick McDonough's confession was insufficient basis for disturbing the defendant's conviction. The defendant also appealed from this denial.

The defendant raises five points on appeal; (1) the Court's denial of his motion for a new trial was in error; (2) the identification of the defendant was insufficient to sustain the verdict; (3) the introduction into evidence of references to a polygraph test used to corroborate the clerk's testimony was prejudicial error; (4) the admission into evidence of the same witness's statements that he was afraid of the defendant and his family because of their reputation for violence was prejudicial error; (5) the Court's failure specifically to instruct the jury that they must find that the taking of the property was accompanied by force or violence was obvious error. We find no merit to any of these claims and deny the appeals.

The Denial of the Defendant's Motion For New Trial 1

On March 6, 1975, a hearing was held on defendant's motion for a new trial at which Patrick McDonough, the defendant's brother, again confessed to the robbery for which his brother was convicted. The attorney who had represented the defendant testified that before trial Patrick had admitted to him that he had committed the robbery but had also stated that it called as a witness he would plead the fifth amendment. A conference had taken place with the attorney, the defendant, Patrick and a third brother participating at which a 'family wish' was announced to risk the defendant's trial without implicating Patrick. The attorney and the defendant had then decided that the best tactic at trial, in addition to an alibi defense, would be to weaken the strength of the clerk's testimony by impressing the jury with the physical similarity of the two brothers. To this end, the defendant had staged an in-court demonstration in which both brothers appeared before the jury, each with a stocking over his face.

The Justice denied the motion, apparently concluding that the brothers McDonough were attempting to impose upon him a Hobson's choice under which John would be released and Patrick would then chance acquittal after a separate trial. He emphasized that if Patrick were telling the truth both brothers were guilty of a conspiracy to obstruct justice and concluded his denial by stating:

'At the moment John McDonough stands sentenced to 2 1/2 to 5 years. If Patrick wants to plead guilty to conspiracy to obstruct justice as well as John McDonough, the court would consider a sentence on those charges of 2 1/2 to 5 years for each one. If Patrick MdDonough is now telling the truth, that would be a just disposition of both cases.'

While it is not entirely clear as to the grounds upon which the Justice below denied the defendant's motion for a new trial, we agree with his ultimate decision. The Justice's discretion in this situation was circumscribed by the criteria established by M.R.Crim.P., Rule 33 which permits the court to order a new trial on the basis of newly discovered evidence.

This Court has enumerated the prerequisites for allowing a new trial based upon newly discovered evidence. They are: (1) the evidence is such as will probably change the result if a new trial is ordered; (2) it has been discovered since the trial; (3) it could not have been discovered before the trial by the exercise of due diligence; (4) it is material to the issue; (5) it is not merely cumulative or impeaching, unless it is clear that impeachment would have resulted in a different verdict. State v. Casale, 148 Me. 312, 92 A.2d 718 (1952).

Patrick McDonough's confession may in no way be considered newly discovered evidence. John McDonough and his attorney were aware of that confession at the time of trial and nevertheless decided that circumstances prevented them from presenting it to the jury. Evidence known to the accused at the time of trial cannot be considered newly discovered. State v. Lund, Me., 266 A.2d 869 (1970).

The defendant further claims that even if the evidence was not newly discovered, Patrick McDonough's representations that he would invoke the fifth amendment if called to testify should be considered a resonable excuse for the failure to call him to the stand. The defendant argues that under the law of some jurisdictions evidence that is known to the accused and is therefore not newly discovered may yet be a sufficient basis for a new trial where justice so requires if the defendant can show a reasonable excuse for failure to employ it at trial. People v. DeVore, 271 Ill. 27, 110 N.E. 850 (1915).

If a situation could arise in which testimony which was unavailable at time of trial because of constitutional immunity later becomes available, entitling a defendant to a new trial, this is not such a situation. The defendant admits that he was at time of trial aware of his brother's claim of guilt but he elected to make no attempt to present this testimony to the Court and jury.

We note that in order to raise a declarant's constitutional immunity for the purpose of satisfying the unavailability requirement for the admission of a declaration against interest the declarant must actually be produced as a witness and refuse to testify. Goates v. Fortune Lincoln Mercury, Inc., 446 S.E.2d 913 (Tex.Civ.App. 1969). A similar requirement should obtain in a case such as the one now before us in which the defendant seeks a new trial based upon the unavailability of a witness's testimony due to constitutional immunity. The defendant who seeks a new trial is required to make all diligent efforts to introduce into evidence any existing exculpatory facts before he may be allowed to plead reasonable excuse for his failure to present that evidence. We perceive two reasons for adopting this policy. First, on our facts, the defendant may not confidently assume that the witness, called to the stand and placed under oath, would invariably adhere to his out-of-court position. More importantly, however, Patrick's in-court refusal to testify would have substantiated the defendant's claim that his failure to produce the evidence was occasioned by his belief that Patrick would not exculpate his brother by incriminating himself. Although we do not suggest that this defendant was guilty of any wrongdoing, excuses for failure to produce 'evidence' at trial may be manufactured all too easily once a defendant has gambled on acquittal and lost.

In choosing not to call his brother to the stand, the defendant made a tactical decision. That his decision proved fruitless should not constitute a reasonable excuse for his failure to attempt to introduce the evidence at trial. The defendant was entitled as a matter of right to one, but only one, fair trial. State v. Flaherty, Me., 340 A.2d 212 (1975). On these...

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