State v. Rich

• Decision Date: 26 December 1978
• Court: Maine Supreme Court
• Parties: STATE of Maine v. Leon F. RICH.

Page 1123

395 A.2d 1123

STATE of Maine v. Leon F. RICH.

Supreme Judicial Court of Maine.

Dec. 26, 1978.

Charles K. Leadbetter (orally), Stephen L. Diamond, Michael D. Seitzinger, Augusta, William R. Stokes, Asst. Attys. Gen., for plaintiff.

Dunlap, Wood & O'Brien by Mark E. Dunlap, Portland (orally), Glassman & Potter by Caroline D. Glassman, Portland, for defendant.

Before McKUSICK, C. J., and WERNICK, ARCHIBALD, DELAHANTY and NICHOLS, JJ.

NICHOLS, Justice.

Following a jury trial begun on March 14, 1977, in Superior Court in Cumberland County, the Defendant, Leon F. Rich, was found guilty of homicide in the second degree ¹ and of burglary while armed with a firearm. ²

The Defendant brings this appeal from the judgments of conviction entered upon those jury verdicts, raising several points which he deems to be reversible error. He directs his attack in the following areas: (1) denial of a request for recordation of grand jury proceedings; (2) the Superior Court's granting of the State's motion for joinder for trial of the cases against the Defendant and a co-defendant; (3) allowing the recorded testimony of the State's medical examiner to be read to the jury; (4) refusal to allow evidence tending to show the co-defendant's motive for murdering the victim; (5) refusal to allow the Defendant to display his hands to the jury without opening himself to cross-examination; (6) allowing two State witnesses to testify although their names had not been supplied in accord with the court's discovery order; (7) permitting the presentation of certain real and demonstrative evidence to the jury; (8) instructions to the jury; (9) sentencing of the Defendant was excessively harsh and was done without first obtaining a recommended sentence from the Maine Department of Corrections.

We deny his appeal.

The facts which the jury was warranted in finding beyond a reasonable doubt may be briefly stated. During the evening of October 5, 1976, the Defendant, along with his co-defendant, Edward Austin, Donald Billingslea and their three girlfriends were "riding around" the Portland area in Austin's automobile and were drinking coffee brandy. Their meanderings led them to the Ann Payson Holt home in Falmouth by approximately 11:30 P.M. The three men got of the automobile and, by breaking a window, entered Mrs. Holt's home. Once inside, the men went to Mrs. Holt's bedroom. It was there that the Defendant shot a pengun, killing Mrs. Holt while she lay in her bed.

The three men then rejoined their girlfriends, taking with them a T.V. set and radio, and left the area. Meanwhile, at Mrs. Holt's home her housekeeper was frantically summoning the police. As Lt. David Kloth, of the Falmouth Police Department, arrived at the scene he saw a full-size sedan leave the Holt home; he noted that the sedan's registration number began with the digits, 6-2-0. Lt. Kloth immediately broadcast this description over the state-wide channel from the transmitter in his police cruiser.

Early the next morning, Officer Boyce A. Sanborn, of the South Portland Police Department, observed a vehicle fitting the description of the earlier broadcast. After stopping the vehicle, the six individuals voluntarily went to the South Portland Police Department for questioning. Subsequently the Defendant and Edward Austin were charged with the murder of Mrs. Holt.

I.

The Defendant moved pursuant to M.R.Crim.P. 6(d) ³ for the presence of an official court reporter in order to record the grand jury proceedings. The motion was denied, and the Defendant contends this amounted to an abuse of discretion by the Superior Court.

In the court's discretion, and upon good cause being shown, the presence of an official court reporter is authorized at a grand jury session. Transcription of the testimony presented to the grand jury is made permissive, not mandatory. The court below expressly concluded that "no sufficient justification" was found. The Defendant's argument that transcripts would be valuable for impeachment purposes at trial could be advanced in the case of every grand jury proceeding and subsequent trial. Moreover, a major policy behind the rule of secrecy is the protection of witnesses from intimidation by assuring their testimony pre-trial secrecy. This policy could have been a strong consideration here because of the threats against certain witnesses which the prosecutor asserted had been made.

There was no abuse of discretion here. See State v. Levesque, Me., 281 A.2d 570, 572-574 (1971).

II.

Prior to trial a motion by the State to join for trial the cases of the Defendant and co-defendant Austin was granted. The Defendant now asserts he is entitled to a new trial separate and apart from Austin because each asserted antagonistic or conflicting defenses.

The policy undergirding the joinder of defendants often has been stated as follows:

Generally speaking where several defendants are jointly indicted they should be tried together, particularly where the charges against them arise out of joint acts allegedly committed by each in the presence of each other. In such cases, joint trials are favored in the interest of conserving judicial economy, avoiding duplicitous, time-consuming and expensive trials, conserving public funds, diminishing inconvenience to witnesses and public authorities, and promptly trying those accused of crime. United States v. Barber, 442 F.2d 517, 529 (3rd Cir. 1971), Cert. denied, 404 U.S. 958, 92 S.Ct. 327, 30 L.Ed.2d 275 (1971), cited with approval in State v. Wing, Me., 294 A.2d 418, 420 (1972), and State v. Saucier, Me., 385 A.2d 44, 46 (1978).

The trial court is authorized to order joinder under M.R.Crim.P. 13 and severance under M.R.Crim.P. 14. The court has wide discretion in deciding such matters, and its decision is not grounds for new trial unless prejudice and abuse of discretion are shown. State v. Saucier, supra, at 45.

In this case the Defendant expressly objected to joinder on the ground of potential Bruton problems. ⁴ The presiding justice scrupulously avoided any such problems. In fact he warned all parties that if mention were made of a confession by Austin which implicated the Defendant unless or until Austin took the stand, he would declare a mistrial. At no time During trial was any motion made pursuant to M.R.Crim.P. 14, asserting prejudicial joinder.

Absent any violation of the Bruton principles, separate trials were not needed. Here the State called a number of witnesses and offered physical evidence which inculpated the Defendant. The trial was not merely a confrontation between the conflicting testimony of two defendants. Here the court kept a watchful eye over the proceedings to assure that the rights of the Defendant were not prejudiced by joinder. See State v. Elwell, Me., 380 A.2d 1016, 1020 (1977).

There was no abuse of discretion here.

III.

At a bail hearing held prior to trial pursuant to M.R.Crim.P. 46, Charles F. Branch, M.D., the pathologist and medical examiner who performed the autopsy, testified as to his opinion on the cause of death. He was cross-examined by counsel for the Defendant. Subsequently, Dr. Branch suffered serious heart damage and, under his physician's orders, he was unable to testify at trial. His earlier testimony at the bail hearing, however, was admitted under the "former testimony" exception to the hearsay rule that, if the declarant is unavailable as a witness, makes admissible.

Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. M.R.Evid. 804(b)(1).

The Defendant asserts that Dr. Branch was not so "unavailable" as to render the testimony admissible, and he urges that he, the Defendant, did not have sufficient "opportunity" and "motive" to so examine him at the bail hearing as to render his testimony at that hearing admissible at trial.

M.R.Evid. 804(a)(4) provides in pertinent part:

(a) "Unavailability as a witness" includes situations in which the declarant:

(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity;

Perhaps the ordinary case involving illness of a non-permanent nature should be handled by a continuance of the trial in order to avoid potential danger of violating the constitutional right of confrontation. ^{5 5} See Advisor's Note to Rule 804(a)(4) and R. Field & P. Murray, Maine Evidence § 804.1 (1976); McCormick, Evidence § 253 p. 610 (2d ed. 1972). ⁶ Unavailability, however, does exist where the nature of his physical illness is such that he is not expected to improve and renders the witness unable to testify. See 4 J. Weinstein and M. Berger, Weinstein's Evidence, 9/804 01, p. 804-39, 40 (1977); United States v. Bell, 500 F.2d 1287, 1290 (2d Cir. 1974) (within trial court's discretion to determine that witness was unavailable where she had undergone surgery and would be unable to testify for at least 21/2 months); United States v. Amaya, 533 F.2d 188, 190-191 (5th Cir. 1976) (within trial court's discretion to find that witness was unavailable when he had suffered injury in an auto accident resulting in loss of memory prior to second trial). In the instant case the record shows that Dr. Branch was an elderly man (having been a pathologist sine 1923), who had suffered heart damage and would be unavailable for an indeterminate period of time. In these circumstances we cannot say the presiding justice abused his discretion in finding Dr. Branch "unavailable."

A second condition to the admission of previously recorded testimony of an unavailable witness is that the party against whom it is offered must have had an opportunity...