State v. Smith

• Citation: 415 A.2d 553
• Parties: STATE of Maine v. Joel SMITH.
• Decision Date: 28 May 1980
• Court: Supreme Judicial Court of Maine (US)

Page 553

415 A.2d 553

STATE of Maine v. Joel SMITH.

Supreme Judicial Court of Maine.

May 28, 1980.

Michael D. Seitzinger (orally), Charles K. Leadbetter, Fernand Larochelle, James G. Boulos, Jr., Asst. Attys. Gen., Augusta, for plaintiff.

Barnes & Sylvester, Forrest Barnes (orally), Severson & Hand, P. A., Daniel R. Nelson, Houlton, for defendant.

Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS, GLASSMAN and ROBERTS, JJ.

McKUSICK, Chief Justice.

After a jury trial in Somerset County, to which a change of venue had been ordered at his request, defendant Joel Smith was convicted of murder, 17-A M.R.S.A. § 201(1)(A), (B) (Supp.1979). On appeal he contends that the presiding justice erred by his delay in severing defendant's trial from that of codefendant Brenda Younk Smith, ¹ by refusing to admit in evidence a taped confession by Brenda, and by finding defendant's own confession to be voluntary and therefore admissible. We affirm the judgment of conviction of murder.

The jury had before it the following evidence. In the spring of 1978 defendant had been arrested and jailed on a charge of selling marijuana to 17-year-old Gary Nadeau, who had told the police of the sale. While out of jail pending trial on the marijuana charge, defendant and his girlfriend, Brenda Younk, decided to prevent Nadeau from testifying against defendant. Defendant told a friend that he was going to "get rid of" Nadeau. On September 15, 1978, defendant devised and executed a plan by which two of his friends drove Nadeau to a pre-arranged spot where defendant and Brenda were waiting. They drove Nadeau to a deserted spot in the woods near Perham, beat him, placed him in a shallow grave, and then stabbed him with a sword. Nadeau died from three stab wounds in his chest and a skull fracture.

After defendant and Brenda returned home from the killing, both had mud on their clothes and defendant made several statements to various friends. One friend overheard defendant say, "I got him, I got him good. He'll never speak or talk again." Another heard defendant say that he had killed and disposed of Nadeau, that he had beaten Nadeau to death before burying him. A third friend heard defendant boast that he had taken care of Nadeau by beating, burying, and stabbing him with a sword owned by defendant. The following day, defendant and one of his accomplices were observed sanding the sword with sandpaper in order to remove bloodstains from the blade; defendant also expressed concern about stains on his clothes.

On October 7, 1978, defendant was in the Aroostook County jail, detained on a charge of operating a motor vehicle without a license. During a visit from his father, defendant asked to speak with Deputy Sheriff Cleary. After Cleary had given him the Miranda warnings, defendant began to describe to his father and the officer the events leading up to Nadeau's death. In defendant's story, Brenda did all of the beating, stabbing, and burying of Nadeau. After defendant finished his account he led Cleary and his father, along with the sheriff, to Nadeau's burial place.

Upon his return to the jail at 10:30 p. m., defendant was met by State Police Detective Porter. Porter had dinner brought to defendant, then asked him if he wanted to talk; defendant said yes, and did so until 2:00 a. m. At that point, defendant retold his account of the Nadeau killing for Porter to write down, and signed the statement upon completion. In brief, the signed confession stated that after defendant and Brenda picked up Nadeau at the drop-off point, defendant unsuccessfully attempted to bribe him to leave Maine and not testify at the upcoming trial on the marijuana charge. Defendant then decided to kill Nadeau and, upon dragging Nadeau out of the car, did so by a series of blows to the head; defendant used both his fists and a shovel to administer the beating. After Nadeau was placed in a shallow grave defendant, not Brenda, stabbed him with the sword. The death scene was chosen because defendant, who was familiar with the wood-cutting operations in the area, knew there would be no cutting for three years on the side of the road where Nadeau was buried.

Defendant signed his confession at 4:27 a. m. on October 8. Later that same day, defendant asked to see Porter in order to correct "lies" he had made in his confession. During his second statement to Porter, defendant shifted the actual killing to Brenda. Three days later, when Porter told him he had been indicted for murder, defendant became angry and yelled, "I may be a murderer, but I'm not a damn thief." On October 12, while in the courthouse, defendant spontaneously yelled to another deputy sheriff that he had hit Nadeau on the head with a shovel and that both Brenda and he had covered the body with dirt before defendant ran the sword five or six times into Nadeau.

I. Severance

More than a month prior to the June, 1979, trial the State filed a motion to join for a single trial the indictments pending against defendant and Brenda Younk Smith. At a hearing on the State's motion, defendant asserted that he would be prejudiced by joinder but made only vague generalizations as to the nature of the prejudice. The presiding justice concluded that defendant had not established any possibility of prejudice and ordered the indictments joined for trial.

On the first day of trial, defendant renewed his request that the cases be severed, citing potential problems involving defendant's statements inculpating Brenda and her statements both inculpating and exculpating defendant. The presiding justice again denied defendant's severance request. After the start of testimony in the joint trial, Brenda made a motion in limine that sought to excise from statements made by defendant any reference to her. In response, defendant's counsel renewed his motion to sever, adding that the testimony already heard by the jury had not yet raised the multitude of problems caused by subsequent witnesses who would testify about all the statements. The presiding justice, saying that he was now aware of the statements' role in the case, ordered the trial of Brenda severed from that of defendant, and, when the jury was brought back into the courtroom, gave careful limiting instructions explaining Brenda's sudden departure from the proceedings. Defendant neither requested a continuance nor moved for a mistrial.

On appeal defendant argues that the presiding justice's delay in severing his case from that of Brenda deprived him of a fair trial. Specifically, defendant cites the fact that all opening statements by counsel contemplated a joint trial; that both defendants were present during the testimony of the first two State witnesses; and that upon the granting of the motion for severance, the sudden departure of Brenda and her attorneys was inadequately explained by the court. We have carefully reviewed the record and find that defendant has failed to establish actual prejudice.

It is black letter law that a presiding justice's ruling on a severance or joinder motion will not be reversed on appeal absent an abuse of discretion. State v. Millett, Me., 392 A.2d 521, 528 (1978). The party moving for severance bears a significant burden:

The appellant must make a clear showing of facts presented to the trial justice prior to trial which should have caused him to believe that the defenses of appellant and his codefendant were necessarily antagonistic or that he would be prejudiced by a joint trial.

Id. Vague generalizations of potential prejudice are insufficient to warrant severance. See State v. Anderson, Me., 409 A.2d 1290, 1298 (1979), holding that the mere mention of "antagonistic defenses" was not enough to alert the presiding justice to potential problems with co-defendants' statements.

At the pretrial hearing held on the State's joinder motion, defendant made only vague and speculative assertions that joinder would result in prejudice, none of which could have alerted the presiding justice that the co-defendants would assert "necessarily antagonistic" defenses. On the morning trial began, defendant made a motion for severance and cited potential problems with statements made by Brenda and him; however, he failed again to provide the presiding justice with concrete facts showing that the statements would be used to develop antagonistic defenses. It was not until Brenda's motion in limine, made after the first two State witnesses had testified, that the conflicting statements were presented to the court. It was only then that sufficient facts were before the court to warrant its granting of severance. The presiding justice committed no abuse of discretion; rather, he properly exercised his "continuing duty to keep a watchful eye over the proceedings and to order a severance if prejudice does appear." Id. at 1297 n. 5.

Not only has defendant failed to establish any abuse of discretion, but he has also failed to establish any prejudice caused by the granting of the severance motion after testimony had begun. At the time the motion was granted, only two witnesses had testified, both in regard to the location and condition of Nadeau's body; their testimony did not in any way open up any Bruton ² problems involving the co-defendants' statements. The fact that defense counsel could not, in his opening statement, put the blame on Brenda did not prevent him from trying to do so in his closing argument, presumably then with much greater effect and impact upon the jurors and their deliberations. Although defendant's trial tactics may have been somewhat altered by the severance, he requested neither a continuance nor a mistrial, and otherwise than in his opening, he was uninhibited in asserting Brenda's guilt. His lack of success with the jury is in no way attributable to the delay in severance, especially in light of the presiding justice's clear limiting instructions to the jury, in which he cautioned that Brenda's departure did not mean ...