State v. Thibeault

• Decision Date: 02 March 1993
• Citation: 621 A.2d 418
• Parties: STATE of Maine v. Alfred THIBEAULT.
• Court: Maine Supreme Court

Page 418

621 A.2d 418

STATE of Maine v. Alfred THIBEAULT.

Supreme Judicial Court of Maine.

Argued Jan. 13, 1993.

Decided March 2, 1993.

Michael E. Carpenter, Atty. Gen., Wayne S. Moss (orally), Asst. Atty. Gen., Augusta, for the State.

Wayne Hanstein (orally), Cloutier, Joyce, Dumas & David, Livermore Falls, for defendant.

Before ROBERTS, GLASSMAN, CLIFFORD, COLLINS and RUDMAN, JJ.

RUDMAN, Justice.

Alfred Thibeault appeals a judgment entered on his conviction of intentional or knowing murder, 17-A M.R.S.A. § 201(1)(A) (1983), following a Superior Court jury trial (Oxford County, Smith, J.). Thibeault raises two issues on appeal that merit discussion. ¹ Thibeault argues that the trial court's exclusion, on hearsay grounds, of cross-examination testimony of an investigating officer concerning a statement made by Thibeault, and its refusal to instruct the jury on the defense of competing harms constitutes reversible errors. We agree that the exclusion of the officer's testimony was error. Thibeault was nevertheless able to introduce virtually all of the information that he sought to introduce. We therefore conclude that the error was harmless. With regard to Thibeault's second contention, we agree with the Superior Court's determination that the facts of this case did not generate a competing harms defense. Accordingly, we affirm the judgment of the trial court.

Facts

On October 9, 1990, an Oxford County Grand Jury returned an indictment charging that Alfred Thibeault, along with Brenda McCluskie (Thibeault's daughter) and Danny McCluskie (Thibeault's son-in-law), did on July 8, 1989, "intentionally or knowingly cause the death of one Jeffrey Gagnon in violation of 17-A M.R.S.A. § 201(1)(A) (1983)." After a hearing, the court granted Thibeault's motion for a separate trial.

The evidence introduced at trial disclosed the following facts. Brenda McCluskie, while married to Danny McCluskie, had been having an affair with Gagnon. At some point in June or early July of 1989, Brenda told Thibeault that Gagnon was threatening that if Brenda returned to Danny, Gagnon was going to kill Brenda, Danny, and the McCluskie's two children, who were Thibeault's grandchildren. Brenda and Danny told Thibeault that Gagnon's threats were becoming more frequent and more intense. As a result, Thibeault became very worried about the safety of his grandchildren.

On July 8, 1989, Thibeault drove from his home in Dixfield to Augusta, picked up his son-in-law, Danny McCluskie, and drove back to his Dixfield home. With Thibeault's knowledge, a rope, pulp hook, and radiator were placed in Thibeault's automobile. Thibeault and Danny McCluskie, armed with a 7 millimeter rifle, then drove to Fire Lane 45 in Canton.

Shortly thereafter, Brenda McCluskie arrived with Gagnon and all of his belongings. Thibeault stepped in front of the truck to stop it, while Danny, armed with the rifle, ordered Gagnon out of the truck. Gagnon did not want to get out of the truck, but Danny ordered him out, telling Gagnon that he was going to get out of the truck "one way or the other." Brenda left and returned to Thibeault's Dixfield home.

Danny ordered Gagnon to get into Thibeault's car. Thibeault then drove the three of them to a private road off the Canton Point Road. Thibeault stayed in the car, while Danny walked Gagnon into the woods at rifle point. During the five minutes that Danny was gone, Thibeault heard two shots fired. Danny returned from the woods alone and said that he had shot Gagnon. Thibeault and Danny drove back to Thibeault's house, leaving Gagnon's body in the woods.

Once back at Thibeault's house, Brenda and Danny burned Gagnon's wallet, which Thibeault had taken from Gagnon before Gagnon was taken into the woods. Thibeault helped to burn or otherwise dispose of all of Gagnon's belongings.

At trial, in the course of the direct examination of Detective Dale Lancaster, the State played for the jury the tape recorded portions of Lancaster's interview of Thibeault and, over Thibeault's objection, provided the jury with a transcript of the recorded portions of the interview to read while the tapes were played. While we view the interview as one statement or conversation, it can rationally be viewed in three portions. First, there was a recorded portion conducted at Thibeault's home; second, there was an unrecorded portion during the period of time that Thibeault and Detective Lancaster were driving in the detective's cruiser to the location where Gagnon's body was presumably located; and, finally, there was another recorded portion of the interview back at Thibeault's home. The first and third taped segments of this interview were inculpatory in nature and from them most of the recited facts were drawn.

On cross-examination of Detective Lancaster, Thibeault attempted to establish what was said by Thibeault during the unrecorded, middle portion of the interview. Detective Lancaster conceded that during the middle, unrecorded portion of the interview, Thibeault indicated that he was concerned about the safety of his grandchildren and that he participated in the events of July 8, 1989 in an effort to scare Gagnon to cease threatening to harm Thibeault's grandchildren.

Thibeault argued that this middle, unrecorded segment of the interview was exculpatory in nature and revealed his intent only to become involved in a scheme to scare Gagnon. Further, in the hope of generating the defense of competing harms, Thibeault wanted to introduce, through Lancaster, the fact that Gagnon's threats were becoming more intense and more frequent.

The State objected to further questions concerning the unrecorded portion of the interview on the ground that the questions called for inadmissible hearsay. Thibeault argued that the doctrines of both fairness and completeness mandated that once the State introduced into evidence a portion of the interview, justice required the complete substance of his statements be given to the jury. The trial court was unpersuaded by Thibeault's argument. Thibeault made an offer of proof indicating that if the officer were allowed to answer, he would testify that Thibeault told him that: he was concerned for his grandchildren's safety; he was worried that harm would come to them since the police were powerless to help prevent that harm; and the plan was that Gagnon would not be harmed; rather, he would simply be scared into not harming the grandchildren.

Thibeault rested without calling any witnesses. At the request of the State, the court instructed the jury that Thibeault could be found guilty as an accomplice if either the jury found beyond a reasonable doubt that he intended to aid in the murder of Gagnon or if, in the alternative, he intended to be involved in the offense of kidnapping and it was foreseeable that a murder would occur. The court denied Thibeault's request that the jury be instructed on the defense of competing harms as it related to this kidnapping. Thibeault's position was that the kidnapping could be justified if it was his sole intention to frighten Gagnon into refraining from imminently inflicting serious bodily injury on either the defendant or a close family member.

From the judgment entered on the jury verdict finding Thibeault guilty of murder, Thibeault appeals.

I. Admissibility of Thibeault's Out-of-Court Statements

Thibeault's first contention is that the trial court erred when it refused to allow him to introduce, through the cross-examination of Detective Lancaster, testimony concerning the unrecorded portion of his interview with Thibeault. In making this argument, Thibeault relies on the "widely recognized rule of evidence that, when part of an oral statement has been introduced by one party, the party-opponent may introduce the remainder of the statement, even though it is favorable to, or exculpatory as to, the party opponent." State v. Ryder, 348 A.2d 1, 4 (Me.1975) (citations omitted). See State v. Woodward, 617 A.2d 542 (Me.1992).

The State initially attempts to refute Thibeault's contentions by arguing that the trial court did not abuse its discretion in treating Thibeault's unrecorded statement as a separate entity for purposes of admission. We disagree. The only break in the conversation occurred on the tape. We refuse to allow law enforcement officials to dictate how a statement is viewed by the courts based on whether particular portions of the statement are recorded. Thus, we will analyze the admissibility of Thibeault's statement as a whole, and not as separate parts as urged by the State.

Contrary to the assertions of the parties, Thibeault's statement to Lancaster is not hearsay. " 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." M.R.Evid. 801(c). M.R.Evid 801(d)(2) provides that a statement is not hearsay if:

(2) Admissions by a Party-Opponent. The Statement is offered against a party and is (A) his own statement ...

M.R.Evid. 801(d)(2). Clearly, if offered by the State both the recorded and unrecorded portions of Thibeault's statement to Lancaster are not hearsay.

The problem arose when Thibeault, on cross-examination, attempted to introduce evidence...