State v. Williams

• Citation: 395 A.2d 1158
• Court: Supreme Judicial Court of Maine (US)
• Decision Date: 29 December 1978
• Parties: STATE of Maine v. Philip WILLIAMS.

Page 1158

395 A.2d 1158

STATE of Maine v. Philip WILLIAMS.

Supreme Judicial Court of Maine.

Dec. 29, 1978.

Michael D. Seitzinger (orally), Fernand LaRochelle, Asst. Attys. Gen., Augusta, Thomas E. Delahanty, II, Dist. Atty., Auburn, for plaintiff.

Berman, Berman & Simmons, P. A. by Gary Goldberg (orally), Lewiston, for defendant.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.

NICHOLS, Justice.

Upon a jury trial of four days in Superior Court in Oxford County, the Defendant, Philip Williams, was convicted of conspiracy to commit murder, 17 M.R.S.A. § 951, and of being an accessory before the fact to assault with intent to murder, 17 M.R.S.A. § 2656; 15 M.R.S.A. § 341. The issues which the Defendant raised upon his appeal of those convictions to this Court chiefly concern the admissibility of evidence adduced by the State in that trial.

We deny the appeal.

The pertinent facts can be briefly summarized. On December 30, 1975, Alberta Williams, the Defendant's former wife, was discovered on the side of Route 119 in Hebron. She had sustained crushing blows to the head. Shortly thereafter the Auburn police arrested Earl Woodbury who confessed to the assault and implicated the Defendant. Woodbury subsequently pled guilty to conspiracy to commit murder and assault with intent to murder.

At the Defendant's trial Woodbury and his girlfriend, Sharon Marshall, were the State's principal witnesses. They both testified to conversations in the latter part of 1975 between the Defendant and Woodbury during which the Defendant, they said, promised to pay Woodbury to kill his former wife. Alleged motives for the murder included Defendant's desire to obtain both the proceeds of a life insurance policy on his ex-wife and the custody of their children which had been awarded to her.

The Defendant took the stand in his own defense. He denied procuring, hiring or conspiring with Woodbury to harm or kill his former wife. He further testified that he had never harbored any ill will towards Alberta Williams. Tina Phelps, the Defendant's present wife, then girlfriend, who was present with Marshall at the meetings between Woodbury and the Defendant corroborated the Defendant's story. The Defendant's theory, which he urged at trial, was that Woodbury, a man known for his alcoholic and violent tendencies, attempted to murder the victim in an attempt to appease his girlfriend who was jealous of Woodbury's romantic involvement with Alberta Williams.

Conceding that the State's evidence, if believed, was sufficient to convict him, the Defendant nevertheless asserts that the presiding justice committed errors which prejudiced his substantial rights. M.R.Crim.P. 52(a).

I.

The Defendant at trial unsuccessfully attempted to introduce the testimony of Paul Walsh, who was the victim's landlord in the summer of 1975 and at the time of the assault. Through an offer of proof, the Defendant indicated that Walsh would testify that one day in the summer of 1975 Alberta Williams entered his apartment and announced that "she was scared because Earl Woodbury was chasing her down the tracks." The Defendant represented this testimony to be crucial to his case because it undermined the State's theory that Woodbury would not have assaulted the victim but for the money offered him by the Defendant several months later. The proffered testimony was excluded as hearsay over Defendant's assertion that the statement was admissible as an exception to the hearsay rule either as an "excited utterance" (M.R.Evid. 803(2)), a "present sense impression" (M.R.Evid. 803(1)), or as a declaration of "existing mental, emotional, or physical condition" (M.R.Evid. 803(3)).

The determination whether a statement falls within an exception to the hearsay rule rests with the presiding justice. His decision will not be reversed except for an abuse of discretion. M.R.Evid. 104(a). See State v. Sprague, 135 Me. 470, 475, 199 A. 705 (1938); Christensen v. Economy Fire & Casualty Co., 77 Wis.2d 50, 252 N.W.2d 81, 84 (1977).

To be admissible as an "excited utterance" under M.R.Evid. 803(2) the statement must "relate" to a "startling event or condition" and must be made while the declarant is still "under the stress" of the event. ¹ The exception is based on the assumption that a person under the influence of a startling event lacks the reflective capacity essential for fabricating; hence, statements made under the sway of such an event are spontaneous and trustworthy. State v. Ellis, Me., 297 A.2d 91, 93 (1972).

The Defendant and the State differ basically on whether the victim was still excited when she made the statement which the Defendant sought to introduce. The Defendant points to testimony of Walsh in which he stated that the victim appeared "white" and "out-of-breath." The State counters by pointing out other testimony of Walsh who, when asked whether the victim engaged in any activity which suggested that a chase had just occurred, responded that the victim merely sat at a table and said nothing more about Woodbury other than reciting a terse history of their relationship. Apparently she was sufficiently unconcerned that she did not look out of Walsh's window at the railroad track, barely one hundred feet from the apartment. Nor did Walsh testify that the victim looked either scared or excited.

Significantly missing from Walsh's testimony was any evidence of the circumstances of the chase or when it had occurred. Without any of these underlying facts, it was problematic whether the victim's declarations were dominated by the nervous excitement of the event or whether they were the product of conscious reflection. See State v. Ellis, supra. ² We cannot say that the presiding justice abused his discretion in excluding the proffered testimony as an excited utterance.

The Defendant's alternative arguments, that the victim's statement may be viewed either as a present sense impression or as a declaration of existing, mental, emotional, or physical condition, are without merit. Under M.R.Evid. 803(1) a present sense impression is defined as:

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

The exception is predicated on the notion that "a statement Substantially contemporaneous to the event being described is most unlikely to be a deliberate or conscious misrepresentation." M.R.Evid. 803, Advisers' Note (emphasis supplied).

The victim's statement to Walsh, coming as it did after an undetermined lapse of time from the triggering event, does not possess the indicia of trustworthiness to qualify as a present sense impression.

Nor does the victim's statement fall within the parameters of M.R.Evid. 803(3) which in pertinent part provides:

A statement of the declarant's then existing state of mind, emotion sensation, or physical condition such as intent, plan, motive, design, mental feeling, pain, and bodily health, But not including a statement of memory or belief to prove the fact remembered or believed . . . . (emphasis supplied).

The emphasized language codifies the result of Shepard v. United States, 290 U.S. 96, 105-06, 54 S.Ct. 22, 78 L.Ed. 196 (1933) where the United States Supreme Court found that the deceased's statement, "Dr. Shepard has poisoned me," was inadmissible to prove the past act. By analogy, this victim's statement that Woodbury was chasing her is inadmissible under M.R.Evid. 803(3) as a basis for inferring the happening of the past event. As stated by Mr. Justice Cardozo in Shepard:

Declarations of intention, casting light upon the future, have been sharply distinguished from declarations of memory, pointing backwards to the past. There would be an end, or nearly that, to the rule against hearsay if the distinction were ignored. Id. at 105-06, 54 S.Ct. at 26.

No different result occurs merely because the victim also stated that she had a present fear, for such fear is tantamount to remembering the prior conduct of Woodbury threatening her with harm. See United States v. Kennedy, 291 F.2d 457 (2d Cir. 1961) (Friendly, J.); 4 Weinstein, Evidence § 803(3)(05) (1977).

II.

To rehabilitate the credibility of Woodbury and his girlfriend the State introduced prior consistent statements that these witnesses had made. Focusing particularly on statements made by Marshall to the Defendant's attorney, the Defendant asserts that the scope of the prior consistent statements exceeded the permissible limits of M.R.Evid. 801(d)(1), which provides in pertinent part:

A prior consistent statement by the declarant, whether or not under oath, is admissible only to rebut an express or implied charge against him of recent fabrication or improper influence or motive.

The rule is but a codification of what has long been the law in Maine. A prior statement of a witness, consistent with his testimony at trial, is admissible not for its substantive truth but merely to rebut the inference that such statement was a recent fabrication or given with improper motives. Advisers' Note to M.R.Evid. 801. See State v. Franco, Me., 365 A.2d 807, 812 (1976).

The admissibility and scope of a prior consistent statement, rests in the sound discretion of the presiding justice, and depends upon the nature and extent of impeachment efforts. See State v. Lizotte, Me., 249 A.2d 874, 880-881 (1969).

On direct examination, Woodbury's girlfriend gave elaborate and detailed testimony concerning the substance of conversations between Woodbury and the Defendant which corroborated Woodbury's testimony. Phelps and another defense witness, Forrest Fisher, testified that, while waiting to appear before the Grand Jury, Woodbury's girlfriend told them that the Defendant had nothing to do with the crime. Moreover, on cross-examination, she admitted that she had lied for Woodbury, that she would follow his commands, and that she would engage in criminal activity at his...