State v. Witham, PIS-93-360

• Decision Date: 16 April 1997
• Docket Number: PIS-93-360
• Citation: 692 A.2d 930
• Parties: STATE of Maine, v. Ruth F. WITHAM. . Docket:
• Court: Maine Supreme Court

Page 930

692 A.2d 930

1997 ME 77

STATE of Maine, v. Ruth F. WITHAM.

Supreme Judicial Court of Maine.

Docket: PIS-93-360

Argued Oct. 9, 1996.

Decided April 16, 1997.

R. Christopher Almy, District Attorney, Jeffrey M. Silverstein, Asst. Dist. Atty. (orally), Bangor, ME, for State.

James C. Munch, III (orally), Marvin R. Glazier, Vafiades, Brountas & Kominsky, Bangor, ME, for defendant.

Before WATHEN, C.J., and GLASSMAN, CLIFFORD, DANA and LIPEZ, JJ.

LIPEZ, Justice.

¶1 Ruth F. Witham (Witham) appeals from the judgments entered in the Superior Court pursuant to jury verdicts finding her guilty of arson (Class A), 17-A M.R.S.A. § 802 (1983 & Supp.1996), and three counts of false swearing (Class D), 17-A M.R.S.A. § 452 (1983 & Supp.1996), (Piscataquis County, Mead, J.). Witham contends that the trial court abused its discretion by admitting in evidence out-of-court statements in violation of M.R.Evid. 802; that the court committed reversible error by allowing in evidence certain State's exhibits in violation of M.R.Evid. 401, 403; that the delay in the filing of the trial transcripts constitutes a deprivation of due process, U.S. Const. amend. XIV, § 1; and that there was insufficient evidence to support her convictions for false swearing. ¹ Although we agree that the court erred in admitting one of the out-of-court statements, we conclude that the error was harmless. We disagree with Witham's other contentions and affirm the judgment.

Background

¶2 The evidence presented to the jury established these facts. In September 1990 Ruth Witham resided with her three children and a foster child at 14 Willow Street in Milo, Maine, a house which she had purchased in the early 1980s. The home was insured for $50,000. Witham's mother also had a home in Milo, on Park Street, with a first mortgage of $17,000 from a local credit union and a second mortgage of $4,500 from a bank.

¶3 On her mother's death in 1990, Witham attempted to buy the Park Street property after finding out about a default on the first mortgage loan, but was unable to secure a loan due to delinquent credit. The credit union loan officer, Ricky Moore (Moore), testified that during the week of September 6, 1990, after Witham's loan application was denied, she threatened that if the credit union foreclosed on the Park Street house she would make the process "long and expensive" for it.

¶4 At the trial, Janice Sprandel Carter (Carter), ² a Witham family friend and the roommate of Susan Goodine (Goodine), Witham's mother-in-law and close friend, testified to having overheard conversations in the summer of 1990 between Witham and Goodine in which Witham said that she wanted her mother's home, was upset about not being able to obtain it, and claimed she was going to "get [it] ... the same way she [had got the one] on the Lyford Road." ³ Carter testified that within the month prior to the fire, she had witnessed Witham backing in her van next to Goodine's trailer home once or twice a day, but that she could not see what, if anything, Witham was unloading at the trailer's back door. Several of Ruth Witham's relatives, friends, and neighbors testified about the removal and disappearance of the family's pets (including dogs, parrots, rabbits, and cats) within days or weeks prior to the fire. Joyce Renee Witham, the defendant's former sister-in-law and current next-door neighbor, testified that Goodine telephoned her on the evening of September 4, 1990, at approximately 6:30 p.m., and whispered, "move the vehicles out of the door yard or on the further side of the house because Mike and Ruthie's house was going up tonight."

¶5 That same evening, Ruth Witham came home from work to the Willow Street residence at 5:00-6:00 p.m., took her foster child to her mother-in-law's home, ⁴ and took her three children to visit their father. That visit ended at about 8:30 p.m. Witham and her children returned to Milo and found their home in flames. The fire had been reported to the authorities at 8:15 p.m. by a neighbor who later testified that he had seen no one in the vicinity of the home at the time. Joyce Renee Witham testified that when she called Goodine to let her know Ruth Witham's house was on fire, Goodine did not seem surprised. Carter, who was in the room when Goodine received the call, testified that she appeared "[v]ery calm [and exhibited] no shock."

¶6 According to Witham, the fire destroyed "basically" everything in her home. Fire Marshall Stewart Jacobs, after investigating the scene of the fire, ruled out accidental causes and concluded that the fire had been started by a "time delay device" with "an accelerant" and "combustibles," such as toilet paper and paper towels, that were placed inside a freezer chest in the basement. ⁵ Witham's expert witness agreed that the fire had been "done professionally." Almost immediately after the fire, Witham contacted Moore and told him that she intended to use the insurance recovery from the Willow Street fire to purchase her mother's Park Street home. Carter testified that she overheard Ruth Witham tell Jeff Goodine ⁶ during the winter after the fire that "when she got her money, he would get his."

¶7 On February 12, 1991, the defendant was deposed in connection with her insurance claim. During the deposition there were references to a 16-page inventory of items that allegedly had been destroyed or lost in the fire (admitted at the trial as State's Exhibit 30). Witham admitted during the deposition that she had removed some items from the Willow Street residence after the fire but did not mention specifically her washer and dryer. In addition, she claimed that she had removed nothing from the house prior to the fire. The deposition was read in evidence at the trial.

¶8 The next day, February 13, Milo Chief of Police Todd Lyford (Lyford) and Fire Marshall Office Investigator James Ellis (Ellis) executed search warrants at the trailer home of Goodine, at what was left of the Willow Street residence of Witham, and at the Park Street residence of Witham's mother. The search of the Goodine home yielded a white cardboard box, State's Exhibit 22, found in front of the trailer, which contained numerous family photographs and other possessions belonging to Witham. Lyford testified that during his search of the Goodine home, Witham tried to grab a stereo that was there and leave with it. Lyford's search of the Willow Street garage, next to the fire damaged house, yielded a bag of approximately 40 hats, which Roberta Moulton (Moulton) testified she had seen in the house prior to the fire. Both the hats and the stereo were listed on the inventory. While searching the Park Street home, Ellis testified that he found the same fire-damaged washer and dryer he had seen in the Willow Street home when he had inspected the premises after the fire in September 1990. At the time, Witham admitted to Ellis that she had taken the washer and dryer from the Willow Street home, but said nothing about when.

¶9 In June 1991 Witham was indicted on four counts of false swearing (Counts I-IV) and one count (Count V) of arson. Specifically, Witham was charged with false swearing for having asserted during her deposition that no contents had been removed from the Willow Street home after the fire (Count I), that no pictures had been removed from the home prior to the fire (Count II), that nothing had been removed prior to the fire (Count III), and that when she filled out her application for the insurance policy the agent never asked her whether she had suffered fires in the past (Count IV). Witham entered a not guilty plea to the charges and was tried by a jury in January 1993. At the trial, Witham denied responsibility for the fire, and claimed that many of the exhibits found in places outside her home had not been there prior to the fire. Pursuant to the defendant's motion for acquittal of all charges at the close of the evidence, the trial court acquitted Witham of the false swearing count involving her assertion that the insurance agent never asked her about past fires when she filled out her insurance application. The jury found Witham guilty of the remaining counts. Witham was sentenced on June 8, 1993, with execution stayed pending appeal. The court reporter did not file the trial transcript necessary for the appeal until January 1996, and the defendant did not receive a copy of it until the following month.

Discussion

Admissibility of Out-of-Court Statements

¶10 We review the court's evidentiary rulings for clear error and an abuse of discretion, Hatch v. Maine Tank Co., 666 A.2d 90, 95 (Me.1995). Whether proffered evidence is relevant is determined pursuant to the clear error standard. State v. Philbrick, 669 A.2d 152, 155 (Me.1995). Admissibility decisions are left to the sound discretion of the trial court because such questions often require the court to balance the probative value of the evidence against such factors as unfair prejudice, confusion of issues, and cumulativeness. State v. Case, 672 A.2d 586, 588 (Me.1996); see also M.R.Evid. 403.

¶11 Witham contends that the court committed reversible error by admitting two out-of-court statements in violation of the hearsay rule. See M.R.Evid. 802. First, Witham challenges the court's admission of Carter's testimony about conversations she overheard between Goodine and the defendant, in which the defendant explained how she was going to obtain the home her mother owned at the time of her death. Carter testified that "[Ruth Witham] wanted the home and she was upset because she hadn't gotten it.... One day in the early summer she ... come [sic] into Susan Goodine's trailer and said she was going to get the home. And Susan asked her how, and she said the same way she [had got the one] on the Lyford Road."

¶12 Carter's testimony about Ruth Witham's comments to Goodine involves classic party-opponent admissions ⁷ that are excluded from the hearsay rule by definition. M.R.Evid....