State of Maine v. O'Rourke

Maine Superior

State of Maine v. O'Rourke

Superior Court of Maine·Decided November 15, 2000·No. KENcr-99-153·Unpublished

Opinion

. om ye MOT ge , | Reo 2 pce Nancy A. Desjardin

STATE OF MAINE 4 SUPERIOR COURT NOV 15 2000 CRIMINAL ACTION KENNEBEC, ss. Clerk of Courts DOCKET NO. CR-99-153

Kennebec County

STATE OF MAINE

v. ORDER ON.DEFENDANT’S MOTION FOR@SRW) TRIAL

MATHIEU O’ROURKE

Defendant DEC 4 9009

This matter is before the court on defendant’s motion for new trial. Defendant was found guilty after a jury verdict of Solicitation to Commit Murder, under the provisions of 17-A M.R.S.A. § 153. Sentence has been imposed. Prior to sentence, and pursuant to M.R. Crim. P. 33, defendant moved for a new trial on the grounds that inappropriate and unfairly prejudicial evidence was admitted over the objection of the defense.

The evidence in question is as described in defendant’s motion, two letters handwritten by a prison inmate which were turned over to the State by the family of one of the State’s witnesses which contained threats to a State’s witness. It was the State’s contention that while the letters were not written by the defendant, the letters were written at the direction of the defendant. At trial, the author of the letters so testified and the letters were acknowledged by the defendant.

The defense argues that the letters were irrelevant and unfairly prejudicial per MLR. Evid. 403. Defendant argues that the letters were written after the crime was committed, were irrelevant to the subjective intent of the defendant under

those circumstances, and bore no relationship to the required elements that the defendant have intent to cause the commission of the murder and that it was reasonable to believe that the defendant considered it probable that the murder would take place. Defendant asserts that the letters are inflammatory and were unnecessary as part of the State’s case.

The State argues that the letters were relevant on the issue of whether the defendant’s actions were not intentional but rather were a mistake or just words. The State argues that the letters constituted an admission by the defendant that he did commit the crime and further were an explanation of the words used by the defendant in the solicitation and the reason for such solicitation.

The court examines three cases for guidance in this area. In State v. Nye, 516 A.2d 560 (Me. 1986), the court examined evidence admitted regarding the defendant's alleged efforts in causing the victim to be absent on the date set for trial. The court admitted the evidence on the basis that it was relevant “regarding the defendant’s consciousness of guilt.” That ruling was challenged by the defendant as being a violation of M.R. Evid. 404(b) as evidence of other crimes or wrongs in order to prove character of a person showing that he acted in conformity therewith. The court ruled, citing Pierce v. State, 463 A.2d 756 (Me. 1983), that the evidence was probative of the defendant's consciousness of guilt, not for the purpose of showing his “bad character” under Rule 404(b). The court goes on to say:

Because the court found that the evidence was offered for a relevant

purpose other than to show that the defendant’s bad character, the

order .. . did not prevent admission of evidence of the collateral misconduct.

In State v. Pierce, 474 A.2d 182, the court had admitted evidence of threats made by the accused to witnesses testifying against him. The argument was that they were not admissible to show the defendant’s bad character. The court decided:

If, however, the presiding justice determines that such evidence is

relevant and more probative than prejudicial, confusing, misleading,

or cumulative, and that the evidence is offered for a purpose other

than establishing character, he may, in his discretion, admit the

testimony regarding threats.

The court recognized that evidence of threats made by a defendant to witnesses against him may be admitted to show the defendant’s consciousness of guilt and further found that the threats related to the purpose of also showing identity where it was the ultimate issue for resolution at trial.

In State v. McEachern, 431 A.2d 39, the trial court admitted in evidence a letter written from jail by the defendant to a witness. The letter contained threats against the witness and expressed the defendant’s expectation that he would be convicted and spend a substantial period of time in jail. The defense objected on the grounds that the letter was not relevant and unduly prejudicial. The decision

reasons:

In general, threats against witnesses, like the destruction of evidence, are properly received in evidence on the theory that such activity constitutes admission by conduct. See McCormick, Handbook of the Law of Evidence, 660 (2d ed.. 1972).

The court goes on to approve cases in other jurisdictions and concludes that:

The probative value of such evidence arises from the inference that an innocent person would not undertake to intimidate witnesses and that such intimidation is therefore an admission by the defendant of his guilt.

Clearly, as described by McEachern, the responsibility of this court was to balance the probative value of these letters with the prejudicial effect as required by M.R. Evid. 403. Inasmuch as the nature of the evidence in this case was for the jury to decide whether the activities by the defendant were simply jail-house bravado or constituted a more serious effort to effectuate the crime of murder of a witness, the letters were quite relevant in providing some. description of the seriousness of thought entertained by the defendant as expressed in his relationship with the author of the letters. Accordingly, while the letters were highly prejudicial, their relevancy was strong enough to overcome any sense of unreasonableness in the level of prejudicial value which would cause the court to deny their admission.

For reasons stated above, the entry will be:

Defendant’s motion for new trial is DENIED.

eae

Donald H. Marden Justice, Superior Court

Dated: November 7/5 _, 2000

STATE OF MAINE .

.

vs {ATHIEU

O'ROURKE

SUPERIOR COURT KENNEBEC, ss. Docket No AUGSC-CR-1999-00153

96 JONES CREEK DRIVE

prroroucs ME 04070

02/13/1978 ttorney: GREGG BERNSTEIN

2OB:

Piling Document: INDICTMENT

DOCKET RECORD

State's Attorney: DAVID CROOK

Major Case Type: FELONY (CLASS A,B,C)

tiling Date: 05/13/1999

Stharge(s)

| SOLICITATION TO COMMIT MURDER 153 (1)

17-A

08/27/1998 AUGUSTA MACMASTER / MSP

Class A

Jocket Events:

5/13/1999 5/14/1999 95/17/1999 15/17/1999

95/21/1999

95/24/1999 05/24/1999

95/24/1999

05/24/1999

FILING DOCUMENT - INDICTMENT FILED ON 05/13/1999

SUMMONS - SUMMONS TO APPEAR FOR ARRAIGN ISSUED FOR 05/19/1999 @ 8:30 HEARING - ARRAIGNMENT SCHEDULED FOR 05/19/1999 @ 8:30

WRIT - HABEAS CORPUS TO TESTIFY ISSUED ON 05/19/1999 @ 8:30

HEARING - ARRAIGNMENT HELD ON 05/19/1999 JOHN R ATWOOD , JUSTICE

Attorney: GREGG BERNSTEIN DA: ALAN KELLEY

Defendant Present in Court Charge(s): 1

PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 05/19/1999

Reporter: CASE ENOCH

MOTIONS TO BE FILED IN 21 DAYS. BAIL BOND - SET ENTERED BY COURT ON 05/19/1999

BAIL SET AT $50,000.00SURETY OR $25,000.00 CASH. OTHER FILING - OTHER DOCUMENT FILED ON 05/19/1999

CONDITIONS OF RELEASE. RAMONA DAVILA, BRENT MCSWEYN AND SHERRY DAIGLE. MOTION ~- MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 05/19/1999

NO CONTACT WITH

WITH FINANCIAL AFFIDAVIT.

MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 05/19/1999 JOHN R ATWOOD , JUSTICE

COPY TO ATTY. BERNSTEIN.

TRANSFER - BAIL AND PLEADING REQUESTED ON 05/13/1999

TRANSFER - BAIL AND PLEADING GRANTED ON 05/13/1999 S KIRK STUDSTRUP , JUSTICE

COPY TO AUGUSTA & WATERVILLE DISTRICT COURT.

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D .</sses

09/16/1999

10/12/1999

10/29/1999

11/04/1999

~ . MATHIEU O'ROURKE AUGSC-CR-1999-00153 DOCKET RECORD

WRIT - HABEAS CORPUS TO TESTIFY EXECUTED ON 05/20/1999

WRIT - HABEAS CORPUS TO TESTIFY RETURNED ON 06/01/1999 MOTION - MOTION FOR ENLARGEMENT OF TIME FILED BY DEFENDANT ON 06/07/1999

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