STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. ,', ,,~\ ~rt. CRIMINAL ACTION .' , I " , I·"~ I '- ,~_. .;. ," ',' t-:',. ~J '") _ FleE _ r ..... DOCKET NO. CR-07-1151 V "'}~ CuM ~ I r dD')7 (I lit ,~ \;J .-', ,-q
STATE OF MAINE, t1 ("I """\
-"- .·..,'1 \ II 1:., Ii: U I plaintiff'" " I \
v. ORDER & DECISION
ZACKARY PEARSON
Defendant (18 2008 BACKGROUND
The defendant was charged with four counts of robbery on June 13, 2007
and was indicted on July 6. The State filed a notice of joinder on July 6, joining
Pearson's case with those of six other defendants who were also accused of being
involved in the robbery. Pearson filed the present motion for relief from prejudicial
j,oinder on September 17. For the reasons discussed below, the court denies the motion.
DISCUSSION
While "the court must balance the general policy in favor of joint trials against
the prejudice to a defendant which may result," the court is also afforded "substantial
discretion" to grant or deny a motion to sever. State v. Lakin, 2006 ME 64, C}[<]I 7-8, 899
A.2d 777, 779. The burden is on the moving party "to show facts prior to trial that a
joint trial would result in prejudice." Id. Here, the defendant has asserted that
introduction of certain admissions made by his co-defendants would violate his
constitutional right to confront the witnesses against him, as the United States Supreme
Court decided in Bruton v. US., 391 U.s. 123 (1968).
The Law Court recently discussed the Bruton holding in Lakin, and reiterated that
when defendants are tried together in a single trial, an admission of a non-testifying defendant that implicates a co-defendant may not be used. Id. n.2, 899 A.2d at 778. To
do so violates the Confrontation Clause of the Sixth Amendment because the co
defendant is prevented from cross-examining a non-testifying defendant about the
admission. Id. In these cases, it is appropriate to exclude or redact the admission, sever
the trials, or empanel multiple juries. Id. <[ 5,899 A.2d at 778. The Law Court upheld
the trial court's decision not to sever the trials of the two defendants, however, because
the State had agreed not to use either of the inculpatory statements, and the
presentation of mutually antagonistic defenses was not a ground for severance. Id. <[<[
5-13, 899 A.2d at 778-79.
In an earlier case, the Law Court discussed several post-Bruton decisions of the
United States Supreme Court, and ultimately determined that even when a confession is
redacted to exclude reference to a co-defendant, it may inappropriately implicate that
co-defendant. State v. Boucher, 1998 ME 209, <[<[ 11-16, 718 A.2d 1092, 1095-96. The
Court acknowledged that" a fair deletion of all references, express or implied, to any
other defendant is a proper and approved method of avoiding prejudice and the Bruton
dilemma." Id. <][ 12, 718 A.2d at 1095 (quoting State v. Wing, 294 A.2d 418, 422 (Me.
1972).) However, because testimony from witnesses indicated that four individuals
were involved in the crime and the witnesses named three of the four participants, the
deletion of the co-defendant from a defendant's confession was not enough to satisfy
the requirements of Bruton, because the confession "obviously referred directly to [the
codefendant]." Id. <[ 16, 718 A.2d at 1096. Yet in spite of the Bruton violation, the Court
affirmed the conviction because the inappropriately admitted confession was merely
2 cumulative, and "was entirely consistent with the rest of the State's evidence." Id. 'JI'JI
20-21, 718 A.2d at 1097. 1
In this case, there were seven defendants initially charged with robbery. One
defendant has already entered a plea and is available to testify. Three of the seven
defendants, including the defendant who has entered a plea, gave statements to the
police that implicate Pearson in the robbery. If the State sought to admit those
statements into evidence through the law enforcement officer who took them, and not
through the defendants who made them, Pearson's confrontation clause rights could be
violated, as would those of every other defendant implicated by the statement who
chooses not to testify. Redacting the statements to exclude any reference to the
existence of any other defendant would be appropriate.
However, the mere possibility of a Bruton violation does not necessarily require
severance (see footnote), and the State may choose to present its case in a way that does
not present Bruton problems. Furthermore, the defendant's concerns about Bruton
problems can be raised in a motion in limine or can be addressed at trial by the trial
judge.
CONCLUSION
The defendant's motion for relief from prejudicial joinder is DENIED.
DATED: November 13, 2007 Joyce \A~ Wheeler, Jus'tice J
1 It is also important to note that the Court upheld the trial court's decision not to sever the trials because the defendant hadn't alleged anything other than the possibility of a Bruton violation. Id.crr 10, 718 A.2d at 1095. Although there was indeed a Bruton violation, it would have been possible for the State to presentthe confession in a way that didn't violate the co-defendant's rights. rd, The only other arguments that Pearson has made for severance are that the statements will directly contradict his defense theory, and that the statements would be inadmissible hearsay if the trials were severed. However, the Law Court has said that mutually antagonistic defenses are not grounds for severance. Lakin, 2006 ME 64,
3 SUPERIOR COURT CUMBERLAND, 88. Docket No PORSC-CR-2007-01451 , '~"'. ~"9"
.,1 J,~: -P, 04062 DOCKET RECORD
':(','. :,'J82F.1 LEBRASSEUR State's Attorney: STEPHANIE ANDERSON PRC~M.~~& LEBRASSEUR, PC 482 CONGRESS ST. SUITE 300 PORTLAND ME 04101 APPOINTED 06/19/2007
ROBBERY OS/29/2007 SCARBOROUGH I,~ q1 2 ':) '1 17 - A 6 5 1 (1 ) (E) Class A
l~:.r)nBERY OS/24/2007 SCARBOROUGH o"l '1 2)4 17 - A 6 5 1 (1 ) (E) Class A Charged with COMPLAINT on Suppleme (JUS 2 / SCA
ROBBERY OS/24/2007 SCARBOROUGH ,: ," (1 '1 8 i3 4 17 - A 651(1) (B) (1) Class B Charged with COMPLAINT on Suppleme ~:()USE~ / SCA
EUBBERY OS/24/2007 SCARBOROUGH 1[:;'l17-A 651 (1) (B) (1) Class B Charged with COMPLAINT on Suppleme / SCA
,':LING DOCUMENT - CASH BAIL BOND FILED ON 05/31/2007
. ')/ ni\.'1. BOND - $50,000.00 SURETY BAIL BOND FILED ON 05/31/2007
Uc\~~ Amc: $50,000 Surety Type: SINGLE Surety Value: $1)0,000 ',~()Il:lCy: CUMBERLAND County Book ID: 25140 Book Page: 343 [:,:1::,' 13ctiled: OS/29/2007 Prvdr Name: KELLY L PEARSON len Issued: OS/29/2007 Rtrn Name: KELLY L PEARSON f.,':~n Ul,;charged:
"',! l'U PARTY. SEE CONDITIONS. r:I'C1U)'. {s): 1 HEARING - INITIAL APPEARANCE SCHEDULED FOR 06/18/2007 @ 8:30
l\;
'oj,-::,;): 1,2,3,4 ;J:: 0 iVlOnON FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 06/19/2007
..\ j" ( ",): 1, 2 , 3 , 4 Page 1 of 4 Prin~ed on: llil"J/:'UT/ ZACKARY PEARSON PORSC-CR-2007-01~51
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. ,', ,,~\ ~rt. CRIMINAL ACTION .' , I " , I·"~ I '- ,~_. .;. ," ',' t-:',. ~J '") _ FleE _ r ..... DOCKET NO. CR-07-1151 V "'}~ CuM ~ I r dD')7 (I lit ,~ \;J .-', ,-q
STATE OF MAINE, t1 ("I """\
-"- .·..,'1 \ II 1:., Ii: U I plaintiff'" " I \
v. ORDER & DECISION
ZACKARY PEARSON
Defendant (18 2008 BACKGROUND
The defendant was charged with four counts of robbery on June 13, 2007
and was indicted on July 6. The State filed a notice of joinder on July 6, joining
Pearson's case with those of six other defendants who were also accused of being
involved in the robbery. Pearson filed the present motion for relief from prejudicial
j,oinder on September 17. For the reasons discussed below, the court denies the motion.
DISCUSSION
While "the court must balance the general policy in favor of joint trials against
the prejudice to a defendant which may result," the court is also afforded "substantial
discretion" to grant or deny a motion to sever. State v. Lakin, 2006 ME 64, C}[<]I 7-8, 899
A.2d 777, 779. The burden is on the moving party "to show facts prior to trial that a
joint trial would result in prejudice." Id. Here, the defendant has asserted that
introduction of certain admissions made by his co-defendants would violate his
constitutional right to confront the witnesses against him, as the United States Supreme
Court decided in Bruton v. US., 391 U.s. 123 (1968).
The Law Court recently discussed the Bruton holding in Lakin, and reiterated that
when defendants are tried together in a single trial, an admission of a non-testifying defendant that implicates a co-defendant may not be used. Id. n.2, 899 A.2d at 778. To
do so violates the Confrontation Clause of the Sixth Amendment because the co
defendant is prevented from cross-examining a non-testifying defendant about the
admission. Id. In these cases, it is appropriate to exclude or redact the admission, sever
the trials, or empanel multiple juries. Id. <[ 5,899 A.2d at 778. The Law Court upheld
the trial court's decision not to sever the trials of the two defendants, however, because
the State had agreed not to use either of the inculpatory statements, and the
presentation of mutually antagonistic defenses was not a ground for severance. Id. <[<[
5-13, 899 A.2d at 778-79.
In an earlier case, the Law Court discussed several post-Bruton decisions of the
United States Supreme Court, and ultimately determined that even when a confession is
redacted to exclude reference to a co-defendant, it may inappropriately implicate that
co-defendant. State v. Boucher, 1998 ME 209, <[<[ 11-16, 718 A.2d 1092, 1095-96. The
Court acknowledged that" a fair deletion of all references, express or implied, to any
other defendant is a proper and approved method of avoiding prejudice and the Bruton
dilemma." Id. <][ 12, 718 A.2d at 1095 (quoting State v. Wing, 294 A.2d 418, 422 (Me.
1972).) However, because testimony from witnesses indicated that four individuals
were involved in the crime and the witnesses named three of the four participants, the
deletion of the co-defendant from a defendant's confession was not enough to satisfy
the requirements of Bruton, because the confession "obviously referred directly to [the
codefendant]." Id. <[ 16, 718 A.2d at 1096. Yet in spite of the Bruton violation, the Court
affirmed the conviction because the inappropriately admitted confession was merely
2 cumulative, and "was entirely consistent with the rest of the State's evidence." Id. 'JI'JI
20-21, 718 A.2d at 1097. 1
In this case, there were seven defendants initially charged with robbery. One
defendant has already entered a plea and is available to testify. Three of the seven
defendants, including the defendant who has entered a plea, gave statements to the
police that implicate Pearson in the robbery. If the State sought to admit those
statements into evidence through the law enforcement officer who took them, and not
through the defendants who made them, Pearson's confrontation clause rights could be
violated, as would those of every other defendant implicated by the statement who
chooses not to testify. Redacting the statements to exclude any reference to the
existence of any other defendant would be appropriate.
However, the mere possibility of a Bruton violation does not necessarily require
severance (see footnote), and the State may choose to present its case in a way that does
not present Bruton problems. Furthermore, the defendant's concerns about Bruton
problems can be raised in a motion in limine or can be addressed at trial by the trial
judge.
CONCLUSION
The defendant's motion for relief from prejudicial joinder is DENIED.
DATED: November 13, 2007 Joyce \A~ Wheeler, Jus'tice J
1 It is also important to note that the Court upheld the trial court's decision not to sever the trials because the defendant hadn't alleged anything other than the possibility of a Bruton violation. Id.crr 10, 718 A.2d at 1095. Although there was indeed a Bruton violation, it would have been possible for the State to presentthe confession in a way that didn't violate the co-defendant's rights. rd, The only other arguments that Pearson has made for severance are that the statements will directly contradict his defense theory, and that the statements would be inadmissible hearsay if the trials were severed. However, the Law Court has said that mutually antagonistic defenses are not grounds for severance. Lakin, 2006 ME 64,
3 SUPERIOR COURT CUMBERLAND, 88. Docket No PORSC-CR-2007-01451 , '~"'. ~"9"
.,1 J,~: -P, 04062 DOCKET RECORD
':(','. :,'J82F.1 LEBRASSEUR State's Attorney: STEPHANIE ANDERSON PRC~M.~~& LEBRASSEUR, PC 482 CONGRESS ST. SUITE 300 PORTLAND ME 04101 APPOINTED 06/19/2007
ROBBERY OS/29/2007 SCARBOROUGH I,~ q1 2 ':) '1 17 - A 6 5 1 (1 ) (E) Class A
l~:.r)nBERY OS/24/2007 SCARBOROUGH o"l '1 2)4 17 - A 6 5 1 (1 ) (E) Class A Charged with COMPLAINT on Suppleme (JUS 2 / SCA
ROBBERY OS/24/2007 SCARBOROUGH ,: ," (1 '1 8 i3 4 17 - A 651(1) (B) (1) Class B Charged with COMPLAINT on Suppleme ~:()USE~ / SCA
EUBBERY OS/24/2007 SCARBOROUGH 1[:;'l17-A 651 (1) (B) (1) Class B Charged with COMPLAINT on Suppleme / SCA
,':LING DOCUMENT - CASH BAIL BOND FILED ON 05/31/2007
. ')/ ni\.'1. BOND - $50,000.00 SURETY BAIL BOND FILED ON 05/31/2007
Uc\~~ Amc: $50,000 Surety Type: SINGLE Surety Value: $1)0,000 ',~()Il:lCy: CUMBERLAND County Book ID: 25140 Book Page: 343 [:,:1::,' 13ctiled: OS/29/2007 Prvdr Name: KELLY L PEARSON len Issued: OS/29/2007 Rtrn Name: KELLY L PEARSON f.,':~n Ul,;charged:
"',! l'U PARTY. SEE CONDITIONS. r:I'C1U)'. {s): 1 HEARING - INITIAL APPEARANCE SCHEDULED FOR 06/18/2007 @ 8:30
l\;
'oj,-::,;): 1,2,3,4 ;J:: 0 iVlOnON FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 06/19/2007
..\ j" ( ",): 1, 2 , 3 , 4 Page 1 of 4 Prin~ed on: llil"J/:'UT/ ZACKARY PEARSON PORSC-CR-2007-01~51
DOCKET RECOR;: i'~CT=ON - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 06/19/2007 C:'HOMAS E DELAHANTY II I JUSTICE COpy TO PARTIES/COUNSEL DEFENDANT IS PRSSENTLY INDIGENT AND SHALL RETURN TO COURT ON OR BEFORE 7-31-07 TO BE REEXAMINED AS TO INDIGENCY, IT IS FURTHER ORDERED THAT THE DEFENDANT SHALL SEEK EMPLOYMENT. _:;:>2"/ Party(s): ZACKARY PEARSON !,,''['ORNEY - APPOINTED ORDERED ON 06/19/2007
.",,' corney: ROBERT LEBRASSEUR " I ;'"" l.'ll"rge (s): 1 ITLARING - INITIAL APPEARANCE HELD ON 06/18/2007 ,JUtCS F, WHEELER , JUSTICE DA: MEGIN ELAM Reporter: KIMBERLY MCCULLOCH Defendant Present in Court
'-iMJIE BAIL CONTINUED WITH ADDED CONDITIONS. RS ,I '~ BOND - $50 1000.00 SURETY BAIL BOND CONTINUED AS POSTED ON 06/18/2007 ,JOYCE: i\ WHEELER , JUSTICE ;lITH ADDED CONDITIONS. RS i'EARING - STATUS CONFERENCE SCHEDULED FOR 08/27/2007 @ 11:00
.SUPlJLEf"1ENTAL FILING - INDICTMENT FILED ON 07/06/2007
di'/\Jd:\fC - STATUS CONFERENCE NOT HELD ON 07/06/2007
DEYEKDlU\fT INDICTED. RS :'1 (:I:,:r.'(Je(8): 1,2,3/4 'il"P ING - ARRAIGNMENT SCHEDULED FOR 08/27/2007 @ 11: 00 in Room No. 7 W[',IIAM BRODRICK I JUSTICE
"':;"9('(IJ): 1,2,],4 'l:/'.,1\INC - ARRAIGNMENT NOTICE SENT ON 07/11/2007
:1' U[':m". F1LING - NOTICE OF JOINDER FILED BY STATE ON 07/06/2007
'c, J:)INED WITH CR07-l410, 07-1441, 07-1409, 07-1444, 07-1408, 07-144]. '~LllTle(s): 1 1 2/3/4 :':'\'; [l!e] - Id-cRAIGNMENT HELD ON 08/27/2007 , ',rl\ci~ BfWDRICK, JUSTICE .I ,L r~: :. ne'; : HEATHER GONZALES , ," ['1ECIN ELAM Reporter: JANETTE COOK ','Hldd'IC Present in Court
,j ~AIVED, DEFENDANT INFORMED OF C~ARGES, COpy OF INDICTMENT/INFORMATION GIVEN TO "::J:j(.cJT, 21 DAYS TO FILE 1I10TIONS. SAME BAIL CONTINUED. RS (:1,',,':1'/,'3): 1,2,],4 _ 0, :.\ NOT GUILTY ENTERED BY DEFENDA"JT ON 08/27/2007
:C;C1D - $50, 000.00 SURETY BAIL BOND CONTINUED AS POSTED ON 08/27/2007 >:11 '. [{,fii BRO:JRICK, JUSTICE Page 2 of 4 Printed on: 11/L9/ ~) ~l , ZACKARY PS./'I,RSCl" PORSC-CR-2007-0~4~~
DOCKET RECO;:.r: A~READY POSTED. WITH CONDITIONS. RS :~/\)4/2() " TRIAL - DOCKET CALL SCHEDULED FOR 02/22/2008 @ 8:30 in Room No. 11 ROLAND A COLE , JUSTICE
!,iCllDN - MOTION FOR FUNDS FILED BY DEFENDANT ON 08/03/2007
~_JARrrE
'['WN - MOTION FOR FUNDS GRANTED ON 08/07/2007 ":: \~LIAloJ\ BRODRICK, JUSTICE (,'OPY TO PARTIES/COUNSEL EX-PARTE TOTAL AMOUNT APPROVED FOR A ,'!dVATE INVESTIGATOR $500.00. MRP ,:' 2 GC: .~. ella r'-j e ( s): I, 2, 3 / 4 TRU..L - DOCKET CALL SCHEDULED FOR 02/08/2008 @ 8 :30 in Room No. 11 FJJL,\ND A COLE , JUSTICE '.'Ld,-'')e ('0): 1,2,3,4 . :Oll MOTION TO SUPPRESS FILED BY DEFENDANT ON 09/14/2007
i:I'iCicge(s): 1,2,3,4 [oJiOTICN - MOTION RELIEF PREJUDICIAL JOIN FILED BY DEFENDANT ON 09/14/2007
L " ; !Li\l{I NG MOTION TO SUPPRESS SCHEDULED FOR 11/06/2007 @ 2:00 in Room No. 7
!'iCCfICE TO PARTIES/COUNSEL ';j i'L.\RING - MOTION TO SUPPRESS NOTICE SENT ON 09/28/2007
'.•"1,\ ,'ge (s) : 1,2,3,4 '\! .\c,' rNG . MOTION RELIEF PREJUDICIAL JOIN SCHEDULED FOR 11/06/2007 @ 2:00 in Room No.
,I r' ,,: : c;) 1,2,3,4 ,,!UNG MOTION RELIEF PREJUDICr./'I,L JOIN NOTICE SENT ON 09/28/2007
'T[':;,,
i,e:1i 11:' HOUR HEARING TSK [NU - MOTION TO SUPPRESS SCHEDULED FOR 11/21/2007 @ 1:00 in Room No, 7
TO PARTIES/COUNSEL TSK MOTION TO SUPPRESS NOTICE SENT ON 11/15/2007 '[!\ KELLEY I ASSISTANT CLERK-E (8): 1,2,3,4 I,l' 'i,')" - MOTION RELIEF PREJUDICIAL JOIN UNDER ADVISEMENT ON 11/06/2007 ."~ h WHE~LER , JUSTICE '('I.' 0'. :
.\~;,l::'-:.J\.::(3): 1,2/3,4 ';,;C; - ['lOTION RELIEF PREJUDICIAL JOIN NOT HELD ON 11/06/2007 ~ WHEELER , JUSTICE [0rn~/: ROBERT LEBRASSEUR Page 3 of 4 Printed on: 11/10/ ZACKARY PEARS)I,; PORSC-CR-2007-014SJ DOCKET RECOF= iJf.: JULIA SHERIDAN Reporter: PENNY PHILBRICK-CARVER D0fe~d3nt Present in Court
!IEI\RING - MOTION TO SUPPRESS NOT HELD ON 11/15/2007
::: 'r-IIORA/IN BY PHONE MRP ,; . ,7 Chi} r'ge ( s): 1, 2 , 3 , 4 :!O'lTON - MOTION TO SUPPRESS WITHDRAWN ON 11/15/2007
BY ?HONS MRP /';'- (':,.1'.9,,(6): 1,2,3,4 ";"011 - MOTION RELIEF PREJUDICIAL JOIN DENIED ON 11/14/2007 ;c. ':c';~ A vlHEELER , JUDGE
Clerk
Page 4 of 4 Printed on: 11/1~/~~