State v. Ayers

NICHOLS, Justice,

dissenting.

I cannot agree with today’s majority when in such cavalier fashion it permits the former testimony of a witness, Donald Ayers, to be admitted into evidence against the Defendant, Barbara Thibodeau Ayers, in this, her second trial for murder.

The witness’s testimony at the earlier trial was nothing but hearsay at this trial. Its admission into evidence by the Superior Court was a violation of the Defendant’s right of confrontation guaranteed to her by Amendment VI (through Amendment XIV) of the United States Constitution.

In a very limited way our Maine Rules of Evidence (tracking the Federal Rules of Evidence in this particular) permit the testimony of a witness given at a former trial to come in when the declarant is unavailable as a witness. Our rules provide that such hearsay is not excluded by the hearsay rule only if the party against whom the testimony is offered at the second trial

had an opportunity and similar motive to develop the testimony by direct, cross, or redirect- examination. M.R.Evid. 804(b)(1).

The central issue here is whether the Defendant had a “similar motive” to cross-examine this witness at an earlier time when he and she were being jointly tried for murder. The answer is that the Defendant did not.

The counsel who represented her at the first trial defended on the grounds of justification. He had no reason in that trial vigorously to cross-examine this witness as to the Defendant’s role in the slaying. Nor did he do so. Months later in a second trial the Defendant was represented by new counsel. It is clear from the record that at the second trial new counsel grounded their defense on a different issue entirely— whether there was insufficient evidence that it was the Defendant who killed the victim. On this issue cross-examination of Donald Ayers became of critical importance to the Defendant.

*611The “motive” had become dramatically dissimilar, yet today’s majority gloss over that difference.

First, it is simplistic indeed to suggest, as the majority does, that guilt or innocence was “all-encompassing” and “the identical issue of both trials.” They close their eyes to the fact that if a new trial is to be just that, client and counsel must have the opportunity to decide anew the trial strategy to be pursued.

Second, after the defense has settled upon their strategy for a jury trial, it is unrealistic to imply, as today’s majority does, that instead of presenting their case in the manner and with a selectivity counsel deem most persuasive to the jury, they must digress by cross-examining witnesses at length on matters not relevant to the issues of the day, all at the peril that at some possible second trial the witnesses’ former testimony would be admitted on the “all-encompassing” issue of “guilt or innocence.” Jury persuasion becomes subordinated to making a record for an appellate court.

Even before the rulemakers inserted this requirement of “similar motive” to develop the testimony by cross-examination, it had been recognized that where a defendant has had no opportunity to cross-examine that is “full, substantial and meaningful in view of the realities of the situation,” the former testimony is not excludable from the hearsay rule. United States v. Franklin, 285 F.Supp. 338, 341 (D.D.C.1964).

Since this requirement was codified in Fed.R.Evid. 804(b)(1) rare has been the case decided under that rule on “similar motive” grounds. For two cases decided under that rule at least in part on “similar motive” grounds, see Black Hills Jewelry Manufacturing Co. v. Gold Rush, Inc., 633 F.2d 746, 752-3 (8th Cir.1980); Hewitt v. Hutter, 432 F.Supp. 795, 799 (W.D.Va.1977); aff’d. 568 F.2d 773 (4th Cir.1978).1

To admit into evidence at this second trial of the Defendant the former testimony here challenged certainly offends the rule and violates as well her constitutional right to be confronted by the witnesses against her.2 In view of the realities of the situation, with a different defense being pressed in the first trial, the Defendant had no meaningful opportunity at that time to cross-examine on the issue being urged in the second trial. The former testimony remains pure hearsay, and its admission at this second trial offends the Defendant’s right of confrontation.3

Years ago, when a somewhat different issue was joined in a second case, our Court had occasion to observe that “[cjross-exami-nation upon the one issue might differ from cross-examination on the other.” Ellsworth v. Waltham, 125 Me. 214, 216, 132 A. 423 (1926). That observation is pertinent here today.

When this Defendant’s defense was justification, as it was in her first trial, no reasonable attorney, striving to focus the jury’s attention on the validity of this defense, could be expected to have diverted the fact finders’ attention by a lengthy cross-examination of Donald Ayers on matters irrelevant to this defense.

*612I advert to the same sentence from Professor Martin’s law review article as does the majority:

It is unfair to hold a party to the former examination if no reasonable attorney would be expected to have elicited the now-relevant facts; but if the circumstances could have been brought out if they were available, the present opponent can fairly be held.

Martin, The Former-Testimony Exception in the Proposed Federal Rules of Evidence, 57 Iowa L.Rev. 547, 559 (1972). However, I submit that it is the first clause of that sentence which is pertinent here, and not the second clause, which the majority underscores.

As an eminent authority declares, “When the issue to which the former testimony is directed in the subsequent proceeding was not an issue in the earlier proceeding, then the similar motive requirement will not be satisfied.” 11 Moore’s Federal Practice 270 (1982). See Peterson v. United States, 344 F.2d 419 (5th Cir.1965) (former testimony not admissible when a new issue of conspiracy was joined at the second trial).4

In sum, the majority’s interpretation of Evid.R. 804(b)(1) drains all meaning from the words “similar motive.” Surely, the federal rulemakers introduced this phrase for a purpose.5 I would interpret “similar motive” in a way that makes those words a vital safeguard of defendants’ right of confrontation. I would conclude that the “similar motive” requirement was not satisfied in the case before us. I would vacate the judgment of conviction.

. See generally 4 Weinstein’s Evidence ¶ 804(b)(l)[04] (1981).

. See Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980); Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923 (1965); Mattox v. United States, 156 U.S. 237, 244, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895).

. Just as the issue is novel in this jurisdiction, so few, indeed, have been the cases which have tested the federal equivalent, Fed.R.Evid. 804(b)(1), in a second trial situation; most involved challenges to the admission of testimony first given at some preliminary hearing. The case before us is unique in that it is conceded that at the first trial certain constitutional safeguards to which this Defendant was entitled had been infringed. If her in-court confession was a “fruit of the poisonous tree” as our Court indicated in State v. Ayers, 433 A.2d 356 (Me.1981), why was not Donald Ayers’ prior testimony, which followed that confession and suffers from the same constitutional infirmity, every bit as much a fruit of that tree?

. See also United States v. Wingate, 520 F.2d 309 (2d Cir.1975), cert. denied, 423 U.S. 1074, 96 S.Ct. 858, 47 L.Ed.2d 84 (1976) (issue at a suppression hearing held to be so different from issue at subsequent trial as not to exclude former testimony from the hearsay rule).

. The impetus for making “similar motive” an express requirement of the new rule may have been found in McCormick, Evidence (2d ed. 1972) 622, where the author had stressed that the opponent of the prior testimony must in the earlier trial have had an “adequate motive” for testing on cross-examination the challenged testimony.