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State v. Ardolino
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Decision:		1999 ME 14
Docket:		Pen-98-181		
Argued:		November 5, 1998
Decided :		January 21, 1999





	[¶1]	Robert Ardolino appeals from a judgment entered in the
Superior Court (Penobscot County, Kravchuk, C.J.) denying his motion for a
new trial on the ground of newly discovered evidence.  Ardolino contends
that the court erred because post-trial enhancement of the audio tape
recording of an interview the police conducted with Ardolino reveals that
the transcript of the recording presented to the jury at trial was inaccurate
and allowed the State to unfairly characterize what was on the recording in
its closing argument.  Because Ardolino had possession of a copy of the
original recording 18 months prior to trial, the Superior Court determined
that the enhanced recording did not constitute newly discovered evidence
within the meaning of M.R. Crim. P. 33.  We affirm its judgment.
	[¶2]  In 1996, Ardolino was convicted of depraved indifference
murder of his nine year old son, Matthew.  See State v. Ardolino, 1997 ME
141, 697 A.2d 73.  Matthew, who lived with his brother Daniel in Ardolino's
home,{1} died on June 27, 1993, from acute peritonitis, a massive abdominal
infection resulting from a delayed rupture of his intestine approximately 24
hours prior to his death.  The rupture was caused by trauma to his abdomen. 
Ardolino's conviction resulted in substantial part from evidence indicating
that he failed to obtain medical attention for Matthew after the severity of
his illness became apparent.
	[¶3]  In March of 1998, Ardolino, relying on the recording of an audio
tape digitally enhanced subsequent to his trial, filed a motion for a new trial
based on newly discovered evidence.  On the tape was an audio recording of
an interview of Ardolino conducted by Detective Robert Cameron, of the
Maine State Police, at the Maine Coast Memorial Hospital, where Matthew
was taken on the morning of June 27.  A recording and transcript of the
interview were provided to Ardolino's counsel soon after Ardolino was
indicted in August of 1994.  
	[¶4]  At trial, Detective Cameron testified about the interview
between himself and Ardolino and identified the audio recording.  The State
sought to play the audio recording in the presence of the jury, and to use a
transcript of the recording as an aid to the jury because, as the State
contended, the quality of the recording was poor, and portions of it were
difficult to hear.  Ardolino had no objection to playing the tape, but objected
to the introduction of the transcript.  Counsel for Ardolino argued that the
recording on the tape was clear and a transcript was unnecessary, and that
allowing the jury to both hear and read the interview unfairly emphasized
the interview.  He urged that only the recording should be admitted in
evidence.  The court did allow the transcript to be used, as an aid to the jury
when the audio recording was played, but did not admit the transcript in
	[¶5]  In contending that Ardolino was guilty of depraved indifference
murder,{2} the State relied substantially on Ardolino's failure to seek medical
attention for Matthew after it became obvious that Matthew was seriously
injured or ill.  Matthew's bedroom was on the second floor of Ardolino's
home.  In the early morning hours on the day of Matthew's death, however,
Matthew was found by Daniel on the living room sofa, on the first floor. 
Ardolino had awakened Daniel and asked him to check on Matthew.  The
State contended that how Matthew, who went to his bed on the second
floor, was found by Daniel on the living room sofa on the first floor,
implicated Ardolino in the depraved indifference murder.  The State argued
that Daniel was too small to move Matthew down the stairs without help,
and medical testimony demonstrated that, in his condition, it was highly
unlikely that Matthew would have been able to move himself.
	[¶6]  Ardolino contended that he had not seen Matthew from the
time Matthew went to bed until Daniel found his body on the sofa.  The State
theorized, however, that Ardolino was up earlier, observed Matthew's
serious condition, and carried him downstairs.  Knowing that Matthew was
dying, Ardolino did nothing to save him, but rather concealed his knowledge
of Matthew's condition by later asking Daniel to check on his brother.  In
the State's closing argument, the prosecution stated:
[t]hat the Defendant was up earlier than 4 o'clock and knew
Matthew was dead is supported by the Defendant's own words
and actions.  In his statement to Detective Cameron, which is
again on tape, he mentioned to Detective Cameron that
[Matthew's] bed had vomit on it.  Remember that?  How would
he know?  How would he know unless he had gone upstairs? 
According to him, he didn't.  He sent Danny.  He woke Danny up
and told him to check on his brother.  In order for him to know
that there was vomit on Matthew bed, he had to have been up
there earlier in the night before he woke Danny up.
(emphasis added).  Ardolino argues that the enhancement of the recording
on the tape shows that Ardolino made specific statements that were altered
or excluded from the transcript and that those statements refute the State's
	[¶7] The enhanced version of the tape recording reveals a number of
discrepancies between it and the transcript of the recording on the
unenhanced version of the tape used at the trial.  The majority of
discrepancies, however, are of little consequence.  Ardolino contends that
part of the enhanced recording shows he stated to Detective Cameron that
he went upstairs prior to leaving the house to accompany Matthew to the
I know, I was getting ready to leave the house, went upstairs,
and there was ah- vomit in- in his bed.  There was vomit in his
bed, ah a coupla' little spot (ui) . . . .  We went up to shut the
light off together.  Daniel went up to shut his lights, cause you
could see his (ui) . . . .  So he went to sleep upstairs, and we
ended up findin' him on the couch.
The transcript used at trial, however, did not reflect any statement by
Ardolino that he had gone upstairs prior to leaving for the hospital.{3} 
Ardolino contends that the statements on the enhanced recording refute
the State's theory that he must have seen Matthew before 4 o'clock in the
morning in order to have known there was vomit on Matthew's bed.  He
argues that because that evidence was so crucial to his conviction of
depraved indifference murder, he is entitled to a new trial.
	[¶8]  A motion for a new trial based on newly discovered evidence is
made pursuant to M.R. Crim. P. 33.{4}  To obtain such relief, a defendant must
establish by clear and convincing evidence that:
(1)	the evidence is such as will probably change the result if 	a
 	new trial is granted;
(2)	it has been discovered since the trial;
(3)	it could not have been discovered before the trial by the
	exercise of due diligence;
(4)	it is material to the issue; and 
(5)	it is not merely cumulative or impeaching, unless it is 	clear
	that such impeachment would have resulted in a different
State v. Dechaine, 630 A.2d 234, 236 (Me. 1993).  "In the interests of
fostering an end to litigation and preserving the integrity of criminal
judgments, motions for a new trial on the ground of newly discovered
evidence are regarded with disfavor."  State v. Preston, 521 A.2d 305, 308
(Me. 1987).
	[¶9]  Accepting the accuracy of the enhanced recording on the tape
for purposes of the motion for a new trial, the Superior Court concluded
that the enhanced recording did not constitute evidence that was newly
discovered within the meaning of Rule 33.  A trial court's denial of such a
motion is reviewed for clear error.  See State v. Priest, 617 A.2d 537, 539
(Me. 1992).  When evidence is known to the defendant at the time of trial,
but its significance is not fully appreciated until after the trial, it is "not in
the legal sense newly discovered" after the trial.  State v. Lund, 266 A.2d
869, 877 (Me. 1970).   Here, the State provided Ardolino with a copy of the
original tape recording 18 months prior to trial.  If the original recording
was unclear, or Ardolino could not determine whether the transcript
accurately reflected the contents of the recording, the recording could have
been enhanced prior to the trial.  Moreover, Ardolino was in the best
position to determine the accuracy of the recording and the transcript, and,
in particular, whether the State's closing argument alleged facts
inconsistent with his statement to Detective Cameron, or with the events on
the day his son died.  Ardolino, however, made no objection to the accuracy
of the recording on the tape or the transcript, or to any aspect of the State's
closing argument.  Accordingly, the enhanced version is not newly
discovered because "it could have been discovered before the trial by the
exercise of due diligence."  Dechaine, 630 A.2d at 236.
	[¶10]  In contending that a refusal to grant a new trial is unjust
because his conviction is based on false information, Ardolino overstates the
importance of the transcript in the overall context of the trial.  This case
does not present a situation in which on a tape recording a defendant
sounds like he is confessing to a crime, and the subsequently enhanced
version of the recording reflects not a confession, but the defendant's denial
of criminal conduct.  The State referenced what Ardolino contends are
inaccuracies in the transcript in only a few sentences in the closing
argument.  There is no indication that the jury convicted Ardolino based on
the transcript, and the reference in the State's closing argument to the
source of Ardolino's knowledge that there was vomit on Matthew's bed was
but a small part of the evidence relied on by the State to convince the jury of
Ardolino's guilt.  There was substantial evidence pointing to Ardolino's
physical and emotional abuse of the boy, of Ardolino's awareness of
Matthew's serious condition (his body had more than one hundred bruises
and abrasions), and that his son was vomiting bile on the day prior to his
death.  Despite that awareness, Ardolino did not seek medical attention for
	[¶11]  Ardolino had possession of the original tape recording 18
months prior to trial.  He repeatedly vouched for its accuracy and failed to
object to any inaccuracy between what was on the tape played at the trial, or
the transcript used at the trial, and what he actually said during the
interview, or the events that took place on the day of his son's death. 
Moreover, the impact that the availability of the enhanced version of the
recording would have had on the outcome of Ardolino's trial is minimal, at
best.  The Superior Court did not err in concluding that the enhanced
version of the audio tape recording did not constitute newly discovered
evidence, and correctly denied the motion for  a new trial.
	The entry is:
				Judgment affirmed.
Attorneys for State: Andrew Ketterer, Attorney General William R. Stokes, Asst. Atty. Gen., (orally) Donald W. Macomber, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006 Attorney for defendant: Peter L. Murray, Esq., (orally) 75 Pearl Street Portland, ME 04101
FOOTNOTES******************************** {1} . The boys' mother, Ardolino's wife, had left the home after her separation from Ardolino. {2} . 17-A M.R.S.A. § 201(1)(B) (1983) provides: 1. A person is guilty of murder if: . . . . B. He engages in conduct which manifests a depraved indifference to the value of human life and which in fact causes the death of another human being[.] {3} . The transcript stated "I don't know. I don't know what he had on . . . there was vomit in his bed. there was vomit in his bed, and like a couple of little spots, another spot, went up and shut the light off." {4} . Rule 33 provides that: [t]he court on motion of the defendant may grant a new trial to the defendant if required in the interest of justice. . . . Any motion for a new trial based on the ground of newly discovered evidence may be made only before, or within 2 years after, entry of the judgment in the criminal docket.