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State v. Drake & Hartford
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 91
Docket:	And-98-626	
on Briefs:	May 24, 1999
Decided:	June 22, 1999	




	[¶1]  Defendants Ronald Drake and Walter Hartford appeal from
judgments entered in the Superior Court (Androscoggin County, Delahanty,
J.) following jury verdicts finding them guilty of murder (17-A M.R.S.A. §
201(1)(A) & (B) (1983 & Supp. 1998)) and robbery (Class A) (17-A M.R.S.A.
§ 651(1)(D) (1983)).  Defendant Drake argues that the court erred in
denying his request to suppress the videotape of his interview, and, in any
event, erred in admitting portions of the videotape without requiring the
jury to view the entire five and one-half hour recording.  Defendant Hartford
argues that the court erred in admitting the redacted testimony of a witness
because references to Hartford, made by co-defendant Drake to the witness,
were not effectively deleted.  We affirm the judgments.
	[¶2]  The evidence presented at trial may be summarized as follows:  
Defendant Hartford was introduced to the victim Bradley Burnell on the
night of February 17, 1997, through mutual acquaintances at a social club in
Lewiston.  The party moved across the street to a  second bar and Burnell
pulled some money out of his pocket in front of Hartford and bought
everyone a round of drinks.  Burnell and Hartford left the bar together and
took a cab to Drake's apartment to try to sell anti-depressant and
tranquilizer pills that had been prescribed for Burnell when he signed
himself out of a detoxification unit at a local hospital.  Hartford and Drake
spoke privately at the apartment and Hartford suggested that they "roll"
Burnell.  Drake informed Burnell he did not have the money at the
apartment, so Drake, Hartford, and Burnell left to go to a house on Howe
Street so that Drake could get some money to buy the pills.  On the way
over, Drake and Hartford attacked Burnell.  During the fight Burnell fell
down an embankment. Both Hartford and Drake followed him down the
embankment and continued to hit and kick him until he stopped moving.
They rummaged through Burnell's pockets and Drake found the pills.  They
left Burnell lying at the bottom of the embankment in "pretty bad shape,"
with Hartford thinking he might be dead.  Drake and Hartford returned to
Drake's place.  Afterward, Drake's girlfriend found three pill bottles with
Burnell's name on them on the kitchen table.  Burnell's body was found
eleven days later, the cause of death being a "blunt head and neck injury
with aspiration of blood."
	[¶3]  Following the discovery of the body, both defendants were
interviewed by the police, arrested, and subsequently indicted on charges of
murder and robbery. Drake moved to suppress the recorded statements
made by him during the police interview.  Both defendants also moved for
separate trials.  The court denied the suppression motion and ordered one
trial with two separate juries.  Both defendants were found guilty and both
I. Ronald Drake
	[¶4]  Defendant Drake first contends that the court erred in denying
his motion to suppress the videotape of his interview.  He argues that the
police erred in failing to give him his Miranda rights a second time during
the five and one-half hour interview.  Applying the five objective indicia
adopted in State v. Myers, 345 A.2d 500, 502 (Me. 1975) to the facts of this
case, we find no error.  Approximately five and one-half hours elapsed
between the Miranda warning given as the interrogation commenced and
Drake's incriminating statements.  The location stayed the same.  The
officers changed within the first hour when Detective Parlin entered the
room and, with the exception of Detective Urquhart's taking a statement at
9:20 p.m., Detective Parlin stayed in the room thereafter, even though other
officers and individuals entered the room to confront Drake with
information. Even when these other individuals were in the room, the
interview continued.  Contrary to Drake's argument that the incriminating
statements eventually elicited at the conclusion of the interview differed
decidedly from those made during the rest of the interview, they were the
result of a properly conducted interrogation.  See State v. Birmingham, 527
A.2d 759, 762 (Me. 1987).
	[¶5]  Drake argues next that the court erred in refusing to allow the
jury to view the entire videotape of his interview. We review a trial court's
determination to exclude evidence pursuant to M.R. Evid. 403{1} for abuse of
discretion. See State v. Clough, 391 A.2d 361, 362 (Me. 1978).  "A trial
justice has broad discretion in determining whether the probative value of
evidence is outweighed by the danger of confusing issues or by sheer waste
of time." Id.  The State offered, and the court admitted, the last 40-50
minutes of the videotape of the interview that included the incriminating
statements.  The court found little of probative value existed in the complete
interview and concluded that it would be a waste of time to require the jury
to view the entire five and one-half hour videotape.  In order to provide
context and balance, the court gave Drake the opportunity to introduce
selected portions of the interview totalling no more than one hour.  Such a
presentation, together with a statement, also offered to Drake by the court,
that the interview was approximately five and one-half hours in length,
would have sufficiently provided the jury with the context of Drake's defense
that he stood by his denials during the interview until he was broken down
at the end.  Drake, however, chose not to introduce any portion of the tape. 
The court did not abuse its discretion in excluding the evidence offered.
II. Walter Hartford
	[¶6]  A state's witness was allowed to testify to statements related to
him by Drake as follows:  "this other guy brought the victim to his house
with the intent of robbing him of money and some prescription pills,
Valium";  "This other guy asked Ron if he'd like to rob him of his money and
pills and Drake agreed"; "the two men demanded the money and the pills
from Bradley Burnell. . . . From that point on the two men started pushing
him"; and "both men started beating him."
	[¶7]  Defendant Hartford argues that although his name was not
mentioned in the testimony of the witness, the redaction was insufficient
under M.R. Evid. 105 and was prejudicial to him.  Rule 105 provides in
pertinent part that:  
	When evidence which is admissible as to one party or for
one purpose but not admissible as to another party or for
another purpose is admitted, the court upon request shall
restrict the  evidence to a proper scope and instruct the jury
accordingly.  In a criminal case tried to a jury evidence
inadmissible as to one defendant shall not be admitted as to
other defendants unless all references to the defendant as to
whom it is inadmissible have been effectively deleted.
M.R. Evid. 105 (emphasis added).

	[¶8]  The language at issue in Rule 105 was adopted in 1976 to
incorporate the holdings of Bruton v. United States, 391 U.S. 123 (1968)
and State v. Wing, 294 A.2d 418 (Me. 1972).  See State v. Boucher, 1998 ME
209, ¶ 12, 718 A.2d 1092, 1095; M.R. Evid. 105 advisers' notes, Field &
Murray, Maine Evidence 40 (4th ed. 1997). In Bruton, the Supreme Court
held that the admission into evidence of a nontestifying co-defendant's out-
of-court confession that the co-defendant and Bruton together had
committed a robbery violated Bruton's Sixth Amendment right to confront
the witness against him, even though the trial court instructed the jury to
disregard the testimony in determining Bruton's guilt or innocence. See
State v. Boucher, 1998 ME 209,  11, 718 A.2d 1092, 1095 (citing Bruton
v. United States, 391 U.S. 123, 135-37 (1968)).
	[9]  In this case, however, Drake testified.  We have stated, both
before and after the rules of evidence were promulgated in 1976, that
"where the confessing co-defendant is available at trial for cross-
examination, his co-defendant's confrontation is fully satisfied." State v.
Williams, 395 A.2d 1158, 1167 (Me. 1978) (citing State v. Berube, 297 A.2d
884, 888 (Me. 1972); State v. Wing, 294 A.2d 418, 423 (Me. 1972)).  Drake
elected to become a witness in his own defense and, although he denied the
conversation with the State's witness, he testified to the substance of the
statements that he purportedly made to the witness that incriminated
Hartford.  By testifying, Drake submitted to cross-examination by Hartford's
attorney.  Therefore, Hartford's right to confrontation was fully satisfied.
	The entry is:
					Judgments affirmed.

Attorneys for State: Andrew Ketterer, Attorney General Donald W. Macomber, Asst. Atty. Gen. Lisa Pelkey Marchese, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006 Attorneys for defendants: David J. Van Dyke, Esq. Berman & Simmons, P.A. P O Box 961 Lewiston, ME 04243-0961 (for Ronald Drake) Justin W. Leary, Esq. Sharon, Leary & DeTroy P O Box 3130 Auburn, ME 04212-3130 (for Walter Hartford)
FOOTNOTES******************************** {1} Rule 403 provides that: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. M.R. Evid. 403.