State v. Albert Cochran, corrected 5-9-00

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 78
Docket: 	Som-99-385
Argued:	April 4, 2000
Decided:	May 5, 2000

Panel: 	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and CALKINS, JJ.

STATE OF MAINE

v.

ALBERT P. COCHRAN

CALKINS, J.

	[¶1]  Albert P. Cochran appeals from a judgment of conviction entered
in the Superior Court (Somerset County, Mead, J.) following a guilty verdict
by a jury on one count of criminal homicide in the first degree pursuant to
17-A M.R.S.A. § 201 (Pamph. 1976), P.L. 1975, ch. 499, § 201.{1}  Cochran
argues that the trial court erred by excluding the hearsay statement against
interest of an unavailable declarant; by refusing to change venue from
Penobscot County; and by denying his motion for a mistrial on the ground
that unfairly prejudicial evidence was admitted.  We affirm the judgment.
	[¶2]  The body of Janet Baxter was discovered late on the night of
November 23, 1976, in Norridgewock.  Baxter was seen at the A & P
Supermarket in Waterville at 10:00 p.m. where she had driven from her
home in her boyfriend's Ford LTD.  A motorist saw the Ford LTD off the
River Road near the bank of the Kennebec River and reported it to the
police at 11:15 p.m.  The police chief went to the scene, had the Ford towed
back onto the road and searched the car.  He found Baxter's body in the
trunk; she was clad only in a shirt bunched around her neck and socks.  
	[¶3]  The medical examiner performed an autopsy the next day and
found that Baxter had been shot in the head and chest.  The examiner noted
that a "copious" amount of semen was found in her vulva and vagina, and
samples of the semen were preserved.  Ballistic tests on the two bullets
removed from Baxter's body determined that the murder weapon was a .22
caliber Rohm handgun.  The gun manufacturer believed that only fourteen
Rohm handguns were in Maine.  The police located and tested twelve of
these guns, and none were the murder weapon.  One of the unaccounted
guns was believed to have been stolen from a construction site where
Cochran worked in October 1976, and Cochran had expressed an interest in
the gun to a co-worker.  The murder weapon has never been found.
	[¶4]  The police questioned Cochran about Baxter's murder.  He
denied any involvement in the murder and denied knowing Baxter.  He said
that on the night of the murder he had been drinking and smoking
marijuana with three strangers in the parking lot of a Waterville bar; that he
and the three strangers drove in two cars to the Waterville A & P, where
Cochran parked his car and left with the strangers in the other car.  He
parted company with the strangers in Skowhegan and walked to his
brother's house.  A warrant to seize head and pubic hairs from Cochran was
obtained and executed.  The hairs apparently did not match the hairs found
with Baxter's body.  Cochran was not charged with murder, and he later
moved to Florida.  
	[¶5]  In late 1997, DNA testing was done on the samples of semen
found in Baxter's body and on the hairs taken from Cochran.  The analyst
determined that they matched.  A warrant was issued, and Cochran was
arrested in Florida on March 17, 1998, for Baxter's murder.  He was
returned to Maine, and pursuant to a court order, the State obtained
samples of blood from Cochran.  The DNA analysis of Cochran's blood and
the semen taken from Baxter's body demonstrated that Cochran was the
source of the semen.{2}  The semen samples from nine separate loci all
matched Cochran's blood, and in the opinion of the State's expert, ruled out
the possibility of multiple donors of the semen.  Cochran continued to deny
that he knew Baxter, or had sex with her, or was involved with her murder.

I.  EXCLUSION OF EVIDENCE

A.	Cochran's Defense

	[¶6]  Cochran's defense was that someone else murdered Baxter.  He
presented a number of witnesses to support this defense.  Skip Kelley
testified that he was an eye witness to the murder of Baxter.  Kelley was
acquainted with Perley Doyon, Armand Boudreau, Galen Lessard, and Alan
Pelletier in the mid-1970s.  He delivered drugs and other items for Doyon. 
According to Kelley, Doyon ran an illegal garage where he altered vehicle
identification numbers on cars.  Kelley testified that on the night of Baxter's
murder he was with Doyon in the office of the garage.  Doyon told Boudreau
and Lessard "to go do what they had to do."  Pelletier arrived with a satchel
containing money for drugs, and Doyon counted the money.  At that time a
blue car drove into the garage.  Boudreau was the driver, and Baxter was in
the passenger seat.  Another car followed, driven by Lessard.  Kelley testified
that he heard talking and laughing, and he saw Boudreau, Lessard, and
Pelletier, one after the other, have sex with Baxter in the back seat of the
first car.  Kelley testified that he saw Doyon pull a gun from under his shirt,
exit the office, and order Boudreau, Lessard, and Pelletier to stand against
the wall.  Doyon then dragged Baxter out of the car and shot her twice. 
Kelley, who said he saw this from the window in the office overlooking the
garage, exited the office and walked over to the car where he saw Baxter
with blood coming from her nose, mouth, and chest.  Kelley went back to
the office partition, took money that he was owed and left.  Kelley testified
that he did not know Cochran and that Cochran was not at the garage that
night.  He also testified that a few weeks earlier Baxter had asked Kelley if
she could borrow money from him because she owed a drug debt to Doyon.
	[¶7]  Two State Police detectives and a Waterville police officer, who
had investigated the Baxter murder at different times during the period
from 1977 to 1998, testified that they had considered Doyon, Boudreau,
Lessard, and Pelletier as suspects.  Two of the officers said that Boudreau
resembled a composite sketch that was based upon the description of a
witness, Clarice Merrill, of a man she had seen in a Ford LTD with a woman. 
Merrill had seen the man and woman on the night that Baxter's body was
discovered and on the River Road, near the location where the body was
found.  Merrill, who testified at trial, also saw a yellow Volkswagen, with the
word "Bug" written on it, stop on the River Road near the Ford LTD, and
she saw two men exit the Volkswagen.  Witnesses testified that Doyon,
Boudreau, Lessard, and Pelletier were friends, and Doyon was the leader of
the group.  Lessard's ex-wife testified that she and Lessard owned a yellow
Volkswagen with the word "Bug" written on it.  
	[¶8]  Dawnann Roberts testified that she was at a garage in 1979 with
Doyon, Boudreau, and others.  According to Roberts, Boudreau bragged about
killing two women, and he said that one had been "fucked to death" and put
in the trunk of a car.  Roberts testified that Boudreau said that Doyon paid
Pelletier to do the killings because the women owed him drug money.{3}

B.	Offer of Gidney Testimony

	[¶9]  Cochran offered the videotaped testimony of Mary Gidney, but
the court sustained the State's objection to the testimony and ruled it
inadmissible.  Gidney testified that in late 1976 when she was the bartender
at a Waterville restaurant, Doyon and Lessard came into the restaurant. 
Gidney knew both of them and had gone to school with Doyon.  Gidney said
Doyon had been drinking and walked "kind of macho" up to the bar where
he used the telephone located on the bar.  There was no one else at the bar. 
Gidney overheard Doyon say into the telephone that they had taken care of
the Volkswagen and the woman they killed was in the trunk of a car.  Gidney
did not know to whom Doyon was talking.  She also heard him say
something about the location of a gun, but she could not remember what
that was.  She also testified that more than once Doyon said they got away
with murder, and she acknowledged that the reason she remembered that
statement was because "they would gather in the corner and say well, they
got away with murder."  Doyon's telephone conversation upset Gidney, and
she asked him to leave.  She first told the police about this conversation in
1987.

C.	Rule 804(b)(3)

	[¶10]  The State objected to Gidney's testimony on the ground that it
was hearsay and did not come within the exception created by M.R. Evid.
804(b)(3).{4}  We review the exclusion of a hearsay statement under Rule
804(b)(3) for an abuse of discretion.  See State v. Boucher, 652 A.2d 76, 78
(Me. 1994).  
	[¶11]  Rule 804(b)(3) sets forth a three-prong test for the
admissibility of an out-of-court statement against interest:

(1) the declarant must be unavailable as a witness; (2) the
statement must so far tend to subject the declarant to criminal
liability that a reasonable person in [his] position would not have
made the statement unless [he] believed it to be true; and (3)
the statement must be corroborated by circumstances that
"clearly" indicate its trustworthiness.

State v. Long, 656 A.2d 1228, 1230 (Me. 1995) (quoting State v. Smith, 415
A.2d 553, 559-61 (Me. 1980)).  
	[¶12]  The first prong is satisfied because the State concedes that
Doyon is dead.  The second prong means that Doyon's statement must have
exposed him "in a real and tangible way" to criminal liability.  Boucher, 652
A.2d at 78, (quoting United States v. Hoyos, 573 F.2d 1111, 1115 (9th Cir.
1978).  Furthermore, a reasonable person in Doyon's position would not
have made the statement unless he believed it to be true.  See Smith, 415
A.2d at 560.  With regard to the third prong, the trustworthiness prong,
there are four factors we consider: 

(1)the time of the declaration and the party to whom it was
made;
(2)the existence of corroborating evidence in the case; 
(3)whether the declaration is inherently inconsistent with
the accused's guilt; and 	
(4)whether at the time of the incriminating statement the
declarant had any probable motive to falsify.

Boucher, 652 A.2d at 79.  	
	[¶13]  The trial court relied on the second prong in excluding the
evidence.  It found that Doyon's statement did not meet the rule because, as
an overheard statement and one not made directly to Gidney, it did not have
the same trustworthiness as a direct statement.  The court reasoned that an
overheard statement could not be as trustworthy as one made when the
intended listener recognized that the speaker exposed himself to criminal
liability.
	[¶14]  In determining whether the second prong has been met, the
circumstances surrounding the statement are essential.  Indeed, the context
in which a statement is made can reveal as much about it as the words used. 
An important contextual fact is missing for Doyon's statement in that it is
not known to whom Doyon was speaking on the telephone.  Therefore, we
do not know whether the statement to the unknown person was exposing
Doyon to criminal liability in a "real and tangible way."  Because the
recipient of the statement is unknown it is difficult to even speculate as to
whether Doyon believed the statement to be true.  Even assuming that Doyon
knew that Gidney could overhear his conversation, it is not possible to infer
that he made the statements knowing they were true.  The facts
surrounding Doyon's telephone conversation do not support a finding that
Doyon was exposing himself to criminal liability. 
	[¶15]  Concerning the truthfulness prong and the first of the four
factors considered for that prong, Gidney testified that the conversation
took place sometime in late 1976, and we have already noted that the
person on the receiving end of the conversation is not known.  For the
second factor, there is corroborating evidence in the form of Kelley's
testimony about seeing Doyon shoot Baxter; the testimony of the police
officers who found Baxter's body in the trunk of a car; and the testimony of
Merrill about a Volkswagen that stopped near a Ford LTD on the night
Baxter's body was found.  The State argues that Kelley's testimony was
incredible, but whether Kelley was truthful was for the jury to determine. 
For this evidentiary issue it is sufficient that the corroborating evidence is
presented.  See People v. Swaggirt, 668 N.E.2d 634, 641 (Ill. App. Ct. 1996).
	[¶16]  Considering the third factor, Doyon's statement is inherently
inconsistent with Cochran's guilt.  Although it could be inferred from
Doyon's statement that he and one or more people killed a woman, there
was no suggestion during the trial that Doyon and Cochran acted together or
that Cochran acted with anyone in murdering Baxter.  With regard to the
final factor to be considered in determining the trustworthiness of the
statement, there is no information as to whether Doyon had any probable
motive to lie about killing the woman or stating that her body was in a car
trunk.  It is possible that Doyon was talking to a criminal cohort and
indulging in braggadocio.  See United States v. Seabolt, 958 F.2d 231, 233
(8th Cir. 1992).  Conversely, Doyon could have been speaking with a friend,
in which case the statement is more likely to be true.  See Swaggirt, 668
N.E.2d at 640.  Ultimately we cannot say that these circumstances show
whether Doyon had any motive to lie when making the challenged
statement.
	[¶17]  Considering the four trustworthiness factors, the trust-
worthiness of Doyon's statement is not apparent.  While two of the factors
indicate trustworthiness, two of the factors do not support a finding of
trustworthiness because we have no information on them.  Thus, we cannot
say that the surrounding circumstances of the statement "clearly" indicate
its trustworthiness.  See M.R. Evid. 804(b)(3).  In light of the fact that
neither the second nor the third prong of the rule are met, the court did
not err in excluding Gidney's testimony.

II.  MOTION TO CHANGE VENUE

	[¶18]  This offense occurred in Somerset County.  Cochran's motion to
change the place of trial from Somerset County was granted.  By
memorandum dated December 21, 1998, the judge informed the parties
that the trial would be held in Bangor starting May 10, 1999.  Cochran then
made a request to have the place of trial changed from Bangor.  The court
heard argument on this request on March 30, 1999.  Cochran produced
seventeen articles discussing his case; all came from the Bangor Daily News;
and all were published between March 18, 1998, and September 24, 1998. 
Cochran did not introduce any evidence of television or radio coverage of his
case.  Cochran's request to move the trial from Bangor was denied.
	[¶19]  After the jury was selected, Cochran renewed his motion for a
change of venue and submitted one additional newspaper article, published
in the Bangor Daily News on May 8, 1999.  This article announced that the
Cochran trial would start on Monday.  It reviewed the events of the Baxter
murder and the DNA testing.  It also stated that Cochran had served nine
years in jail in Illinois for stabbing his estranged wife and that he had
confessed to killing his three children because they witnessed him murder
his wife.  It also said he was suspected in the disappearance of a Maine
woman with whom he was residing at the time of Baxter's murder.  The
court again denied the motion.
	[¶20]  We review a denial of a motion to change venue for abuse of
discretion.  We do not overturn a court's decision on venue unless it has
abused its discretion or "there exists facts demonstrating 'intensive and
extensive pretrial publicity of an invidious nature tending to arouse general
ill will and vindictiveness against the accused.'"  State v. Cooper, 617 A.2d
1011, 1014 (Me. 1992) (quoting State v. Addington, 518 A.2d 449, 451 (Me.
1986)). 
	[¶21]  A change of venue is required upon the showing of (1)
presumed prejudice due to extensive and pervasive media coverage of a
case, or (2) actual prejudice among the jury venire.  See State v. Chesnel,
1999 ME 120, ¶ 5, 734 A.2d 1131, 1134.  Prejudice is presumed when the
defendant demonstrates that the pretrial publicity has "the immediacy, the
intensity, or the invidiousness sufficient to arouse general ill will and
vindictiveness against the accused at the time of jury selection."  Id. at ¶ 7,
734 A.2d at 1134-35.  Actual prejudice is not proven by focusing on the
number of prospective jurors who know about the case.  See State v. Corson, 
572 A.2d 483, 485 (Me. 1990).  The burden is on the defendant to present
the evidence demonstrating prejudice.  See Addington, 518 A.2d at 451.
	[¶22]  Cochran has failed to demonstrate actual prejudice.  Jury
selection took place on May 10, 1999, and 138 potential jurors appeared. 
The first question that the court asked the venire was whether anyone knew
anything about the case either from personal knowledge or from reading,
viewing, or hearing something about the case.  The 47 potential jurors who
responded affirmatively were taken into another courtroom.  Soon thereafter
the court excused for cause all 47 prospective jurors who had indicated that
they knew something about the case.  There were 91 remaining potential
jurors who did not know anything about the case.  Therefore, there was no
actual prejudice from the pretrial publicity.
	[¶23]  Cochran has not demonstrated presumed prejudice because he
failed to show that the immediacy, intensity, or invidiousness of the pretrial
publicity so tainted the atmosphere as to deprive him of a fair trial.  The
news articles originally submitted to the court were several months old, and
therefore, they lack immediacy.  Of the seventeen articles, only five appear
to be front page articles, and all of the front page articles are from March
1998, over a year before jury selection.  Most of the articles are factual
reporting of the events in the court proceedings, such as Cochran's arrest in
Florida, the waiver of extradition, the arraignment, and problems
surrounding the appointment of counsel.  Other articles reported on pre-
trial motions, and one article was about DNA testing in Maine, with only a
passing reference to Cochran.  Cochran has not demonstrated from these
seventeen articles the "intensity or invidiousness sufficient to arouse general
ill will and vindictiveness against the accused at the time of jury selection." 
	[¶24]  The May 8 newspaper article tying Cochran to the commission
of other murders is both immediate and the type of publicity likely to
generate ill will toward a defendant.  Because it is only one article and it did
not appear as a front page story, it does not meet the intensity or
pervasiveness requirement for a presumption of prejudice, even when
viewed as a whole with the other seventeen articles, the most recent of
which appeared eight months earlier.  More importantly, by the time the
May 8 article was called to the court's attention, all potential jurors who had
heard or read anything about the case had been excused for cause.  The jury
had been chosen, and it consisted of twelve members and three alternates
who had not heard of the case.  The trial court did not abuse its discretion
in denying Cochran's request to move the trial from Bangor.

III.  MOTION FOR MISTRIAL

	[¶25]  Cochran moved for a mistrial on the ground that one of the
State's witnesses testified that Cochran was on parole.  Cochran concedes
that the testimony was not obtained by prosecutorial misconduct or in bad
faith.  
	[¶26]  The State called Cochran's brother, Alfred, to testify.  On
redirect examination, the prosecutor asked Alfred about the interest shown
by Cochran in Baxter's murder.  Alfred said that Cochran was interested and
read the paper.  The prosecutor then asked if Alfred could explain why
Cochran denied any interest in the murder when he was arrested in 1998. 
Alfred responded:

The only thing I could say is it might have happened, sir, if he
got picked up and somebody thought that he might have had
something to do with it, and where he was on parole, he might
be just a little bit nervous about everything.  I mean, I know I
would be.

No objection was made to the testimony.  The prosecutor changed the
subject by asking Alfred whether Cochran was neat and clean.  
	[¶27]  The next day, after Alfred's testimony was completed and two
other witnesses testified, Cochran moved for a mistrial because of the
reference to parole.{5}  The judge said he had not heard the mention of
parole, and he took the motion under advisement to review the transcript. 
The next day, after reviewing the transcript and noting that no jurors had
visibly reacted to the statement, the court denied the mistrial motion.  The
court found the mention of parole to be unresponsive, a quick reference and
fairly innocuous.  Cochran requested that no curative instruction be given,
and none was given. 
	[¶28]  We review a decision denying a motion for a mistrial for abuse of
discretion.  See State v. Clarke, 1999 ME 141, ¶ 17, 738 A.2d 1233, 1236. 
Furthermore, we overrule a denial of a mistrial motion only in the event of
"exceptionally prejudicial circumstances or prosecutorial bad faith."  State v.
Ardolino, 1997 ME 141, ¶ 16, 697 A.2d 73, 79.
	[¶29]  Alfred's brief, nonresponsive remark was so innocuous that it
was unnoticed by the trial court and apparently unobserved by the jury.  We
must give deference to the trial court's determination because it was able to
gauge the impact, or lack of impact, on the jury of the brief mention of
parole.  See State v. Weidul, 649 A.2d 318, 319 (Me. 1994) (affirming denial
of mistrial when witness answered a question nonresponsively and
mentioned the defendant's prior jail sentence); State v. Libby, 435 A.2d
1075, 1078 (Me. 1981) (affirming denial of mistrial and stating that trial
judge could infer that defense counsel viewed the challenged statement of
little consequence, because counsel waited until the State rested to move for
a mistrial).  Neither exceptionally prejudicial circumstances nor
prosecutorial bad faith are present, and we cannot say that the trial court
abused its discretion in denying Cochran's motion for a mistrial.
	The entry is:
			Judgment affirmed.