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State v. Steven Boucher, corrected 8-18-98
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME   209
Docket:	Aro-97-279
Submitted
 on Briefs:	June 29, 1998
Decided:	August 13, 1998	

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

STATE OF MAINE

v.

STEVEN T. BOUCHER

DANA, J.

	[¶1]  Steven Boucher appeals from the judgment entered in the
Superior Court (Aroostook County, Pierson, J.) after a jury verdict finding
him guilty of burglary, 17-A M.R.S.A. § 401 (1983), robbery, 17-A M.R.S.A.
§ 651 (1983), and theft, 17-A M.R.S.A. § 353 (1983).  Boucher contends
that the court abused its discretion when it decided to join his trial with
that of a codefendant, and he argues that the procedures followed to protect
him from the prejudice of his codefendant's incriminating statements were
ineffective.  We conclude that the admission of hearsay statements that
incriminated Boucher violated his Sixth Amendment confrontation rights,
but that the error was not obvious, and we therefore affirm the judgment.
	[¶2]  On November 27, 1992, Steven Boucher, together with his
brother Scott and two others, went to the Grand Isle home of Beulah Dubois
and her two sons looking for money that Beulah's husband Paul had
reportedly stolen from a number of investors.  Three intruders{1} first
entered Beulah's apartment, forced her to the ground at gunpoint, secured
her arms and legs with duct tape, and searched her apartment.  They also
put duct tape over the mouth of Beulah's eight-year-old grandson, who
happened to be visiting that night.  Two of the intruders then went upstairs
to the apartment of Richard Dubois, Beulah's son, while the third kept
watch over Beulah.  The two forced Richard at gunpoint to lie on the floor,
bound his hands and feet with duct tape, and cut his ear and nose with a
knife and pushed a knife under his fingernails when he did not tell them
where they could find the money they were looking for.  The four men
eventually fled the scene, taking with them several hundred dollars in cash,
several items of jewelry, and a number of guns owned by the Dubois family.
	[¶3]  The Bouchers were each indicted in March 1995 for burglary,
robbery, and theft as a result of the Grand Isle incident.  The State moved to
join the trials of a third defendant, Michael Abbott, and the Bouchers
pursuant to M.R. Crim. P. 8.  Steven opposed the motion and it was denied. 
After Abbott was tried and acquitted, the State moved to have Steven and
Scott tried together, and the motion was granted over Steven's objection. 
Steven argued that joinder of his trial with Scott's would prejudice him
because Scott's admissions to the crimes, which included details of Steven's
involvement in the offenses charged and which would be inadmissible
hearsay if offered against Steven, would be admitted during the trial against
Scott and, even if redacted, would clearly implicate Steven in the crime. 
Prior to the trial, Steven filed a motion to sever, essentially reiterating his
arguments in opposition to the State's motion for joinder.  The motion was
denied, and the case went to trial.
	[¶4]  At the trial, several witnesses testified regarding Scott's
admissions to them of his involvement in the crimes.  The court instructed
the witnesses outside the presence of the jury that they were not to refer in
any way to Steven Boucher when relating statements made by Scott Boucher. 
The witnesses complied with this instruction.
	[¶5]  Debi Theriault-Pace, Scott's girlfriend at the time of the break-
in, testified that Scott told her about his involvement in the crimes.  After
relating some of the details of the crime as told to her by Scott, Theriault-
Pace testified as follows:

Q.Okay.  I want you to listen closely to my question.  What did
Scott tell you about Scott's involvement in the Dubois
situation?

A.	He stated that there was four people that were involved.
Q.	I am not going to ask you at this time to name any of the --
A.	No.
Q.	Was Scott one of the four?
A.	Yes.
. . . .
Q.	Did he state that Tim Dumond was also one of the four?
A.	Yes, he did.
Q.	Did he state whether Michael Abbott was one of the four?
A.	Yes, he did.

	[¶6]  Kevin O'Leary, who was dating Theriault-Pace's mother during
the time Scott was dating Theriault-Pace, testified that during a family get-
together Scott spoke to him regarding the break-in.  Again, the prosecutor
asked about the number of people involved:

Q.[D]o you remember how many other people or how many
people in total Scott was talking about?

A.	Four.
Q.	He was one of the four?
A.	Yes.
Q.Did he mention Michael Abbott was another one who was
involved?

A.	Yes.
Q.Did he mention that Timothy Dumond was another one
who was involved?

A.	Yes.

	[¶7]  Adam McBreairty, who worked with and was a friend of both
Steven and Scott, testified that both brothers talked to him about the crime. 
He related that Steven gave him a gun and told him that it had been stolen
from the Dubois residence in Grand Isle.  Steven also told McBreairty that
he drove the get-away car, but that he did not enter the house.  Timothy
Dumond, a participant in the break-in, testified for the State about the
details of the crime, including Steven and Scott's involvement, after the
State agreed to prosecute him only for misdemeanors.  Steven Michaud
testified that he met Scott Boucher while they were both living in Colorado
in 1994 or 1995 and that Scott told him that "he had gone in a house
looking for money and he felt bad about it."  Scott did not tell Michaud
whether he had committed the break-in alone or with others.  Neither Scott
nor Steven testified at the trial.
	[¶8]  Although Steven argued prior to the trial that evidence of Scott's
admissions would unfairly prejudice his defense, he did not object to the
testimony when it was offered during the trial.  Nor did Steven request an
instruction that Scott's admissions should only be considered against Scott
and should not be considered when determining Steven's guilt or
innocence.  The jury found Steven guilty on all three counts and he was
sentenced on the robbery count to twelve years of imprisonment with all but
eight years suspended followed by six years of probation, and to six years of
imprisonment on each of the burglary and theft counts to be served
concurrently with the sentence on the robbery count.  This appeal followed.

Joinder For Trial

	[¶9]  Steven first argues that the court's order that joined his trial
with his brother's was an abuse of discretion because there were no changed
circumstances from the time the court had denied a motion for joinder for
the trials of the Bouchers and Abbott.  M.R. Crim P. 8(d) provides:

If it appears that a defendant or the state is prejudiced by a
joinder of offenses or of defendants in an indictment,
information or complaint or by such joinder for trial together,
the court may order an election or separate trials of counts,
grant a severance of defendants or provide whatever other relief
justice requires; including ordering multiple simultaneous trials.

"In making a determination on a Rule 8(d) motion, the court must balance
the general policy in favor of joint trials against the prejudice to a defendant
which may result."  1 Cluchey & Seitzinger, Maine Criminal Practice § 8.9 at
III-65 (1995).  The decision on whether to sever a trial of one defendant
from another lies in the sound discretion of the trial court.  State v. Knight,
623 A.2d 1292, 1294 (Me. 1993).  The party moving for a severance bears
the significant burden of showing facts to the trial court prior to trial that
would convince the court that the party would be prejudiced by a joint trial. 
State v. Smith, 415 A.2d 553, 556 (Me. 1980).  
	[¶10]  Although Steven made a clear showing of facts that Bruton
issues would be raised at trial, the court acted within its discretion in
granting the joinder and denying Steven's subsequent motion to sever.  The
State, by completely redacting any direct or indirect reference to Steven,
could have presented Scott's confessions in a manner that was
constitutionally sound and that avoided prejudice to Steven.  The court
explicitly considered this possibility when ruling on Steven's motion to
sever the trials.  Because Steven made no other assertion of prejudice that
would result from the joinder for trial, he failed to meet his burden pursuant
to Smith, and thus, the court acted within its discretion when it ordered
the joinder.{2}