MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 20 ME 105 Docket: Aro

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- 334 Argued : June	24,	2020 Decided: August	13,	2020 Panel: MEAD, GORMAN,	JABAR , HUMPHREY, HORTON,	and	CONNORS, JJ.

STATE	OF	MAINE

v. JAMES	P.	PEASLEE

HUMPHREY ,	J. [¶1] James	 P.	 Peaslee	 appeals	 from	 a	 judgment	 of	 conviction	 of	 one count	 of	 murder, 17

- A	 M.R.S.	 §	 201(1)(A)	 (2020) ,	 entered	 by	 the trial court (Aroostook	County, Stewart,	J. ) after	a	jury	trial.		Peaslee argues	that	the	court abused	 its	 discretion by	 admitting the	 lay	 opinion	 testimony of	 three	 law enforcement	 officers	 identifying	 him	 as	 the	 person	 shown	 on home security camera	 footage recovered from	 the	 victim’s residence

. See M.R.	 Evid.	 701. Peaslee	also	argues	that	the	court	abused	its	discretion by	denying his	motion for	 a	 new	 trial	 based	 on	 newly	 discovered	 evidence, see M.R.U.	 Crim.	 P.	 33, specifically,	an	alleged	admission	by	Peaslee’s	brother	 that	he	committed	 the

mu rder	for	which	Peaslee	was convicted. We	affirm	the	judgment.2 I.		BACKGROUND [¶ 2 ] Viewing	the	evidence	in	the	light	most	favorable	to	the verdict ,	the jury	 rationally	 could	 have	 found	 the	 following	 facts	 beyond	 a	 reasonable doubt. See State	v.	Ouellette ,	2019	ME	75,	¶	11,	208	A.3d	399

. [¶ 3 ] The	 victim,	Peaslee’s	stepfather,	inherited	a	significant	portion	of Peaslee’s	mother’s	estate,	including	her	home	in	Bridgewater,	when Peaslee’s mother died	without	a	will. Peaslee	was angry that	 the	victim	had	inh erited his	 mother’s	 home.	 	 After Peaslee’s	 mother’s death,	 the	 victim ,	 who	 lived alone, had	a	home	security	system	installed,	which	included	video	monitoring and	recording	of	the	interior	and	exterior	of	the	home. [¶ 4 ] On	 January	 17,	 2018, Peaslee	 approached	 the	 victim’s	 home on foot , went	up	 the	 front	steps,	knocked	on	 the	door,	and	 then	 fired	 four	shots through	 the	screen	door with	a	.380	caliber	handgun ,	hitting	 the	 victim	once in	 the	 chest and killing	 him. 1 The	 shooting	 was	 captured on	 video by	 the victim’s	home	security	system,	and three local law enforcement officers who

1 Although	 the	 murder	 weapon	 was	 never	 recovered,	 the	 evidence	 showed	 that	 Peaslee	 had acquired	a	.380	caliber	handgun	on	the	day	of	the	murder,	and	his	fingerprints	were	found	on	the tray	inside	a	box	of	 .380	caliber	bullets	discovered	at	his	home.		Moreo ver,	 the	evidence	showed that	 the	 bullets	 found	at	 his	 home	were	 the	 same	make	 as	 the	 casings	 recovered	 from	 the	 crime scene.3 knew Peaslee	and	his	brother	identified	Peaslee	as	 the	shooter	in	 the	 video. 2 While	 awaiting	 trial	 at	 the	 Aroostook	 County	 Jail,	 Peaslee made	 a	 detailed confession to	another	inmate,	explaining that	he had	shot	 the	victim because of	the	dispute over	the	Bridgewater	property and describing how	he	had	done

so . 3 The	 inmate’s testimony at	 trial was	 consistent	 with	 the	 other	 evidence presented,	including	the	video	of	th e	shooting. [¶ 5 ] Peaslee	was	charged	by	indictment	with	 one	count	 of	intentional or	knowing	murder,	17

- A	M.R.S.	§	201(1)( A ),	on	February	8,	2018.		The	case proceeded	to	a	jury	trial	at	the	beginning	of	June	2019. [¶ 6 ] Before	 trial,	 Peaslee filed	 a	 motion	 in	 limine	 to	 exclude the	 lay opinion	 testimony	 of the three	law	 enforcement	 officers	who	would	identify
him as	 the	 shooter	 shown	 in the home	 security	 camera	 footage	 recovered from	 the	 victim’s	 residence. See M.R.	 Evid.	 701. Following voir dire examination	of	these	three	witnesses,	the	court determined that	each of	the m possessed	 sufficient	 relevant	 familiarity	 with	 the	 defendant to	 offer	 lay

2 One	of	these	witnesses	testified	that not	only	did	he recognize	Peaslee, he also recognized	the jacket	 Peaslee	 was	 wearing	 in the	 video	 of	 the	 shooting	 as	 one	 he	 had	 seen	 Peaslee	 wearing previously.

3 Peaslee	also	told the inmate	that	he had attempted	to	create	an	alibi	by	going	to	a	convenience store	in	Mars	Hill	wearing	different	clothing	before	he	went	to	the	victim’s	home, and	that	after	the shooting	he had	driven towards	Limestone,	thr own the	gun	in	the	woods,	changed	his	clothes	back to	the	ones	he	had	been	wearing	when	he	went	to	the	convenience	store,	and	wiped	his	right	hand with	 bleach.	 	 Peaslee	 stated	 that	 he	intende d	 to	make	it	look	like	 his	 brother	 had	 committed	 the murder.4 opinion	 testimony , State	 v.	Miller ,	 1999	ME	 182,	 ¶	 9,	 741	 A.2d	 448 , because they	 had each lived	 in	 the	 same	 community as	 Peaslee for	 many	 years, had

seen him at	 a	 distance	 numerous	 times ,	 and had interacted	 with	 him face

- to
- face on multiple occasions. 4 The	court denied	Peaslee’s	motion	after concluding that	 lay	 opinion	 testimony	 from	 these witnesses	 concerning	 the identity	 of	 the	 shooter	in	 the	 video	would	be	helpful	 to	 the	jury	because	 the video	was	not	unmistakably	clear. Id. ;	M.R.	Evid.	701. [¶ 7 ] The	 trial	 was	 held	 over	 three	 days i n	 June of 2019.	 	 The	 jury returned	a	guilty	verdict	o n	the	sole	count	of	intentional	or	knowing	murder,
17

- A	M.R.S.	§	201(1)( A ),	on	June	11,	2019. [¶ 8 ]		On	September	16,	2019, while	awaiting	sentencing,	Peaslee	filed	a motion	 for	 a	 new	 trial	 based	 on	 newly	 discovered	 evidence

— a	 statement allegedly	made	by	Peaslee’s	brother in the	presence	of	another	individual,	in which Peaslee’s	 brother claimed	 responsibility	 for the victim’s	 murder

. See
M.R.U.	Crim.	P.	33. After	a	hearing,	the	court	denied	Peaslee’s	motion	based	on its	 determination	 that the brother’s	 statement	 would	 not	 be	 admissible	 in	 a

4 To	minimize	the	potential	danger	of	unfair	prejudice,	the	court	ordered	the	State	not	to	elicit testimony	 from	 these	witnesses	concerning	interactions	 they	may	have	had	with	Peaslee	in	a	law enforcement	 or	 professional	 capacity

— e.g.,	 previous	 arrests,	 interrogations,	 or	 traffic	 stops involving	Peaslee. See M.R.	Evid.	403.5 new	trial, 5 and further	concluded that	even	if the	statement were	admissible, Peaslee failed	 to establish to	 a clear	 and	 convincing standard that the proffered evidence would proba bly	 change	 the	 result	 if	 a	 new	 trial	 w ere granted

. See State	v.	Twardus , 2013	ME	74,	¶¶ 29

- 30,	72	A.3d	523

. [¶ 9 ]	 	 Peaslee	 was	 sentenced	 to	 sixty	 years	 in	 prison 6 and,	 thereafter, timely	appealed. 15	M.R.S.	§	2115	(2020); M.R.	App.	P.	2B(b)(1).
II. DISCUSSION
A. Lay	Opinion	Testimony [¶1 0 ] Peaslee	 first	 argues	 that	 the	 court “ erred in	 permitting	 law enforcement	officers	to	testify	about	their	opinion [s] that	.	.	.	Peaslee	was	the individual	 depicted	 in	 the	 video	 of	 the	 shooting”	 because	 the	 video was	 so clear	 that	 the jury could have determine d without	 the	 officers’	 testimony whether	Peaslee	was	the	individual	shown. Peaslee	also	contends	that	even	if the	 officers’	 lay	 opinion	 testimony	 “satisfied	 the	 foundational	 requirements for	 admission,	 the	 p robative	 value	 of	 this	 evidence	 was	 substantially outweighed	by	the	danger	of	unfair	prejudice.”

5 Because	Peaslee’s	brother	was	unavailable	to	testify,	the	court	analyzed	whether	the	statement would	 be	 admissible	 t hrough	 the	 witness	 who	 overheard	 the	 statement	 as	 a	 statement	 against interest	by the brother.		M.R. Evid. 804(b)(3).

6 Peaslee	 was	 also	 ordered	 to	 pay a	 fine	 of	 $35 and $4,200	 in	 restitution	 to	 the	 Victims’ Compensation	Fund. 5	M.R.S.	§	3360

- I	(2020)

. He	does	not	challenge	his	sentence	on	appeal.6 [¶1 1 ] We	review	the	court’s	admission	of	lay	opinion	testimony	for	an abuse	 of	 discretion. State	 v.	 Patton ,	 2012	 ME	 101,	 ¶	 20,	 50	 A.3d	 544 .	 	 Lay opinion	 t estimony	 concerning	 the	 identity	 of	 someone	 shown	 on	 a	 video recording	 “must	 be	 relevant,	 rationally	 based	 on	 the	 witness’s	 own observations,	 and	 helpful	 to	 the	 jury.” Miller ,	 1999	 ME	 182,	 ¶	 9,	 741	 A.2d
448 ; M.R.	 Evid.	 701.	 	 In	 general,	 these	 elements	 are present	 where	 “the witness	possesses	sufficiently	relevant	familiarity	with	the	defendant	that	the jury	cannot	also	possess,	and	when	 the	 [video	is]	not	either	so	unmistakably clear	 or	 so	 hopelessly	 obscure	 that	 the	 witness	 is	 no	 better

- suited	 than	 the ju ry	 to	 make	 the	 identification.” Miller ,	 1999	 ME	 182,	 ¶	 9,	 741	 A.2d	 448 (quotation	 marks	 omitted).	 	 “Of	 paramount	 importance	 in	 determining whether	the	witness’s	opinion	will	be	helpful	to	the	factfinder	is	the	witness’s opportunity	 to	 observe	 the	 defendan t	 in	 different	 settings,	 in	 different lighting,	and	under	different	circumstances	than	the	jury	.	.	.	.” Id. ¶	10. [¶1 2 ] The	 law	 enforcement	 witnesses all testified	 that	 they	 knew Peaslee	and	his	family	because	they	had	lived	in	the	same	small	and	sparsely populated	community	for at	least	twenty	years ,	and,	although	the frequency	of their	 individual contact s with	 Peaslee	 varied,	 each	 had seen	 him from	 a7 mod erate	distance and interacted	with	him	face

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- face on several occasions

. 7
See United	 States	 v.	 Farnsworth ,	 729	 F.2d	 1158,	 1160	 (8th	 Cir.	 1984) (“A witness’s	 opinion	 concerning	 the	 identity	 of	 a	 person	 depicted	 in	 a surveillance	[video]	is	admissible	if	there	is	some	basis	for	concluding	that	the witness	is	more	likely	to	correctly	identify	the	defendant	from	the	[video]	than is	 the	 jury.”). One of	 t hese witness es testified that	 he	 had	 previously	 seen Peaslee	wearing	a	jacket	with	a	distinct	patch	or	embroidery	on	 the	chest	or shoulder	 on	 several	 occasions	 during	 the	 summer	 of	 2017,	 and	 that	 the shooter	 in	 the	 video	 appeared	 to	 be	 wearing	 the	 same	 jac ket. See United States	v.	Jackman ,	48	F.3d	1,	5	(1st	Cir.	1995) (observing	that	“familiarity	with the	defendant	in	clothing	similar	to	that	worn	by	the	person	in	the [video] at issue”	 is	 relevant	 when	 determining	 whether	 lay	 opinion	 testimony	 is admissible). Because	 the se	 law	 enforcement	 witnesses had	 seen	 and interacted	with	Peaslee in	a	 variety	 of	contexts over	a	period	 of	many	 years , they	possessed	a	 familiarity	with	Peas lee	 th at	 the jury	did	not,	and	each	had

7 In	contrast,	the	Court	of	Appeals	for	the	Ninth	Circuit	held	in United	States	v.	LaPierre , a	case cited by	Peaslee, that	the	trial	court	abused	its	discretion	when	it	admitted	lay	opinion	testimony	by a	 po lice	 officer	 identifying	 the	 defendant	 in	 a	 photograph	 because	 the	 officer	 did	 not	 know	 the defendant,	had	never	seen	him	before	in	person,	and	based	his	identification	entirely	on	his	review of	photographs	and	witness	descriptions.		998	F.2d	1460,	1465	(9 th Cir.	1993). The	officers	here had	 not	 only	 seen	 Peaslee	 in	 person,	 they	 had	 had	 face

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- face	 interactions	 with	 him	 on	 several occasions. C f. United	States	v.	Rodríguez

- Adorno ,	695	F.3d	32, 39

- 40	(1st	Cir.	2012) (observing	that the	 record	was	not	 clear as	 to	whether	 the	law	 enforcement	witness	 “had	any	 special	 familiarity with	the	individuals	that	would	make	him	better	suited	to	make	the	identifications	than	the	jurors” and	assuming	without	deciding	that	his	testimony	was	erroneously	admitted).8 the	 “opportunity	 to	 observe t he	 defendant	 in	 different	 settings,	 in	 different lighting,	 and	 under	 different	 circumstances	 than	 the	 jury.” Miller ,	 1999	 ME 182,	¶ 10 ,	741	A.2d	448. [¶1 3 ] Turning	to	the	question	of	w hether	this	testimony	was	helpful	to the	 jury,	 as	 required	 by	 M.R.	 Evid.	 701,	 the	 trial	 court reviewed	 the	 home security	camera	video	of	the	shooting	and found	that	the	testimony	would	be helpful to	the	jury because	the	video	was brief, recorded	at nighttime,	in	black and	white,	and	the	quality	“is	not	like	watching	a	high

- definition	movie.” The video shows	an	individual	move	briskly	into	the	frame	toward	the	front	steps of	 the	victim’s	home, walk to	 the	 top	of	 the	steps , and	stop	moving,	at	which
p oint	 his	 face	 is most visible	 in	 profile. The	 individual	 knocks	 on	 the	 door, raises	 a	 handgun , fires	 a	 single	 shot,	 pauses,	 fires	 three	 more shots in	 close succession,	and	then	quickly	turns	away	from	the	camera	and	flees	back	down the	driveway. [¶1 4 ] The	court did	not	abuse	its	discretion	in determining	that ,	“from the	 standpoint	 of	 jurors	 who	 have	 no	 familiarity	 with	 the	 individual	 in	 the video ,”	it	is	 not	 “ unmistakably	 clear	who	 the	 person	is	in	 [that	 video ] ” or in9 determining	 that	 lay	 opinion testimony	 concerning	 the	 identity	 of	 the individual	shown	in	the	video	would	be	helpful	to	the	jury. 8 M.R.	Evid.	701. [¶1 5 ] Next ,	 Peaslee	 contends	 that	 even	 if	 the officers’ lay	 opinion testimony	 satisfied	 the	 requirements	 for	 admission,	 its	 probative	 v alue	 was substantially	 outweighed	 by	 the	 danger	 of	 unfair	 prejudice.	 	 M.R.	 Evid.	 403. This	 argument	is	not	 persuasive.	 	The	court	precluded	 the se witnesses	 from testifying	 about	 any	 contact	 they	 had	 with	 Peaslee	 in	 their	 professional capacity	 as	 law	 enfor cement	 officers. 9 See	 Miller ,	 1999	 ME	 182,	 ¶¶	 12

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8 Peasl ee	 also	 contends	 that	 it	 was	 an	 abuse	 of	 discretion	 to	 admit	 lay	 opinion	 testimony identifying	him	as	the	shooter	because	one	of	the	law	enforcement	witnesses	testified	that	the	video was	“perfect”	for	identification	purposes.		However,	this	mischaracteriz es	the	witness’s	testimony. This	witness	stated	during	 voir	dire	 that	he	did	not	 think	 the	 videos	were	extremely	high	quality and	that	“[t]here	were	some	lighting	issues	in	the	video,”	but	that	“once	.	.	.	he	changed	position,	the lighting	got	different, it	was	obvious	who	it	was.”		Then,	in	response	to	the	question,	“So,	there	was at	least	a	point	in	the	video	where	things	were	just	perfect,”	the	witness	responded,	“Yes.”		But	the very	 next	 question	 was,	 “And anybody	 who	 would	 know [Peaslee] would	 say,	 yu p,	 that ’ s	 him ,”	 to which	the	witness	replied,	“Yes.”		This	is	precisely	 the	kind	of	testimony	that	is	helpful	to	the	jury because	 the	witness	 knew	 Peaslee	 and	 could	 readily	identify	 him	whereas	 someone	who	 did	not know	him	might	be	unable	to.		In	fact,	the witness	went	on	to	testify	that	he	did	not	think	somebody who	was	not	 familiar	with	Peaslee	would	be	comfortable	making	an	identification	 from	the	video. See State	v. Miller ,	1999	ME	182,	¶	9,	741	A.2d	448

.
9 Although	Peaslee	argues	that	he	was	“forced	to	reveal	prior	arrests”	and	contends	that	one	of the	officers	“testified	about	a	violent	confrontation	with	the	defendant	when	he	arrested	[Peaslee] in	August	of	2017,”	that	testimony	was	elicited	by	the	defen se,	not	the	State. Compare United	States v.	Farnsworth ,	729	F.2d	1158,	1161

- 62	(8th	Cir.	1984) , with United	States	v.	Sostarich ,	684	F.2d	606, 608	 ( 8th Cir.	 1982) (per	 curiam) .	 	 Contrary	 to	 Peaslee’s	 contention,	 the	 alternative to	 inquiring about	 prior	 ar rests was	 not	 to	 “permit	 the	 officers	 to	 testify	 about	 the	 identity	 of	 the	 shooter without	challenging	their	credibility.”		Peaslee was	free	to challenge the	officers’	credibility and	the foundation	for	their	identification s by	asking	about	the	number	of	t heir	interactions	with him ,	the length	of	those	interactions,	and	the	distance	at	which	they	observed	him. Peaslee	was also	free	to challenge	the	officers’	ability	to	identify him from	the	short,	imperfect	video.		We	are not persuaded by	Peaslee’s	argumen t	that	he	was	unfairly	prejudiced	by	testimony	he	chose	to	elicit	after	the	court had	 already	 ordered	 the	 State	 not	 to	 do	 so	 precisely	 because	 such	 testimony	 might	 be	 unfairly prejudicial.10 741 A.2d	448

. Moreover,	we	recognized	in Miller that in	these	circumstances the	 likelihood	 of unfair prejudice	 is	 reduced	 “when	 [a]	 law	 enforcement witness	will	also	testify	to	other	facts	that	require	the	jury	to	understand	the witness’s	 occupation	and	 the	context	 of	 those	 facts.” Id. ¶	13. Here,	 the	law enforcement	witnesses	had	 responded	 to	 the	 victi m’s	 residence	 on	 the	night of	 the	 shooting	 and	 participated	 in	 the	 investigation. They	 were	 called	 to testify	not	just	to	identify	Peaslee	in	the	home	security	camera video ,	but	also to	explain	their	role	in	the	investigation	to	the	jury. 10 See	id. [¶1 6 ] T he	 trial	 court	 did	 not	 abuse	its	 discretion	 in	 admitting	 the	lay opinion	 testimony	 of the three	 law	 enforcement	 witnesses who	 identified Peaslee	as	 the	shooter shown in	 the	home	security	video	recovered	 from	 the victim’s	residence. Id. ¶¶ 12

- 13,	17.

10 Peaslee	 relies	 on Sostarich in	 support	 of	 his	 argument	 that	 th e	 lay	 opinion	 testimony	 was unfairly	 prejudicial,	 but	 that	 case	 involved	 identification	 testimony	 by	 a	 witness	 who	 testified during	the	prosecution’s	direct	examination	that	he	was	 familiar	with	the	defendant	because	they had	 been	incarcerated	 together.	 	 6 84	 F.2d	 at	 608.		 There,	 because	 the	 prosecution	 could	instead have	 established	 the	witness’s	 familiarity	with	 the	 defendant	 by	 asking	whether	 the	witness	 had previously	 lived	 or	 worked	 with	 the	 defendant,	 the	 “incarceration	 testimony	 had	 no	 probative value .” Id. Here,	the	law	enforcement	witnesses	testified	only	that	they	knew	Peaslee	from	having lived	 in	 the	 same	 community	 for	 many	 years,	 and	 omitted	 any	 reference	 to	 their	 professional interactions	with	 him	 except	when	 specifically	 asked	 about	 those	inte ractions	 by	 the	 defense	 on cross - examination.		Similarly,	Peaslee’s	citation	to State	v.	Almurshidy ,	1999	ME	97,	¶	14,	732	A.2d 280 ,	is	unavailing.		There,	we	held	that	that	the	trial	court	erred	in	admitting	a	mug	shot	in	evidence and	observed	that	such	p hotographs	“tend[]	to	inform	the	jury	that	the	defendant	may	have	a	prior criminal	 record.” Id. ¶¶	 14,	 20	 (quotation	 marks	 omitted).	 	 No	 such	 concern	 is	 implicated	 here because	 the	 trial	 court	 prohibited	 the	 State	 from	 eliciting	 testimony	 concerning	 Peasl ee’s	 prior arrests	or	interactions	with	law	enforcement.11 B. Motion	for	a	New	Trial	Based	on	Newly	Discovered	Evidence [¶1 7 ] Peaslee’s	 remaining	 argument	 is	 that the	 court	 abused	 its discretion	 in	 denying	 his	 motion	 for	 a	 new	 trial	 based	 on	 newly	 discovered evidence that	in	January	2018 a	witness	allegedly	over heard	Peaslee’s	brother say	 that	 he	 had	 committed	 the	 murder	 for	 which	 Peaslee	 was	 arrested	 and ultimately	convicted. [¶1 8 ] “When	reviewing	the	denial	of	a	motion	for	a	new	trial	pursuant to	M.R.[U.]	Crim.	P.	33	on	 the	basis	of	newly	discovered	evidence,	we	review the	court’s	findings	of	fact	for	clear	error	and	its	determination	of	whether	the defendant	 has	 met	 the	 necessary	 e lements	 for	 an	 abuse	 of	 discretion.” Twardus , 2013	ME	 74,	 ¶ 29,	 72	 A.3d	 523.	 	Motions	 for	 a	 new	 trial	 based	 on newly	discovered	evidence	are	disfavored	“in	light	of	the	need	for	finality	and for	 the	 preservation	 of	 the	 integrity	 of	 criminal	 judgments.” I d. (quotation marks	omitted).		A	defendant	seeking	a	new	 trial	based	on	newly	discovered evidence	must	show	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	disc overed	since	the	trial; (3)	 	 it	 could	 not	 have	 been	 discovered	 before	 the	 trial	 by	 the exercise	of	due	diligence;12 (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	r esulted	in	a	different	verdict.
Id. (quotation	 marks	 omitted). A	 mere	 possibility	 or	 chance	 of	 a	 different verdict	is	insufficient;	it	must	 appear,	in	light	 of	 all	 the	 testimony,	 both	 new and	old,	that	the	jury	ought	to	give	a	different	verdict. I d. ¶ 30. Here,	the	court found

— and neither	party	disputes

— that	the	final	four	factors	for	obtaining	a new	trial	were	met,	so	the	court’s	analysis	turned	on	the	first	factor:	whether the	evidence	would	probably	change	the	result	if	a	new	trial	were	granted. Id. ¶	29. [¶1 9 ] A t	 the	 time	 of	 the	 hearing	 on	 Peaslee’s	 motion, the court	 also found	 that	 the declarant

— Peaslee’s	 brother

— who	 allegedly	 made	 the
statement	 at	 issue was	 unavailable	 to	 testify	 as	 a	 witness. 11 Therefore, the court	 was	 required	 to	 first	 determine	 whether	 the	 statement	 would	 be admissible	through	the	testimony	of	the	witness	who	overheard	the	statement as	a	statement	against	interest. See M.R. Evid. 804(b)(3).

11 A psychologist	who	examined him	in	the	Intensive	Mental	Health	Unit	at	Maine	State	Prison less	 than	a	week	before	 the	hearing testified	 that Peaslee’s	brother	suffered	 from	a	mental	illness and, if	called	to	testify,	“his	responses	wouldn’t	[have]	be[en]	reality

- based.” Based	on	these	mental health	issues,	 the	court	determined	 that	Peaslee’s	brother	was	unavailable	 to	 testify	as	a	witness. See M.R.	Evid.	804( a ) (4) ( providing	that	“[a]	declarant is	considered	to	be	unavailable	as	a	witness if	 the	 declarant	 .	 .	 .	 [c]annot	 be	 present	 or	 testify	 at	 the	 trial	 or	 hearing	 because	 of	 .	 .	 .	 mental illness”)

.13 [¶ 20 ]	 	 For	 an	 out

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- court	 statement	 to	 be	 a dmissible	 as	 a	 statement against	interest	in	a	criminal	case , (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.	 Cochran ,	 2000	 ME	 78,	 ¶	 11,	 749	 A.2d	 1274 (alterations omitted ) (quotation	marks	omitted) ; see M.R.	Evid.	804(b)(3). [¶ 2 1]	 	 Here,	 the court	 found	 that	 the declarant was	 unavailable, satisfying	the	first factor ,	and	the	court’s	analysis	focused	on	the	third factor

. 12 To	 determine	whether	 a	 statement	is	 corroborated	 by	 circumstances	 clearly indic ating	its	trustworthiness,	courts	are	instructed	to	consider the	time	of	the declaration	 and	 to	 whom the	 statement was	 made; the	 existence	 of corroborating	 evidence;	 whether	 the	 declaration	 is	 inherently	 inconsistent with	 the	 accused’s	 guilt;	 and	 whether	 at	 the	 time	 of	 the	 incriminating

12 Concerning	 the	 second factor , t he	 statement	 at	 issue ,	 in	 which	 Peaslee’s	 brother	 claimed res ponsibility	 for	 the	 victim’s	 murder,	 certainly “tend[ ed ]	 to	 subject [him] to	 criminal liability .” State	v.	Cochran ,	2000	ME	78,	¶	11,	749	A.2d	1274

. However,	 the	court questioned	“whether	the second [factor] of	 Rule	 804(b)(3)	 [was]	 capable	 of	 being	 satisfied”	 because	 “ [his] mental	 health condition	 would	 impair	 his	 ability	 to	 act	 as	 a	 reasonable	 person	 would

. ” W e	 need	 not	 decide whether	 the	second factor was	capable	of	being	satisfied because ,	even	assuming	i t	was	satisfied, the court	did	not	clearly	err	in	determining	that	the	statement	was	not	trustworthy

. Id.14 statement	the	declarant	had	any	probable	motive	to	falsify. Cochran ,	2000	ME 78,	¶	1 2 ,	749	A .2d	1274. [¶ 22 ] Based	on	competent	evidence	in	the	record,	the	court	found	that

a t	 the	 time	 of	 the	 declaration, the	 declarant had	 recently	 stopped	 taking his prescription	medications	 and	was	in	 the	 process	 of	 purchasing	illegal	 drugs. The	court	also	fou nd	that	the	declaration	was	made	close	in	time	to	a	January 2018	 interview	 with	 law	 enforcement	 during	 which	 the	 declarant	 exhibited delusional	 and	 disorganized	 thinking

. Finally,	 the	 court	 found	 that	 the declarant	 was	 “upset,	 crying,	 and	 holding his head in his hands ” when	 he spontaneously	made	 the	 statement, and	 that	 the	 statement	was	 not	made	 to anyone	in	particular	or	as	part	of	a	conversation. See	i d. ¶ ¶ 13

- 14. [¶ 23 ]		Based	on	these	factual	findings,	t he	court	concluded that	neither the	 requirements	 of	 M.R.	 Evid.	 804(b)(3)	 nor	 the Cochran factors	 for trustworthiness	 were	 satisfied.	 	 The court’s	 factual	 findings	 are	 not	 clearly erroneous,	and	 the	court	did	not	abuse	its	discretion	in	determining	 that	 the alleged	confession would	not	be	admissible	as	a	statement	against	interest	in	a new	trial. Cochran ,	2000	ME	78,	¶	10,	749	A.2d	1274. Because	the	statement would	 not	 have	 been	 admissible ,	 the	 court	 did	 not	 abuse	 its	 discretion	 in15 denying	Peaslee’s	motion	for	a	new	trial. Twardus , 2013	ME	74,	¶ 29,	72	A.3d 523;	M.R.U.	Crim.	P.	33. [¶ 24 ]		Although	the	court	concluded	that	the	statement	would	not	have been	admissible,	the	court	went	on	to	analyze	Peaslee’s	motion	for	a	new	trial pursuant	 to	M.R.U.	Crim.	P.	 33	and	 the	 factors laid	 out	in Twardus , 2013	ME 74,	¶ 29,	72	A.3d	523, assuming	for	the	sake	of its	analysis that	the	statement was	 admissible.	 	 The	 court	 found,	 and	 neither	 party	 disputes,	 that	 the statement	was	not	discovered	until	after	trial,	could	not	have	been	discove red before	 trial,	 was	 material	 to	 the	 issue,	 and	 was	 not	 merely	 cumulative	 or impeaching. Id. The	court	 then	considered	whether	Peaslee	had	established by	 clear	 and	 convincing	 evidence	 that	 the	 statement,	 if	 admitted,	 would probably	have	changed	the	resu lt	if	a	new	trial	were	granted. Id [¶ 25 ] Reviewing	the	evidence	presented	to	the	jury,	the	court	observed that	the	jury	had	seen	video	footage	of	the	shooting,	had had the	opportunity to	view	Peaslee	both	in	the	courtroom	and	in	photographs,	and	was	provided a	photograph	of	Peaslee’s	brother	for	comparison.		Additionally,	the	evidence showed	 that	Peaslee had acquired	a	 .380	caliber	handgun

— the	 same	caliber as	 the	murder weapon — on	 the	 day	 of	 the	murder.		 The	 tray	inside	a	box	 of .380	 caliber	 bullets	 found	 at	 his	 home	 had	 his	 fingerprints	 on	 it,	 and	 those16 bullets	 were	 of	 the	 same	 make	 as	 the	 casings	 found	 outside	 the	 victim’s residence.	 	 One	 witness	 testified	 that	 Peaslee	 h ad	 made	 a	 full	 confession	 to him,	which	he	recounted	in	detail,	and	this	witness’s	testimony	was	consistent with	 the	 other	 evidence	 presented	 at	 trial.	 	 Finally,	 the	 court	 observed,	 “the evidence	 showed	 Peaslee’s	 cell	 phone	 was	 off	 during	 the	 time	 frame	 of the murder,	 consistent	 with	 an	 attempt	 to	 conceal	 his	 locations.”	 	 After considering	the	evidence	presented	to	the	jury,	the	court	concluded	that	“the magnitude	 of	evidence	demonstrating	Peaslee’s	guilt	is	 significant,”	and	 that, in	 light	 of	 the	 circumsta nces	 surrounding	 Peaslee’s	 brother’s	 alleged confession,	it	would	not	have	changed	the	result	if	admitted	in	a	new	trial. [¶ 26 ] The	court’s	findings	are	not	clearly	erroneous,	and	the	court	did not	 abuse	 its	 discretion	 in	 determining	 that ,	 even	 assumin g	 the	 newly discovered	 evidence	was	 admissible, Peaslee	 failed	 to	 establish	 by	 clear	 and convincing	evidence	 that it would probably have change d the	result	if	a	new trial were granted. Id. ¶¶	29

- 30 ;	M.R.U.	Crim.	P.	33. The	entry	is: Judgment	affirmed.17 John	 W.	 Tebbetts,	 Esq. (o rally) ,	 Tebbetts	 Law	 Office,	 LLC,	 Presque	 Isle,	 for appellant	James P. Peaslee Aaron	M.	Frey,	Attorney	General,	and	Leanne	Robbin,	Asst.	Atty.	Gen. (orally) , Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine

Aroostook	County	Unified	Criminal	Docket	docket	number	CR

- 2018

- 30028 F OR C LERK R EFERENCE O NLY