MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2020 ME	105

Docket: Aro-19-334

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	

murder	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	inherited	

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.		Moreover,	 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	the	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	them

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,	thrown 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	intended	 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	 in	 June	 of	 2019.	 	 The	 jury	

returned	a	guilty	verdict	on	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 probably	 change	 the	 result	 if	 a	 new	 trial	 were

granted.	 See	State	v.	Twardus,	2013	ME	74,	¶¶	29-30,	72	A.3d	523.	

[¶9]	 	 Peaslee	 was	 sentenced	 to	 sixty	 years	 in	 prison6 and,	 thereafter,	

timely	appealed.		15	M.R.S.	§	2115	(2020);	M.R.	App.	P.	2B(b)(1).		

II.		DISCUSSION

A. Lay	Opinion	Testimony

[¶10]	 	 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	 determined 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	 probative	 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	 through	 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

[¶11]		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	 testimony	 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	

jury	 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	 defendant	 in	 different	 settings,	 in	 different	

lighting,	and	under	different	circumstances	than	the	jury	.	.	.	.”		Id. ¶	10.

[¶12]	 	 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	 contacts with	 Peaslee	 varied,	 each	 had	 seen	 him	 from	 a	
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moderate	distance	and	interacted	with	him	face-to-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	 these	 witnesses 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	 jacket.	 	 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	 these	 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	Peaslee	 that	 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	 police	 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	(9th Cir.	1993).		The	officers	here	

had	 not	 only	 seen	 Peaslee	 in	 person,	 they	 had	 had	 face-to-face	 interactions	 with	 him	 on	 several	

occasions.	 Cf. 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 the	 defendant	 in	 different	 settings,	 in	 different	

lighting,	 and	 under	 different	 circumstances	 than	 the	 jury.”	 	 Miller,	 1999	 ME	

182,	¶	10,	741	A.2d	448.

[¶13]		Turning	to	the	question	of	whether	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	

point	 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.		

[¶14]		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 in	
9

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.

[¶15]	 	 Next,	 Peaslee	 contends	 that	 even	 if	 the	 officers’	 lay	 opinion	

testimony	 satisfied	 the	 requirements	 for	 admission,	 its	 probative	 value	 was	

substantially	 outweighed	 by	 the	 danger	 of	 unfair	 prejudice.	 	 M.R.	 Evid.	 403.		

This	 argument	is	not	 persuasive.	 	The	court	precluded	 these witnesses	 from	

testifying	 about	 any	 contact	 they	 had	 with	 Peaslee	 in	 their	 professional	

capacity	 as	 law	 enforcement	 officers.9	 	 See	 Miller,	 1999	 ME	 182,	 ¶¶	 12-17,	

 8	 	 Peaslee	 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	mischaracterizes	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,	 yup,	 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	defense,	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	 arrests	 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	identifications by	asking	about	the	number	of	their	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	argument	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	 victim’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.		

[¶16]	 	The	 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	 the	 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.	 	 684	 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	interactions	 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	photographs	“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	 Peaslee’s	 prior	

arrests	or	interactions	with	law	enforcement.		
11

B. Motion	for	a	New	Trial	Based	on	Newly	Discovered	Evidence

[¶17]	 	 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	overheard	Peaslee’s	brother

say	 that	 he	 had	 committed	 the	 murder	 for	 which	 Peaslee	 was	 arrested	 and	

ultimately	convicted.		

[¶18]		“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	 elements	 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.”	 	 Id.	(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	discovered	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	resulted	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.		Id.	¶	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.	

[¶19]	 	 At	 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-of-court	 statement	 to	 be	 admissible	 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).

[¶21]	 	 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	

indicating	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, the	 statement	 at	 issue,	 in	 which	 Peaslee’s	 brother	 claimed	

responsibility	 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.”	 	 We	 need	 not	 decide	

whether	 the	second	factor was	capable	of	being	satisfied because,	even	assuming	it	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,	¶	12,	749	A.2d	1274.

[¶22]		Based	on	competent	evidence	in	the	record,	the	court	found	that	

at	 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	found	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	id.	¶¶ 13-14.

[¶23]		Based	on	these	factual	findings,	the	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	 in	
15

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	discovered	

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	result	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	 those	
16

bullets	 were	 of	 the	 same	 make	 as	 the	 casings	 found	 outside	 the	 victim’s	

residence.	 	 One	 witness	 testified	 that	 Peaslee	 had	 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	 circumstances	 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	 assuming	 the	 newly	

discovered	 evidence	was	 admissible, Peaslee	 failed	 to	 establish	 by	 clear	 and	

convincing	evidence	 that it	would probably	have	changed 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. (orally),	 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

FOR	CLERK	REFERENCE	ONLY