MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2013 ME 38

Docket: Aro-12-64

Argued: February 12, 2013

Decided: March 28, 2013

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, 

JJ.

STATE OF MAINE

v.

RICHARD A. LARSEN JR.

SAUFLEY, C.J.

[¶1] We are called upon here to determine whether an out-of-court 

statement that incriminates both the nontestifying declarant and a defendant in a 

criminal trial is admissible in the defendant’s trial when the declarant asserts the 

privilege against self-incrimination and is unavailable to testify.

[¶2] Richard A. Larsen Jr. appeals from a judgment entered by the trial 

court (Hunter, J.) after a jury found him guilty of burglary (Class C), 17-A M.R.S. 

§ 401(1)(A) (2012), and theft by unauthorized taking or transfer (Class C), 17-A 

M.R.S. § 353(1)(B)(4) (2012), for taking building materials worth more than 

$1,000 from the Presque Isle Snowmobile Club without authorization. During 

Larsen’s trial, Larsen’s adult son, who had told the police that he helped his father 

take the materials from the Club, asserted his Fifth Amendment privilege against 

self-incrimination and refused to testify. See U.S. Const. amend. V. Larsen 
2

contends that the court erred when it admitted redacted versions of two statements 

that Larsen’s son had earlier made to police that incriminated both Larsen and his 

son.

1

 Because we conclude that the court erred in admitting the statements of 

Larsen’s son and that the error was not harmless, we vacate the judgment of 

conviction.

I. BACKGROUND

[¶3] In August 2009, Larry Allen, a contractor who had been hired to build 

a new clubhouse for the Presque Isle Snowmobile Club, died before the project 

was finished. Richard A. Larsen Jr., who had been Allen’s employee, was not 

hired to complete the construction; instead, the Club hired another construction 

company.

[¶4] On September 8, 2009, employees of the new construction company 

alerted the Club that building supplies and materials worth a total of $11,000 or 

more were missing. There was no evidence of forced entry. Larsen had been in 

possession of a key to the groomer building in which these items had been stored. 

About ten people had keys to the building, and Larsen was the only key holder 

who was not a Club member. At some point, many of the missing supplies were 

found dumped and scattered along a road in the Beaver Brook area.

 1

 Larsen also argues that he did not have effective assistance of counsel. We do not consider this 

argument on direct appeal. See 15 M.R.S. § 2122 (2012); State v. Ali, 2011 ME 122, ¶ 20, 32 A.3d 1019. 

“[S]uch claims will only be considered after a certificate of probable cause has been issued following a 

hearing on a post-conviction petition.” Ali, 2011 ME 122, ¶ 20, 32 A.3d 1019.
3

[¶5] In October 2010, Larsen was charged by complaint with burglary 

(Class C), 17-A M.R.S. § 401(1)(A), and theft by unauthorized taking or transfer 

(Class C), 17-A M.R.S. § 353(1)(B)(4). In January 2011, he was indicted for those 

two crimes and two additional crimes of which he was ultimately acquitted: 

tampering with a witness or informant (Class C), 17-A M.R.S. § 454(1)(A)(2)

(2012), and violation of a condition of release (Class E), 15 M.R.S. § 1092(1)(A) 

(2012).

[¶6] Larsen pleaded not guilty to all of the charges, and he was tried alone 

before a jury in January 2012. The jury heard testimony from officers of the Club, 

the supplier of the building materials for the new clubhouse, several of Larsen’s 

relatives and acquaintances, a friend on whose property Larsen had stored a variety 

of materials, the man who discovered the discarded building materials, law 

enforcement officers, and a Department of Corrections sergeant who testified about 

Larsen’s son’s telephone and mail correspondence while the son was in jail.

[¶7] Although Larsen’s son was called as a witness at the trial, he invoked 

his Fifth Amendment privilege against self-incrimination and refused to testify. 

The State then moved for the admission of two written statements that the son had 

signed, after being interviewed by the Presque Isle Police, as statements against the 

son’s penal interest pursuant to M.R. Evid. 804(b)(3). Larsen objected that the 

admission of those statements would impinge on his constitutional right to confront 
4

and cross-examine an adverse witness. The court admitted redacted versions of the 

statements, which were read into the record by the officer who took the 

statements.2

[¶8] As redacted, the son’s statements did not mention Larsen by name, but 

they included a detailed account of how Larsen’s son and a “person” had taken the 

building supplies from the Club. The son’s statements explained in detail how he 

and that person met at what had been Allen’s garage, drove to the Club building 

site in the person’s truck, used a key to enter a Club building, carried away 

building supplies from that building in the truck, and took the supplies to the 

person’s friend’s house for storage.

[¶9] The jury considered the son’s statements in combination with 

additional evidence that Larsen’s son had received a phone call and absented 

himself from his other family members and girlfriend on the night of August 28,

2009; that Larsen had told his daughter, his ex-wife, and his son’s girlfriend that he 

had been involved in stealing windows and storing them on his friend’s property;

that Larsen had in fact stored items on that friend’s property; that Larsen had 

threatened to slit his ex-wife’s throat if she turned him in; and that Larsen had told 

his son’s girlfriend that he would kill anybody who ratted on him.

 2

 The prosecutor thrice mistakenly referred to Larsen’s son as “the defendant” during direct 

examination of the officer who authenticated the son’s statements and read them, as redacted, to the jury. 

Larsen did not object, and this misstatement was not corrected.
5

[¶10] The jury found Larsen guilty of burglary and theft, and not guilty of 

tampering with a witness or violating a condition of bail. For the burglary 

conviction, the court sentenced Larsen to thirty-six months in prison, all but 

eighteen months suspended, with two years of probation that included conditions 

that Larsen have no contact with his ex-wife, her husband, his son’s girlfriend, or 

his daughter. The court also ordered him to pay $11,044.58 to the Club in 

restitution and $25 to the victims’ compensation fund. For the theft conviction, the 

court imposed a concurrent sentence of eighteen months in prison and ordered 

Larsen to pay $25 to the victims’ compensation fund. Larsen timely appealed. See

15 M.R.S. § 2115 (2012); M.R. App. P. 2.

II. DISCUSSION

[¶11] The State argues that Larsen’s son’s statements were admissible as 

statements against interest, see M.R. Evid. 804(b)(3), and cites to our opinion in 

State v. Platt, 1997 ME 229, 704 A.2d 370, in support of its position that the

redaction of the statements effectively prevented any constitutional violations. The 

State also argues that, if there was any error, that error was harmless. Because 

Platt may have led to confusion regarding the admissibility of such statements, we 

address both the evidentiary issue and the constitutional issue in detail.
6

A. Admissibility of Statements Against Interest

[¶12] “‘Hearsay’ is a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter 

asserted.” M.R. Evid. 801(c). In other words, hearsay is an out-of-court statement 

offered at trial to prove a relevant fact. See id. Subject to certain exceptions, 

hearsay is inadmissible in a court proceeding. M.R. Evid. 802. One of the 

exceptions to this rule applies when a party offers in evidence certain statements of 

an unavailable witness when those statements are against the declarant’s interest:

The following are not excluded by the hearsay rule if the declarant is 

unavailable as a witness [as provided in M.R. Evid. 804(a)]:

. . . .

(3) Statement against interest. A statement which was at the 

time of its making so far contrary to the declarant’s pecuniary or 

proprietary interest, or so far tended to subject the declarant to civil or 

criminal liability or to render invalid a claim by the declarant against 

another or to make the declarant an object of hatred, ridicule, or 

disgrace, that a reasonable person in the declarant’s position would 

not have made the statement unless believing it to be true. A 

statement tending to expose the declarant to criminal liability and 

offered in a criminal case is not admissible unless corroborating 

circumstances clearly indicate the trustworthiness of the statement. A 

statement or confession offered against the accused in a criminal 

case, made by a defendant or other person implicating both the 

declarant and the accused, is not within this exception.

M.R. Evid. 804(b) (emphasis added).
7

[¶13] Here, the statements of Larsen’s son were not made in court and were 

offered to prove the truth of the matters that he asserted in those statements: that he

and another person met on property that had been owned by Larsen’s former 

employer, used a key to enter a Club building, took away materials from that 

building, and stored them at the home of Larsen’s friend. See M.R. Evid. 801(c). 

Accordingly, the statements constituted hearsay and were not admissible unless an 

exception to the hearsay rule applied. See M.R. Evid. 802.

[¶14] To determine whether the statement-against-interest exception to the 

hearsay rule could apply, the threshold question is whether Larsen’s son was 

unavailable as a witness. See M.R. Evid. 804(a), (b). On this point, the parties do 

not dispute that, because he asserted his privilege against self-incrimination, see

U.S. Const. amend. V, Larsen’s son was unavailable for purposes of this hearsay 

exception, see M.R. Evid. 804(a)(1) (“‘Unavailability as a witness’ includes [a] 

situation in which the declarant is exempted by ruling of the court on the ground of 

privilege from testifying concerning the subject matter of the declarant’s 

statement.”).

[¶15] Next, we consider whether the statement-against-interest exception 

applies in the circumstances of this case. The plain language of the exception 

provides that the exception does not apply if, in a criminal case, the statement 

implicates both the unavailable declarant and the defendant: “A statement or 
8

confession offered against the accused in a criminal case, made by a[n] . . . other 

person implicating both the declarant and the accused, is not within this 

exception.” M.R. Evid. 804(b)(3). The proffered statements of Larsen’s son fall 

directly within that description. Thus, the statements were not admissible against 

Larsen pursuant to the Maine Rules of Evidence. See State v. Guyette, 2012 ME 9, 

¶ 17, 36 A.3d 916.

[¶16] Because Larsen did not draw the court’s attention to this evidentiary 

basis for exclusion, however, and instead argued that the admission of the 

statements would violate his constitutional right of confrontation, see Bruton v. 

United States, 391 U.S. 123 (1968), we next address the constitutional 

considerations that formed the basis for the court’s evidentiary ruling.

B. Constitutional Right of Confrontation

[¶17] “We review constitutional interpretations de novo.” State v. Mitchell, 

2010 ME 73, ¶ 41, 4 A.3d 478. The Confrontation Clause of the Sixth Amendment 

to the United States Constitution provides, “In all criminal prosecutions, the 

accused shall enjoy the right . . . to be confronted with the witnesses against him.”

U.S. Const. amend. VI; see also Me. Const. art. I, § 6.
9

[¶18] In specific circumstances, when two or more defendants are being 

tried together, a nontestifying co-defendant’s redacted confession3 may be admitted 

in a joint trial. See Richardson v. Marsh, 481 U.S. 200, 211 (1987). Such a 

confession is admissible against that co-defendant because it is not hearsay as to 

the co-defendant. See M.R. Evid. 801(d)(2)(A) (providing that a statement is not 

hearsay if “[t]he statement is offered against a party and is the party’s own 

statement”). In addition, because the statement is the co-defendant’s own 

statement, there are no Confrontation Clause concerns. See U.S. Const. amend. VI.

[¶19] A nontestifying co-defendant’s confession is not admissible against 

the nondeclarant defendant, however, even in a joint trial. See Richardson, 481 

U.S. at 211; Bruton, 391 U.S. at 135-37.

4 The redaction undertaken in a joint trial 

is specifically designed to ensure that the content of that confession relates only to 

the defendant who made the confession. See Richardson, 481 U.S. at 211.

Accordingly, even if redacted, a confession of a witness who invokes the Fifth 

 3

 To be admissible in a joint trial, the court must provide a limiting instruction, and the confession 

must be carefully redacted to remove not only any identification of the jointly tried nondeclarant 

defendant but also any reference to that person’s existence. See Richardson v. Marsh, 481 U.S. 200, 211 

(1987). The redaction in these instances cannot be obvious or suggestive to the jury; substituting the 

defendant’s name with the word “deleted,” for instance, too strongly implicates a defendant. Gray v. 

Maryland, 523 U.S. 185, 192-95 (1998); see also State v. Boucher, 1998 ME 209, ¶¶ 15-16, 718 A.2d 

1092.

4

 As the United States Supreme Court emphasized in Bruton v. United States, a hearsay statement 

inculpating a defendant is not ordinarily admissible pursuant to traditional rules of evidence. 391 U.S. 

123, 128 n.3 (1968). Thus, the problem created by the admission of such a statement will arise only when 

the government offers the statement in a joint trial against the co-defendant who made the statement. Id.
10

Amendment privilege against self-incrimination and refuses to testify is ordinarily 

inadmissible as evidence of the nondeclarant defendant’s guilt when that defendant 

is tried alone. Cf. id.

[¶20] In the matter before us, Larsen was tried alone. Thus, contrary to the 

State’s assertion, the Bruton analysis and the rule of redaction adopted in

Richardson have no application in the matter. To the extent that we earlier held 

that a nontestifying accomplice’s redacted out-of-court statement is admissible 

against a defendant who was tried alone, see Platt, 1997 ME 229, ¶¶ 3-6, 704 A.2d 

370, we overrule that holding.

[¶21] Moreover, as the Supreme Court clarified in Crawford v. Washington, 

statements such as those made by Larsen’s son during police interrogation well 

after the events that led to the burglary and theft charges are testimonial statements

for purposes of the Confrontation Clause, and such testimonial statements of an 

unavailable declarant cannot be admitted in evidence of a defendant’s guilt unless 

the defendant has had an opportunity to cross-examine that declarant. 541 U.S. 36, 

51-52, 59, 65, 68-69 (2004); see also State v. Mangos, 2008 ME 150, ¶ 11, 957 

A.2d 89. The redacted testimonial statements of Larsen’s son could not be 

admitted because Larsen’s son refused to testify and Larsen lacked the opportunity 

for cross-examination either at trial or in any earlier proceeding. See Crawford, 

541 U.S. at 59, 68-69.
11

[¶22] Having determined that the trial court erred in admitting the 

statements of Larsen’s son based on both the Rules of Evidence and the United 

States Constitution, we will vacate the judgment entered against Larsen unless the 

error in admitting the evidence is harmless.

C. Harmless Error

[¶23] “Any error, defect, irregularity or variance which does not affect 

substantial rights shall be disregarded.” M.R. Crim. P. 52(a). “A constitutional 

error made at trial may be deemed harmless if we are satisfied beyond a reasonable 

doubt,” based on the trial record as a whole, “that the error did not contribute to the 

verdict obtained.” State v. Patton, 2012 ME 101, ¶ 17, 50 A.3d 544 (quotation 

marks omitted).

[¶24] We are not satisfied beyond a reasonable doubt that the error in 

admitting the statements of Larsen’s son did not contribute to the verdict. See id. 

The improperly admitted statements from Larsen’s son were the only pieces of 

evidence offered by the State that communicated the means by which the building 

supplies were removed from the Club property. The details contained in the

statements clearly implicate Larsen as the “person” who, with the help of his son,

drove to the Club’s property from what had been Allen’s garage, unlocked the 

Club’s groomer building, took the building supplies, and concealed them on 

property owned by a friend of Larsen’s who testified at trial about Larsen’s storage 
12

of materials on his property. We are not satisfied beyond a reasonable doubt that 

the properly admitted evidence alone would have persuaded the jury of Larsen’s 

guilt. In these circumstances, we cannot conclude that the error was harmless, and

we vacate the judgment of conviction.

The entry is:

Judgment vacated. Remanded for further 

proceedings consistent with this opinion.

On the briefs:

Tammy Ham-Thompson, Esq., Farris Law, P.A., Gardiner, for appellant 

Richard A. Larsen Jr.

Todd R. Collins, District Attorney, and Carrie L. Linthicum, Asst. Dist. 

Atty., Presque Isle, for appellee State of Maine

At oral argument:

Tammy Ham-Thompson, Esq., for appellant Richard A. Larsen Jr.

Carrie L. Linthicum, Asst. Dist. Atty., for appellee State of Maine

Aroostook County Superior Court (Caribou) docket number CR-2010-436

FOR CLERK REFERENCE ONLY