MAINE SUPREME JUDICIAL COURT                                           Reporter of Decisions
Decision: 2013 ME 74
Docket:   Yor-11-440
Argued:   May 15, 2013
Decided:  August 6, 2013

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


                                 STATE OF MAINE

                                           v.

                                 JASON TWARDUS

SILVER, J.

         [¶1] Jason Twardus appeals from a decision of the trial court (Brennan, J.)

denying his two motions for a new trial following his conviction of murder,

17-A M.R.S. § 201(1)(A) (2012), after a jury trial. Twardus argues that the court

erred and abused its discretion in concluding that neither the State’s alleged

failures to disclose evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963),

nor the discovery of new evidence after trial pursuant to M.R. Crim. P. 33, entitled

Twardus to a new trial. We affirm the judgment.

                                 I. BACKGROUND

A.       Factual Background

         [¶2] Sometime between the night of August 7, 2007, and the morning of

August 8, 2007, the victim disappeared. The victim, who was thirty years old at

the time of her disappearance, was last seen on the night of August 7 at her
2

apartment in Alfred. Nearly a month later, on September 2, 2007, the victim’s

body was found buried in Stewartstown, New Hampshire, on property belonging to

Twardus’s father.

      [¶3] Twardus, who was twenty-six years old at the time of the victim’s

disappearance, had been in a romantic relationship with the victim on and off since

2005. In 2006, Twardus moved in with the victim at her apartment, which was

located on the property of John and Nancy Durfee in Alfred. That October,

Twardus and the victim were engaged to be married. The couple discussed a

wedding date of August 4, 2007. In January 2007, however, the victim broke off

the engagement. The two continued to live together until June 2007, when the

victim asked Twardus to move out.        Twardus moved in with his father in

Rochester, New Hampshire. Twardus and the victim continued to speak on the

phone and go biking together.

      [¶4] In late July, however, the victim began a romantic relationship with

Calvin Degreenia, who had just moved into another apartment on the Durfee

property where the victim lived. Degreenia had met John Durfee in prison, and

took a job with Durfee’s paving company upon his release. Degreenia and the

victim began spending time together and became intimate.         On the night of

August 7, 2007, the victim, Degreenia, and Durfee had a cookout and drinks
                                                                                                     3

together on the Durfee property. That night was the last time the victim was seen

alive.1

          [¶5] The victim did not go to work the following day, August 8, nor did she

call to explain her absence. Because this was out of character for the victim, her

supervisor became concerned and called the police that night, and called the

victim’s mother the following morning.                   The victim’s mother also became

concerned because she regularly spoke with her daughter, and could not reach her

on the phone. On the morning of August 9, the victim’s mother went to her

daughter’s apartment in Alfred. When the victim did not answer the door, her

mother unlocked the door using her spare key and went inside. There was no sign

of the victim, but her keys were on the kitchen table and her car was outside. The

victim’s four dogs, which she cared for regularly, had defecated inside the

apartment. There were no signs of a struggle or forced entry. The victim’s mother

called the police. She also called Twardus to ask if he had heard from the victim.

At the request of the victim’s mother, Twardus called the victim and left a

voicemail. He never called the victim again, despite having called her many times

in the weeks leading up to her disappearance.


   1
      Degreenia and another worker on Durfee’s paving crew told police shortly after the victim’s
disappearance that they saw her get into a red car on the evening of Wednesday, August 8. At trial,
however, they testified that they no longer believed that the woman they saw was the victim, but rather
Durfee’s niece or someone who had come to ride, look at, or train the Durfees’ horses. The clothes they
described the woman as wearing did not match those found on the victim’s body.
4

      [¶6] The police first interviewed Twardus in connection with the victim’s

disappearance on August 11, 2007. Asked when he had last come to Maine,

Twardus told police that on the night of Monday, August 6, 2007, he had gone

fishing at Biddeford Pool. He said that he had arrived at Biddeford Pool late on

Monday night because he wanted to fish at high tide and that he had fished for

several hours and arrived home in Rochester early in the morning of Tuesday,

August 7, 2007. Tide charts admitted at trial showed that it was low tide around

the time that Twardus said he had arrived, not high tide. Twardus also told the

police that he had called in sick Tuesday, slept all day, and did not go out at all.

      [¶7] Following that interview, however, police learned that Twardus’s car

had been seen in the vicinity of the victim’s apartment on Monday, August 6. A

resident had called the police that night at 9:12 p.m. to report an unfamiliar vehicle

parked near her home, a short distance from the victim’s apartment. An officer

responded to the call at 9:41 p.m., and found a green 1997 Subaru Impreza parked

on the side of the road. Not seeing any operator nearby, the officer ran the car’s

plates and discovered that it was registered to Twardus.            One of the more

distinctive features of the car was that it did not have a passenger-side mirror.

      [¶8] Police again interviewed Twardus and asked if he had made any stops

on his way to Biddeford Pool on the night of August 6. Twardus replied that he

had stopped at a store to buy a drink, but did not recall stopping anywhere else.
                                                                                 5

When police asked if there was any reason that someone would have reported

seeing his vehicle, Twardus admitted that he had stopped in Alfred, near the

victim’s apartment, to urinate in a wooded area off of the road. When police later

questioned this story, Twardus claimed that he was also smoking marijuana. At

trial, however, several of Twardus’s friends testified that he did not smoke

marijuana. Twardus also claimed in his first several interviews with police that he

had been at home on the following night, August 7. Later, he told police that he

had in fact gone fishing the night of August 7 at Rye Beach, and arrived home

early the next morning.

      [¶9] On August 30, 2007, with the victim still missing, police executed a

search warrant for the home of Twardus and his father in Rochester and for

Twardus’s green Subaru. A human head hair, later determined to be the victim’s,

was found in Twardus’s trunk. Police also learned that Twardus’s father owned

property in Stewartstown, New Hampshire, some 160 miles north of Rochester.

Twardus had been to the Stewartstown property in the past, including a camping

trip with the victim in 2005.

      [¶10] On September 1, police proceeded to the Stewartstown property.

With some difficulty and the aid of a tax map, they managed to locate the

unmarked Twardus lot, which has no street address and is located in a remote area

where many roads are unmarked. There, they discovered an area of recently
6

disturbed earth covered with branches.                  Police returned to the property the

following day with a search warrant and excavated the disturbed ground. Not far

below the surface, they discovered the victim’s body, barefoot and wrapped in a

comforter. Nancy Durfee later identified the comforter as having come from the

victim’s apartment.2

        [¶11] Buried along with the victim’s body, police found three pairs of

women’s underwear, a bra, a bag that the victim used as a purse, the SIM card to

the victim’s cell phone, and a shoebox full of photographs belonging to the

victim’s sister.       Inside the shoebox, police also discovered a plastic baggie

containing several family photographs taken around Christmas 2006, including a

photograph of the victim and Twardus. Twardus’s fingerprints were found on the

baggie and one of the photographs inside it. Also found in the grave was a plastic

baggie containing a white powder, later identified as crushed tablets of the

prescription medication Requip.3 Twardus’s father took Requip for restless leg

syndrome at that time, and had a bottle of it in his medicine cabinet in Rochester.

An autopsy of the victim’s body was performed, and the cause of her death was


    2
     A shoeprint on the comforter could not be matched to any of the shoes seized by police, including
several pairs seized from Twardus.
    3
      DNA testing performed on the plastic baggie revealed a mixture of DNA from at least two people, at
least one being male. The victim, Twardus, Twardus’s father, Durfee, Degreenia, and another Durfee
employee were excluded as sources of the DNA.
                                                                                                  7

determined to be strangulation. A sample of blood taken from the victim’s body

did not indicate the presence of Requip.

       [¶12] Twardus had told police that he was at home during the day of

August 8, or that he only went out to get a haircut. Twardus’s father saw his son in

bed at their home in Rochester when he left for work that day at 6:10 or 6:15 a.m.

But shortly thereafter, at 7:06 a.m., Twardus was filmed at a drive-through ATM in

Rochester. Bank records showed that Twardus withdrew $100 in cash, which

appeared to be unusual for Twardus, as he generally used his debit card, even for

small purchases. Twardus was wearing an orange hooded sweatshirt, and there

was an object on the passenger seat next to him. Several witnesses later identified

the object as a two-tone Myrtle Beach hat that Twardus bought on a trip with the

victim. Twardus testified at trial that he did not know what the object was, and

that it could be a crumpled paper bag.

       [¶13] After the discovery of the victim’s body, police visited a Big Apple

convenience store in Colebrook, New Hampshire, seven miles from the burial site,

and obtained the store’s security camera footage for August 8, 2007.4 The black

and white footage showed a car pull in from the direction of Stewartstown around

noon. The car appeared to lack a passenger-side mirror. The driver of the vehicle,


   4
     The jury viewed the security camera footage, and still images from the footage were admitted in
evidence.
8

a male, entered the store, wearing what appeared to be a hooded sweatshirt and a

two-tone hat. Several witnesses, including some of Twardus’s friends and

coworkers, would later identify the man in the Big Apple footage as Twardus,

although other witnesses said the images were too unclear to make a positive

identification of the man or the car.

B.    Procedural History

      1.     The Trial

      [¶14] Twardus was indicted for the victim’s murder in January 2009, and a

three-week jury trial was held in September 2010. The State’s theory of the case

was that Twardus was obsessed with the victim, and after stalking her and

potentially learning of her new relationship with Degreenia, he strangled her at or

near her apartment in Alfred on the night of August 7 or the morning of August 8.

Twardus then placed the victim’s body in the trunk of his car, and drove home to

Rochester. After his father left for work, Twardus went to the ATM and withdrew

cash, knowing that purchases with his debit card would reveal his location.

Twardus then drove to his father’s property in Stewartstown, New Hampshire,

buried the victim’s body, and stopped at the Big Apple convenience store in

Colebrook on his way back to Rochester.

      [¶15] The defense challenged the State’s theory on the grounds that there

was insufficient evidence that the victim’s murder occurred in Maine, and by
                                                                                                       9

positing alternative suspects, primarily Durfee and Degreenia.5                         The defense

vigorously impeached both Durfee and Degreenia, in part based upon their

criminal records. Evidence was also presented as to Durfee’s use of the drug PCP,

erratic behavior, and crude and sexually aggressive behavior towards women.6

The State, however, presented evidence that Durfee and Degreenia’s cell phones

were connecting to cell towers in southern Maine, southern New Hampshire, or

Massachusetts during the critical period of August 7 through August 15, 2007,

which tended to show that they could not have been burying the victim’s body in

northern New Hampshire.                 In addition, both Durfee and Degreenia denied

knowledge of the Twardus property in Stewartstown. The State also presented

evidence that Twardus was the only one who would have had access to the

shoebox of photos and the drug Requip found in the victim’s grave. Twardus

testified. He denied any involvement in the victim’s disappearance and murder, or

that he was in Stewartstown or Colebrook on August 8.

         [¶16] On October 1, 2010, the jury found Twardus guilty of the victim’s

murder.       On August 16, 2011, Twardus was sentenced to the Department of

Corrections for a term of thirty-eight years.


   5
       Another Durfee employee was also posited as a possible suspect or accomplice.
   6
     The defense attempted to suggest that Durfee had some kind of sexual relationship with the victim.
Durfee denied any such relationship and testified that the medication he took for his heart condition had
rendered him impotent.
10

         2.      First Motion for a New Trial

         [¶17] On January 10, 2011, Twardus filed his first motion for a new trial.

Evidentiary hearings on that motion were conducted on April 14 and

June 22, 2011. Charity Camire, an employee of Maine Pretrial Services, testified

that John Durfee had told her, while the victim was still missing, that one of the

victim’s ex-boyfriends had parents with land in New Hampshire, and that he “bet

that that’s where they would find her.” When asked whether Durfee had said that

the land was in upstate New Hampshire, Camire testified that she believed Durfee

said either northern or upstate New Hampshire. Camire further testified that she

called the state police the same day, and spoke to Detective Michael Zabarsky, the

lead investigator in the victim’s case, or possibly another detective of the state

police.7      When she related what Durfee had said, the detective sounded

uninterested, and told her that he was “well aware” of or “very familiar” with

Durfee. Zabarsky testified that he had no memory or record of speaking with

Camire. No information regarding Durfee’s alleged statements was relayed to the

prosecutor or disclosed to the defense.

         [¶18]     Twardus also called Elaine Plourde, a York County corrections

officer, who testified that while Durfee was in jail in August 2007, with the victim
     7
      Initially, Camire could not recall the name of the detective she spoke to, but she testified that he had
identified himself as the lead investigator in the victim’s case. She later testified that she had located
notes that appeared to indicate that she had spoken to Zabarsky, and recalled speaking with someone who
identified himself as Zabarsky.
                                                                                    11

still missing, Durfee made a series of statements, including that he “knew where

the burial ground was.” According to Plourde, Durfee did not specify a location or

refer to the victim, specifically. She also testified that he appeared to be under the

influence of drugs, was “ranting and raving” and “going off on a tangent,” and said

that there were “aliens flying in his cell.” Plourde did not report the incident to the

police, because Durfee “was clearly not in the right state of mind.” Durfee denied

making the burial ground comment. Another witness, Geneva Hersom, testified

that she overheard Plourde say in October 2010 that Durfee had whispered to her

that he knew where the victim’s body was.           Plourde denied making such a

statement.

      [¶19] Twardus also called Nancy Durfee. On October 13, 2010, Nancy

Durfee was found unconscious on a roadside in Eliot. She was transported to the

hospital, and laboratory tests indicated the presence of PCP in her system. At trial,

Nancy Durfee had testified that her husband used PCP, but that she did not like to

be around it. At the motion hearing, she maintained that the test results must have

been due to secondhand smoke.

      [¶20] Nancy Durfee initially told authorities that she had been with her

husband on October 13, and that he had been driving. She also told medical

personnel that she had been having an argument with her husband. At the hearing,

however, both she and her husband maintained that he was not driving the car.
12

Rather, she testified that she had been approached by a homeless man for a ride to

Alfred, and decided to let the man drive her car. Once they started to drive back to

Alfred, however, she became uncomfortable and asked that the man pull over and

let her out to use a restroom. She asked the man to take the car back to Alfred, and

was going to call her daughter for a ride, but she left her purse and cell phone in

the vehicle. Nancy Durfee testified that she did not remember what happened after

she exited the car, due to a concussion, but that she must have fallen.

      [¶21] Later, in a separate incident on March 10, 2011, the Durfees were

both arrested on drug charges when PCP was found in their car. Ultimately, the

state elected not to prosecute Nancy Durfee.

      [¶22] On July 18, 2011, the court denied Twardus’s motion. The court

concluded that it was unlikely that much of the newly discovered evidence about

the Durfees, if presented to the jury at trial, would have resulted in a different

verdict because his credibility as a trial witness had already been substantially

undermined and because her role as a witness was not a critical part of the State’s

case. Camire’s testimony, however, presented a “closer question” because it had to

be considered “in light of the less stringent standard applied” when there has been

a Brady violation. Even viewing Camire’s testimony under the Brady standard,

however, the court determined that there was no reasonable probability that this
                                                                                  13

undisclosed evidence would have resulted in a different verdict, and that it did not

undermine confidence in the jury’s verdict.

      3.     Second Motion for a New Trial

      [¶23] On January 5, 2012, Twardus filed a second motion for a new trial.

Evidentiary hearings were conducted on April 30, May 11, and May 25, 2012.

      [¶24] The testimony on the second motion showed that, while Twardus’s

first motion for a new trial was pending, the State received notice that an inmate at

York County Jail named Kenneth Villella wanted to speak to law enforcement

regarding John Durfee. On June 21, 2011, Sergeant Christopher Harriman of the

state police directed Trooper Lauren Edstrom to speak with Villella. Villella told

Edstrom that he was Durfee’s cellmate, and that Durfee had stated that he “knows

how to bury people,” and that if anything happened to Villella, “we can put them in

a shallow grave.” Villella also said that Durfee called the victim a “pig” and a

“slut.” The interview terminated with Villella saying that he wanted to be treated

fairly in his pending case, and had nothing further to say until he spoke with his

lawyer.

      [¶25] That same day, Edstrom orally reported the substance of her interview

with Villella to Harriman, and Harriman orally relayed that information to the

prosecutor. The prosecutor received Edstrom’s written report summarizing the

interview on October 17, 2011, and mailed it to the defense on October 21, 2011,
14

by which time the court had denied Twardus’s first motion for a new trial and

sentenced Twardus.      The defense was not otherwise informed of Villella’s

statements. In the meantime, in August 2011, Durfee had died.

      [¶26] In August 2011, after the first Villella interview but before the report

summarizing the first interview had been prepared and transmitted to the defense,

Villella indicated that he wanted to speak with the state police again. Zabarsky

interviewed Villella on October 5, 2011. During that interview, Villella reported

that Durfee had said that he could “make people disappear,” that he helped “put the

body where it was,” that “somebody else put the body there,” that he “didn’t put

the body there, he had help,” that “[s]he deserved it,” that Twardus was an “idiot”

and a “punk,” that the comforter in which the body had been wrapped belonged to

one of Durfee’s daughters, and that “they partied one night.” Villella also said that

Durfee called the victim a “slut,” but acknowledged that Durfee referred to all

women in such terms. The prosecutor was informed of the substance of the second

interview shortly after it was conducted, received Zabarsky’s report and a

recording of the interview on December 6, 2011, and forwarded the report and

recording to the defense on December 8, 2011. The prosecutor, Zabarsky, and

Harriman all testified that the delay in the preparation of the reports and their

transmission to the prosecutor was not unusual.
                                                                                   15

      [¶27]   At the hearings on his second motion, Twardus also presented

evidence that, in January 2012, after Twardus’s conviction, Degreenia had pled

guilty in New Hampshire to felony domestic violence assault on his

then-girlfriend. The conviction was based on an incident in March 2011, in which

Degreenia choked his girlfriend for several seconds.        As part of Degreenia’s

sentence, he was ordered to complete a batterers’ intervention program. Degreenia

and his girlfriend were married the day of his release. The State first learned of the

charges against Degreenia from Twardus’s attorneys in August 2011, and declined

their request that the State procure the relevant records, noting that they knew of

the conviction before the State did and had equal access to the records.

      [¶28] On November 29, 2012, the court denied Twardus’s second motion

for a new trial. The court found that Twardus had not established a violation of the

requirements of Brady or of his due process rights, and therefore applied the more

stringent Rule 33 analysis for newly discovered evidence. Although it recognized

that the statements Villella attributed to Durfee were of potential exculpatory value

to Twardus, the court noted that Twardus presented those statements through the

testimony of Edstrom and Zabarsky; Villella did not testify at the hearing. Without

being able to observe Villella testify, the court concluded that the officers’ hearsay

statements of what Durfee said to Villella did not warrant a new trial. With respect

to Degreenia’s assault conviction, the court concluded that it would not probably
16

change the trial result, as only the fact of Degreenia’s conviction would be

admissible at a new trial, and Degreenia had already been impeached on the basis

of his prior felony convictions at trial.

                                   II. DISCUSSION

A.    Legal Standards and Standards of Review

      1.     Maine Rule of Criminal Procedure 33

      [¶29] When reviewing the denial of a motion for a new trial pursuant to

M.R. 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.          State v. Cookson,

2003 ME 136, ¶ 28, 837 A.2d 101; see also State v. Sheldon, 2000 ME 193, ¶ 7,

760 A.2d 1083 (stating that the ultimate decision on a motion for a new trial

involves mixed questions of law and fact and is reviewed for an abuse of

discretion.) Motions for a new trial on the ground of newly discovered evidence

are looked upon with “disfavor,” in light of “the need for finality and for the

preservation of the integrity of criminal judgments.” Cookson, 2003 ME 136, ¶ 28,

837 A.2d 101 (citing State v. Ardolino, 1999 ME 14, ¶ 8, 723 A.2d 870). Pursuant

to our precedents, a defendant seeking a new trial based on newly discovered

evidence must establish by clear and convincing evidence that
                                                                                  17

            (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;
            (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. ¶ 29 (quoting Ardolino, 1999 ME 14, ¶ 8, 723 A.2d 870). “The trial court

determines both the weight and the credibility to be attached to the newly

discovered evidence.” State v. Dechaine, 630 A.2d 234, 236 (Me. 1993).

      [¶30] As we have explained, the defendant’s burden in seeking a new trial

based on newly discovered evidence is a heavy one:

      It is not enough for the defendant to show that there is a possibility or
      a chance of a different verdict. [I]t must be made to appear that, in
      light of the overall testimony, new and old, another jury ought to give
      a different verdict; there must be a probability that a new trial would
      result in a different verdict.

Id. (alteration in original) (quotation marks omitted). Where the newly discovered

evidence is merely impeaching, the standard is even higher, as we have required a

showing of a “nearly certain change in result.” State v. Melanson, 566 A.2d 83, 85

(Me. 1989); see also State v. Heald, 395 A.2d 457, 458 (Me. 1978) (requiring a

“clear” showing that new impeachment evidence would produce a different

verdict).
18

         2.      Brady v. Maryland

         [¶31]    A somewhat less stringent standard applies, however, where a

defendant alleges a violation of the State’s obligations under Brady v. Maryland,

373 U.S. 83 (1963). The U.S. Supreme Court has described the Brady rule as

follows:

                In Brady, this Court held that the suppression by the
         prosecution of evidence favorable to an accused upon request violates
         due process where the evidence is material to guilt or to punishment,
         irrespective of the good faith or bad faith of the prosecution. We have
         since held that the duty to disclose such evidence is applicable even
         though there has been no request by the accused, and that the duty
         encompasses impeachment evidence as well as exculpatory evidence.
         Such evidence is material if there is a reasonable probability that, had
         the evidence been disclosed to the defense, the result of the
         proceeding would have been different.               Moreover, the rule
         encompasses evidence known only to police investigators and not to
         the prosecutor. In order to comply with Brady, therefore, the
         individual prosecutor has a duty to learn of any favorable evidence
         known to others acting on the government’s behalf in [a] case,
         including the police.

Strickler v. Greene, 527 U.S. 263, 280-81 (1999) (citations and quotation marks

omitted). The protections of Brady stem from the requirement of due process and

the right to a fair trial.8 United States v. Bagley, 473 U.S. 667, 675 (1985).

Because Brady is a trial right, its requirements do not apply after conviction. See

Dist. Attorney’s Office v. Osborne, 557 U.S. 52, 68-69 (2009) (stating that “Brady


     8
     The State also has disclosure obligations pursuant to M.R. Crim. P. 16. See State v. Carr,
2012 ME 136, ¶¶ 8-10, 58 A.3d 1102; State v. Gould, 2012 ME 60, ¶¶ 22, 24-27, 43 A.3d 952.
                                                                                 19

is the wrong framework” in the post-conviction context). Where Brady does not

apply, a defendant is “left with an argument that the prosecutor’s non-disclosure

amounted to conduct contrary to fundamental notions of fair play and that

defendant was thereby deprived of a fair trial.” State v. Whitten, 499 A.2d 161,

162-63 (Me. 1985).

      [¶32] The Supreme Court has identified three elements of a Brady violation:

“The evidence at issue must be favorable to the accused, either because it is

exculpatory, or because it is impeaching; that evidence must have been suppressed

by the State, either willfully or inadvertently; and prejudice must have ensued.”

Strickler, 527 U.S. at 281-82.     The element of prejudice is satisfied if the

undisclosed evidence is material—that is, “the nondisclosure was so serious that

there is a reasonable probability that the suppressed evidence would have produced

a different verdict.” See id. (equating prejudice element with materiality inquiry);

see also State v. Silva, 2012 ME 120, ¶ 10, 56 A.3d 1230 (“Evidence is material

when there is a reasonable probability that, had the evidence been disclosed, the

result of the proceeding would have been different.” (quotation marks omitted)). A

“reasonable probability” of a different result exists where “the government’s

evidentiary suppression undermines confidence in the outcome of the trial.” Kyles

v. Whitley, 514 U.S. 419, 434 (1995) (quotation marks omitted); see also Bagley,

473 U.S. at 682 (“A ‘reasonable probability’ is a probability sufficient to
20

undermine confidence in the outcome.”); State v. Harnish, 560 A.2d 5, 7

(Me. 1989) (applying Bagley formulation of the materiality analysis).            The

materiality of undisclosed evidence is considered collectively. Kyles, 514 U.S. at

436 & n.10. The defendant retains the burden of proof, see Strickler, 527 U.S. at

296, and the denial of a motion for a new trial based upon alleged Brady violations

is reviewed for an abuse of discretion, see United States v. Connolly, 504 F.3d 206,

211-12, 219 (1st Cir. 2007).

      [¶33] The Supreme Court has cautioned that the materiality inquiry is not a

simple preponderance standard or a sufficiency of the evidence test.           Kyles,

514 U.S. at 434-35. Materiality, the Court has stated,

      is not just a matter of determining whether, after discounting the
      inculpatory evidence in light of the undisclosed evidence, the
      remaining evidence is sufficient to support the jury’s conclusions.
      Rather, the question is whether the favorable evidence could
      reasonably be taken to put the whole case in such a different light as
      to undermine confidence in the verdict.

Strickler, 527 U.S. at 290 (citations and quotation marks omitted). Put another

way, “[t]he question is not whether the defendant would more likely than not have

received a different verdict with the evidence, but whether in its absence he

received a fair trial, understood as a trial resulting in a verdict worthy of

confidence.” Kyles, 514 U.S. at 434; see also Smith v. Cain, 132 S. Ct. 627, 630

(2012) (“A reasonable probability does not mean that the defendant would more
                                                                                   21

likely than not have received a different verdict with the evidence, only that the

likelihood of a different result is great enough to undermine[] confidence in the

outcome of the trial.” (alteration in original) (quotation marks omitted)).

B.    Analysis

      1.      Charity Camire and Michael Zabarsky’s Testimony

      [¶34]    The trial court found Camire “entirely credible,” and found that

Durfee had made the August 2007 statements she attributed to him, that Camire

had promptly passed that information on to the state police, and that neither the

prosecutor nor Twardus had been informed of this information. Applying the

Brady standard, the court found that the information had impeachment and

possible exculpatory value, and was at least inadvertently withheld. The parties do

not appear to contest these findings, and they are supported by the record. The

question is therefore whether “the nondisclosure was so serious that there is a

reasonable probability that the suppressed evidence would have produced a

different verdict,” Strickler, 527 U.S. at 281, where a “reasonable probability”

means a “probability sufficient to undermine confidence in the outcome,” Bagley,

473 U.S. at 682.

      [¶35] At trial, the jury was presented with evidence that Durfee believed

that the victim was dead even before her body was found.             Specifically, the

evidence showed that Durfee was talking to someone about renting the victim’s
22

apartment while she was still missing, and, when confronted about that fact by

police, said “She ain’t coming back, believe me.” Durfee testified that he believed

the victim was never coming back because before her disappearance, he saw her

every day.       On that point, therefore, Camire’s testimony would have been

cumulative.      Camire’s testimony, however, would have contradicted Durfee’s

denial at trial that he knew of Twardus’s father’s property in Stewartstown, and

thereby bolstered Twardus’s suggestion that Durfee was responsible for the

victim’s death.

         [¶36] Even if a jury were presented with the undisclosed evidence at a new

trial, however, the evidence of Twardus’s guilt remains highly compelling, as does

the evidence tending to exculpate Durfee. Perhaps most importantly, the State

presented evidence that Durfee’s cell phone was connecting to cell towers in

southern Maine, southern New Hampshire, or Massachusetts during the critical

period of early August 2007, suggesting that he was not near the Stewartstown

property during that critical period.9

         [¶37] The evidence also showed that the Stewartstown property on which

the victim was found was an unmarked lot with no street address in an area with

many unmarked streets. The property proved difficult for police to find, even with

     9
       The evidence showed that John Durfee sometimes used his wife’s cell phone, but Nancy Durfee
testified that she had her phone with her on August 8. Even if the jury did not credit Nancy Durfee’s
testimony, one of Twardus’s own witnesses placed John Durfee in Alfred on the morning of August 8.
                                                                                 23

the aid of a tax map. Additionally, the evidence showed that only Twardus would

have had access to the shoebox of photos found in the victim’s grave, and that

Twardus’s fingerprints were on a photograph and plastic bag inside the box.

Finally, a baggie of a prescription medication, Requip, which Twardus’s father

took, was also found in the grave, and one of the victim’s head hairs was found in

the trunk of Twardus’s car.

      [¶38] The evidence showed that the victim had broken off her engagement

to Twardus, and that she disappeared two months after Twardus moved out of her

apartment and just a few days after their planned wedding date. Twardus had

called the victim many times in the weeks leading up to her disappearance, but

after an August 9 call made at the request of the victim’s mother, he never called

the victim again.

      [¶39] The evidence also showed that Twardus gave police inconsistent

reports of his whereabouts during the week of the victim’s disappearance.

Critically, Twardus initially omitted that he was in the vicinity of the victim’s

apartment on the night of August 6, the night before her disappearance. He also

initially claimed to be at home during the day of August 8, or that he only went out

to get a haircut, but he was filmed withdrawing cash from an ATM that morning.

Several of Twardus’s friends and coworkers identified Twardus in images from a
24

Big Apple convenience store security camera footage taken later that day, several

miles from the burial site and over a hundred miles from Twardus’s home.

      [¶40] Twardus testified, denying that he killed the victim or that he was the

person in the Big Apple footage. The jury had a chance to evaluate his credibility.

Obviously, the jury did not believe Twardus’s testimony. Although Camire’s

testimony could have bolstered Twardus’s theory of defense, that theory remains

incompatible with the weight of the evidence. The court therefore did not err or

abuse its discretion in concluding that, in light of all of the evidence, the

undisclosed evidence does not undermine confidence in the jury’s verdict. See

Kyles, 514 U.S. at 434; Bagley, 473 U.S. at 682.

      2.    Elaine Plourde and Geneva Hersom’s Testimony

      [¶41] Because Plourde did not report the statements she attributed to Durfee

to an agent of the State, the Rule 33 standard controls. See Strickler, 527 U.S. at

281-82 (setting forth elements of Brady violation). To the extent it might be

admissible substantively at a new trial, Plourde’s testimony, like Camire’s, would

lend some support to Twardus’s theory of defense, in that Durfee’s alleged “burial

ground” comment could support the inference that Durfee knew that the victim

was dead and had been buried while she remained missing.            But given the

vagueness of Durfee’s alleged statements, the fact that Durfee made the statements

while “ranting and raving” about “aliens flying in his cell,” and the compelling
                                                                               25

evidence of Twardus’s guilt, Plourde’s testimony would be of limited probative

value and unlikely to result in a different verdict. See Dechaine, 630 A.2d at 236

(noting defendant’s burden to show that “another jury ought to give a different

verdict” in light of new evidence (quotation marks omitted)).

      [¶42] To the extent that Plourde’s testimony would be admissible solely to

impeach Durfee, who denied making the “burial ground” comment, Twardus must

make a clear showing that the impeachment evidence would have resulted in a

different verdict. See Cookson, 2003 ME 136, ¶ 29, 837 A.2d 101. Durfee was

thoroughly impeached at trial, in part based upon his drug use, criminal record,

lack of memory, and inconsistent statements. At one point in the trial, defense

counsel asked Durfee, “Do you say just sort of anything that comes into your mind

when somebody asks you about things that happened?”              Durfee replied:

“Probably.” As the trial court concluded, because the jury was highly unlikely to

credit Durfee’s testimony, further impeachment based on post-trial events could

have little appreciable effect on the jury’s assessment of him. Hersom’s testimony

was offered solely to impeach Plourde, Twardus’s own witness; it would be

inadmissible hearsay if offered to prove what Durfee said to Plourde.

M.R. Evid. 801, 802, 805.
26

      3.     John and Nancy Durfee’s Testimony

      [¶43] The testimony of John and Nancy Durfee as to post-trial events, to the

extent it is admissible, see M.R. Evid. 608(b)(1), would be admissible only to

impeach the Durfees. As discussed above, further impeachment of John Durfee

would have been cumulative.

      [¶44] As to Nancy Durfee, the trial court aptly described her testimony at

the motion hearing as “fantastical.”        The discrepancies between her initial

statements when she was found unconscious on the side of the road and her later

story that she had let a homeless man take her car, in addition to her continued

insistence that she had never done PCP despite evidence to the contrary, would

likely seriously undermine her credibility in the eyes of a jury.

      [¶45] For the most part, however, the State’s case did not hinge on Nancy

Durfee’s testimony. The State did not call her as part of its case-in-chief. She did

identify the comforter in which the victim’s body was wrapped as coming from the

victim’s apartment, as first elicited by Twardus on direct examination. The State

referenced the comforter in its closing argument on the issue of jurisdiction, which

was an issue at trial given that the victim’s body was found in New Hampshire.

But the State’s argument that the victim was killed in Maine also rested on the

narrow window of time in which Twardus could have murdered her on the night of

August 7 or early morning of August 8, and the evidence that the victim was not
                                                                                 27

with Twardus when he was seen at his home in Rochester early on August 8, nor in

the footage from the ATM later that morning. The evidence also showed that the

victim was found barefoot and her keys were locked inside her apartment, which

supports the inference that she did not leave her Alfred apartment, where she was

last seen alive, willingly. That one of the victim’s hairs was found in Twardus’s

trunk was also consistent with the State’s theory. In light of the particularly high

standard applicable to newly discovered impeachment evidence, see Cookson,

2003 ME 136, ¶ 29, 837 A.2d 101; Melanson, 566 A.2d at 85, the trial court did

not err or abuse its discretion in concluding that the new evidence would not have

changed the outcome of the trial.

      4.    Kenneth Villella’s Statements

      [¶46] Twardus asserts that the State’s delay in disclosing the existence of

Villella and his statements about Durfee amounts to a violation of the State’s

Brady obligations. Brady, however, protects defendants’ right to a fair trial, and

does not apply to evidence that did not exist at the time of trial. See Osborne,

557 U.S. at 68-69; Strickler, 527 U.S. at 281-82; Bagley, 473 U.S. at 675. Because

Brady does not apply, Twardus is “left with an argument that the prosecutor’s

non-disclosure amounted to conduct contrary to fundamental notions of fair play

and that [he] was thereby deprived of a fair trial.” Whitten, 499 A.2d at 162-63.

To the extent that Twardus’s brief can be read to raise such a general due process
28

claim on appeal, we find no error in the court’s determination that the State’s delay

in disclosing Villella’s statements did not amount to a violation of Twardus’s due

process rights.

      [¶47]       Applying the Rule 33 standard for newly discovered evidence,

Twardus has not shown a probability of a different verdict for the simple reason

that Villella did not testify. Rather, his hearsay statements as to what Durfee said

to him in jail were presented at the hearing through the testimony of Edstrom and

Zabarsky. There is no indication that the double-hearsay testimony of Edstrom and

Zabarsky as to what Villella claims that Durfee said would be admissible at trial.

See M.R. Evid. 801, 802, 805. Moreover, as the trial court pointed out, without

observing Villella testify, the court was “left to speculate about what [Villella]

might say, or how credible he would be and what effect it might have at a new

trial.” Twardus has therefore not shown that “another jury ought to give a different

verdict” in light of the new evidence. See Dechaine, 630 A.2d at 236 (quotation

marks omitted); see also Cookson, 2003 ME 136, ¶ 29, 837 A.2d 101.

      5.      Calvin Degreenia’s Subsequent Conviction

      [¶48]       The evidence at the motion hearing supports the trial court’s

conclusion that Degreenia’s post-trial assault charges in New Hampshire were first

brought to the State’s attention by Twardus. As such, Rule 33, rather than Brady,

provides the relevant standard. See Strickler, 527 U.S. at 281-82 (identifying
                                                                                  29

suppression by the State as an element of a Brady violation). As the trial court

noted, Degreenia’s assault conviction would be admissible at a new trial only for

purposes of impeachment pursuant to M.R. Evid. 609, not as substantive evidence.

See M.R. Evid. 404(b). Critically, only the fact of Degreenia’s conviction would

be admissible, not the circumstances underlying the conviction.           See M.R.

Evid. 609; State v. Carmichael, 395 A.2d 826, 827-28 (Me. 1978).            Because

Degreenia was already impeached with multiple convictions at trial, it is not likely,

much less “clear,” that further impeachment of Degreenia along those lines would

result in a different verdict. Cookson, 2003 ME 136, ¶ 29, 837 A.2d 101 (requiring

a “clear” showing that impeachment evidence would have resulted in a different

verdict).

       [¶49] Twardus also suggests that Degreenia’s conviction or the underlying

facts leading to the conviction would be admissible for impeachment purposes

because John Durfee characterized Degreenia as gentle. This evidence, however,

would only have impeachment value as to Durfee, who was already thoroughly

impeached at trial. Assuming that this evidence would be admissible at a new trial,

it is far from clear that further impeachment of Durfee would change the outcome

of the trial.
30

C.    Conclusion

      [¶50] The trial court did not err or abuse its discretion in concluding that

nothing presented in support of Twardus’s two motions for a new trial, considered

cumulatively, would probably result in a different verdict or create a reasonable

probability of a different result, so as to undermine confidence in the jury’s verdict.

To the extent that the newly discovered evidence would be admissible at a new

trial, it consists primarily of impeachment evidence that is cumulative of the

evidence the jury heard at trial or concerns a witness not critical to the State’s case.

With respect to the lone Brady issue, the undisclosed evidence, although helpful to

Twardus, does not undermine confidence in the jury’s verdict in light of the

considerable evidence presented at trial and apparently accepted by the jury that

Twardus, and only Twardus, could have committed the crime.

      The entry is:

                      Judgment affirmed.

____________________________________


On the briefs:

      Daniel G. Lilley, Esq., and Tina Heather Nadeau, Esq., Daniel G. Lilley Law
      Offices, P.A., Portland, for appellant Jason Twardus

      Janet T. Mills, Attorney General, and William R. Stokes, Dep. Atty. Gen.,
      Office of Attorney General, Augusta, for appellee State of Maine
                                                                          31

At oral argument:

        Daniel G. Lilley, Esq. for appellant Jason Twardus

        William R. Stokes, Dep. Atty. Gen., for appellee State of Maine


York County Superior Court docket number CR-2009-77
FOR CLERK REFERENCE ONLY
