## Facts

- John Cheponis was shot and beaten to death.
- Barbara Ayers and Donald Ayers were jointly indicted for murder and conspiracy in Cheponis’s killing.
- In the first joint trial, both defendants testified, and Donald’s testimony implicated Barbara; both were convicted.
- On appeal, the murder convictions were set aside because Barbara’s confession was obtained in violation of Miranda and the murder weapon was discovered as a fruit of that violation.
- Donald was later retried separately and convicted of murder.
- Barbara was retried alone for murder; the trial court suppressed her confession and the pistol.
- At a pretrial hearing in Barbara’s retrial, the State called Donald; he refused to answer any questions even after the court ruled he had no valid Fifth Amendment privilege and ordered him to testify.
- The trial court admitted Donald’s prior testimony from the first trial under Maine Rule of Evidence 804(b)(1) as former testimony.
- The trial court made only conditional, nonfinal indications that the suppressed confession and pistol might become admissible depending on what defense evidence was offered; the defense did not present the triggering evidence, and the suppressed items were not admitted.
- The jury again convicted Barbara of murder.

## Issues

1. Whether Donald Ayers’s prior trial testimony was admissible under Maine Rule of Evidence 804(b)(1) when he refused to testify at retrial, including whether Barbara had a “similar motive” to cross-examine him at the first trial.
2. Whether the trial court’s conditional in limine indications about possible admission of Barbara’s suppressed confession and the pistol created reviewable error despite no definitive ruling or admission of the evidence.

## Decision

- The conviction was affirmed.
- Donald was properly treated as “unavailable” because he refused to testify despite a court order after the court found no valid privilege.
- Donald’s former testimony was properly admitted under Rule 804(b)(1) because Barbara had an opportunity and similar motive to develop the testimony at the first trial.
- The conditional in limine discussion about suppressed evidence produced no final ruling and no admission of the confession or pistol; therefore, there was nothing to review and no showing of prejudice.

## Legal Principles

- A witness is “unavailable” for purposes of the former-testimony exception when the witness refuses to testify despite a court order and without a valid privilege.
- Former testimony is admissible under Maine Rule of Evidence 804(b)(1) when the opposing party previously had an opportunity and similar motive to develop the testimony; shifts in trial tactics or changes in other evidence do not defeat “similar motive” when the central issue remains the same.
- A trial court may decline to issue a final in limine ruling and wait until admissibility is presented in the trial context.
- Appellate review generally requires a definitive ruling and a record showing prejudice; conditional comments that never result in admission of evidence do not establish reversible error.

## Conclusion

The court upheld Barbara Ayers’s murder conviction because Donald Ayers’s refusal to testify made him unavailable and his prior testimony met the former-testimony requirements, and because the trial court’s conditional in limine handling of suppressed evidence yielded no final ruling, no admission of that evidence, and no demonstrated prejudice.


State v. Ayers, 468 A.2d 606 (Me. 1984)