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State v. Cookson12/1/2003
hat he had mistaken a class characteristic for a unique characteristic. He promptly notified his supervisor that his testimony had been in error. The court made a factual finding that neither Bachelder nor the State knew at the time of trial that his testimony was erroneous.
Although Bachelder's error was not discovered until after trial, there is a question as to whether it could have been discovered by reasonable diligence before trial. Cookson, who must prove by clear and convincing evidence that he could not have discovered the error before the trial, failed to meet this burden. There is no evidence that he attempted before trial to obtain an expert to independently compare the shell casings found at the murder scene with those obtained by the police from former owners of the gun. Nor is there any evidence that he sought to obtain an expert's advice on shell casing characteristics. He did not cross-examine or in any way challenge Bachelder's trial testimony.
Additionally, Cookson has failed to prove that the outcome of the trial would have been different had Bachelder's error been discovered before trial. At trial another firearms expert, Charles Helms, testified that bullets obtained by the police from the yard of Cookson's house in New Gloucester had been fired from the same gun that fired the bullets obtained from the murder scene and the Gould autopsy. This evidence was independent of Bachelder's opinion and was based on the spent bullets and not the shell casing characteristics. Because Cookson has not shown that he could not have discovered the error in Bachelder's opinion prior to trial and has not shown that the outcome would have been different had he discovered the error, he is not entitled to a new trial on the basis of Bachelder's error.
2. Vantol's Confession
Vantol's confession was known to Cookson during the trial and is not newly discovered evidence. For tactical reasons, Cookson and his attorneys decided not to disclose the confession during trial or call Vantol to testify. A confession by an alternative suspect known to the defense at the time of trial is not newly discovered evidence. McDonough, 350 A.2d at 560. Thus, Cookson has failed to demonstrate by clear and convincing evidence that Vantol's confession was newly discovered.
Even if the confession was newly discovered, Cookson did not show clearly and convincingly that it would have changed the outcome of the trial. The motion court found that Vantol's confession was not credible. This finding is supported by the evidence of the versions of the confession that Vantol made to the defense team and to the police; Vantol's visits to Cookson in jail and the timing of those visits; Vantol's recantation; and his mental and psychological characteristics. Furthermore, the version of Vantol's confession that he gave to the police implicated Cookson in a murder for hire scheme, which, as the trial court noted at Cookson's sentencing, would have made Cookson guilty of murder and supported a life sentence. See State v. Shortsleeves, 580 A.2d 145, 149 (Me. 1990) (holding that an aggravating circumstance that justifies a life sentence is "a planned, deliberate killing including a killing for hire").
3. Murder Weapon
Cookson has also failed to show that the actual murder weapon could not have been discovered with reasonable diligence before the trial was over. Although the weapon was not actually recovered from its hiding place until after the trial, Vantol told Cookson's defense team during the trial that he knew where the murder weapon was located. In addition, Cookson has not proven clearly and convincingly that the discovery of the murder weapon would
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