Significant Criminal Law Decisions from the Maine Supreme Judicial Court Sitting as the Law Court

Significant Criminal LawDecisions from the MaineSupreme Judicial Court Sittingas the Law Court Office of the Maine Attorney General Continuing Legal Education Program July 27, 2011 William R. Stokes Deputy Attorney General Chief, Criminal Division

Topics Addressed • Confrontation Clause 1. State v. Mitchell, 2010 ME 73, 4 A.3d 478 2. State v. Ducasse, 2010 ME 117, 8 A.3d 1252 3. State v. Woodbury, 2011 ME 25, 13 A.3d 1204 • Voluntariness 1. State v. Dodge, 2011 ME 47, 17 A.3d 128 2. State v. Lavoie, 2010 ME 76, 1 A.3d 408 • Expert Witness Testimony – Reliability 1. State v. Ericson, 2011 ME 28, 13 A.3d 777 • Jury Deliberations 1. State v. Hurd, 2010 ME 118, 8 A.3d 651 • Right of Cross Examination; Relevant Evidence Prosecutorial Misconduct – Rebuttal Argument 1. State v. Filler, 2010 ME 90, 3 A.3d 365

Topics Addressed • Post-Conviction Review - Mootness 1. Price v. State, 2010 ME 66, 1 A.3d 426 • Post-Conviction DNA Testing – Prima Facie Evidence Chain of Custody 1. Cookson v. State, 2011 ME 53, 17 A.3d 1208

State v. Mitchell2010 ME 73, 4 A.3d 478cert. pending Confrontation Clause 1983 murder case in which the Medical Examiner who performed the autopsy did not testify. Rather, Chief Medical Examiner Margaret Greenwald reviewed the autopsy report, photos and case files and testified to her own independent opinion as to cause of death and the presence of defensive wounds on the victim. Issue: Whether the Confrontation Clause is violated when an expert testifies to her opinion after reviewing the autopsy report prepared by a non-testifying expert.

Holding: Crawford v. Washington, 541 U.S. 36 (2004) held that where “testimonial statements” are involved the Constitution requires actual confrontation of the witness. In Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), lab reports prepared specifically for trial were “testimonial statements” that required the analyst who conducted the test. Here, the State did not offer the autopsy report into evidence, but offered an expert witness who was subject to cross-examination. Since the report was not offered and there was a live witness, and since the autopsy report was not prepared specifically for use at trial, Mitchell’s right to confrontation was not violated. State v. Mitchell, 2010 ME 73, 4 A.3d 478

Recent Developments: The Supreme Court recently decided Bullcoming v. New Mexico, 564 U.S. _____ 2011, and held that the Confrontation Clause was violated by the introduction of a lab report and the testimony of the lab supervisor who validated the report but did not offer an independent opinion. Following the issuance of the Bullcoming decision, the court neither granted nor denied cert. in the Mitchell case, but has held it over pending the decision in Williams v. Illinois involving the opinion testimony of a DNA analyst who did not conduct the actual DNA testing. State v. Mitchell, 2010 ME 73, 4 A.3d 478

State v. Ducasse2010 ME 117, 8 A.3d 1252cert. denied Confrontation Clause Ducasse was convicted of manslaughter and aggravated operating under the influence. At trial, the State introduced into evidence a “Certificate of Compliance” issued by the manufacturer of the blood collection tubes used in the blood-alcohol test kits. The Certificate recited the manufacturing specifications of the additives in each tube and that the chemical additive would not disturb the integrity of the blood sample relative to alcohol content. Ducasse objected on the basis that admission of the Certificate violated her Sixth Amendment right to confront the witnesses against her. Trial Court ruled that the Certificate was a non-testimonial statement.

Issue: Whether a manufacturer’s Certificate of Compliance regarding its blood collection tubes constitutes a testimonial statement within the meaning of Crawford v. Washington and the Confrontation Clause. Holding: The Certificate of Compliance is not a sworn certificate addressing scientific analysis that was prepared for use in a criminal prosecution. Rather, it is a manufacturer’s certificate about compliance with manufacturing specifications. Cross-examination would be of little value. The Certificate of Compliance is more like a business record created for the administration of entity’s affairs and not for the purpose of proving a fact at trial. Accordingly, the certificate is non-testimonial and its admission did not violate the Confrontation Clause. State v. Ducasse, 2010 ME 117, 8 A.3d 1252

Recent Developments: After the Supreme Court’s decision in Bullcoming v. New Mexico, certiorari was denied in State v. Ducasse. State v. Ducasse, 2010 ME 117, 8 A.3d 1252

State v. Woodbury2011 ME 25, 13 A.3d 1204 Confrontation Clause Woodbury was convicted of operating after habitual offender revocation. At trial, the State introduced into evidence a Certificate from the Secretary of State that recited that Woodbury’s right to operate a motor vehicle had been revoked at the time he was stopped. Issue: Whether admission of the Secretary of State’s Certificate, indicating that the defendant’s right to operate was revoked at the time he was stopped, violates the Confrontation Clause.

Holding: Secretary of State’s Certificate did not violate Confrontation Clause because it was not a testimonial statement. Prior precedent establishes that such certificates are not maintained or created primarily for use at criminal trials, but are attestations of what is routinely maintained public record information. State v. Woodbury, 2011 ME 25, 13 A.3d 1204

State v. Dodge2011 ME 47, 17 A.3d 128 Voluntariness Dodge was being investigated for furnishing drugs to his 16-year old sister-in-law. A detective recorded his interview with Dodge, which took place in a police cruiser. When the detective asked if the sister-in-law used any drugs, Dodge said she smoked a little pot, to which the detective asked: “How do you know that?” Dodge replied: “Between you and I …” The detective said: “Yeah.” Then Dodge said: “… because I smoked a little pot.” Almost immediately thereafter, the detective made it clear to Dodge that nothing was confidential between them and there could be no “between you and I.” Dodge said “okay” and stated that he understood there were no secrets. A few minutes later, Dodge wanted to say something to the detective “between you and I”, but the detective said: “There’s nothing between you and I here.” Dodge then said: “I don’t care – I’m just saying this.” He then made numerous statements that he personally used and furnished marijuana to his sister-in-law. The trial court suppressed all statements made by Dodge, and the State appealed.

Issue: Was the detective’s initial response, “Yeah”, an assurance of confidentiality that rendered Dodge’s statements involuntary and did the detective effectively remedy any constitutional infirmity by promptly correcting himself? Holding: A police officer may not affirmatively mislead a suspect into believing that what he says will be held in confidence because to do so would mislead the suspect regarding the consequences of speaking. This is true even in a non- custodial situation. Nevertheless, a false promise of confidentiality can be remedied if it is done promptly. Here, there was no deliberate police conduct designed to mislead Dodge and any misimpression was immediately corrected. Dodge clearly indicated his understanding that nothing was confidential between the officer and Dodge. Finally, and most importantly, the purposes of suppression would not be served by excluding Dodge’s statements made after the officer corrected himself. State v. Dodge, 2011 ME 47, 17 A.3d 128

State v. Lavoie2010 ME 76, 1 A.3d 408 Voluntariness Lavoie was being investigated for unlawful sexual contact with a 9-year old girl. During his initial interview by police, Lavoie volunteered to take a lie-detector test. A polygraph exam was scheduled a month later. Lavoie was given Miranda warnings and told that he was free to leave at any time. The nature of the polygraph test was explained to him and the operator told Lavoie that the test was “fool-proof.” After the test was conducted, the examiner informed Lavoie that he had failed the test. During the post-test interview, Lavoie acknowledged that he had put his hands down the victim’s pants and touched her genitals. After encouragement from the detectives, Lavoie wrote a letter of apology to the victim about what he had done. He later moved to suppress his oral and written statements on the ground that they were involuntary because the detectives had told him that they would get him help for his alcohol problem. The trial court denied the motion.

Issue: Whether a statement should be suppressed because it was elicited after a suspect was told he had failed a polygraph test, and whether the statement was rendered involuntary by the remark that the polygraph test was “fool- proof.” Holding: The Maine Law Court, and virtually every other state court, bars admission of polygraph results and the willingness or unwillingness of a defendant to take a test. The reason for this is that the scientific evidence does not support the reliability or validity of polygraph exams. Nevertheless, the courts have recognized that polygraphs are a useful investigative tool and have upheld statements in a post-polygraph interview if such statements are voluntary. The mere fact that the statements were obtained after the suspect was told he had failed or lied on the polygraph is not controlling. The Law Court refused to follow the lead of the Montana Supreme Court on this issue. State v. Lavoie, 2010 ME 76, 1 A.3d 408

Holding continued… Furthermore, the police did not make any promises of leniency to Lavoie and the statement that the polygraph was “fool-proof” was said in the context of the ability of computerized polygraph machines to record physical responses, and not in the machine’s ability to detect lies. Justices Levy and Alexander concurred in a separate opinion, pointing out the dangers of telling a suspect before the administration of a polygraph test that it is “fool-proof.” In some circumstances, saying that could render a post-test statement involuntary. Levy and Alexander concurred in the court’s opinion because the “fool-proof” remarks referred to the machine’s ability to record physiological responses better than traditional paper charts. State v. Lavoie, 2010 ME 76, 1 A.3d 408

State v. Ericson2011 ME 28, 13 A.3d 777 Expert Witness Testimony – Reliability Ericson was convicted of multiple charges involving sexual acts with a minor. At trial, he offered the deposition testimony of a clinical psychologist who evaluated accused and convicted sex offenders. The expert administered the “Abel Assessment for Sexual Interest” to Ericson and concluded that the defendant did not have “deviant sexual preferences.” The assessment involves viewing slides and answering a questionnaire about the level of attention to various images. The trial court excluded the evidence.

Issue: Should expert opinion testimony based on an assessment test that the defendant does not have “deviant sexual preferences” be admitted because it is reliable and assists the trier of fact? Holding: The expert testimony was properly excluded because it was not sufficiently reliable so as to be relevant, and therefore, it would not assist the jury. The Law Court held that the Abel Assessment had not been subject to adequate peer review; had only been used on admitted sex offenders; and, the error rate was substantial, between 21% and 32%. Because the assessment was not shown to be reliable, it was not relevant. State v. Ericson, 2011 ME 28, 13 A.3d 777

State v. Hurd2010 ME 118, 8 A.3d 651 Jury Deliberations Hurd was convicted of aggravated operating under the influence after a jury trial. The issue at trial was whether Hurd was the operator of the vehicle or whether his friend, Richardson (deceased), was driving. There was no dispute that the motor vehicle involved belonged to Hurd. The jury was instructed on both principal and accomplice liability, on the theory that Hurd had been driving the car when the two men left the bar, but later switched seats, so that Hurd was aiding his friend Richardson in the commission of the crime of OUI. There was no instruction that the jury could find guilt if it was unanimous on either principal or accomplice liability, even though it was not unanimous on a particular theory of liability. Nor was a question asked of the jury to address the question of accomplice liability separately.

Jury Deliberations continued… The jury announced that it had reached a verdict and returned to the courtroom. When inquired by the clerk, the foreperson reported verdicts of “not guilty” on both the manslaughter charge and the aggravated OUI charge. The court then thanked the jury and discharged the jurors from further service. The jury went to the jury room, but within a minute or two indicated that it needed to speak to the court. The judge went into the jury room and spoke briefly to the jury. A short time later, the jury sent a note stating that it thought there was a third charge to be resolved, the third one being “accomplice liability.” Over Hurd’s objection, the jury was sent back to resume its deliberations on whether it found the defendant guilty or not guilty of aggravated OUI as either a principal or as an accomplice. The jury retired for about nine minutes and returned the following verdict: (1) not guilty of aggravated OUI, and (2) guilty of aggravated OUI - accomplice liability. The jury was discharged again and the trial court entered judgment on the count of aggravated OUI. State v. Hurd, 2010 ME 118, 8 A.3d 651

Issue: Once the jury has been discharged, may the court reconvene the jury and accept a different verdict than originally returned? Holding: The Law Court held that the trial court committed error when, after the jury’s discharge, it inquired of the jury’s deliberative process beyond establishing, as permitted by Rule 606(b), that the jury’s original verdict was not the result of outside influence or external juror misconduct. The fact that the jury may have misunderstood the instructions was not a basis to reconvene the jury after discharge. After a jury is discharged, no court can inquire into the extent to which the jurors may have been confused. Justices Jabar and Silver dissented. They took the view that the jury had not been discharged because they were never separated. The jury never dispersed, was not subject to any outside influence and was always under the control of the court. State v. Hurd, 2010 ME 118, 8 A.3d 651

State v. Filler2010 ME 90, 3 A.3d 365 Right of Cross-Examination; Relevant Evidence Prosecutorial Misconduct – Rebuttal Argument Filler was convicted by a jury of two counts of gross sexual assault and one count of assault against his wife. At trial, the defense theory was that the wife had fabricated her charges of sexual assault against her husband because the marriage was ending and divorce and child custody actions had been instituted after the wife made the criminal complaints. The State objected to the cross-examination of the wife about the child custody dispute, and the trial court sustained the objection on the ground that the custody dispute was initiated by the wife after the alleged incidents of abuse, and that cross-examination of the custody issues would involve a trial within trial. The trial court relied upon Rule 403 Me.R.Evid.

Right of Cross-Examination; Relevant Evidence Prosecutorial Misconduct – Rebuttal Argument continued… During his closing argument, the defense attorney suggested that the wife’s claims of domestic violence emerged only after the marriage was ending and were made to gain an advantage in the custody litigation. In her rebuttal argument, the prosecutor asked the jury “Where the evidence is … that the marriage was ending … this was a first step in a child custody fight. Where is one piece of evidence of that?” The defense objected to the rebuttal argument on the basis that the prosecutor had emphasized the absence of evidence that the court had excluded over the State’s objection. The trial court denied the request for a mistrial, but later granted the defense motion for a new trial because of the rebuttal argument. State v. Filler, 2010 ME 90, 3 A.3d 365

Issue: Is evidence of divorce and child custody litigation commenced after alleged domestic violence, relevant to the motivation and bias of complaining witness and, if relevant, is its probative value such that it is admissible under Rule 403? Holding: Evidence that complaining witness may have had motive to fabricate allegations of abuse are highly relevant on issue of credibility. Moreover, the relevancy of such evidence was not “substantially outweighed” by the degree of confusion of the issues, and cross-examination of wife on divorce and child custody. The prejudice to the defense was compounded by the State’s rebuttal argument which amplified the court’s initial error in excluding the evidence in the first place. The Law Court held that the State’s rebuttal argument “created a likelihood” of unfair prejudice. State v. Filler, 2010 ME 90, 3 A.3d 365

Price v. State2010 ME 66, 1 A.3d 426 Post-Conviction Review – Mootness Price pleaded guilty to operating after revocation and was sentenced to 30 days and a $500 fine. She did not appeal her conviction and she paid her fine in full. While serving her jail sentence, she filed a petition for post-conviction review claiming ineffective assistance of counsel. After Price fully served her jail sentence, the Superior Court dismissed the petition as moot on the ground that Price had voluntarily completed her sentence. Issue: Is a petition for post-conviction review rendered moot if the underlying sentence has been completed and does it matter whether the sentence was served voluntarily or involuntarily?

Holding: The Maine Law Court held that the distinction between voluntarily and involuntarily service of the underlying sentence is irrelevant to the issue of mootness in a petition for post-conviction review. The Court overruled its prior precedents that had created that distinction and that had held that a petition was moot if the petitioner had “voluntarily” completed a sentence. The court held that the collateral consequences of a conviction standing alone are sufficient to warrant a post-conviction review, provided the petitioner meets the statutory requirements of the post-conviction review law. Justice Alexander concurred, but wrote separately to remind post-conviction petitioners who have pleaded guilty that they run the risk that ultimately the results in their case may be less favorable than their plea. Price v. State, 2010 ME 66, 1 A.3d 426

Cookson v. State2011 ME 53, 17 A.3d 1208 Post-Conviction DNA Testing Prima Facie Evidence Chain of Custody Cookson was convicted of two counts of murder. During the trial, one Vantol told Cookson’s attorney and private investigator that he had committed the crime. He also said that Cookson had arranged and/or participated in the murders. Cookson’s attorney did not reveal this confession until after the jury’s verdicts. Later that same day, Vantol led police to a spot in the woods where he unearthed the murder weapon. Vantol also offered to provide the police with the clothing he claimed to have been wearing at the time of the murders, but he refused to take them to the clothing. Rather, two days later Vantol produced a trash bag containing several clothing items as well as an orange wig.

Vantol confessed to the police, but he was not believed. When told he had failed a polygraph test, Vantol threatened to harm himself. He was admitted to Acadia Hospital and later recanted his confessions and said he had obtained the clothing from a junk car and that they had nothing to do with the murders. Cookson sought DNA testing of the clothing. The trial court denied the request but did not give specific findings of fact as to the five criteria that must be shown by prima facie evidence under the post-conviction DNA statute. One of those criterion is the chain of custody of the item of evidence sought to be tested. Issues: What constitutes prima facie evidence? When findings of fact are required by statute, how specific must they be? In the context of post-conviction DNA testing, what does “chain of custody” encompass? Cookson v. State, 2011 ME 53, 17 A.3d 1208

Holding: Prima facie evidence is a “low standard” that only requires “some evidence” on every element of proof necessary to obtain the relief requested. Where required by statute, findings of fact must be stated with “sufficient specificity to permit understanding and meaningful appellate review.” The Law Court vacated the trial court’s judgment because it failed to issue findings of fact as required by the law. The Law Court also addressed the issue of chain of custody and concluded that Cookson has the burden to account for the clothing’s chain of custody from the time of the murders to the present day, not just for the time period when the police had custody of the items. The chain of custody requirement is designed to assure that the evidence is what it purports to be and that it has not been contaminated or tampered with. Justice Alexander dissented. He would have affirmed the trial court because Cookson failed to satisfy his burden of chain of custody and the absence of tampering. Cookson v. State, 2011 ME 53, 17 A.3d 1208

Significant Criminal Law Decisions from the Maine Supreme Judicial Court Sitting as the Law Court