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

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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

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 addressed1

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 mitchell 2010 me 73 4 a 3d 478 cert pending

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.


Significant criminal law decisions from the maine supreme judicial court sitting as the law court

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


Significant criminal law decisions from the maine supreme judicial court sitting as the law court

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 ducasse 2010 me 117 8 a 3d 1252 cert denied

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.


Significant criminal law decisions from the maine supreme judicial court sitting as the law court

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


Significant criminal law decisions from the maine supreme judicial court sitting as the law court

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 woodbury 2011 me 25 13 a 3d 1204

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.


Significant criminal law decisions from the maine supreme judicial court sitting as the law court

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 dodge 2011 me 47 17 a 3d 128

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.


Significant criminal law decisions from the maine supreme judicial court sitting as the law court

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 lavoie 2010 me 76 1 a 3d 408

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.


Significant criminal law decisions from the maine supreme judicial court sitting as the law court

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


Significant criminal law decisions from the maine supreme judicial court sitting as the law court

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 ericson 2011 me 28 13 a 3d 777

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.


Significant criminal law decisions from the maine supreme judicial court sitting as the law court

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 hurd 2010 me 118 8 a 3d 651

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.


Significant criminal law decisions from the maine supreme judicial court sitting as the law court

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


Significant criminal law decisions from the maine supreme judicial court sitting as the law court

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 filler 2010 me 90 3 a 3d 365

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.


Significant criminal law decisions from the maine supreme judicial court sitting as the law court

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


Significant criminal law decisions from the maine supreme judicial court sitting as the law court

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 state 2010 me 66 1 a 3d 426

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?


Significant criminal law decisions from the maine supreme judicial court sitting as the law court

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 state 2011 me 53 17 a 3d 1208

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.


Significant criminal law decisions from the maine supreme judicial court sitting as the law court

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


Significant criminal law decisions from the maine supreme judicial court sitting as the law court

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


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