State v. Peters

314 A.3d 290

2024 ME 33

STATE of Maine

v.Richard PETERS

Docket: Pen-23-252

Supreme Judicial Court of Maine.

Argued: March 5, 2024

Decided: May 7, 2024

Andrews Bruce Campbell, Esq. (orally), Andrews Bruce Campbell, P.A., Bowdoinham, for appellant Richard Peters

R. Christopher Almy, District Attorney, and Mark A. Rucci, Dep. Dist. Atty. (orally), Prosecutorial District V, Bangor, for appellee State of Maine

Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.

MEAD, J.

[¶1] Richard Peters appeals from a judgment of conviction for hunting a deer after having killed one (Class D), 12 M.R.S. § 11501(2) (2024), and unlawful possession of wild animals (Class E), 12 M.R.S. § 10658(1) (2024), entered by the trial court (Penobscot County, Lucy, J.) following a jury trial. Peters challenges the court’s denial of his motions for a mistrial, the sufficiency of the State’s bill of particulars, and the jury instructions. He further contends that double jeopardy protections barred his conviction on the charge of unlawful possession of wild animals. We disagree with his contentions and affirm the judgment.

[¶2] The court initially stayed Peters’s sentence to require him to report to the Androscoggin County Sheriff’s alternative sentencing program. Peters contends that after he took an appeal, the court construed M.R.U. Crim. P. 38(d) too strictly when it amended the stay to require him to surrender to the Penobscot County Sheriff to serve his sentence. We agree with Peters that the court retained the authority to order the original stay and we remand for the court to consider whether to reinstate it.

I. BACKGROUND

A. Facts

[¶3] "Viewing the evidence in the light most favorable to the jury’s verdict, the trial record supports the following facts." State v. Healey, 2024 ME 4, ¶ 2, 307 A.3d 1082 (quotation marks omitted).

[¶4] On November 16, 2019, during the open hunting season for deer, Game War- den William Shuman went to Peters’s residence after receiving a call from a game registration station in Etna. The registration agent told Shuman that on November 13, Peters had registered a doe that he killed, and on November 15, Peters returned to the station with Ruth Smith, who was there to register a buck that she had purportedly killed and who gave the same phone number as Peters. The agent became suspicious when Peters did all of the talking concerning the buck.

[¶5] Accompanied by Game Warden Josh Beal, Shuman went to Peters’s home to investigate; eventually a third warden came with an evidence-detection dog. When he arrived, Shuman saw Peters and another man hanging a large buck from the garage. Peters acknowledged killing a doe on his property on November 13 using a .300 caliber rifle. Concerning the buck, Peters told Shuman that Smith, who held an apprentice hunting license,¹ shot it with a .30-06 rifle while they were together in the woods on the property. Asked to explain how that had happened, Peters said that he had "paunched" the deer by shooting it in the stomach, requiring him to "chase the deer around" and kill it with a neck shot. When Shuman pointed out that Peters had just acknowledged shooting the buck in the stomach and the neck using the word "I" to identify who had performed those acts, Peters became irritated and said that the warden was putting words in his mouth, and that when he used "I" he meant "we or them."

[¶6] The wardens conducted an investigation that included examining various boot tracks, drag marks, ATV tracks, deer tracks, blood, and a gut pile along a snowmobile trail on the property, and they discovered two bait sites—one an apple pile and the other a foam fake tree stump containing bait, which was located in front of a tree that had a blood spatter and what appeared to be a bullet strike.

[¶7] The wardens obtained and executed a search warrant for Peters’s residence. Among the items seized were a .300 caliber rifle and a .30-06 rifle.

B. Procedure

[¶8] Peters was charged by criminal complaint with, in Count 1: hunting a deer after having killed one (Class D), 12 M.R.S. § 11501(2); Count 2: exceeding the bag limit on deer (Class D), 12 M.R.S. § 11501(1) (2024); Count 3: unlawful possession of wild animals (Class E), 12 M.R.S. § 10658(1); and Count 4: illegally baiting deer (Class E),² 12 M.R.S. § 11452(1)(B) (2020).

[¶9] The court held a jury trial on May 16 and 17, 2023, at which five wardens testified. After the State rested its case-in-chief, the court granted Peters’s motion for a judgment of acquittal as to Count 4, which alleged that Peters had hunted from an observation stand or blind overlooking bait. The jury returned verdicts of guilty on Counts 1 and 3 and not guilty on Count 2.

[1] [¶10] At the sentencing hearing, the court entered judgment and imposed the minimum mandatory penalties: three days’ incarceration and a $1,000 fine on Count 1 and a $500 fine on Count 3. 12 M.R.S. §§ 10658(2), 11501(3) (2024). By agreement, the judgment specified that the jail term was stayed so that Peters could serve the sentence through the Androscoggin County alternative sentencing program. The court did not act on the State’s oral request to forfeit the .30-06 rifle, determining that the State had cited no persuasive statutory basis for it to do so.³

[¶11] Peters timely appealed and moved for a stay of execution pending appeal. M.R. App. P. 2B(b)(1). The court granted the motion but stated that Peters "shall be aware that [M.R.U. Crim. P.] Rule 38(d) applies as to his jail sentence if his appeal is unsuccessful. That rule does not allow for accommodating alternative sentencing program delays." In accordance with its interpretation of Rule 38(d), the court amended the judgment by striking the original stay permitting the alternative sentencing program in Androscoggin County and substituting an ordinary stay pending appeal, following which Peters would be required to surrender to the Penobscot County Sheriff to serve his three-day sentence.

II. DISCUSSION

A. Motions for Mistrial

[¶12] In June 2022, almost a year before trial, Peters moved for an order requiring the State to produce a report concerning any expert that it intended to call; the court granted the motion. The State did not produce any such report. The day before trial, Peters moved in limine for a pretrial ruling on the admissibility of evidence concerning "[a]ny testimony regarding a matching of footwear seized from the defendant’s residence to footprints observed in the snow on the defendant’s property." In an off-the-record chambers conference on the morning of trial, the court reserved ruling on the motion.

[¶13] At sidebar before Warden Shuman testified, Peters renewed his objection to "anything with respect to either footprints in the snow or boots found at the residence, or any comparison [between them]," arguing that "it’s subject to expert testimony, so the State should be prohibited from offering any testimony comparing them … [and] if the court sustains that … then what’s the relevance." The court elected to "cross that when we get .. there" and proceeded to hear evidence.

[¶14] As the trial progressed, the State elicited evidence of boot tracks in the snow to establish the movement of people around the property relative to the deer, but the court did not allow the State to elicit evidence of the size of the boot tracks to show they matched Peters’s feet rather than Smith’s, ruling that correlating boot size with foot size required "some level of expertise." See State v. Dolloff, 2012 ME 130, ¶ 30, 58 A.3d 1032 (concluding that the trial court did not abuse its discretion in permitting an expert witness to give an opinion regarding "how .. bloody footprints … were likely made"). Peters essentially agreed: "I appreciate the court’s ruling and frankly, wouldn’t object—I don’t think my objection goes so far as to prohibit the State from talking about footprints."

[¶15] The court consistently prevented the State from presenting evidence that it had ruled would require expert testimony. When the State asked Shuman, "[D]id you observe some boots inside the residence?" Peters objected and moved for a mistrial, arguing that the jury would wonder "why [the prosecutor] would be looking to admit those boots if they didn’t match the footprints that were in the snow?" The court declined to order a mistrial but again barred the State from introducing evidence as to the size of the boots and the relative sizes of Peters’s and Smith’s feet for the purpose of establishing "that the boots in the house could have made the tracks in the snow."

[¶16] When the State later continued to argue that the size of the boots found in the house was relevant, the court disagreed, ruling that absent expert testimony, comparisons between particular boots and the boot tracks found in the snow invited the jury to speculate. Ultimately, when the State asked the court, "So if I ask [Shuman] if … one had larger feet than the other, you’d say that’s excluded?" the court answered, "Yes." The court’s ruling did not change when the State argued that Peters had opened the door to evidence of foot size when cross-examining Shuman.

[¶17] On the second day of the trial, during the State’s direct examination of Warden Beal, the prosecutor asked Beal to "describe for the jury the circumstances of [his] conversation" with Smith. Beal answered, in part, "I noticed, you know, she’s a relatively small woman. She had relatively small feet." In response to Peters’s motion for a mistrial on the ground that the State had been instructed to "steer clear of this," the prosecutor said that he did not expect the answer that Beal gave. The court again denied a mistrial but gave a curative instruction at Peters’s request. See State v. Carrillo, 2021 ME 18, ¶ 25, 248 A.3d 193 ("Jurors are presumed to follow instructions, including curative instructions to ignore references to inadmissible evidence.").

[¶18] During closing arguments, the State asserted that the...