State v. Plummer

238 A.3d 241

STATE of Maine

v.Jahneiro PLUMMER

Docket: Ken-19-364

Supreme Judicial Court of Maine.

Argued: July 15, 2020

Decided: August 13, 2020

Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant Jahneiro Plummer

Aaron M. Frey, Attorney General, and Katie Sibley, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine

Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS JJ.

CONNORS, J.

[¶1] Jahneiro Plummer appeals from a judgment of conviction entered by the trial court (Kennebec County, Stanfill, J .) after a jury found him guilty of two counts of aggravated trafficking of scheduled drugs (Class A), 17-A M.R.S. § 1105-A(1)(D), (H) (2020), and found for the State on one count of criminal forfeiture, 15 M.R.S. § 5826 (2020). Plummer argues that the trial court committed obvious error in its instructions to the jury on accomplice liability and by instructing the jury on a written report not admitted in evidence. He also asserts that the court abused its discretion by denying his motion for a new trial because statements made during the State's closing argument impermissibly commented upon his out-of-state residence. We affirm the judgment.

I. BACKGROUND

[¶2] Viewing the evidence in the light most favorable to the State, the jury could have rationally found the following facts beyond a reasonable doubt. See State v. Chan , 2020 ME 91, ¶ 2, 236 A.3d 471.

[¶3] On two separate occasions in July 2018, an undercover Maine Drug Enforcement Agency (MDEA) agent purchased cocaine base from a man known as "G-Town" in a back bedroom of an apartment in Gardiner. On July 31, 2018, MDEA agents executed a search warrant at that apartment. After announcing themselves, agents observed two men fleeing from the back door. Outside, agents arrested the two men and identified them as Michael Nelson (G-Town) and Plummer.

[¶4] After arresting the two men, the agents searched the back bedroom of the apartment. Agents found a paper plate on the floor containing "a large amount" of loose tan powder, as well as a scale, scissors, and sandwich bags. The agents also found several bags in the bedroom. One of the bags was tipped over, and it contained Plummer's identification card, his wallet, two digital scales, a cellphone, and rubber bands. Near the bag, agents found a sock "the size of a baseball" containing heroin and cocaine base. In another bag, the agents found $14,035 in United States currency wrapped in rubber bands. In total, the agents seized 150 grams of heroin and 230 grams of cocaine base.¹

[¶5] In November 2018, Plummer was indicted on two counts of aggravated trafficking in scheduled drugs (Class A), 17-A M.R.S. § 1105-A(1)(D), (H), and one count of criminal forfeiture, 15 M.R.S. § 5826. Plummer pleaded not guilty.

[¶6] In February 2019, after Plummer's trial was severed from Nelson's, the court held a two-day jury trial. During the trial, Plummer testified, introducing the fact that he was from Brooklyn, New York, and stating that he had traveled to Maine to smoke marijuana and record music with Nelson using his phone. He testified that he did not know Nelson was selling drugs and had fled "on instinct."

[¶7] On rebuttal, the State sought to introduce evidence from an agent as to the location of certain hubs from which drugs come into Maine. Plummer objected on the ground that it would be unfairly prejudicial to submit evidence to the effect that the trip from New York was a typical drug route, and this objection was sustained. See M.R. Evid. 403. The State was, however, allowed to ask the agent whether drugs such as cocaine base and heroin are generated in Maine or come from elsewhere, over no objection. The agent testified that based on his experience, "it's typical that drugs are imported from other places" and are not made in Maine.

[¶8] During closing arguments, the State focused on Plummer's testimony regarding his travel to Maine shortly before the raid:

And as we know from [the agent's testimony], in his 22 years of drug enforcement experience these drugs don't come from Maine, they're imported from outside the state.

Now, Mr. Plummer has told you that he came by bus from New York to Maine the night of July 30th, that he did so to record music and smoke marijuana with his friend, Mr. Nelson, that he had no idea Mr. Nelson was dealing drugs and he was sleeping when the agents executed the search warrant.

Ladies and gentlemen, is it reasonable that Mr. Plummer had no idea what was going on in that room or why Mr. Nelson was in Maine. Is it reasonable that he took, as he testified, a 10 hour bus ride to Maine to record music with a friend, a friend who he records music with 15 minutes from his house in Brooklyn? Is Gardiner a hotbed of music recording that we're unaware of?

[¶9] During its rebuttal closing, the State further argued,

Now it's true not everybody who comes to Maine by any means, boat, bus, plane, is carrying drugs. And people leaving the state aren't necessarily carrying drugs and money. But not everybody shows up at the apartment, at that room, and flees the minute law enforcement shows up.

Plummer did not object to the State's closing argument.

[¶10] After the close of evidence, the court gave—both orally and in writing—the following jury instructions regarding accomplice liability:

A person may be guilty of a crime if he personally does the acts that constitute the crime or if he is an accomplice of another person who actually commits the crime. A person may be found guilty of a crime as an accomplice if the [S]tate proves beyond a reasonable doubt that with the intent of promoting or facilitating the commission of a crime the person solicits or aids or agrees to aid or attempts to aid another person who commits a crime in the planning or commission of that crime. Mere presence at the scene of a crime without more does not prove that a person is an accomplice to a crime. However, once a person's presence at a crime scene is proven, he may be guilty of the crime as an accomplice if he intentionally engages in any conduct, however slight, that promotes or facilitates the commission of the crime. Thus, a person may be guilty of aggravated trafficking in drugs as a principal if the [S]tate proves beyond a reasonable doubt that the defendant personally did the acts that constitute the crime.

Alternatively, the defendant may be guilty of aggravated trafficking in drugs or unlawful trafficking in drugs if the [S]tate proves beyond a reasonable doubt that with the intent of promoting or facilitating the crime of aggravated trafficking or unlawful trafficking in drugs the defendant solicited or aided or agreed to aid or attempted to aid another person that committed a crime in the planning or commission of that crime.

Plummer did not object to the jury instructions.

[¶11] During deliberations, the jury requested a transcript of one MDEA agent's trial testimony, as well as the agent's written report, which was used during his cross-examination to refresh his recollection. The court provided the jury with the trial testimony but denied the jury's request for the written report because the report had not been entered in evidence.² The court then gave the following instruction regarding the written report:

You must decide the case based on the evidence presented to you and admitted in evidence. That evidence does not include any of the written reports. You must not speculate about what others might have said or what those materials may show. You can draw no inference, favorable or unfavorable, from the fact that there is no evidence of the reports in the materials submitted to you. You're free to consider the testimony about the reports or what the reference is but the reports themselves are not in[ ] evidence.

Plummer did not object.

[¶12] The jury found Plummer guilty on all counts. Plummer filed a motion for a new trial, arguing that he was unfairly prejudiced by the State's closing argument, as well as by the agent's testimony about drugs coming into Maine from out of state. The court orally denied Plummer's motion.

[¶13] In August 2019, the court sentenced Plummer to fifteen years’ imprisonment, with all but six years suspended, and four years’ probation. Plummer timely appealed. See 15 M.R.S. § 2115 (2020) ; M.R. App. P. 2B(b)(1).

II. DISCUSSION

A. Jury Instructions on Accomplice Liability

[¶14] Plummer asserts three arguments challenging the instructions given to the jury on accomplice liability. First, he contends that the trial court's instruction implied that accomplice liability could be found upon the commission of any crime, not just aggravated trafficking or unlawful trafficking. Second, Plummer argues the court erroneously instructed jurors that he could be convicted of aggravated trafficking as an accomplice if he acted with the intent to promote or facilitate merely unlawful trafficking. Finally, he argues that the court erred by failing to instruct the jury on the "reasonably foreseeable consequence" basis for accomplice liability. 17-A M.R.S. § 57(3)(A) (2020). Because Plummer did not object to the jury instructions given at trial, we review the instructions for obvious error. See State v. Coleman, 2019 ME 170, ¶ 22, 221 A.3d 932.

[¶15] Obvious error exists when there is "(1) an error, (2) that is plain, and (3) that affects substantial rights." State v. Pabon , 2011 ME 100, ¶ 29, 28 A.3d 1147. "If these conditions are met, we will exercise our discretion to notice an unpreserved error only if we also conclude that (4) the error seriously affects the fairness and integrity or public reputation of judicial proceedings." Id . Importantly, "we review jury instructions in their entirety to determine whether they presented the relevant issues to the jury fairly, accurately, and adequately, and we will vacate the court's judgment only if the erroneous instruction resulted in prejudice." State v. Hansley , 2019 ME 35, ¶ 8, 203 A.3d 827 (quotation marks...