State v. Sexton, Docket: Pen–15–389

159 A.3d 335

STATE of Maine

v.Nicholas SEXTON

Docket: Pen–15–389

Supreme Judicial Court of Maine.

Argued: October 26, 2016

Decided: April 6, 2017

Jeremy Pratt, Esq. (orally), and Ellen Simmons, Esq., Camden, for appellant Nicholas Sexton

Janet T. Mills, Attorney General, and Leanne Robbin, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

HUMPHREY, J.

[¶1] Nicholas Sexton appeals from a judgment of conviction of one count of murder, 17–A M.R.S. § 201(1)(A) (2016), and one count of arson (Class A), 17–A M.R.S. § 802(1)(A) (2016), following a jury trial. A jury also found Randall Daluz, Sexton's co-defendant, guilty of three counts of murder and one count of arson.¹

[¶2] Sexton contends that the trial court (Penobscot County, Anderson, J. ) erred when it instructed the jury on the defense of duress only for the arson charge and not for the murder charges; erred when it denied his motion for relief from prejudicial joinder with Daluz; abused its discretion and violated his right to due process when it allowed a witness to testify about guns she observed in a motel room during a meeting with Sexton and Daluz; erred when it denied his motion to suppress cell phone records used to locate Sexton; and erred when it allowed testimony that insinuated Sexton "harmed people over drug debts."

[¶3] We disagree and affirm the judgment.

I. BACKGROUND

[¶4] Viewing the evidence in the light most favorable to the verdict, a fact-finder could have rationally found the following facts.² See State v. Reed , 2013 ME 5, ¶ 9, 58 A.3d 1130.

[¶5] On August 11, 2012, Sexton renewed a rental agreement for a white 2001 Pontiac Grand Prix. At around 3:30 a.m. on August 13, 2012, that same vehicle was discovered burning in a Bangor industrial park. Inside the vehicle were the bodies of three murdered individuals, later identified as Daniel Borders, Nicolle Lugdon, and Lucas Tuscano, who were last seen on the night of August 12, 2012, leaving an apartment on Bolling Drive in Bangor with Sexton.

[¶6] On August 14, 2012, the day after the Pontiac was discovered, police requested and obtained, pursuant to the Stored Communications Act (SCA), 18 U.S.C.S. § 2702(c)(4) (LEXIS through Pub. L. No. 115–9),³ cell phone location information in order to determine Sexton's whereabouts. That same day, police investigators used the location information obtained from a cell phone belonging to Sexton's girlfriend to locate Sexton at a hotel in Danvers, Massachusetts, where Sexton and his girlfriend stayed after they left Bangor together on August 13, 2012. Sexton declined to be interviewed by police investigators at that time.

[¶7] On September 26, 2012, Sexton was charged by indictment with three counts of murder, 17–A M.R.S. § 201(1)(A), and one count of arson (Class A), 17–A M.R.S. § 802(1)(A). Sexton pleaded not guilty to all counts.

[¶8] On September 27, 2012, the State filed a notice of joinder indicating that Sexton and Daluz would be tried together. U.C.D.R.P.–Bangor 8(b); M.R. Crim. P. 8(b) (Tower 2014).⁴ Sexton moved for relief from joinder in July 2013 because Daluz gave statements to the police that implicated Sexton. The court (Anderson, J. ) initially granted the motion because a joint trial would present a " Bruton problem," see Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), but indicated that it was "still considering whether to have two simultaneous trials with two juries." See M.R. Evid. 105 ; see also State v. Boucher , 1998 ME 209, ¶ 12, 718 A.2d 1092. Sexton then moved again for relief from prejudicial joinder, arguing against simultaneous trials. After the State moved to reconsider the court's decision to sever the trials and represented that Daluz's statements would not be introduced at trial, the court denied Sexton's motion for relief from prejudicial joinder, concluding that there was no longer a Bruton problem, and that Sexton did not demonstrate that joinder was sufficiently prejudicial to warrant severance. The court denied Sexton's motion to reconsider.

[¶9] Sexton filed a motion to suppress the cell phone location information that led police to locate and attempt to interview him on August 14, 2012. On April 1, 2014, the court denied the motion to suppress, concluding that the SCA request did not constitute a "search" implicating constitutional protections; that probable cause existed and there were exigent circumstances; that officers acted in good faith in making the SCA request; and that police located Sexton using Sexton's girlfriend's cell phone location information and Sexton had no expectation of privacy in her records.

[¶10] The joint trial commenced on May 1, 2014. Katelyn Lugdon, sister of victim Nicolle Lugdon, testified that she and Borders met with Sexton and Daluz in a motel room on the night of August 11, 2012. During the meeting, Katelyn saw two firearms on the bed, one silver with a rounded barrel and the other darker and smaller with two holes. She observed Sexton place the silver gun under his shirt, while Daluz played with the other gun. Katelyn testified that during a prior interview with police, she described the guns and then was shown photographs of a derringer and a Jimenez .380 caliber handgun that had been recovered from the Penobscot River. She testified about the interview and photos, but was not shown the guns or photos of the guns at trial.⁵

[¶11] Sexton attempted to ask Katelyn questions that would potentially lead to the admission of Daluz's statements to a fellow inmate at the Penobscot County Jail that Daluz shot Nicolle Lugdon to gain Sexton's trust. The court ruled that the question was improper and stated that an objection would be sustained, prompting Sexton to move to sever the cases in order to use the statement to establish who possessed the guns. The court denied the motion to sever. A second attempt was made to introduce Daluz's statement to the inmate during Sexton's testimony; the court reiterated that an objection to such a question would be sustained.

[¶12] The State rested on May 16, 2014. Sexton took the stand on May 19 and called no other witnesses.

[¶13] Sexton testified that after leaving the Bolling Drive apartment on the night of August 12, 2012, he, Daluz, Borders, Tuscano, and Lugdon rode in the white Pontiac Grand Prix to smoke marijuana. Sexton drove and Borders sat in the front passenger seat. The others sat in the rear with Daluz on the passenger side, Lugdon in the middle, and Tuscano on the driver side. Borders made a comment, prompting Daluz to "smack[ ] him in the head" with the Jimenez .380 caliber handgun several times. "Then all of a sudden the gun" fired, shooting Borders in the head and "everybody just start[ed] panicking." Tuscano "was flipping out on Daluz" and then Daluz shot Tuscano. While Lugdon was screaming, yelling, and crying, Daluz collected their cell phones and instructed Sexton to keep driving.

[¶14] Sexton testified that because the car was running out of gas and Daluz wanted to avoid gas stations, they drove to a friend's house in Dedham and took a gas can of fuel. Daluz instructed Sexton to put some in the car and save some to burn the car. They drove to a remote area in Hermon, where Daluz forced Lugdon to eat pills. Daluz then shot Lugdon. Sexton testified that Daluz then told him not to say anything, or else Daluz would shoot him and his family.⁶ When Sexton dropped Daluz off at the hotel, Daluz ordered him at gunpoint to burn the car and threatened to shoot him and burn him in the car if he did not. Sexton agreed, drove to the industrial park, and set the car on fire.

[¶15] Daluz called three witnesses and elected not to testify. The parties made closing arguments on May 20, 2014. The court submitted the case to the jury and deliberations began on May 21.

[¶16] During deliberations, the jury asked for clarification of the instructions several times, particularly focusing on the defense of duress. The first duress-related question asked: "Are we being asked to consider that Nick Sexton was under duress during the murders? We have been asked to consider duress for arson." Sexton did not ask the court to instruct the jury to consider duress for the murder charges, electing instead to remain consistent with his closing argument and his original request to instruct the jury on duress only as to the arson charge. The court answered: "No, [duress] does not play a part in—it is not being posed as a defense in that situation." The second juror note asked: "[D]id you say we cannot use duress as a defense for murder[?] Question two, if yes, why is this missing in the instructions[?] And three, can duress be used to find a defendant not guilty of murder if the defense has not requested it [?]" The court answered that duress could not be considered as a defense to murder.

[¶17] On May 28, 2014, the jury reported that it was deadlocked and unable to reach a unanimous verdict on the counts charging Sexton with the murders of Borders and Tuscano. With the parties' agreement, the court declared a mistrial as to those counts. The jury returned a verdict of guilty on the count charging Sexton with Lugdon's murder and the arson count.

[¶18] On July 28, 2015, the court sentenced Sexton to seventy years of imprisonment for the single murder conviction and twenty years for the arson conviction, to be served consecutively to the sentence for the murder conviction. Sexton filed a timely notice of appeal and also filed an application for leave to appeal his sentence, which was denied. SeeState v. Sexton , No. SRP–15–390 (Me. Sent. Rev. Panel Sept. 29, 2015); 15 M.R.S. § 2151 (2016) ; M.R. App. P. 20. This appeal followed.

II. DISCUSSION

A. The Duress Jury Instruction

[¶19] Sexton first argues that the court erred in failing to instruct the jury to consider duress as a defense to the murder counts.⁷ We interpret the applicable stat...