State v. Thomas

274 A.3d 356

2022 ME 27

STATE of Maine

v.Clifton THOMAS

Docket: And-21-216

Supreme Judicial Court of Maine.

Argued: April 6, 2022

Decided: May 17, 2022

Verne E. Paradie, Jr., Esq. (orally), Lewiston, for appellant Clifton Thomas

Katherine E. Bozeman, Asst. Dist. Atty. (orally), and Katherine M. Hudson-MacRae, Asst. Dist. Atty., Androscoggin County District Attorney's Office, Lewiston, for appellee State of Maine

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

JABAR, J.

[¶1] Clifton Thomas appeals from a judgment of conviction of six offenses,¹ entered by the trial court (Androscoggin County, McKeon, J. ) after a three-day jury trial. Thomas challenges the denial of his request for sanctions for the State's alleged discovery violations and the denial of his motion to dismiss because of the makeup of the jury venire. Thomas also contends that the trial court committed an obvious error by admitting testimony of a police officer that contained hearsay; that the trial court abused its discretion by failing to admit a letter that Thomas claimed was written on behalf of the victim because it could not be authenticated; and that there was insufficient evidence for the jury to convict him. We affirm.

I. BACKGROUND

A. Facts

[¶2] "Viewing the evidence in the light most favorable to the jury's verdict, the trial record supports the following facts." See State v. Murray , 2021 ME 47, ¶ 2, 259 A.3d 1276. On February 7, 2020, Thomas beat the victim—a former romantic partner and the mother of Thomas's child—causing swelling and bruising to her face. At the time, the victim did not report this incident to the police.

[¶3] On February 26, 2020, Thomas entered the victim's home and began yelling at her. He drew a firearm, loaded it, and pointed it at her while she had a child on her lap. He took the victim's cell phone from her and stated that he would give it back if she would let him shoot her in the leg. After hearing a noise outside, Thomas left with the victim's cell phone. Once Thomas departed, the victim left the apartment, brought her children to safety, and reported this incident, as well as the incident on February 7, to the police.

[¶4] On February 27, 2020, the police learned that Thomas might be staying at an apartment in Lewiston. The police reviewed surveillance video of the building and observed Thomas at the building. The police then searched the apartment and found a .22-caliber handgun, ammunition, and the victim's cell phone.² The victim later said that the gun found in the apartment was not the gun that Thomas had threatened her with.

B. Arrest and Indictment

[¶5] Thomas was arrested on February 27, 2020. At the time of his arrest, the police found two cell phones on his person. The next day, the cell phones were turned over to the New York Police Department because they were related to an ongoing investigation in New York.

[¶6] The State filed a two-count complaint against Thomas for the domestic violence incidents that occurred on February 7 and February 26. On July 6, 2020, an Androscoggin County Grand Jury returned a six-count indictment for the events that allegedly occurred in February 2020. On October 5, 2020, the Androscoggin County Grand Jury returned a seven-count superseding indictment adding an additional charge of possession of a firearm by a prohibited person. Thomas pleaded not guilty on all counts.

C. Motion for Discovery

[¶7] On November 17, 2020, Thomas filed a motion for discovery seeking the two cell phones the police seized from him when he was arrested and that were in the custody of the NYPD. Thomas claimed the phones contained exculpatory evidence and sought sanctions against the State for not providing them. The court (Stanfill, J. ) held a hearing on this motion on March 26, 2021. On April 23, 2021, the court denied the motion, determining that "the Lewiston Police Department had no particular reason to think the cell phones would have exculpatory information or indeed any relevant information on them when [the phones] were turned over to the NYPD," and that there was "no showing that [evidence on the phones] was materially exculpatory."

D. Jury Selection and Motion to Dismiss

[¶8] The jury was selected on May 10, 2021. While 350 prospective jurors were summonsed to be in the jury venire, only 165 potential jurors appeared. According to the court's observations, there were three persons of color in the jury venire.

[¶9] Thomas, who is African American, and two other African American defendants in other cases shared the same jury venire. Each of the defendants filed a motion to dismiss due to the failure of the jury venire to represent a fair cross section of the community. The court (McKeon, J. ) held a hearing on all three motions in all three cases on May 13, 2021. The court stated that it had "no information ... actually on the record except for perhaps [the 2019 Androscoggin County] census stat[istics] [provided by the State] and the jury data the Court accumulated in preparation for today." Instead of denying the motion, the court gave Thomas the option of continuing his trials so that he could better develop his arguments, but Thomas elected to proceed with the jury trial. The court denied the motion to dismiss.

E. The Trial

[¶10] A three-day jury trial was held on May 18 through May 20, 2021. Before the jury was brought into the courtroom for the first time, Thomas indicated that he was going to cross-examine the victim about a letter that she allegedly sent him while he was incarcerated in the county jail. The State questioned the authenticity of the letter. The court deferred ruling on the matter, indicating that, if the victim were to deny that she authored the letter, then Thomas would have to authenticate it with other evidence. When the victim was asked about the letter outside the presence of the jury, she denied having written the letter. When Thomas later tried to present the letter as evidence during his testimony, the court did not admit the letter, ruling that there was insufficient evidence to authenticate it.

[¶11] The State called the victim, who testified about her relationship with Thomas and the incidents that occurred in February 2020. On cross-examination, Thomas attacked the victim's credibility, introducing a false statement made by the victim to the police, a 9-1-1 call that refuted her claim that she drove to the police station on February 26, and other examples of purported embellishment. The State also called the Lewiston police officer who first interviewed the victim, and he testified to statements that the victim made on February 26, 2020, that were consistent with the victim's testimony at trial. Thomas did not object to the officer's testimony regarding the victim's statements to him.

[¶12] The jury found Thomas guilty of Counts 1, 2, 3, 4, and 6. After the jury was excused, the court found Thomas, a convicted felon, guilty of Count 7. The court sentenced Thomas to three years and six months’ incarceration on Counts 1, 2, and 7, concurrent with each other; 364 days’ incarceration on Counts 3 and 4 to run concurrently with each other and with Count 1; and 364 days’ incarceration and two years’ probation on Count 6, to run consecutively to the other counts. Thomas timely appealed. 15 M.R.S. § 2115 (2022) ; M.R. App. P. 2B(b)(1).

II. DISCUSSION

[¶13] Thomas makes five claims on appeal: (1) the court should have dismissed all charges as a discovery sanction after the state failed to preserve the exculpatory evidence that was allegedly on the cell phones that were turned over to the NYPD; (2) the court erred when it admitted statements of a police officer that constituted hearsay; (3) the court abused its discretion by determining that a letter offered by Thomas was not properly authenticated; (4) the court should have dismissed all charges because the jury pool did not represent an adequate cross-section of the community; and, (5) there was insufficient evidence for a jury to convict Thomas of his crimes.³

A. Discovery Violation

1. State's Duty to Preserve Evidence

[¶14] Thomas argues that the State's failure to preserve the exculpatory evidence that was allegedly on the cell phones turned over to the NYPD constituted a discovery violation, entitling him to a dismissal as a sanction. See M.R.U. Crim. P. 16(e). Although "prosecutors have a constitutional duty to preserve material evidence" to "protect a criminal defendant's right to a fair trial," the defendant bears the burden of proving a violation of his constitutional rights. State v. Cote , 2015 ME 78, ¶¶ 11, 14-15, 118 A.3d 805. We have instructed that courts undertake a "bifurcated analysis" in which

[f]irst, the court must determine whether the evidence possessed an exculpatory value that was apparent before the evidence was destroyed. If so, then the defendant must show only that the evidence was of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. If, however, the exculpatory value of the evidence was not apparent at the time of its loss or disappearance, the defendant cannot establish a constitutional deprivation without proof that the State also acted in bad faith in failing to preserve the evidence.

Id. ¶ 15 (citations and quotation marks omitted).

2. Application

[¶15] In conducting the first part of the analysis, we conclude that Thomas has not shown that either cell phone contained apparent exculpatory value. The motion court (Stanfill, J. ) heard testimony from the detective who first entered the phones into evidence at the Lewiston Police Department; he testified that he did not review the data on the phones before they were sent to the NYPD. Similar testimony was elicited from another detective and the Lewiston Police Department's evidence manager. There is no evidence that the police had any indication that the phones had exculpatory value. There is "a distinction between apparently exculpatory evidence and potentially useful...