191 A.3d 359 (Me. 2018), Cum-17-297, State v. Nisbet

Docket Nº:Cum-17-297
Citation:191 A.3d 359, 2018 ME 113
Opinion Judge:JABAR, J.
Party Name:STATE of Maine v. Gregory NISBET
Attorney:Luke S. Rioux, Esq. (orally), Rioux, Donahue, Chmelecki & Peltier, Portland, for appellant Gregory Nisbet Janet T. Mills, Attorney General, and Donald W. Macomber, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine
Case Date:August 09, 2018
Court:Supreme Judicial Court of Maine

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191 A.3d 359 (Me. 2018)

2018 ME 113

STATE of Maine


Gregory NISBET

No. Cum-17-297

Supreme Judicial Court of Maine

August 9, 2018

Argued: May 15, 2018

Revised: October 11, 2018

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Luke S. Rioux, Esq. (orally), Rioux, Donahue, Chmelecki & Peltier, Portland, for appellant Gregory Nisbet

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




[¶ 1] Gregory Nisbet appeals from a judgment of conviction for violating a public safety fire rule (Class E), 25 M.R.S. § 2452(3) (2017), entered by the Unified Criminal Docket (Cumberland County, Warren, J. ) after a bench trial. Nisbet was convicted of failing to comply with section of the 2009 edition of the National Fire Protection Association (NFPA) 101: Life Safety Code, as incorporated by rule by the Commissioner of the Department of Public Safety.1 See 25 M.R.S. § 2452(3); 9 C.M.R. 16 219 020-1 § 1 (2011); NFPA

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101: Life Safety Code § (Nat’l Fire Prot. Ass’n 2009 ed.) (hereinafter "Life Safety Code"). On appeal, Nisbet makes the following arguments: that (1) section of the Life Safety Code is void for vagueness pursuant to the due process clauses of the United States and Maine Constitutions; (2) the court abused its discretion in determining that the State’s failure to provide him with a policy statement regarding the enforcement of section did not constitute a violation pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (3) the evidence presented at trial was insufficient to sustain a conviction for failure to comply with section We affirm the judgment.


A. Factual History

[¶ 2] "Viewing the evidence in the light most favorable to the State, the trial record supports the following facts," which the court found after a five-day trial. State v. Jeskey, 2016 ME 134, ¶ 2, 146 A.3d 127. Nisbet was the owner of an apartment building located on 20 Noyes Street in Portland. In that capacity, he collected rent from the building’s occupants and exercised management responsibility over the property. On November 1, 2014, a fire occurred at 20 Noyes Street, resulting in the death of six people. The fire began on the porch outside the front door and proceeded up the stairway that served as the primary means of escape for those on the second and third floors. On that particular day, the entrance to the back stairway on the second floor was blocked by furniture because a tenant had recently moved in.

[¶ 3] Three of the building’s occupants survived the fire by exiting the building through a window onto the back porch within ninety seconds after two of them woke up. One of those survivors testified that before he escaped, the front door was fully engulfed in flames, thick smoke was billowing from the door and rising up the stairway, and he was having difficulty breathing. As the survivors escaped, the front door opened and the fire proceeded up the stairway very quickly, bringing intense heat with it. Smoke and accompanying gases, including carbon monoxide, preceded the heat and rose up the stairways to the third floor before spreading throughout the first and second floors. According to expert testimony, a person could become unconscious in as little as thirty seconds after breathing a significant amount of carbon monoxide-laden smoke.

[¶ 4] Each victim except for one died from smoke inhalation. The third-floor bedroom windows were considerably smaller than required by the Life Safety Code and too small to use as a secondary means of escape. They were double hung, and one witness testified that they could only be opened as little as eight inches. There was also testimony that a person could remove the entire window frame by removing certain clips— if the person knew how to do that. Long before the fire, a contractor working for Nisbet told him that the third-floor windows were not large enough to be a legal secondary means of escape, and Nisbet brushed off those comments.

B. Preliminary Proceedings

[¶ 5] On July 10, 2015, Nisbet was charged by indictment with six counts of manslaughter (Class A), 17-A M.R.S. 203(1)(A) (2017), and four counts of violating public fire safety rules (Class E), 25 M.R.S. § 2452(3), namely, provisions of the Life Safety Code. On September 31, 2016, after Nisbet waived his right to a jury trial pursuant to M.R.U. Crim. P. 23(a), the State charged an eleventh count by information, alleging violation of the Life Safety

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Code provision that is the subject of this appeal, section See 25 M.R.S. § 2452(3); 9 C.M.R. 16 219 020-1 § 1. That provision requires that every sleeping area in one- and two-family dwellings have windows available as a secondary means of escape, that the windows be operable from the inside without "special effort," and that the windows have a "clear opening" of 5.7 square feet, a minimum width of twenty inches, and a minimum height of twenty-four inches. Life Safety Code §

C. Trial and Sentencing

[¶ 6] The parties proceeded to a bench trial on October 3, 2016, and evidence was presented over five days. On October 21, 2016, the court found Nisbet not guilty on the six counts of manslaughter and the four counts of violation of the Life Safety Code originally charged, and guilty on the later-charged violation of section On December 1, 2016, the court sentenced Nisbet to ninety days’ imprisonment and a $1,000 fine.

D. Motion for a New Trial

[¶ 7] On December 19, 2016, Nisbet filed a motion for a new trial pursuant to M.R.U. Crim. P. 33. In that motion, Nisbet alleged that the State had failed to provide him with a policy memorandum that the State Fire Marshal issued in October 2013 (2013 Memorandum).2 That document, which indicates that it is in reference to a "[p]olicy for clarification of existing egress windows," states in pertinent part: Any building constructed before 1976 will be allowed to meet the following specifications. The net clear opening would be allowed to meet the minimum 20″ in width and 24″ in height with a total net clear opening of 3.3 sq. ft.; if the window is constructed of wood or vinyl and the overall window sash size meets a minimum of 5.0 sq. ft.

The "special effort" provision from section remained the same.

[¶ 8] According to Nisbet, because the size of his third-floor windows met the minimum dimensions set forth in the memorandum— and there was no dispute that his apartment building was built before 1976— the State’s failure to provide the memorandum constituted a failure to disclose exculpatory evidence pursuant to Brady, 373 U.S. at 87, 83 S.Ct. 1194 ("We now hold that the suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."). Nisbet argued that he could not have discovered the memorandum before trial through the exercise of due diligence, and if the memorandum had been provided to him, "it probably would have changed the verdict in this case."

[¶ 9] A hearing on the motion for a new trial was held on February 23, 2017, during which the court heard testimony from both parties regarding the State’s nondisclosure of the 2013 Memorandum. The court then denied Nisbet’s motion in an order dated June 15, 2017, in which it made the following findings of fact, which are supported by competent evidence in the motion record. See State v. Twardus, 2013 ME 74, ¶ 29, 72 A.3d 523 ("When reviewing the denial of a motion for a new trial pursuant to M.R. Crim. P. 33 on the basis

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of newly discovered evidence, we review the court’s findings of fact for clear error ....").3

[¶ 10] Neither of the Assistant Attorneys General (AAG) prosecuting the case was aware of the 2013 Memorandum until an assistant fire marshal mentioned it to one of the AAGs on the evening of October 4, 2016— after the second day of trial. The AAG told the assistant fire marshal to bring the memorandum to court the next morning, but after receiving it on October 5, the AAG read it quickly and did not correctly understand its contents. At the time, he was primarily focused on drafting a stipulation with defense counsel. When he and defense counsel first spoke via telephone on October 5, the AAG told defense counsel that they needed to discuss the stipulation and mentioned that he had a document to provide. The AAG and defense counsel subsequently met to work on revisions to the stipulation, and although the AAG had no specific recollection of giving defense counsel a copy of the 2013 Memorandum, it was evident from his testimony that he believed he did. Thus, although the AAG intended to provide the defense with the 2013 Memorandum, he failed to do so. For her part, defense counsel did not recall receiving the 2013 Memorandum.

[¶ 11] The court found that each of the third-floor windows was double-hung, with a bottom sash covering two-thirds of the window height and a top sash covering one-third of the window height. As a result, the windows could only be opened to a height that was one-third of the total window height. The court also recognized that the only window measurements offered at trial indicated that the window frames measured 34 inches high and 21.5 inches wide, but that it had previously declined to rely on those measurements because— contrary to all photographic evidence— those...

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