State v. Barnard

• Decision Date: 18 June 2003
• Citation: 2003 ME 79,828 A.2d 216
• Parties: STATE of Maine v. Steven BARNARD.
• Court: Maine Supreme Court

828 A.2d 216

2003 ME 79

STATE of Maine v. Steven BARNARD.

Supreme Judicial Court of Maine.

Argued: October 7, 2002.

Decided: June 18, 2003.

G. Steven Rowe, Attorney General, James M. Cameron, Asst. Attorney General (orally), Matthew Erickson, Asst. Attorney General, Augusta, for State.

Carol J. Lewis (orally), Lubec, for defendant.

Panel: SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, CALKINS, and LEVY, JJ.

ALEXANDER, J.

[¶ 1] Steven Barnard appeals from a judgment entered after a jury trial in Superior Court (Washington County, Marden, J.) convicting him of aggravated trafficking in scheduled drugs (Class A), 17-A M.R.S.A. §§ 1103, 1105(1)(E), (2) (1983 & Supp.2002).¹ On appeal, Barnard contends that (1) the jury instructions regarding a laboratory analysis certificate constituted obvious error; (2) the evidence was insufficient to find that he trafficked within 1000 feet of the real property of a school; and (3) his sentence reflected a misapplication of principle. Finding no error, we affirm.

I. CASE HISTORY

[¶ 2] The trial record, viewed in the light most favorable to the State, establishes the following facts: On March 29, 2001, a confidential informant, working with Agent Richard Rolfe of the Maine Drug Enforcement Agency (MDEA), made a controlled purchase of two pills from Barnard in the living room of Barnard's apartment in a multi-unit apartment building on the corner of North Street and Main Street in Calais. A subsequent analysis by the Maine State Crime Laboratory certified that the tablets contained hydromorphone, otherwise known as Dilaudid, a schedule W drug. See 17-A M.R.S.A. § 1102(1)(I).

[¶ 3] Trafficking in schedule W drugs is a Class B crime. Id. § 1103(2)(A). When occurring "within 1000 feet of the real property of" a school the offense becomes aggravated trafficking, a Class A crime. Id. § 1105(1)(E), (2). Barnard was charged with aggravated trafficking in schedule W drugs, a jury trial was held on December 11, 2001, and the court declared a mistrial because the jury deadlocked.

[¶ 4] A second jury trial was held on January 8, 2002. The evidence established that on March 29, 2001, MDEA agents dropped off the confidential informant near Barnard's apartment building to make the controlled drug buy. The confidential informant entered the building from a rear entrance. He walked up an internal flight of stairs, knocked on the door of Barnard's apartment, entered the apartment, and purchased the pills from Barnard in the living room.

[¶ 5] Barnard's apartment building is on the same side of North Street as the Calais Middle School. The school is at the intersection of North Street and Washington Street. The apartment building is at the intersection of North Street and Main Street. To prove that Barnard's trafficking occurred within 1000 feet of the school, the State had Agent Rolfe draw a chalkboard diagram depicting the school property and intervening structures on North Street up to Barnard's apartment building.² On the chalkboard, the school property was marked with a letter "C" and Barnard's apartment was marked with a letter "B." Agent Rolfe then testified that, using a roller tape, "I measured from the grass of the middle school property all the way to Main Street," referring to Main Street as depicted on the diagram. The State then asked "What was the distance that you measured between the property of the Calais Middle School and to the far end of that building?" Rolfe replied: "757 feet, 4 inches."

[¶ 6] The use of the chalkboard was supplemented by a photograph showing the grassy corner of the middle school property, also marked "C" and, along North Street, Barnard's apartment building, marked "B." Barnard's apartment building is difficult to locate in the photograph, but its location is confirmed by the traffic light standards close to the building at the intersection of North and Main Streets. These standards appear in the State's photograph and a separate photograph of the front of the apartment building, introduced by the defense.

[¶ 7] Agent Rolfe's testimony indicated that his knowledge of the school property was based upon his long-time residence in the area, numerous visits to the school, and use of the school property. The confidential informant also testified that the grassy area was school property, based on his attendance at the school as a child: "I went to school there, we used it, played kick ball and soccer on that, actually, edge of the field of the Calais Middle School. I do know it is part of the Calais Middle School."

[¶ 8] There was no evidence of the distance from the Main Street corner of Barnard's apartment building to the location within the building where the drug sale occurred. The evidence indicated that Barnard's apartment was one of only four units on the third floor of the front section of the apartment building. Photographs of the front and back of the building would permit a jury to reasonably conclude that no dimension of the third floor portion of the building was greater than seventy-five feet. The dimension judgment could be made by the jury employing its common knowledge to compare the size of the pictured vehicles parked in front of the building to the size of the building itself. Based on the photographs, the chalkboard diagram, and the testimony, the jury could conclude that: (1) the apartment building faced squarely onto North Street; (2) its side walls extended away from North Street at ninety degree angles; and (3) the far, or Main Street, wall of the apartment building was on a plane parallel to the school property.

[¶ 9] To prove that the pills that Barnard sold to the confidential informant were schedule W drugs, the State offered a laboratory analysis certificate, signed by a certified chemist, showing that the tablets contained hydromorphone.³ In addition, both Agent Rolfe and the confidential informant testified that they were familiar with Dilaudid and that the pills appeared to be Dilaudid.

[¶ 10] Following the close of the State's case, the court denied Barnard's motion for judgment of acquittal, which Barnard unsuccessfully renewed following the close of all evidence. As part of instructions, the court instructed the jury regarding the certificate as follows:

Now, one final bit of evidence — of instruction with respect to the evidence on the first part of this, and that is you have an exhibit which is a certificate from the laboratory in Augusta. And I instruct you, as a matter of law, that this certificate is sufficient to prove the results of the laboratory examination as it is stated on the certificate. It is up to you to find, from all the evidence, including the exhibit or the certificate, whether it has been proven beyond a reasonable doubt that the pills alleged to have been sold in this instance were Hydromorphone.

Barnard did not object to this instruction.

[¶ 11] The jury found Barnard guilty of aggravated trafficking in scheduled drugs. The court sentenced Barnard to six years imprisonment, with all but five years suspended, followed by two years of probation. Barnard filed an appeal from his conviction. In addition, the Sentence Review Panel granted him leave to appeal his sentence based upon his claim that the court, when sentencing him, misapplied the statutory three-part analysis when sentencing him. 17-A M.R.S.A. § 1252-C (Supp.2002).

II. LEGAL ANALYSIS

A. Jury Instruction Regarding Chemical Analysis Certificate

[¶ 12] Barnard contends that the court's jury instruction regarding the chemical analysis certificate constituted obvious error because it gave the jury the impression that the certificate was conclusive, rather than prima facie, evidence of the composition of the drug. From this, argues Barnard, the jury may have thought that the State had no burden of proof regarding the composition of the pills that Barnard sold. The State concedes that the instruction may have been confusing, but asserts that this was harmless because Barnard never contested the composition of the pills.

[¶ 13] Barnard did not object to the jury instructions given by the trial court, therefore, we review those instructions only for obvious error. M.R.Crim. P. 52(b); State v. Small, 2000 ME 182, ¶ 5, 763 A.2d 104, 105. "We will not grant relief unless the error in the instructions is so highly prejudicial and so taints the proceedings as to virtually deprive the defendant of a fair trial." Id. Further, we review jury instructions "as a whole, taking into consideration the total effect created by all the instructions and the potential for juror misunderstanding." State v. Saucier, 2001 ME 107, ¶ 23, 776 A.2d 621, 627-28 (quoting State v. Cote, 462 A.2d 487, 490 (Me.1983)).

[¶ 14] At the time Barnard was tried, requirements for drug analysis certificates and their prima facie evidentiary value were set by statute as follows:

A laboratory that receives a drug or substance from a law enforcement officer or agency for analysis as a scheduled drug shall, if it is capable of so doing, analyze the same as requested by a method designed to accurately determine the composition of the substance, including by chemical means, visual examination, or both, and shall issue a certificate stating the results of the analysis. The certificate, when duly signed and sworn to by a person certified as qualified for this purpose by the Department of Human Services under certification standards set by that department, is admissible in evidence in a court of the State, and is prima facie evidence that the composition, quality and quantity of the drug or substance are as stated in the certificate....

17-A M.R.S.A. § 1112(1) (Supp.2001) (amended by P.L.2001, ch. 383, § 142, effective January 31, 2003).

[¶ 15] Where a criminal statute establishes that certain evidence carries prima facie weight, courts must instruct jurors in terms of "reasonable inferences" that the jurors are free to accept or reject from the evidence. M.R....