State v. Rega

Citation863 A.2d 917,2005 ME 5
PartiesSTATE OF MAINE v. THOMAS C. REGA.
Decision Date10 January 2005
CourtSupreme Judicial Court of Maine (US)

Stephanie Anderson, District Attorney, Julia A. Sheridan, Asst. Dist. Atty. (orally), Attorneys for State.

Mary A. Davis, Esq. (orally), Tisdale & Davis, P.A., Attorney for defendant.

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

CALKINS, J.

[¶ 1] Thomas C. Rega appeals from the judgment entered in the Superior Court (Cumberland County, Cole, J.) after a jury trial convicting him of kidnapping, 17-A M.R.S.A. § 301(1)(A)(3) (Class A) (1983),1 and gross sexual assault, 17-A M.R.S.A. § 253(1)(A) (Class A) (Supp. 2001).2 Rega contends that the trial court erroneously admitted out-of-court statements Rega's wife made to the police and another witness, and he argues that the evidence was insufficient to support the convictions. Rega also challenges the admission of expert testimony concerning his mental state. We affirm the judgment.

I. BACKGROUND

[¶ 2] Rega's convictions arose from events on July 28, 2002, at the Freeport home he shared with his wife and their daughter. The previous night, the wife had stayed at her mother's home in Massachusetts where she received telephone calls from Rega threatening to kill her and her family. The wife called the Freeport police on the morning of July 28 and asked that Rega be arrested. The police told the wife to come to the police station and make a report. The wife drove to Maine, dropped her daughter off at a friend's house, and after checking to make certain that Rega was not at their Freeport house, she went there to pick up a few items.

[¶ 3] Rega arrived while the wife was in the yard of their home. He took her by the arm and into the house. The wife had turned on an audio recording device before Rega arrived and some of their conversation was recorded. In the house, Rega became enraged and accused his wife of cheating with another man and conspiring with police to ruin his life. On the recording, the wife told Rega to put down the knife, and he can be heard screaming and threatening to kill the wife and her family. Rega told the wife that she was his hostage, and she did not think that she could leave.

[¶ 4] The wife performed oral sex on Rega while he instructed her on what to do. Rega had tied her hands and one foot, but in the bathroom she untied herself. She dove out a window and, partially undressed, got to her car. She drove down a dead-end road and ran into a nearby flower shop. The entire incident at the house lasted approximately two hours.

[¶ 5] In the flower shop, the wife blurted to the shop owner, "I've been held hostage, lock the doors, he'll kill us both." She was bleeding and said that she had been stabbed. The owner gave her his shirt, sent her to the cellar, locked the door, and called 911. The wife huddled under a tarp until the police arrived, about five to eight minutes later. A police officer reassured her that she was safe, and she came out from under the tarp. She was crying, shaking, bleeding, and inconsolable. A police officer asked her what had happened, and he recorded their conversation. Another officer was also present and asked her questions as well.

[¶ 6] The wife told police that Rega had been holding her hostage and had threatened to slit her throat. In response to a police question concerning the location of her daughter, she said her daughter was at a friend's house in Westbrook. The wife then told police how she had escaped from Rega. The police asked how she got a cut on her head, and she said it came from the knife Rega held. She said that Rega made her perform sexual acts while he held a knife to her head and threatened to put the knife through her brain. She then told police that she was worried about her daughter, and, in response to questions from the police, she described her husband's vehicles and provided a better description of her daughter's location. After more discussion about her escape, the wife said that Rega cut her with a knife, held the knife to her throat, and told her that he was holding her hostage. She again said that Rega sexually assaulted her and stated "he made [her] perform oral sex with a knife to [her] head."

[¶ 7] Rega was indicted and tried on several offenses, including kidnapping and gross sexual assault.3 At trial, the wife testified as did the shop owner and the two police officers who had interviewed the wife after the incident. The audio recording of the incident at the house was admitted in evidence.

[¶ 8] The recording made by the police of the interview with the wife at the flower shop was the subject of a pretrial ruling. Rega objected to the entire recording on the ground that it was hearsay. The State argued that the entire recording, approximately twenty-three minutes in length, was admissible as an excited utterance, pursuant to M.R. Evid. 803(2). The court ruled that the first portion of the recording would be admitted as an excited utterance, but it was inadmissible from the point that the wife answered questions about the location of her daughter. At that point she became calm, and her statements thereafter were not the result of the stress of excitement.

[¶ 9] During the direct examination of one of the police officers, the prosecutor asked the officer if he remembered the point in the interview with the wife when he asked the whereabouts of the daughter, and the officer answered affirmatively. When asked what the wife had said before that point, the officer stated that she said Rega had held her against her will, threatened to kill her, and made her perform oral sex with a knife to her throat. The prosecutor then asked if the officer remembered anything else that the wife had told him, and he answered that she had said she was concerned about her daughter. Rega objected on the ground that the examination was beyond the scope of the excited utterance. The court ruled that the officer could relate the interview up to the point that the daughter's location was discussed. Rega did not move to strike any of the testimony that had been given nor did he request a curative instruction.

[¶ 10] The shop owner, who overheard the police interview with the wife, was asked by the prosecutor what the wife had said to the police. Rega objected, and the court reiterated the ruling it had made earlier on the extent of the excited utterance. The court stated that it would allow the shop owner's testimony up to the point of the cut-off line, referring to the point at which the wife answered police questions about the location of the daughter. After several failed attempts to find out if the shop owner could distinguish what the wife said before the cut-off line and after it, the prosecutor went on to other subjects. During redirect examination, the prosecutor asked the shop owner if he heard the wife mention the sexual assault to the police. When the shop owner responded affirmatively, the prosecutor asked if he remembered whether that discussion came before or after the wife's statements about the location of the daughter. The shop owner responded, "I believe that was after . . . [she] was concerned about her daughter, very concerned about her daughter and she did tell the police that she had been raped." Rega did not object or move to strike.

[¶ 11] After the shop owner had testified and during the testimony of the police officer who had recorded the interview, the prosecutor requested to play the recording of the police interview with the wife for the jury. At that point Rega's attorney informed the court that he had consulted with Rega and that they had changed their minds about wanting to keep the recording from the jury. Rega affirmatively requested that the entire tape recording be played for the jury and the court acceded to this request. After the jury listened to the tape, the prosecutor offered the tape itself into evidence, and Rega again stated that he had no objection.

[¶ 12] During the wife's testimony, the prosecutor asked her several questions about a written statement she had given to the police. When asked whether she agreed to have oral sex with Rega, the wife answered that she was not opposed to it and thought it would calm him down. She testified that she had not been feeling particularly amorous but that having sex with him was a better option than others. She testified that she was not tied at the time of the oral sex and that Rega told her what to do. The prosecutor then asked about the statement she had written for the police. She admitted that her written statement said that Rega had tied her and made her perform oral sex with a knife in his hands. Rega did not object, move to strike, or request a limiting instruction.

[¶ 13] In his opening statement, Rega's attorney told the jury that Rega's mental health would be an issue in the case, that the evidence would show he had a major psychotic episode and a break with reality. In fact, Rega had been examined prior to trial by a forensic psychologist and psychiatrist under the auspices of the State Forensic Service, pursuant to 15 M.R.S.A. § 101-B(1), (2) (2003). At trial, the psychologist who performed the examination was called by the State. Rega objected to the witness on the ground that the defense of abnormal state of mind had not yet been generated. The objection was overruled, and the State's expert testified that in his opinion Rega did not have any diagnosis for mental illness on the date of the offenses, and that although Rega was intoxicated, the intoxication did not impair his ability to recognize what he was doing. In the State expert's opinion Rega was aware of the consequences of his actions and was acting intentionally.4

[¶ 14] Rega was convicted of gross sexual assault and kidnapping.5 The court imposed concurrent sentences of twenty and ten years respectively, suspending all but fifteen...

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    ...causation instruction, we note that such a strategic choice—if it were apparent from the record—would preclude appellate review. State v. Rega , 2005 ME 5, ¶ 17, 863 A.2d 917 ("We do not review alleged errors that resulted from a party's trial strategy."); see also State v. Ford , 2013 ME 9......
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