State v. Dwyer

• Decision Date: 22 December 2009
• Docket Number: Docket: And-08-709.
• Citation: 985 A.2d 469,2009 ME 127
• Parties: STATE of Maine v. Richard DWYER.
• Court: Maine Supreme Court

985 A.2d 469

2009 ME 127

STATE of Maine v. Richard DWYER.

Docket: And-08-709.

Supreme Judicial Court of Maine.

Argued: September 16, 2009.

Decided: December 22, 2009.

George A. Hess, Esq. (orally), Auburn, ME, for Richard Dwyer.

Janet T. Mills, Attorney General, Lisa J. Marchese, Asst. Atty. Gen., Donald W. Macomber, Asst. Atty. Gen. (orally), Augusta, ME, for the State of Maine.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

LEVY, J.

[¶ 1] Richard Dwyer appeals from a judgment of conviction entered by the Superior Court (Androscoggin County, Delahanty, J.) after a jury verdict finding him guilty of murder, 17-A M.R.S. § 201(1)(A) (2008);¹ gross sexual assault (Class A), 17-A M.R.S. § 253(1)(A) (2008);² and robbery (Class A), 17-A M.R.S. § 651(1)(D) (2008).³ The court sentenced Dwyer to life on the murder count, and concurrent terms of thirty years on the Class A counts. We affirm the judgment and Dwyer's sentence.

I. BACKGROUND

[¶ 2] Viewing the evidence admitted at trial in the light most favorable to the State, see State v. Bruzzese, 2009 ME 61, ¶ 10, 974 A.2d 311, 313, the jury could have found the following facts. In October 2007, the victim, age thirty-eight, lived with her daughter in Lewiston and was approximately eight months pregnant. The victim and Dwyer were co-workers at a credit-card-related business in Lewiston. The victim was without a car, and Dwyer volunteered to assist her in getting a car.

[¶ 3] On October 23, the victim received a note from Dwyer and then told another co-worker that the car was out in the parking lot, and she was going to drive it home. The victim held up a check and told her co-worker, "I need to go cash this and then I'm going to give him the money for the car." The co-worker never saw the victim again. After the victim disappeared, the co-worker asked Dwyer if the victim got the car out of the parking lot on the day she disappeared; he said that she did not.

[¶ 4] Dwyer left work early on October 23 for what he listed as a doctor-related reason, departing at 2:42 p.m. The victim left work as scheduled at 3:24 p.m. At about 3:35 p.m., the victim entered Northeast Bank, where she had an account, purchased a $400 money order made out to her, and was given the original and a duplicate copy. After leaving the bank, the victim returned approximately two minutes later and cashed the money order, receiving four $100 bills. Shortly after 3:30 p.m., another co-worker saw the victim on foot on Lisbon Street, getting ready to cross the street. The victim did not report for her 4:00 p.m. shift at her second job that evening and was never seen alive again. When asked by police why he left work early on October 23, Dwyer stated that he wasn't feeling well and that he had driven for a while and then went to his home in Canton.

[¶ 5] Several weeks later, after an extensive search, the victim's body was discovered nearly fully buried in a secluded area. Her body was naked, with a cloth ligature tied around her left and right arms, and a cloth ligature with a brassiere wrapped around it on her neck. At an autopsy performed the next day, the Chief Medical Examiner observed that part of the victim's trachea was fractured, which is typical in strangulation cases. The Chief Medical Examiner determined that the cause of death was asphyxia due to ligature strangulation, with the date of death undetermined. She later testified that when someone is strangled, it takes thirty to forty seconds to lose consciousness, and between thirty seconds and four minutes to die.

[¶ 6] Using the barcode from a shovel found near the victim's body, police determined that an identical shovel and a flashlight had been purchased at an Auburn store at 7:00 p.m. on the day the victim disappeared. It was the only such shovel sold at the store that day, and the only time between January 1 and November 12, 2007, that the combination of that particular shovel and flashlight had been sold at that Auburn store. A store videotape showed Richard Dwyer buying a shovel and a flashlight on October 23, 2007. He paid $100 cash for the $22 purchase, receiving $78 in change. Using the barcode from a pickax also found at the site, police were able to establish that an identical pickax had been sold at another Auburn store on October 23 at 8:20 p.m. A videotape from that store showed Dwyer purchasing the pickax.

[¶ 7] In the store videos, Dwyer can be seen wearing a red shirt; he was also seen wearing a red shirt in a work video recorded earlier that same day. In executing a search warrant at Dwyer's brother's house, where Dwyer was staying, police seized a similar-looking red shirt from Dwyer's bedroom. A forensic chemist with the State Crime Laboratory analyzed fibers taken from the shirt, and testified that they were similar to fibers taken from the ligatures on the victim's left and right wrists; the maternity pants found near the burial site; and the bar code sticker on the pickax handle.

[¶ 8] After analyzing a flashlight Dwyer left with his girlfriend, which was the same brand and size as the flashlight purchased on October 23, a forensic scientist from the Crime Lab testified that a fingerprint on the flashlight belonged to Dwyer. The Crime Lab's DNA analyst testified that DNA found on the flashlight matched the victim's DNA at nine of thirteen loci, and that the estimated probability of randomly selecting another match from the population was 1 in 32.9 billion.⁴ DNA consistent with Dwyer was also found on the flashlight. The analyst testified that 1 in 89 individuals would also have DNA consistent with the DNA found on the flashlight.

[¶ 9] On the shovel found near where the victim was buried, the analyst found DNA consistent with the victim; the probability of a random match was 1 in 4.71 million. DNA on a soda bottle also found at the scene matched the victim conclusively. The analyst also testified that DNA mixtures consistent with both the victim and Dwyer were found on: (1) a genital swab containing sperm taken from the victim; (2) the ligature taken from the victim's right wrist; (3) a string/piece of cloth found near where the victim was buried; and (4) an ID holder and lanyard found in the trunk of Dwyer's car.

[¶ 10] Dwyer's case proceeded to trial on September 12 and 15-18, 2008. The court denied his motion for a judgment of acquittal at the close of the State's case-in-chief. The jury returned verdicts of guilty after deliberating for less than two hours. At sentencing, the court entered judgment and sentenced Dwyer to life imprisonment on the murder count, and concurrent terms of thirty years on the gross sexual assault and robbery counts. This appeal followed. Dwyer was also granted leave to appeal his sentence by the Sentence Review Panel.

II. DISCUSSION

A. Dwyer's Motion to Compel Comparative DNA Analysis

[¶ 11] Dwyer contends that the court abused its discretion by denying his motion seeking an order to require the State to perform a comparative search of its convicted felon DNA database known as CODIS (Combined DNA Index System) to see if any of the database's approximately 9000 records matched each other at nine or more loci.⁵ When a law enforcement agency attempts to connect a DNA sample to a particular person, it does not compare entire DNA sequences, but rather the DNA at thirteen specific places, or "loci." A person's DNA characteristics at those thirteen loci make up their DNA "profile." A "match" between an unknown sample and the profile of a particular person can occur at all thirteen or fewer loci. As more loci match, the probability increases that the DNA in the unknown sample comes from that person.

[¶ 12] The comparative search sought by Dwyer is known as an "Arizona search" because when it was first run by a DNA analyst in that state, it produced a nineloci match between two unrelated individuals in the Arizona CODIS. A Maryland state court decision found that the random match probability for that occurrence was between 1 in 561 million and 1 in 754 million, yet the Arizona database contained only some 22,000 records. See also United States v. Davis, 602 F.Supp.2d 658, 681 (D.Md.2009) (describing matches of unrelated individuals found during Maryland CODIS search). A subsequent search in Arizona apparently yielded more matches, and in his motion Dwyer asserted similar results in Maryland and Illinois. Dwyer sought to obtain an "Arizona search" of Maine's CODIS database, to determine whether the results could be used to attack the probability statistics supporting the DNA evidence he anticipated the State would introduce at trial.

[¶ 13] At the hearing on the motion, the State called one witness: Catharine MacMillan, a DNA analyst with the Maine State Police Crime Laboratory. Dwyer called none. No exhibits were offered. Consequently, the record before the Superior Court consisted of the testimony of the single witness, a Los Angeles Times article attached to Dwyer's motion, and a Maryland state trial court opinion attached to his memorandum in support of the motion.

[¶ 14] MacMillan testified at the hearing that she had never been asked to perform an "Arizona search," and that such a search on the CODIS in Maine would be problematic, stating, "We are aware that we have twins within that database, we have relatives within the database and we have duplicate samples within the database, so we would expect profiles to match based on those three reasons."⁶ She pointed out that the database search in Arizona did not utilize the appropriate racial databases, nor would the proposed Maine search.

[¶ 15] The Superior Court denied Dwyer's motion, finding that:

The State maintains, and the court agrees, that such a comparison is not reliable due to the known existence of twins, other relatives and duplicate samples already entered into the database. The results of DNA comparison in this case are produced, as in other cases, by using FBI population...