State Of Me. v. Mitchell Jr.

• Decision Date: 05 August 2010
• Docket Number: Docket No. Ken-09-443.
• Citation: 2010 ME 73,4 A.3d 478
• Parties: STATE of Maine v. Thomas H. MITCHELL Jr.
• Court: Maine Supreme Court

4 A.3d 478

2010 ME 73

STATE of Maine

v.Thomas H. MITCHELL Jr.

Docket No. Ken-09-443.

Supreme Judicial Court of Maine.

Argued: May 19, 2010.

Decided: Aug. 5, 2010.

COPYRIGHT MATERIAL OMITTED.

James W. Strong, Esq. (orally), Greg N. Dorr, Esq., Thomaston, ME, for Thomas H. Mitchell Jr.

Janet T. Mills, Attorney General, William R. Stokes, Dep. Atty. Gen. (orally), Donald W. Macomber, Asst. Atty. Gen., Office of the Attorney General, Augusta, ME, for the State of Maine.

Panel: ALEXANDER, ^* LEVY, SILVER, MEAD, and GORMAN, JJ.

Majority: ALEXANDER, LEVY, MEAD, and GORMAN, JJ.

Dissent: SILVER, J.

LEVY, J.

[¶ 1] Thomas H. Mitchell Jr. appeals from a judgment of conviction entered in the Superior Court (Kennebec County, Jabar, J.) upon a jury verdict finding him guilty of the 1983 murder of a woman in her Fayette home. Having considered the issues raised by Mitchell, we address two in this opinion: (1) whether the court erred or abused its discretion in excluding evidence of an alternative suspect, and (2) whether the admission of evidence arising from an autopsy of the victim violated Mitchell's confrontation rights because the person who conducted the autopsy did not testify. We affirm the judgment.

I. BACKGROUND

A. Facts

[¶ 2] Viewing the evidence presented at trial in the light most favorable to the State, the jury could rationally have found the following facts beyond a reasonable doubt. See State v. Manosh, 2010 ME 31, ¶ 2, 991 A.2d 819, 820.

[¶ 3] Mitchell's father died in 1980, and, to Mitchell's chagrin, left his house in Fayette to Mitchell's stepmother. Judith Flagg and her husband subsequently purchased the home from Mitchell's stepmother.

[¶ 4] Soon thereafter, Mitchell arranged with the Flaggs to collect personal items that had been left in the home. The first time Mitchell came to the house to get his belongings, nobody was home, and Mitchell left a note expressing his unhappiness that he had made a fruitless trip.

[¶ 5] After receiving Mitchell's note, Flagg's husband delivered the items to the realtor whom Mitchell's stepmother had employed. In 1981, Mitchell came to Flagg's home again, and when Flagg's husband answered the door, Flagg was standing behind him. When Flagg's husband told Mitchell that the items he sought were with the realtor, Mitchell's face appeared distorted and unhappy, and he left.

[¶ 6] On January 6, 1983, Flagg's husband left for work, and she remained in their home with their thirteen-month-old son. Also that morning, a South Portland police detective saw Mitchell, whom he knew, at approximately 7:00 a.m. driving a two-tone 1973 Ford Thunderbird in Portland headed north on Interstate 295. Portland is approximately 70 miles south of Fayette by car.

[¶ 7] At about 10:30 a.m., Flagg spoke with her sister on the phone. Flagg told her sister that a man had called earlier that morning asking for her husband. Flagg said that she had told the man that her husband was working and would not be home until 11:00 p.m. The man did not leave his name and said that he was an old friend of Flagg's husband who wanted to surprise him.

[¶ 8] Later during the phone conversation with her sister, Flagg put down the phone because somebody was at the door. When Flagg returned to the phone, she told her sister that her husband's friend was there and that she would call back, but she did not call back, and her sister got busy signals every time she tried to call Flagg that day.

[¶ 9] At about 10:45 a.m., Flagg called her brother. She said that a man who claimed to be a friend of her husband's was at the house complaining of car trouble. Because Flagg's brother was a mechanic, he offered to come over to help, but the man said he would stop somewhere in Fayette. Flagg's brother did not go to Flagg's house.

[¶ 10] At about noon, a mail carrier was on her route driving uphill toward Flagg's house. The road was slippery because it had been snowing that day. She saw an oncoming car crest the hill and swerve into a ditch and then back onto the road so that it almost struck her car, but the driver righted the car and traveled past her. She observed that the car had a maroon body and tan top. She also saw that the driver was a clean-shaven male in his early twenties with light brown hair and wearing a tan coat, grey wool scarf, and no glasses. The driver looked straight ahead without making eye contact with her.

[¶ 11] Between 2:00 and 3:00 p.m., Flagg's brother-in-law came to the house to install a new starter in a truck. Although Flagg's car was in the driveway, she did not come to the window when her brother-in-law drove in, and he assumed that she did not hear him arrive or was out with relatives. He installed the starter and left after being at the house for forty-five minutes to an hour.

[¶ 12] When Flagg's husband returned from work that night at about 11:00, he came in through the cellar door as usual and saw that all the lights were off except the light from the stereo. When he turned on the lights at the top of the cellar stairs, he saw Flagg lying dead on the floor with the telephone clutched in her hand and the baby lying alert on top of her chest. The baby had blood on his clothing. Flagg's husband picked up the baby, went downstairs, and called relatives, who came to the house. Somebody also called the police.

[¶ 13] There were footprints in the snow leading to the kitchen door and bloodstains on the floor in the baby's room. When the police arrived, they took photographs and made casts of the footprints in the snow. The police removed and bagged Flagg's clothing, and they bagged the child's clothing, which had been removed by a family member. The police placed bags over Flagg's hands and brought her body to the morgue. Ronald Roy, the Deputy Chief Medical Examiner at the time, performed the autopsy. He took a blood sample, clippings of Flagg's fingernails, and swabs of her mouth and other orifices. He put these items in separate containers, labeled them, and gave them to the director of the Maine State Police Crime Laboratory.

[¶ 14] The day after the murder, the mail carrier was again delivering mail on her regular route and saw that the police were at Flagg's home. She stopped to tell the officers what she had seen the day before. On January 9, the mail carrier worked with a detective to develop a composite picture of the driver she had seen in the two-tone car on January 6. The mail carrier was never able to positively identify a particular individual as the driver, however, and could not identify a specific car.

[¶ 15] In 1984, after Mitchell had become a suspect in the case, the police obtained a warrant to seize a pair of his shoes from his South Portland residence. The police also obtained a sample of Mitchell's blood and noted his possession of a car that was olive green with a tan roof and maroon primer paint on the driver's side. No arrest was made at that time.

[¶ 16] In 2005, the State Crime Lab's forensic chemist inventoried the various pieces of evidence and submitted them for appropriate testing in 2006. The lab's DNA specialist developed DNA profiles from the nails of Flagg's right hand. She found that the DNA profiles matched the profiles of Flagg and Mitchell at all thirteen targeted loci. The probability of a random match was one in 69.4 quadrillion. Testing at an outside lab could not exclude Mitchell as a source of DNA found in sperm detected in the swab of Flagg's mouth and on the baby's shirt.

[¶ 17] The crime lab's latent print examiner compared the footprint casts with Mitchell's shoes. She concluded that the right footprint in the snow was of the same size, had the same outsole design, and came from the same manufacturing mold as Mitchell's shoe.

B. Procedure

[¶ 18] On September 8, 2006, Mitchell was charged by indictment with the murder of Flagg. Before trial, it was represented that Roy, who had performed the autopsy, had retired to Canada and did not intend to come to Maine for the trial. Mitchell unsuccessfully moved to suppress all forensic evidence on the ground that its admission would violate his Sixth Amendment confrontation rights if the State failed to produce Roy as a witness subject to cross-examination.

[¶ 19] The State moved in limine for an order requiring Mitchell to present offers of proof regarding any alternative suspect evidence Mitchell wished to introduce. The court granted this motion, and Mitchell filed offers of proof that included the following facts regarding a male neighbor of the victim, who is the alternative suspect at issue on appeal:

• Like Mitchell, the neighbor wore a size-ten shoe.

• The neighbor lived down the street from Flagg.

• A woman who knew the neighbor was prepared to testify that he owned a pair of shoes similar to the shoes obtained from Mitchell's residence and that the sole design may have resembled the design of the soles on those shoes. She saw the neighbor wearing the shoes only once on a date near the date of the murder.

• The neighbor had a beige jacket with a wool collar and sometimes wore a scarf.

• A woman saw the neighbor in a suede, camel-colored coat that she never saw again after the murder.

• A woman had been beaten up by the neighbor in the past, and this woman thought he was very violent.

• The neighbor owned a two-tone green automobile.

• The neighbor met Flagg at a store where he once worked and said that she was “nothing but a slut.”

• Flagg saw a man working on his car outside her window two days before the murder and told a guest who was visiting her that the man was a friend of her husband's who lived down the road.

• The neighbor's alibi-that he was at the unemployment office and at a restaurant-did not check out.

• The neighbor went to the restaurant after an employee was interviewed by the police and said, “you saw me here that day, didn't you?”

• After the murder, the neighbor was nervous and fidgety, and he frequently spoke about the murder.

• The neighbor was having...