State v. Ayotte
| Decision Date | 23 April 2019 |
| Docket Number | Docket: Ken-18-191 |
| Citation | 207 A.3d 614 |
| Parties | STATE of Maine v. Cade H. AYOTTE |
| Court | Maine Supreme Court |
Jeremy Pratt, Esq. (orally), and Ellen Simmons, Esq., Camden, for appellant Cade H. Ayotte
Maeghan Maloney, District Attorney, and Alisa Ross, Asst. Dist. Atty. (orally), Prosecutorial District IV, Augusta, for appellee State of Maine
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
[¶1] Cade H. Ayotte appeals from a judgment of conviction of operating under the influence (Class D), 29-A M.R.S. § 2411(1-A)(A) (2018), entered by the trial court (Kennebec County, Murphy, J. ) following a jury trial. Ayotte asserts that the court erred by denying his motion to suppress evidence obtained from a blood draw and by failing to issue a curative instruction to remedy the State's alleged misstatement of the evidence in its closing argument. We affirm the judgment.
[¶2] When the evidence is viewed in the light most favorable to the State, the jury rationally could have found the following facts beyond a reasonable doubt. See State v. Simons , 2017 ME 180, ¶ 2, 169 A.3d 399. Early in the morning on June 25, 2016, Augusta police officers responded to a motor vehicle crash. When the officers arrived, they observed tire tracks leading into a ditch, a vehicle engulfed in flames, and Ayotte and his girlfriend walking across the road. When one officer spoke with Ayotte, the officer detected an odor of alcohol and observed that Ayotte's eyes were dilated; Ayotte admitted to having operated the vehicle.1 Because Ayotte appeared injured, officers transported him in a cruiser to the hospital in Augusta for medical attention rather than conducting field sobriety tests at the scene. A sample of Ayotte's blood was drawn at the hospital about one hour and fifteen minutes after the crash; the results of the blood draw indicated a blood-alcohol content of .078 grams of alcohol per 100 milliliters of blood, with a margin of error of .005 grams.
[¶3] Prior to the trial, Ayotte filed a motion to suppress evidence from the blood draw and the corresponding blood-alcohol test result, arguing that the evidence was obtained without valid consent. Ayotte testified at the suppression hearing that medical staff diagnosed him with a concussion and that his memory of the incident and subsequent police interactions was "foggy" and "patchy, at best." He also testified that he felt that the officers had used the concern he expressed about his girlfriend, who also had sustained injuries in the accident and was transported separately to the hospital by ambulance, to "pressure" him into signing the consent forms. The court denied the motion, finding that Ayotte's testimony about decisions he had made regarding his medical care demonstrated that he had the capacity to make knowing decisions and act in accordance with them, that the officer had reviewed the requisite consent forms with Ayotte, and that Ayotte had signed the forms freely and voluntarily. See State v. Palmer , 2018 ME 108, ¶ 2, 190 A.3d 1009.
[¶4] At trial, the State presented as an expert witness a chemist from the State Health and Environmental Testing Laboratory, who opined that Ayotte's blood-alcohol content had been greater than .08 at the time the crash occurred. The chemist described a chemical analysis he performed called "reverse extrapolation" (RE), which is used to estimate a person's blood-alcohol content at a given time prior to the taking of the test sample. On cross-examination, Ayotte questioned the reliability of the expert's RE analysis by introducing a 1985 article by Dr. Kurt Dubowski, an article the State's expert acknowledged is an accepted authority in the field of analytical chemistry.
[¶5] During closing arguments, the prosecutor characterized two RE techniques described in the Dubowski article—the use of sweat pads and saliva samples to determine a person's level of intoxication—as "outdated." Ayotte timely objected and argued that the "outdated" reference was a mischaracterization of the article and was not supported by the chemist's testimony. The State responded that it was not commenting on the underlying scientific validity of the article itself, but rather drawing on the expert's testimony that sweat pads and saliva sampling techniques were not used in the State's lab and had not been used in Maine in thirty years. Ayotte requested a curative instruction that the State's characterization of the Dubowski article as "outdated" was not supported by the evidence or that the jury should disregard the characterization. The court declined to give an instruction, noting that giving that instruction would amount to "injecting evidence into the record." The court did, however, issue the standard instruction that the attorneys' statements are not evidence; the jury alone decides how much weight to give expert's testimony; and if a juror thinks an attorney has misstated the evidence or overstated the evidence, it is the juror's recollection of the evidence and not the attorney's that the juror should consider.
[¶6] The jury found Ayotte guilty of operating under the influence (Class D) 29-A M.R.S. § 2411(1-A)(A). The court entered a judgment on the verdict, sentencing him to five days in jail, a $ 500 fine, and a 425-day loss of license, which included an additional mandatory suspension of 275 days because his passenger was under the age of twenty-one. 29-A M.R.S. § 2411(5)(G) (2018). Ayotte appeals.
[¶7] On appeal, Ayotte argues that the court erred by denying his motion to suppress because his consent to the blood draw was not knowing and voluntary, and by declining to give a curative instruction at trial because the State's reference to the Dubowski article constituted prosecutorial misconduct.
[¶8] Withdrawing blood for the purpose of determining its alcohol content is a search under the Fourth Amendment, and therefore requires a warrant or the existence of an exception to the warrant requirement, such as consent.2 U.S. Const. amend. IV ; State v. LeMeunier-Fitzgerald , 2018 ME 85, ¶¶ 11-12, 21, 188 A.3d 183. When consent is challenged, the State carries the burden of showing, by a preponderance of the evidence, that a person's consent was knowingly and voluntarily obtained. Id. ¶ 21 ; see also State v. Bailey , 2012 ME 55, ¶ 16, 41 A.3d 535. We review a court's factual findings regarding whether consent was given for clear error, and the ultimate question of whether an individual consented to the search de novo. State v. Nadeau , 2010 ME 71, ¶ 18, 1 A.3d 445.
[¶9] Contrary to Ayotte's first contention that he lacked the capacity to give knowing consent, the court found that Ayotte agreed to some, but not all, of the suggested courses of medical evaluation and treatment at the hospital and then acted in accordance with those decisions, thereby demonstrating that he had, and was exercising, the capacity to make decisions knowingly.
[¶10] Regarding Ayotte's second argument—that his consent was not voluntary because he felt "pressured" into signing the consent as an inducement to see his girlfriend, who was injured in the crash—the court found that the officer testified credibly that she had reviewed with Ayotte both the form authorizing consent to draw blood and the form explaining the right to refuse the blood draw, and that he signed both forms freely and voluntarily. In the totality of these circumstances, the court did not err when it determined that Ayotte's consent to the blood draw was knowingly and voluntarily given.
[¶11] The State's attorney made the following statement to the jury as part of the closing argument, which drew a timely objection that the court sustained.
[W]hen I was asking [the State's witness] about some of the other things that weren't highlighted by [Ayotte's attorney] that were in that article, things about analyzing the saliva for alcohol content, things about analyzing sweat pads to determine alcohol content. I asked [the State's witness], is that something that you do? Is that something that the lab is involved with? And it's not. It's outdated methodologies . Sweat pads, saliva samples. Those are...
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