State v. Cheney

• Decision Date: 23 October 2012
• Docket Number: Docket No. Pen–11–622.
• Citation: 2012 ME 119,55 A.3d 473
• Parties: STATE of Maine v. Garrett CHENEY.
• Court: Maine Supreme Court

55 A.3d 473

2012 ME 119

STATE of Maine

v.Garrett CHENEY.

Docket No. Pen–11–622.

Supreme Judicial Court of Maine.

Argued: Sept. 12, 2012.

Decided: Oct. 23, 2012.

Timothy E. Zerillo, Esq. (orally), John M. Burke, Esq., and Jeffrey S. Hamm, Esq., Zerillo Law, LLC, Portland, for appellant Garrett Cheney.

R. Christopher Almy, District Attorney, Tracy Collins Lacher (orally), Asst. Dist. Atty., and Susan J. Pope, Asst. Dist. Atty., Prosecutorial District V, Bangor, for appellee State of Maine.

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

ALEXANDER, J.

[¶ 1] Garrett Cheney appeals from a judgment of conviction of manslaughter (Class A), 17–A M.R.S. § 203(1)(A) (2011); aggravated criminal operating under the influence (Class B), 29–A M.R.S. § 2411(1–A)(D)(1–A) (2011); aggravated leaving the scene of a motor vehicle accident (Class C), 29–A M.R.S. § 2252(5) (2011); and operating under the influence (Class D), 29–A M.R.S. § 2411(1–A)(A) (2011), entered in the trial court (Penobscot County, Anderson, J.) following a jury trial.

[¶ 2] Cheney argues on appeal that the court erred in (1) prohibiting him from impeaching a witness with an audio recording of prior inconsistent statements; (2) failing to presume prejudice after an attempted jury tampering; (3) failing to issue a curative instruction when the prosecutor improperly shifted the burden of proof to the defense in rebuttal closing; and (4) concluding that the evidence was sufficient to support the conviction of manslaughter when there was no proof of recklessness or criminal negligence and no proof of causation. We conclude that the evidence produced at trial permitted a rational jury to find Cheney guilty beyond a reasonable doubt on each of the counts in the indictment and that Cheney's other arguments do not justify vacating the convictions. We affirm the judgment.

I. CASE HISTORY

[¶ 3] Viewing the evidence in the light most favorable to the State, the jury rationally could have found the following facts proved beyond a reasonable doubt. See State v. Townsend, 2009 ME 106, ¶ 2, 982 A.2d 345.

[¶ 4] On January 30, 2010, between 2:30 a.m. and 3:00 a.m., the victim, a junior at the University of Maine, was walking in Orono. Around the same time, Cheney, who was visiting a family member in the area and had consumed alcohol to the point of significant intoxication, decided to drive his Chevrolet Silverado pick-up truck. As the victim walked south along Middle Street, Cheney drove north. Cheney crossed over the center of the street and struck the victim. She was projected, and her head struck the ground. She died at the scene.

[¶ 5] Cheney did not remain at the scene. Instead, he left Orono and proceeded to drive south on I–95. At about 3:30 a.m., he drove his truck off the side of the highway near Etna. A driver stopped to assist and advised Cheney to call 911 for assistance. When Cheney did so, the dispatcher instructed him to stay at the scene; however, Cheney asked the driver to take him to a gas station down the highway in Newport. At approximately 4:00 a.m., a trooper found Cheney eating breakfast at a restaurant attached to the gas station.

[¶ 6] The trooper administered a breathalyzer test that indicated Cheney then had a blood-alcohol content of 0.15 grams of alcohol per 210 liters of breath. The trooper charged Cheney with operating under the influence and left him at a hotel for his mother to pick him up. The trooper had Cheney's truck towed to a garage in Newport.

[¶ 7] At approximately 5:15 a.m., a newspaper deliveryman found the victim on the side of Middle Street and called 911. From the area around the victim, local police recovered the victim's cellphone, one mitten, and a scarf. The cellphone, which was lying open, was ten to twelve feet from the victim's body. The police found tire tracks in the snow but were unable to determine the type of vehicle that made them. A few hours after the crime scene had been examined, an officer returned to the scene where he found two small plastic pieces from a vehicle's grille and one small plastic piece from a vehicle's headlight assembly. Additionally, three days after the accident, a detective removed the snow bank from the scene and melted the snow at the police department. In the melted snow, the detective uncovered another small plastic piece from a vehicle's grille.

[¶ 8] An autopsy revealed that the bumper of a tall vehicle, like a truck, had hit the victim. During the autopsy, a detective recovered a small plastic piece from a vehicle's grille inside the bag used to transport the victim's body. Because the victim was hit above the knee, the medical examiner concluded that the vehicle projected her forward with extreme force.

[¶ 9] On February 5, 2010, a detective received information that other investigators were looking for a specific vehicle. Acting on that information, the detective first went to the location on I–95 where Cheney drove his truck off the road. From there, the detective went to the lot where Cheney's truck had been towed. At the lot, the detective examined the truck and noticed damage to the honeycomb grille that was similar to the plastic pieces found near the victim. Subsequently, a State forensic examiner fit pieces of the grille and the light assembly found at the scene in Orono exactly into the missing pieces of the grille and light assembly on Cheney's truck. The examiner then photographed these exact fits, and the photographs, along with the recovered plastic pieces, were introduced at trial.

[¶ 10] Cheney was indicted in Penobscot County for manslaughter, 17–A M.R.S. § 203(1)(A); aggravated criminal operating under the influence, 29–A M.R.S. § 2411(1–A)(D)(1–A); aggravated leaving the scene of an accident, 29–A M.R.S. § 2252(5); and operating under the influence, 29–A M.R.S. § 2411(1–A)(A). Cheney's eight-day jury trial began on July 19, 2011.

[¶ 11] During the trial, Detective Andrew Whitehouse testified about an interview that he conducted on January 30, 2010, of the victim's boyfriend at his apartment. At the time of the interview, the detectives considered the boyfriend a suspect. At trial, Detective Whitehouse testified that when he interviewed the boyfriend, he believed that the boyfriend exhibited genuine emotions regarding the death of the victim. Further, Detective Whitehouse testified that there were no “red flags” during the interview. To counter that testimony, Cheney offered an audio recording of Detective Whitehouse and another detective speaking after the interview for the purposes of impeaching Whitehouse's testimony. On the recording, Whitehouse stated that (1) the boyfriend could turn his emotions on and off; (2) the boyfriend was “editing everything” during the interview; and (3) the boyfriend's car smelled like blood and “smells like the scene.”

[¶ 12] The court rejected Cheney's request to play the audio recording for the jury; however, the court permitted Cheney to question the detective about his statements regarding the boyfriend's candor, including his “editing” and his capacity to adjust his emotions. The court did not permit Cheney to question the detective about his statement regarding the smell of the boyfriend's car. The court reasoned that the latter statements were not a proper subject for impeachment.

[¶ 13] On July 26, 2011, during the lunch break, an unidentified individual approached three jurors outside the courthouse and made the following comments: (1) you are on a “high profile case,” (2) the jurors should “fry him” or “hang him,” and (3) “don't pull a Casey Anthony on us.” ¹ The three jurors who had been confronted discussed the incident with the other jurors and reported the contact to court officers.

[¶ 14] The court interviewed each juror and alternate juror separately on the record regarding the incident and whether he or she would be able to remain a fair and impartial juror in the trial. Counsel for the State and Cheney were present during the interviews of each juror. Each juror confirmed that he or she would be able to remain fair and impartial, despite the individual's comments.

[¶ 15] After completing its questioning of the jury, the court asked each party if that party objected to proceeding or wanted the court to consider a mistrial. Both the State and Cheney indicated a desire to continue with the trial, and neither requested a mistrial. Because the parties wished to proceed with the trial, the court did not make specific findings regarding the jury's ability to continue to serve impartially.

[¶ 16] Later, in closing arguments, the State made two comments on Cheney's version of events. The first occurred during the State's initial argument:

So that's our view of their case. You know, they have a lot of wishful thinking. They try to, we would suggest to you, divert your attention to somebody else. And—and—and, with all due respect, because they know Mr. Cheney is right there, they've got to somehow convince you, oh, it wasn't Mr. Cheney. It was somebody else. But they don't have any evidence of that.

Cheney did not object.

[¶ 17] The second comment occurred during the State's rebuttal closing:

Now, let's just think about this. They desperately—I say this in all due respect—they desperately want you to believe that somebody else hit [the victim] in that very same spot where Mr. Garrett Cheney crashed his vehicle. They desperately want you to believe that. Yet, they have no evidence of it.

[¶ 18] At this point, Cheney objected, arguing that the State had shifted the burden of proof to the defense. In response, the court stated, “I'll make sure the jurors understand who has the burden in this case when I instruct them.” Cheney did not explicitly request that the court issue a curative instruction or move for a mistrial.² After completion of the rebuttal argument and a lunch break, the court instructed the jury and included the standard instructions that a defendant is presumed innocent,...