State v. Diana

• Decision Date: 20 March 2014
• Docket Number: Docket No. Kno–12–541.
• Citation: 2014 ME 45,89 A.3d 132
• Parties: STATE of Maine v. Arnold A. DIANA.
• Court: Maine Supreme Court

89 A.3d 132

2014 ME 45

STATE of Maine

v.Arnold A. DIANA.

Docket No. Kno–12–541.

Supreme Judicial Court of Maine.

Argued: Feb. 11, 2014.

Decided: March 20, 2014.

Jeremy Pratt, Esq. (orally), Camden, for appellant Arnold Diana.

Janet T. Mills, Attorney General, and Donald W. Macomber, Asst. Atty. Gen. (orally), Office of Attorney General, Augusta, for appellee State of Maine.

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

MEAD, J.

[¶ 1] Arnold A. Diana appeals from a judgment of conviction entered by the trial court ( Hjelm, J.), and from the sentence it imposed, following a jury verdict finding him guilty of murder, 17–A M.R.S. § 201(1)(A) (2013). Diana contends that the court erred in (1) denying his motion to suppress the evidence resulting from three searches of his residence by law enforcement officers, (2) allowing a prospective juror who was once a victim of domestic violence to serve on the jury, (3) denying his motion to exclude certain physical evidence and failing to exclude expert and nonexpert testimony concerning the significance of that evidence, and (4) setting his basic sentence at forty years before arriving at a final sentence of forty-five years. Discerning no error, we affirm the judgment and the sentence.

I. BACKGROUND

[¶ 2] When “[v]iewed in the light most favorable to the jury's verdict, the record supports the following facts.” See State v. Ormsby, 2013 ME 88, ¶ 2, 81 A.3d 336. In November 2010, John Savage began dating Katrina Windred. They planned to have dinner at Windred's home the evening of November 20, 2010, so that they could meet each other's children. That day, Windred took several phone calls from Arnold Diana, a former boyfriend whom she had recently stopped seeing. She left her home in the afternoon to pick up her son from his father's house and to drop off groceries for Diana, telling Savage that she would see him in an hour. When she did not return that night and could not be reached by phone, Savage called the police.

[¶ 3] Tiffany Walker, Windred's close friend, knew Diana. When Walker awoke on the morning of November 21, she had phone messages from Diana saying that Windred's son was with him but Windred was not there. Walker later spoke to Diana; he told her that Windred's car was at his apartment with her dog locked inside. Diana said that Windred had gone out to meet a boyfriend the previous night, leaving her son with him, and never returned. Fearing that something had happened to Windred, Walker also called the police.

[¶ 4] Windred's son, age twelve at the time of the trial, testified that Diana had once been his mother's boyfriend. On the last day he saw his mother, she picked him up and they went to the grocery store, planning to drop groceries off at Diana's residence and then go home to have dinner with Savage. They drove to Diana's apartment and he came out to meet them. Windred went inside with Diana but the boy stayed in the car reading comic books. After a long time, Diana came out and told him that his mother was upstairs sleeping, which the boy thought was unusual because she had not slept at Diana's apartment before. The boy went up to Diana's apartment, leaving the dog in the car, which was also unusual.

[¶ 5] Once in the apartment, Windred's son saw that the bedroom door was closed. Diana told him that Windred was sleeping and he should be careful not to wake her. As the boy watched a movie, Diana went in and out of the bedroom frequently. That evening Diana took him to the bank where Diana withdrew cash. When they returned to the apartment, the bedroom door was still closed. The boy resumed watching movies.

[¶ 6] When it became quite late, Windred's son and Diana went into the dark bedroom to go to sleep. The boy saw what he described as “[t]he form of what looked like my mother on the bed” with a blanket pulled completely over her head. Both of those observations struck him as very unusual because his mother was a cancer patient who had to fall asleep in a sitting position with her arm propped up on pillows to prevent swelling, and she never had covers over her face. Windred's ex-husband confirmed Windred's sleeping habits when he testified. The boy tried to sleep beside Diana on the floor next to the bed. When the boy could not get to sleep, Diana sent him out of the room and closed the door. When Diana let the boy back in, he told him to sleep on the bed; the “form” that the boy believed was his mother was then on the floor. When the boy awoke the next morning, Diana was already up and the form was gone; Diana told him that his mother had gone out with friends.

[¶ 7] A deputy and a detective from the Knox County Sheriff's Office were assigned to try to locate Windred on the morning of November 21. They found her car locked in the parking lot outside Diana's apartment building with her dog inside. Eventually they made contact with Diana and conducted a twenty-minute search of his apartment at the request of Diana's probation officer. The officers saw, but did not seize, a pillow with a red-brown stain on a closet shelf. That evening, Diana was interviewed by a Maine State Police detective and his apartment was searched again after he signed a consent form. Diana agreed to give the detective the pillow that had been seen earlier, and another detective located a second stained pillow. The stains on both pillows proved to be blood that a forensic DNA analyst at the State Police crime laboratory matched to Windred.

[¶ 8] On November 23, a State Police detective located, in a dumpster area outside Diana's building, a bag of trash that contained a purple towel, a note with the word “Arnold” written on it, cigarette butts containing Diana's DNA, and a jacket containing hair and blood that were later DNA-matched to Windred. That day, a man walking his dog about two miles from Diana's apartment discovered Windred's body wrapped in a quilt in the woods near a quiet road. An expert testified at trial that, in his opinion, two strips of purple towel that were tied around the quilt came from the purple towel found in the trash bag outside Diana's building. The Chief Medical Examiner testified that Windred died from asphyxia due to strangulation, most likely a manual strangulation. The degree of rigor mortis she observed was consistent with a time of death three days before the body was discovered.

[¶ 9] On November 24, a search warrant was executed at Diana's apartment. Inside a seat cushion found in a kitchen trash can, detectives discovered Windred's eyeglasses, cell phone, driver's license, social security card, medical and debit cards, and a wallet containing one of her checks. Diana was interviewed for a third time on November 27. He was charged with Windred's murder following the interview.

[¶ 10] After he was indicted by the grand jury, Diana filed motions to suppressstatements he made to police and any evidence derived from the searches of his apartment. Following a hearing the court suppressed some of Diana's statements, but it declined to suppress evidence resulting from the searches. The case went to trial in July 2012 and the jury returned a verdict of guilty. At a later sentencing hearing the court entered judgment, imposing a sentence of forty-five years' imprisonment and $2747.46 in restitution. Diana appealed and filed an application to allow an appeal of his sentence, which the Sentence Review Panel granted.

II. DISCUSSION

A. Motion to Suppress

[¶ 11] “We review the denial of a motion to suppress for clear error as to factual issues and de novo as to issues of law, and will uphold the court's denial of a motion to suppress if any reasonable view of the evidence supports the trial court's decision.” Ormsby, 2013 ME 88, ¶ 9, 81 A.3d 336 (quotation marks omitted). Diana challenged three searches of his residence in his motion to suppress: (1) a warrantless search conducted by a deputy and a detective from the Knox County Sheriff's Office on the afternoon of November 21, 2010, which the court found was authorized by Diana's probation conditions; (2) a warrantless search conducted by Maine State Police detectives on the evening of November 21, which the court found was justified by Diana's consent; and (3) a search conducted on November 24 pursuant to a search warrant, which Diana unsuccessfully challenged as a violation of the rule announced in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).¹

[¶ 12] On appeal, Diana primarily challenges the first search and then asserts that subsequent searches were tainted by its illegality. We conclude that the trial court correctly found that all three searches at issue were lawful and discuss only the first search here.

[¶ 13] The court's factual findings concerning that search, summarized below, are supported by competent evidence in the record and are therefore not clearly erroneous. See Pelletier v. Pelletier, 2012 ME 15, ¶ 13, 36 A.3d 903. On November 21, 2010, Knox County Deputy Donald Murray spoke to three people who were concerned as to the whereabouts of Katrina Windred: John Savage, who reported that Windred went to Rockland the previous day to pick up her son and to drop off some groceries, but never returned that evening for a planned dinner; Tiffany Walker, who expressed concern as to Windred's welfare and reported that Windred had been at Diana's residence in Rockland the previous day; and Windred's ex-husband.

[¶ 14] Murray contacted Detective Dwight Burtis for assistance, and, after learning that Diana was on probation, he spoke with George Mele, Diana's probation officer. Mele asked Detective Murray to conduct a probation check if he had contact with Diana. The conditions of Diana's probation included a provision requiring him to “submit to random search and testing for alcohol, drugs, firearms, [and] dangerous weapons at the direction of a probation or law enforcement officer.” Murray called Diana and reached him at the...