State v. Gray

• Decision Date: 25 July 2000
• Citation: 755 A.2d 540,2000 ME 145
• Parties: STATE of Maine v. Michael GRAY.
• Court: Maine Supreme Court

755 A.2d 540

2000 ME 145

STATE of Maine v. Michael GRAY.

Supreme Judicial Court of Maine.

Submitted on Briefs June 27, 2000.

Decided July 25, 2000.

Michael P. Cantara, District Attorney, Jeffrey H. Moskowitz, Asst. Dist. Atty., Alfred, for State.

Clifford B. Strike, Esq., Strike & Gordon, Portland, for defendant.

Panel: WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.

CLIFFORD, J.

[¶ 1] Michael Gray appeals from judgments of conviction entered in the Superior Court (York County, Levy, J.), following a jury trial, on counts of robbery (Class A), see 17-A M.R.S.A. § 651 (1983), burglary (Class B), see 17-A M.R.S.A. § 401 (1983 & Supp.1999), burglary of a motor vehicle (Class C), see 17-A M.R.S.A. § 405 (Supp. 1999), and eluding a police officer (Class C), see 29-A M.R.S.A. § 2414(3) (1996), and on two counts each of theft by unauthorized use of property (Class D), see 17-A M.R.S.A. § 360 (1983 & Supp.1999), and theft by unauthorized taking or transfer (Class E), see 17-A M.R.S.A. § 353 (1983).¹ Gray contends that the court erred or acted beyond its discretion when it denied in part his motion in limine to exclude evidence of his prior criminal history. Gray also argues that the evidence is insufficient to support the jury's verdict. Although we conclude that there is no error or abuse of discretion in the court's denial of Gray's motion in limine, we agree with Gray that the evidence is insufficient to support convictions on three of the counts on which judgments were entered. Accordingly, we vacate the judgments on those counts, affirm the judgments on the remaining counts, and remand for resentencing.

[¶ 2] Viewing, as we must, the evidence in a light most favorable to the State, see State v. Emerson, 675 A.2d 978, 979 (Me. 1996),

the jury could reasonably have found the following events to have occurred: Early on the morning of November 10, 1998, in Biddeford, Dee Dean awakened and discovered that a "tall, thin man, with his face all covered ... [holding] a flashlight in one hand and a hunting knife in the other hand," and wearing black gloves, had entered her West Street home in Biddeford. The man told her to return to her bedroom, where he taped her hands behind her back and taped her feet together. It seemed to Dean that at some point the man removed his gloves in order to finish taping her hands. Dean asked the man why he was doing this, to which he replied, "I'm desperate." The man asked Dean for the personal identification number (PIN) for her credit card, but Dean did not have a PIN. He then left the room, and shortly Dean saw lights in her driveway and heard a vehicle drive off. Dean was able to free herself, and called the police.

[¶ 3] Biddeford Police Officer Steven Gorton was dispatched to Dean's house. While heading toward the home, Gorton observed a vehicle on West Street east of Guinea Road heading toward him, and away from the Dean home, with a missing front license plate.² Gorton continued on to the house after ordering Officer Matthew Baldwin, who was driving another cruiser immediately behind Gorton, to stop the vehicle and identify its driver.

[¶ 4] After Gorton arrived at the Dean residence, he and Dean found dirt footprints in the house, with more footprint impressions on the carpeting upstairs. It appeared that someone had gone through Dean's purse. A number of items were missing, including $70 to $90 dollars in cash, a new, unsigned credit card, and the keys to Dean's truck and house. The truck was gone. The back door to the house was open, and the spare key was found in the location where Dean hid it, beneath a deck on the rear side of the house.

[¶ 5] Meanwhile, as ordered by Gorton, Officer Baldwin turned on his blue lights and attempted to stop the vehicle the officers had encountered. The vehicle started to pull over, but soon pulled back onto the road and sped off. Baldwin was not certified for high speed chase, and thus followed the vehicle as best he could at the posted speed limit. He called his dispatcher and reported the license number and that the vehicle was a dark colored sedan. The license number led police to contact Justin Harvey, a co-worker of Gray's and the registered owner of the vehicle, who informed the police that Gray was in possession of his vehicle. Baldwin followed the vehicle down Guinea Road, and continued as the vehicle turned right onto Meetinghouse Road, and finally right onto Pool Road (Route 9), before Baldwin lost sight of it. Baldwin picked up the trail not far away after the suspect vehicle was spotted by a security guard at the University of New England, who began pursuing the vehicle as well. The security guard identified the car as a Plymouth Sundance. Eventually, a Kennebunkport police cruiser driven by Officer Steven Shisler began pursuing the vehicle, and Baldwin and the security guard gave up the chase.

[¶ 6] Shisler turned on his blue lights and followed the vehicle south along Route 9. The Sundance eventually turned off Route 9 onto Fortunes Rocks Road just north of the Kennebunkport line, then turned right onto Ocean Spray Avenue, and finally came to a halt in a residential driveway. Shisler blocked the driveway with his cruiser, got out, and drew his weapon. The vehicle, however, backed up and turned parallel to the cruiser; i.e., across the driveway. Shisler saw that there was only one occupant, the driver, whom he described as a white male approximately six feet tall, balding, in his early-30s, and wearing a New England Patriots jacket. (Later, however, from a photo lineup, Shisler picked a person who was not the defendant as the driver.) The driver steered the vehicle across the lawn and onto the road, and escaped. Although Shisler attempted to pursue the vehicle, he never saw it again that morning.

[¶ 7] Meanwhile, on Pool Road, approximately one-and-a-half miles away from where the Sundance had escaped from Shisler, Theresa Camire reported that her white Honda Accord had been stolen at some point between 6 P.M. on November 9 and 6:30 A.M. on November 10. She had left her keys in the car's ashtray and the doors unlocked. She testified that she observed footprints across her front lawn in the morning dew leading to where her car had been parked.

[¶ 8] The evidence also revealed that Dean had hired Sealex, Inc., a Portland company, to seal the foundation of her home in Biddeford. Sealex began work on the Dean home on November 9, 1998. Gray and Harvey were both members of the work crew dispatched to the house.

[¶ 9] In the back of Dean's house is a deck, adjacent to the back door. Dean hid a spare key under the deck for use in emergencies. Although not visible from above, someone underneath the deck could see the key. Gray and Harvey had been assigned to dig below the deck in order to prepare the foundation for sealing.

[¶ 10] Harvey was in the process of selling his Plymouth Sundance to Gray, and allowed Gray to have possession of it as Gray paid him off. The morning of November 9, Harvey told Gray that he had to pay the balance by the following day or Harvey would take back the car, keeping the money paid thus far.

[¶ 11] On the day before the robbery, Gray had been wearing a Patriots jacket with dark pants and white sneakers. Harvey had recently given Gray a large hunting knife. Another worker testified that he had set aside his blue winter gloves, which had been converted into work gloves, during work that day, but had been unable to find them later. At trial, Harvey recalled that Gray had asked him where Gray could find some duct tape. Harvey also testified that Sealex uses both duct tape and clear packing tape.

[¶ 12] On cross-examination, Dean testified that several of the Sealex workers had entered by the back door and walked through portions of the house (with, presumably, muddy boots) after inadvertently cutting a septic pipe while preparing the foundation.

[¶ 13] The clear packing tape used to bind Dean's hands was taken as evidence, and appeared to have sealing compound on it. Dean's truck was ultimately found and returned to Dean, but a camera she had kept in the vehicle was missing. Footprints found near where the truck was recovered were similar to those found at the Dean residence.

[¶ 14] The Sundance was found abandoned on Elizabeth Road in Biddeford about a mile-and-a-half from Camire's residence. Inside the Sundance, a pair of white sneakers were found with sealing compound on them.

[¶ 15] Within days after the Honda had been stolen, an employee of Cedars Nursing Care in East Deering, Portland, noted the presence of Camire's vehicle in the Cedars parking lot, but the police were not notified until the car had remained in the lot for nearly three weeks. Cedars is approximately 26 miles from Camire's residence. According to Camire, she had rezeroed the trip odometer after filling up the gas tank just before arriving home on the 9th. When the car was returned to her, it appeared that it had been driven 81 or 82 miles. In addition, the driver's seat had been pushed all the way back. Camire's purse, containing $20 and other items, was gone, but a canvas bag and $200 that she had kept in an envelope in the glove compartment remained. A sample of some sort of residue was taken from the steering wheel of Camire's vehicle, but it was not consistent with the sealing compound used by Sealex.

[¶ 16] In the morning following the robbery, Gray was arrested by a Portland Police officer at Sealex's headquarters in the East Deering section of Portland. Harvey had arrived at Sealex early that morning to discover that the shop was unlocked. Harvey and another co-worker then found Gray asleep in a truck, and called the owner and then the police. Gray was still asleep when the officer arrived. Gray was wearing work boots that belonged to the general manager of Sealex and that had been left at the business. The boots were seized as evidence. Gray had $16 in cash on his person. Another $88...