State v. Lemay

• Citation: 46 A.3d 1113,2012 ME 86
• Decision Date: 03 July 2012
• Docket Number: Docket No. Kno–11–345.
• Parties: STATE of Maine v. Bradley W. LEMAY.
• Court: Maine Supreme Court

46 A.3d 1113

2012 ME 86

STATE of Maine

v.Bradley W. LEMAY.

Docket No. Kno–11–345.

Supreme Judicial Court of Maine.

Argued: April 13, 2012.

Decided: July 3, 2012.

Christopher K. MacLean, Esq., and Sarah Irving Gilbert, Esq. (orally), Elliott & MacLean, LLP, Camden, for appellant Bradley W. Lemay.

Christopher Fernald, Asst. Dist. Atty. (orally), Prosecutorial District Six, Rockland, for appellee State of Maine.

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

SILVER, J.

[¶ 1] Bradley W. Lemay appeals from judgments of conviction for gross sexual assault (Class A), 17–A M.R.S. § 253(1)(A) (2011); criminal threatening with a dangerous weapon (Class C), 17–A M.R.S. §§ 209(1), 1252(4) (2011); eluding an officer (Class C), 29–A M.R.S. § 2414(3) (2011); attempted escape (Class D), 17–A M.R.S. §§ 152(1)(D), 755(1)(A) (2011); and tampering with a victim (Class B), 17–A M.R.S. § 454(1–B)(A)(2) (2011), entered in the Superior Court (Knox County, Hjelm, J.) following a jury trial. The charges stem from three events that occurred on three different dates. Lemay argues that the court abused its discretion by joining the matters for trial pursuant to M.R.Crim. P. 8(a), and by subsequently denying his motion for relief from prejudicial joinder pursuant to M.R.Crim. P. 8(d). We affirm the judgment.

I. BACKGROUND

[¶ 2] We view the evidence admitted at trial in the light most favorable to the State. State v. Medeiros, 2010 ME 47, ¶ 16, 997 A.2d 95.

[¶ 3] On the evening of June 8, 2010, Bradley W. Lemay entered the home of the victim, whom he knew as a client of the landscaping company for which he worked. He threatened her and sexually assaulted her, initially at knifepoint, and injured her by giving her a black eye. Immediately after Lemay left the victim's residence, she called 911 to report that she had been raped.

[¶ 4] A responding police officer spotted Lemay's vehicle while en route to the victim's home, but was unable to keep track of it because Lemay shut off his lights and drove over the lawn of a home about one block from the victim's residence. Once the officer was able to locate the vehicle he began to pursue it with his sirens on, initially at a speed between forty and forty-five miles per hour. Lemay sped up, and a twenty-minute pursuit followed during which Lemay failed to stop at stop signs, nearly collided with another vehicle, drove on the wrong side of the road, drove the wrong way down a one-way street, and traveled at speeds between sixty and one hundred miles per hour in thirty- to forty-mile-per-hour zones. The police eventually deployed a spike mat that caused Lemay to lose control of the vehicle. He came to a stop after crashing into some shrubs, and the police apprehended him.

[¶ 5] On June 10, 2010, Lemay was charged with gross sexual assault (Class A), 17–A M.R.S. § 253(1)(A) (2011); burglary (Class B), 17–A M.R.S. § 401(1)(B)(4) (2011); aggravated assault (Class B), 17–A M.R.S. § 208(1)(B) (2011); criminal threatening with a dangerous weapon (Class C), 17–A M.R.S. §§ 209(1), 1252(4) (2011); aggravated criminal trespass (Class C), 17–A M.R.S. § 402–A(1)(A) (2011); and eluding an officer (Class C), 29–A M.R.S. § 2414(3) (2011).

[¶ 6] After being charged, Lemay was held in pretrial detention in the Knox County jail. On July 2, 2010, he was caught climbing the barbed-wire fence enclosing the recreation yard. His hands were lacerated by the barbed wire and he injured his ankle in the course of jumping off the fence back into the yard. After Lemay was treated by the medical personnel at the jail, the lieutenant of programs and services asked him why he attempted to climb the fence. In response, Lemay made a statement “about trying to hide” and stated, “I'm never, ever going back to prison.”

[¶ 7] On or around July 22, 2010, Lemay sent his brother a letter from jail. The letter included the victim's name, phone number, and address, and stated that “we need to threaten her in some way to get her to drop the charges and recant her story.” The letter instructed the brother to buy a disposable cell phone with cash; call the victim from that phone to demand that she recant her story and tell “the truth”; offer her up to $150,000 as a “ploy to get her to tell the truth”; and “tell her if she doesn't cooperate that something terrible [is] going to happen to her,” that “she'll be hurt” if she does “anything stupid,” and that “the police won't be able to protect her always if she doesn't cooperate.” It directed the brother to be “strong and aggressive” in order to “make the threat sound real” and to emphasize to the victim that she was being “watched at all times.” The letter then instructed the brother to throw the cell phone in a lake after the phone call. Lemay also proclaimed his innocence in the letter and reiterated that he did not want to go back to jail for something he did not do.

[¶ 8] On August 11, 2010, Lemay was charged with attempted escape (Class D), 17–A M.R.S. §§ 152(1)(D), 755(1)(A), for the prison-yard incident that took place on July 2. On August 25, 2010, he was charged with tampering with a victim (Class B), 17–A M.R.S. § 454(1–B)(A)(2), for the letter he sent on or around July 22.

[¶ 9] Before trial the State filed a motion to join all charges for trial pursuant to M.R.Crim. P. 8(a), and Lemay filed an objection. Lemay also filed two motions to suppress. One motion sought to suppress his statements about “trying to hide” following his attempted escape because he was not advised of his Miranda rights prior to being questioned by prison personnel. The other motion sought to suppress statements that Lemay made to police during an interrogation about the letter to his brother; Lemay does not appeal from the court's ruling on that motion.

[¶ 10] At a hearing on the motions the court ( Hjelm, J.) granted the State's motion to join all matters for trial. The court found a “very substantial” connection between the charges related to the gross sexual assault and the tampering charge. The court found a more tenuous but still reasonable connection between the charges related to the gross sexual assault and the attempted escape based on Lemay's statement that he wanted to escape in order to hide, and further found that eluding an officer and attempted escape are similar crimes. The court noted that evidence of both the attempted escape and tampering with a victim would be admissible at a trial for the charges related to the gross sexual assault as proof of Lemay's culpability, and that a limiting instruction to the jury would mitigate the potential for prejudice.

[¶ 11] Following the hearing the court issued separate written orders on the two suppression motions. In the order relevant to this appeal, the court partially granted Lemay's motion to suppress statements regarding the attempted escape because he made the statements in custody and was not advised of his Miranda rights. The court ordered that the statements be excluded from evidence in the State's case-in-chief, but allowed the State to use the statements to impeach Lemay if he testified at trial because he made the statements voluntarily.

[¶ 12] Lemay then filed a motion for relief from prejudicial joinder pursuant to M.R.Crim. P. 8(d), arguing that the suppression of the statements relating to the escape warranted relief from joinder because those statements provided the only connection between the charges related to the gross sexual assault and the escape. Lemay did not argue for severance of the tampering charge from the charges related to the gross sexual assault, only for severance of the escape charge from the charges related to the gross sexual assault and the tampering charge. The court denied the motion, reiterating that evidence of the attempted escape would be admissible at a trial for the charges related to the gross sexual assault as probative of a consciousness of guilt, even without the suppressed statements. The court noted that even if the defendant were to testify in separate trials, the suppressed statements regarding the attempted escape would be admissible on cross-examination. The court also noted that the risk of prejudice would be minimized by proper jury instructions.

[¶ 13] During the trial Lemay made a motion to limit the scope of evidence admissible to cross-examine or impeach Lemay's testimony, should he decide to testify. Lemay asked the court to allow him to testify on the charges related to the gross sexual assault, but to prevent the State from cross-examining him on the tampering and attempted escape charges, or at least on the attempted escape charge. The court ruled that the tampering and attempted escape charges were a proper subject of cross-examination whether or not Lemay testified about them on direct examination because “that alleged conduct has a direct bearing on” the charges related to the gross sexual assault, and “this would be true whether or not there was joinder[ ].” The court also ruled that, with a limiting instruction, evidence of Lemay's prior criminal conduct ¹ would be a proper subject of cross-examination to test Lemay's statements to police, during his interview, that he “wouldn't” have put a knife in the victim's face. Lemay chose not to testify.

[¶ 14] The court gave several relevant instructions to the jury. At the outset the court stated:

[T]here will be one trial but the trial will encompass those eight charges, but ultimately you will be asked to evaluate the evidence and the instructions that I will give you separately and independently with respect to those eight counts and then reach a separate and independent conclusion count by count as to whether or not the State has proven its allegations beyond a reasonable doubt.

The court later instructed the jury:

You must not infer guilt because of the number of charges. You must consider each charge independently. You may find the defendant guilty of all charges, not guilty of all...