State v. Milliken

• Decision Date: 07 January 2010
• Docket Number: Docket: Sag-08-418
• Citation: 2010 ME 1,985 A.2d 1152
• Parties: STATE of Maine v. Peter A. MILLIKEN.
• Court: Maine Supreme Court

985 A.2d 1152

2010 ME 1

STATE of Maine v. Peter A. MILLIKEN.

Docket: Sag-08-418

Supreme Judicial Court of Maine.

Submitted On Briefs: November 23, 2009.

Decided: January 7, 2010.

Geoffrey A. Rushlau, District Attorney, Patricia A. Mador, Assist. Dist. Atty., Bath, ME, for the State.

Joshua Klein-Golden, Esq., Clifford & Golden, P.A., Lisbon Falls, ME, for Peter S. Milliken.

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

JABAR, J.

[¶ 1] Peter A. Milliken appeals from a judgment of conviction of stealing drugs (Class C), 17-A M.R.S. § 1109(1), (2)(A) (2008), entered in the Superior Court (Sagadahoc County, Horton, J.) following a jury-waived trial. Milliken contends that deficiencies in the trial transcript render the record inadequate for proper appellate review. Milliken also argues that the court's factual findings do not support his conviction. We affirm the judgment.

I. BACKGROUND

[¶ 2] The following facts found by the Superior Court, viewed in the light most favorable to the State, see State v. Bouchard, 2005 ME 106, ¶ 10, 881 A.2d 1130, 1134, are supported in the record. The victim suffers from quadraspastic cerebral palsy. Due to her condition, the victim is confined to a motorized wheelchair and requires in-home medical assistance. The victim is also prescribed Methadone and Valium, which she takes several times per day.

[¶ 3] On the evening of July 23, 2007, the victim was in her apartment in Bath. To allow the victim to self-administer her medication for the night, the victim's personal care assistant left four Methadone pills on the table beside the victim. At some point after 9:00 p.m., the victim awoke to banging on her door, and a young man, later identified as Jeffrey Brochu, entered her apartment. Brochu asked the victim whether she would consider giving or selling him some of her Methadone pills. Although the victim declined, Brochu persisted and repeated his requests for the Methadone pills. Brochu explained to the victim that the Methadone was for a sick friend, who was waiting outside. At some point during the exchange, Brochu's friend, Milliken, entered the victim's residence.

[¶ 4] Brochu, accompanied by Milliken, continued to pressure the victim to sell her Methadone pills. Although the victim repeatedly refused, eventually she relented, and allowed Milliken and Brochu to take two of her Methadone pills. Milliken swallowed one of the pills immediately and stuffed approximately ten dollars into the victim's purse. The Superior Court later found that the victim's acquiescence was not voluntary.

[¶ 5] After the men left, during the early morning hours of July 24, 2007, the victim called her personal care assistant. The personal care assistant went to the victim's apartment, and the victim called the police. Officers Michelle Small and Brett McIntire of the Bath Police Department investigated, and found Milliken and Brochu in Brochu's apartment.

[¶ 6] Milliken was indicted by the Sagadahoc County Grand Jury on one count of robbery (Class B), 17-A M.R.S. § 651(1)(B)(2) (2008),¹ and one count of stealing drugs (Class C), 17-A M.R.S. § 1109(1), (2)(A). Following a two-day bench trial held on July 10 and 16, 2008, the Superior Court acquitted Milliken of the robbery charge, but found him guilty of stealing drugs. The court sentenced Milliken to fifteen months imprisonment, all but ninety days suspended, and one year of probation, and imposed a $400 fine.

[¶ 7] Milliken filed a timely appeal. In securing the transcript for the record, it was discovered that one of the electronic recording tapes used during the trial was missing. The tape contained the full testimony of Milliken and Officers Small and McIntire, as well as portions of the victim's testimony.

[¶ 8] Upon learning of the missing tape, Milliken twice moved this Court to vacate his conviction and remand the matter to the Superior Court for a new trial. By orders dated October 23, 2008, and December 10, 2008, we denied Milliken's motions without prejudice, and instructed the parties to proceed with efforts to create a "statement of the evidence," as authorized by M.R.App. P. 5(d).² In consultation with the Superior Court, Milliken filed a "Statement of Unavailable Transcript," which included his recollection of the missing testimony. Using this material and its own recollection of the proceedings, the court drafted and submitted a proposed statement of evidence to the parties for review. The State did not file an objection. Milliken filed an objection, including three suggested changes, on the ground that portions of the court's statement were "incomplete." Milliken alleged that he was unable to accurately recreate the "incomplete" portions of the court's statement, and requested a new trial. The court incorporated Milliken's three suggested changes, denied Milliken's request for a new trial, and filed the statement of the evidence with the record pursuant to M.R.App. P. 5(d). Thereafter, Milliken renewed his motion for remand and new trial with this Court. Consistent with our order dated July 24, 2009, we consider Milliken's renewed motion along with the merits of his appeal.

II. DISCUSSION

[¶ 9] On appeal, Milliken contends that notwithstanding the statement of the evidence prepared pursuant to M.R.App. P. 5(d), the record is inadequate for appellate review. Milliken also argues that the Superior Court's findings of fact do not support his conviction of stealing drugs.

A. Adequacy of the Record

[¶ 10] Milliken advances two arguments concerning the adequacy of the appellate record. First, Milliken contends that the loss of the electronic recording tape constitutes non-compliance with M.R. Crim P. 27(a) and (c), which automatically warrants vacation of his conviction and a new trial. Second, Milliken argues that the M.R.App. P. 5(d) statement of evidence prepared by the Superior Court is incomplete and inaccurate, and thus does not properly account for the missing portions of the transcript, rendering the record inadequate for appellate review.

[¶ 11] Milliken's first argument— that non-compliance with M.R.Crim. P. 27(a) and (c) warrants automatic vacation of his conviction—is without merit. Pursuant to M.R.Crim. P. 27(a), all proceedings in the Superior Court "shall be electronically recorded or taken down by a court reporter."³ M.R.Crim. P. 27(c) further provides that all recordings and records "shall be retained until the expiration of any sentence that is longer than the retention period provided for" by M.R. Civ. P. 76H(e). In this case, although one electronic tape of the trial is missing, it is undisputed that Milliken's entire trial was recorded, and the remaining tapes were made available. We find no evidence of "non-compliance" with M.R.Crim. P. 27(a) and (c). Instead, M.R.App. P. 5(d), which provides instructions on how missing or incomplete transcripts are handled, addresses this issue. The Superior Court's effort to reconstruct the trial testimony contained on the missing recording tape illustrates the process contemplated by Rule 5(d). See generally Cates v. Donahue, 2007 ME 38, ¶ 2, 916 A.2d 941, 942 (noting an example of proper implementation of M.R.App. P. 5(d)).

[¶ 12] Turning to Milliken's second argument, we begin with the general proposition that an "appellant bears the burden of providing an adequate record upon which the reviewing court can consider the arguments on appeal." Springer v. Springer, 2009 ME 118, ¶ 2, 984 A.2d 828, 829. Consequently, when the record made available to support an appeal is inadequate, we assume that sufficient evidence exists to support the trial court's factual findings. Id. ¶ 8, 984 A.2d 828; Alley v. Alley, 2002 ME 162, ¶ 2, 809 A.2d 1262, 1262. This rule applies to both civil and criminal appeals. State v. Thwing, 487 A.2d 260, 262 (Me.1985).

[¶ 13] Nevertheless, where transcripts are unavailable through no fault of the appellant, we have not applied the general rule. See, e.g., State v. Dickinson, 662 A.2d 202, 204 (Me.1995). Indeed, "[w]e have recognized that the inability of a party to obtain a transcript may be a proper basis for vacating a judgment." Putnam v. Albee, 1999 ME 44, ¶ 8, 726 A.2d 217, 219 (citing Dickinson). In Dickinson, we vacated a defendant's sentence because, due to the loss of the court reporter's notes of the sentencing hearing, the record was inadequate for appellate review. 662 A.2d at 203. Although the State argued that the defendant's failure to prepare a record pursuant to M.R.Crim. P. 39(b)⁴ precluded his appeal, we disagreed, reasoning that the defendant would have to reconstruct the entire hearing. Id. at 204. Moreover, because the defendant's attorney, usually essential in reconstructing the record, had been accused of providing ineffective assistance at sentencing, we concluded that "the absence of a transcript in the circumstances of this case" rendered the record inadequate for appellate review. Id.

[¶ 14] Dickinson, however, is distinguishable from the instant case. Whereas in Dickinson the entire transcript was unavailable, here only a portion of the transcript is missing. Although our case law does not squarely account for the circumstances presented in this case, there is a significant body of federal precedent addressing this issue.

[¶ 15] Pursuant to federal constitutional standards, the mere unavailability of a complete transcript on appeal offends neither due process nor equal protection. See Bundy v. Wilson, 815 F.2d 125, 135-36 (1st Cir.1987); Bransford v. Brown, 806 F.2d 83, 85-86 (6th Cir.1986); see also United States v. Cashwell, 950 F.2d 699, 703 (11th Cir.1992) ("A reconstructed record, as opposed to a verbatim transcript, can accord effective appellate review, particularly where appellate rules have established a procedure for reconstruction of the trial record."). Rather, to demonstrate denial of a fair appeal, an appellant must show prejudice resulting from the absence of the...