State v. Nigro
| Decision Date | 19 July 2011 |
| Docket Number | Docket No. Kno–10–200. |
| Citation | 2011 ME 81,24 A.3d 1283 |
| Parties | STATE of Mainev.Kaihlil T.P. NIGRO. |
| Court | Maine Supreme Court |
OPINION TEXT STARTS HERE
Jeremy Pratt, Esq. (orally), Camden, ME, for Kaihlil T.P. Nigro.Janet T. Mills, Attorney General, Lisa R. Bogue, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, ME, for the State of Maine.Panel: SAUFLEY, C.J., and LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.JABAR, J.
[¶ 1] Kaihlil T.P. Nigro appeals from a judgment of conviction of two counts of aggravated trafficking of scheduled drugs (Class A), 17–A M.R.S. § 1105–A(1)(B)(1) (2010), and an accompanying order for criminal forfeiture, 15 M.R.S. § 5826 (2010), entered in the Superior Court (Knox County, Hjelm, J.) following a jury trial. Nigro contends that he was deprived of a fair trial because the court did not ask prospective jurors whether they harbored prejudice or bias against members of the Islamic faith. Nigro also argues that the court erred in refusing to suppress (1) an out-of-court photographic identification made by a confidential informant, (2) evidence obtained during the execution of a search warrant, and (3) documents seized during his arrest. We affirm the judgment.
[¶ 2] Viewing the evidence in the light most favorable to the court's order on the motion to suppress, and to the jury's verdict, the record supports the following facts. See State v. Lavoie, 2010 ME 76, ¶ 2, 1 A.3d 408, 410.
[¶ 3] On June 25, 2009, a confidential informant working for the Maine Drug Enforcement Agency (MDEA) made a controlled purchase of diazepam pills from Jennifer Marriner in Rockland. Later, in August, Nigro and Jennifer's brother, Skip Marriner, arranged with Jennifer to sell cocaine.
[¶ 4] On August 25, 2009, the informant participated in a controlled purchase of cocaine at Jennifer's residence in Rockland. Jennifer, Skip, and Nigro were all present, although Nigro was introduced to the informant as “Jay.” After meeting with MDEA agents, the informant conducted a second controlled purchase of cocaine at Jennifer's residence later that day. In total, the two controlled purchases of cocaine lasted approximately fourteen minutes.
[¶ 5] Two days after the purchases, MDEA agent Kirk Guerrette met with the informant. At the meeting, the informant was shown two DMV photographs and was asked whether he recognized either of the men depicted. The informant identified the men as Skip Marriner and “Jay,” both of whom had been present during the August 25 purchases. After identifying the men, the informant explained that he suspected the name “Jay” was an alias, and that the person he identified as “Jay” had “a funny last name or funny first name that he couldn't pronounce.” Guerrette then told the informant that “Jay's” real name was Kaihlil Nigro, to which the informant replied, “[that] sounds about right.”
[¶ 6] On August 27, 2009, Guerrette applied for a warrant to search Jennifer's residence. In support of the warrant application, Guerrette attached an affidavit describing the informant's interactions with Nigro and the Marriners. The affidavit explained that the informant, who was hoping to receive prosecutorial consideration on pending charges in exchange for information, “ha[d] proven reliable at least 3–4 times in the past,” and had “provided information which [led] to several felony drug arrests.” Based on Guerrette's affidavit, the District Court (Rockland, Field, J.) issued a search warrant.
[¶ 7] On September 1, 2009, law enforcement executed the search warrant. Guerrette was informed that Skip and Nigro had briefly left Jennifer's residence, and Guerrette attempted to locate them. After spotting Skip and Nigro walking along a nearby street, officers detained both men by blocking the road and placing them in handcuffs. While Guerrette was occupied with Skip, another officer briefly spoke with Nigro, at which time Nigro asked to speak with an attorney.1 Skip and Nigro were transported to Jennifer's residence in a police vehicle, and Guerrette interrogated Nigro in a different vehicle at the residence, after advising Nigro of his Miranda rights.2 See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). During the interrogation, Nigro made incriminating statements and turned over an owner's manual from his pocket, which corresponded to a safe found in Jennifer's residence. That safe, revealed at trial to be Nigro's, contained nearly fifty-eight grams of cocaine, along with other drug paraphernalia. Based on these events, Nigro was indicted on two counts of aggravated trafficking of scheduled drugs (Class A), 17–A M.R.S. § 1105–A(1)(B)(1), and a charge of criminal forfeiture, 15 M.R.S. § 5826.
[¶ 8] After pleading not guilty to all charges, Nigro moved to suppress (1) his statements to the police, arguing that they were obtained in violation of his Miranda rights; (2) evidence gathered from the search of Jennifer's residence, arguing that Guerrette's warrant affidavit did not sufficiently establish probable cause; and (3) the informant's identification of him, arguing that the identification procedure used was unnecessarily suggestive and unreliable.
[¶ 9] In December 2009, after a hearing, the Superior Court ( Hjelm, J.) entered an order granting in part and denying in part Nigro's motion to suppress. The court granted the motion with respect to Nigro's statements to the police, finding that Nigro had invoked his right to counsel. Denying the motion in all other respects, the court found that the affidavit established probable cause to issue the search warrant, and that the informant's identification of Nigro, although made under a suggestive procedure, was nevertheless reliable.
[¶ 10] Jury selection occurred on November 30, 2009. The court conducted voir dire of the jury panel, asking standard questions to discern whether any prospective jurors had connections with law enforcement, potential witnesses, or the attorneys. The court also asked whether any member of the jury panel would “have any difficulty applying th[e] presumption of innocence in this case, the case of State of Maine versus Kaihlil Nigro, involving two counts of aggravated trafficking in cocaine.” 3 Near the conclusion of voir dire, the court posed a final question:
Is there any reason why any of you feel that you could not sit as a fair and impartial juror in the case for reasons other than the reasons I've covered up to this point ... is there anybody who for any other reason feel you could not sit as a fair and impartial [juror] in this case?No juror responded. Before addressing challenges to prospective jurors, the court asked the parties if there was “any additional general voir dire [they] are asking for.” Both attorneys responded, “No.”
[¶ 11] Shortly before trial began, the State filed a motion in limine seeking a ruling that the owner's manual found in Nigro's pocket was admissible. Over Nigro's objection, the court granted the motion, observing that Nigro failed to move for the exclusion of the manual in his original motion to suppress.
[¶ 12] Following a two-day trial in December 2009, the jury found Nigro guilty of both counts of aggravated trafficking of scheduled drugs, and, by agreement of the parties, the court entered a judgment for criminal forfeiture. The court sentenced Nigro to ten years' incarceration for each count, to be served concurrently, with all but seven years suspended, and four years of probation. 4
[¶ 13] Nigro's appeal raises four issues. First, we address whether the court erred by not asking prospective jurors if they harbored anti-Islamic bias. Second, we consider whether the confidential informant's in-court and out-of-court identifications were properly admitted at trial. Third, we examine whether Guerrette's warrant affidavit established probable cause to justify the issuance of a warrant to search Jennifer's residence. Fourth, we decide whether the court erred in allowing the owner's manual found in Nigro's pocket to be admitted in evidence.
[¶ 14] Nigro argues that he was deprived of a fair trial because, during voir dire, the court did not ask potential jurors whether they harbored any anti-Islamic prejudice. Although we generally review a court's management of voir dire for an abuse of discretion, see State v. Holland, 2009 ME 72, ¶ 49, 976 A.2d 227, 241, Nigro failed to raise this issue during jury selection. Thus, our review is limited to obvious error.5 See State v. Burdick, 2001 ME 143, ¶ 29, 782 A.2d 319, 328.
[¶ 15] “The purpose of the voir dire examination is to detect bias and prejudice in prospective jurors, thus ensuring that a defendant will be tried by as fair and impartial a jury as possible.” State v. Lowry, 2003 ME 38, ¶ 7, 819 A.2d 331, 333–34 (quotation marks omitted). Although voir dire questioning must be sufficient to disclose facts that would expose juror bias, id. ¶ 11, 819 A.2d at 334, there is “ ‘no constitutional presumption of juror bias for or against members of any particular racial or ethnic group,’ ” State v. Turner, 495 A.2d 1211, 1212 (Me.1985) (quoting Rosales–Lopez v. United States, 451 U.S. 182, 190, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981)). Rather, it is “[o]nly when there are more substantial indications of the likelihood of racial or ethnic prejudice affecting the jurors in a particular case,” such as when these types of prejudice are “inextricably bound up with the case,” that a trial court is constitutionally required to further examine a juror's impartiality. Turner, 495 A.2d at 1212–13 (quotation marks omitted).
[¶ 16] The voir dire process here, viewed in its entirety, afforded Nigro a fair and impartial jury. Initially, we note that Nigro refers only to his “perceived ethic or religious origin,” based on his ...
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