State v. Pelletier, Docket: Oxf-18-421

• Decision Date: 16 July 2019
• Docket Number: Docket: Oxf-18-421
• Citation: 212 A.3d 325
• Parties: STATE of Maine v. Zachariah J. PELLETIER
• Court: Maine Supreme Court

212 A.3d 325

STATE of Maine

v.Zachariah J. PELLETIER

Docket: Oxf-18-421

Supreme Judicial Court of Maine.

Argued: May 16, 2019

Decided: July 16, 2019

Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant Zachariah J. Pelletier

Andrew S. Robinson, District Attorney, and Joseph M. O'Connor, Asst. Dist. Atty. (orally), Office of the District Attorney, South Paris, for appellee State of Maine

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

MEAD, J.

[¶1] Zachariah J. Pelletier appeals from a judgment of conviction entered by the trial court (Oxford County, Clifford, J. ) upon guilty verdicts returned by the jury on the offenses of eluding an officer (Class C), 29-A M.R.S. § 2414(3) (2018) ; driving to endanger (Class E), 29-A M.R.S. § 2413(1) (2018) ; criminal speeding (Class E), 29-A M.R.S. § 2074(3) (2018) ; and operating after suspension (Class E), 29-A M.R.S. § 2412-A(1-A)(A) (2018). Pelletier argues that the court erred by interfering with the State's discretion in deciding whether to dismiss the case and by admitting in evidence a photograph taken at the time of his arrest. We affirm the judgment.

I. BACKGROUND

[¶2] "Viewing the evidence in the light most favorable to the State, the jury could rationally have found the following facts beyond a reasonable doubt." State v. Anderson , 2016 ME 183, ¶ 2, 152 A.3d 623 (quotation marks omitted). On July 11, 2017, a patrol sergeant with the Oxford Police Department observed a vehicle travelling in excess of the posted speed limit. The officer had a clear view of the driver as the vehicle passed; he identified the driver as a male in his twenties with short, dark hair. The officer activated his blue lights, but the driver increased his speed. The officer pursued the vehicle, reaching speeds approaching 110 miles per hour. After the officer was close enough to get the driver's license plate number, he discontinued the pursuit.

[¶3] The officer went to the address listed on the vehicle's registration and learned from the registered owner that her daughter was in possession of the vehicle in question. The owner further told the officer that the daughter lived with her boyfriend, Zachariah Pelletier, and provided the officer with their address. The street address that the owner provided to him led the officer to a booking photograph of Pelletier taken several weeks earlier, and he identified the person in the photograph as the driver. The officer obtained a warrant for Pelletier's arrest. Upon Pelletier's arrest several months later, a second booking photo of him was taken.

[¶4] In December, Pelletier was charged by indictment with eluding an officer (Class C), 29-A M.R.S. § 2414(3) ; driving to endanger (Class E), 29-A M.R.S. § 2413(1) ; criminal speeding (Class E), 29-A M.R.S. § 2074(3) ; operating after suspension (Class E), 29-A M.R.S. § 2412-A(1-A)(A) ; and violation of condition of release (Class E), 15 M.R.S. § 1092(1)(A) (2018).

[¶5] Before trial, Pelletier filed a motion in limine seeking to exclude from evidence the photograph that the officer had used to identify Pelletier as the driver of the vehicle that had eluded him, arguing that it was evident that the image was a booking photo and would therefore create an unfairly negative inference regarding his culpability. A pretrial conference was held on the motion at which the State disagreed that the photograph was obviously a booking photograph because the height chart, numbers, and name plate had been removed from the photograph. The photograph included only a "head and shoulders" image of Pelletier in front of a painted cinderblock wall. The court determined that identification was the main issue in the case and therefore the photograph should be admitted. However, the court also ordered that the photograph was not to be referred to as a booking photograph in front of the jury.

[¶6] The parties then proceeded to discuss the second photograph, which was taken at the time of Pelletier's arrest for the charges at issue in the trial. Pelletier asserted that it was inevitable that the jury would understand that the second photograph was a booking photograph because of when it was taken. He argued that the second photograph should not be admitted because it was not used for identification purposes and had no probative value. He argued further that because the two photographs were so similar—"strikingly similar" as the court put it on multiple occasions—if the jury knew that the second photograph was a booking photograph, it would inevitably make the inferential leap to conclude that the first photograph was also a booking photograph, which would be unduly prejudicial. The court ruled that the second photograph would be admitted in evidence because Pelletier's defense questioned the officer's identification of him—the first photograph is what the officer relied on in identifying the driver, and the second photograph, which documents the appearance of the individual actually arrested by the officer, confirms the officer's identification of Pelletier as the driver.¹

[¶7] The court held a one-day jury trial in July 2018. At trial, despite direct instructions from the prosecution not to describe the photo as a booking photo, the officer testified that the State's first exhibit was "an in-house booking picture from the Oxford County jail." Pelletier's counsel objected, stating that there had been "an extensive discussion about the first picture. It was not to be referred to as a booking photo." Pelletier asked for a curative instruction, which the court gave to the jury. On cross-examination, the officer admitted that he had incorrectly stated the vehicle's registration number on direct examination and in his initial report.

[¶8] After the officer's testimony, the prosecutor requested a bench conference. The following colloquy took place out of the presence of the jury.

Defense: Did you rest?

State: No.

The court: He has not rested.

State: However, Your Honor, if I do rest now and if counsel makes a motion for acquittal, I won't object. That was just—

Defense: I make a motion for acquittal, Your Honor.

State: I rest. Now she makes a motion for acquittal.

The court: Okay. I have to view this in the light most favorable to the [S]tate.

State: So do I.

The court: I deny the motion for judgment of acquittal.

Defense: You're denying what?

The court: I'm denying [ ] the motion for judgment of acquittal—

Defense: Okay.

The court: —on both Counts 1, 2, 3, 4, and 5. Okay. So where are we at now?

State: Well, I think I'm going to dismiss the case, Your Honor. That was just totally—I mean first of all, when he—I told those guys every which way don't talk about booking photos, don't talk about the booking photos. I gave them a handout with bold underlined italic saying don't talk about booking photos. He did it. So that was strike one. Now I think he's up to about strike five or six. I just—no.

The court: So—

State: I mean the registration—I don't know how I can argue that.

The court: Well, it's a mistake in administration, but it's—can't they infer it's the same car?

Defense: Well, I think [the prosecutor] has indicated he is going to dismiss.

The court: That's fine.

State: Well— The court: It's up to the [S]tate. I don't think he has to dismiss and I would not—

State: Well, I tell you what, I'll see it through, but I'm kind of disgusted.

The court: No, that's up to you.

State: I'll call [the State's next witness] and see what he has to say.

The court: Do you want to take a break for lunch and think about it?

State: Yes.

The court: Okay. So we'll excuse them until 1:15 and then—you know, it's—it's your case, it's your—

State: I know.

The court: But I would—I don't think that's—I don't think that's fatal in the sense that he has identified the defendant, he's got—he's got the number wrong on the plate, but that's—otherwise it's the same vehicle.

State: Well, this is true.

Defense: But the only way he had it was through an error in a plate number that was erroneously given somehow, I don't know.

State: You know, when I listened, when I first watched the video, I listened to the video, I thought the number that he called in was not the same as the number in the report, and I—the audio was so bad, I just—

Defense: It was bad.

The court: Okay. So we'll take—we're going to recess and reconvene at 1:15.

State: Thank you.

[¶9] After the recess, the prosecutor proceeded with the State's case-in-chief by calling the State's next witness, and the trial resumed. The jury found Pelletier guilty of Count 1, eluding an officer; Count 2, driving to endanger; and Count 3, criminal speeding. By agreement, the court decided Counts 4 and 5, and it found Pelletier guilty of Count 4, operating after suspension, and not guilty of Count 5, violation of condition of release. The court sentenced him to five years' incarceration, all but forty months suspended, and two years' probation on Count 1; a $575 fine and a 30-day loss of license on Count 2; a $500 fine on Count 3; and a $250 fine on Count 4. Pelletier timely appealed from the judgment of conviction, see 15 M.R.S. § 2115 (2018) ; M.R. App. P. 2B(b)(1), arguing that the court erred by (1) interjecting its opinion that the State should not dismiss its case after the State announced that it planned to do so and (2) admitting the second booking photograph in evidence.

II. DISCUSSION

A. Judicial Interference

[¶10] Pelletier argues that, when the court interjected its opinion about whether the State should dismiss the case against Pelletier, the court interfered with the executive branch's authority to prosecute crimes, and thereby violated the doctrine of the separation of powers. See Me. Const. art. III, § 2. Because Pelletier did not object to what he now alleges was error, we review for obvious error. See M.R. Crim. P. 52(b) ; see also State v. Spearin , 477 A.2d 1147, 1156 (Me. 1984). "For an error or defect to be obvious for purposes of Rule 52(b), there must be (1) an error, (2) that is...