State v. Penley

• Decision Date: 19 January 2023
• Docket Number: Docket: Oxf-21-400
• Citation: 288 A.3d 1183,2023 ME 7
• Parties: STATE of Maine v. Mark D. PENLEY
• Court: Maine Supreme Court

288 A.3d 1183

2023 ME 7

STATE of Maine

v.Mark D. PENLEY

Docket: Oxf-21-400

Supreme Judicial Court of Maine.

Argued: October 5, 2022

Decided: January 19, 2023

Rory A. McNamara, Esq. (orally), Drake Law LLC, York, for appellant Mark D. Penley

Aaron M. Frey, Attorney General, and Donald W. Macomber, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine

Panel: STANFILL, C.J., and MEAD, JABAR, CONNORS, and LAWRENCE, JJ.

LAWRENCE, J.

[¶1] Mark D. Penley appeals from a judgment of conviction of two counts of intentional or knowing murder, 17-A M.R.S. § 201(1)(A) (2018),¹ entered by the trial court (Oxford County, Warren, J. ) after a jury trial and from his two concurrent life sentences. He challenges the court's admission of evidence that one of the victims was planning to seek a court order of protection from abuse against him in the days before the victims’ deaths; the court's failure to respond to the prosecutor's suggestion, during closing argument, that Penley had a burden of proof; and the court's consideration of domestic violence in determining the basic term of imprisonment for the crimes. We affirm the judgment of conviction but vacate the sentences and remand for resentencing consistent with this opinion.

I. BACKGROUND

[¶2] Viewing the evidence in the light most favorable to the State, the jury rationally could have found the following facts beyond a reasonable doubt. See State v. Gatto , 2020 ME 61, ¶ 16, 232 A.3d 228. On the night of January 1, 2019, Penley went to the apartment of Dana Hill, where he knew his ex-girlfriend, Heather Bickford, was staying, and in the presence of Bickford's two young children,² repeatedly shot Bickford and Hill, causing their deaths.

[¶3] On January 4, 2019, Penley was charged by complaint with two counts of murder, 17-A M.R.S. § 201(1)(A), for the deaths of the two victims. A grand jury indicted him for those charges in February 2019. Penley pleaded not guilty to both charges.

[¶4] Penley moved in limine to exclude testimony from witnesses who had heard from Bickford, shortly before her death, that she feared him and was planning to seek a court order of protection against him. The State moved in limine for the court to admit statements that Bickford had made to others about her fear of Penley and her intention to seek an order of protection from abuse. After a nontestimonial hearing, the court ruled preliminarily that Bickford's statements to others would be admissible to the extent that they were evidence of her existing mental state, intent, or plan, see M.R. Evid. 803(3), but that her reasons for wanting to obtain an order of protection—i.e., her underlying reports of Penley's conduct toward her—would not be admissible.

[¶5] The court held a nine-day trial in October 2021. In addition to other testimony and evidence, the court admitted the following testimony, which Penley challenges on appeal:

• The testimony of Bickford's landlord, a deputy judicial marshal at the Rumford courthouse, that in December 2018 Bickford asked her when the court would be open so that she could obtain a protection order against Penley because she was scared;

• The testimony of Bickford's friend that in late December 2018, Bickford asked her to accompany her to get a protection order, though Bickford did not end up obtaining one because the courthouse was closed;

• The testimony of another friend of Bickford's that on December 28, 2018, he accompanied Bickford to the South Paris courthouse to speak with a law enforcement officer because she had told him she was scared of Penley; and

• The testimony of a police officer that at the courthouse on December 28, Bickford met with him and told him that she feared Penley and was going to obtain a protection from abuse order against him, and that Bickford provided the officer with a description of Penley's vehicle so that the officer could keep a lookout for it while Bickford stayed at Hill's apartment.

[¶6] After the presentation of evidence, the jury heard closing arguments from the parties. Penley's counsel argued, in part, that the State had manipulated evidence:

Now, the last thing ... that I [will] go over with you, ladies and gentlemen, is what I call manipulation of evidence, manipulation of the facts, whether it's to correct the mistakes that have been made, to supplement data. That's happening here and it needs to be pointed out.

Counsel addressed multiple instances of what he characterized as manipulation, including the State's handling of Facebook phone location tracking data, which he described as "putting it in the order that [they] want, manipulation of the evidence, manipulation of what they get from Facebook, correcting the errors that they see."³

[¶7] The State responded with the now-challenged assertion that "it's easy to make an accusation and not have to back it up with evidence." The prosecutor elaborated and argued that Facebook has a financial motivation for ensuring the accuracy of its records and that other evidence, including a surveillance video and receipts found in his vehicle, showed that during the day of the killings Penley was present at locations that were consistent with the locations for his phone compiled by Facebook's phone tracking system. Penley did not object at trial to the prosecutor's arguments.

[¶8] The jury found Penley guilty of both charged crimes. The court held a sentencing hearing on November 23, 2021. The court heard from family members of the victims and considered arguments from both parties before delivering its sentences. The court considered the purposes of sentencing and conducted the requisite two-step sentencing analysis.⁴ See 17-A M.R.S. § 1252-C(1)-(2) (2018) ; State v. Bentley , 2021 ME 39, ¶ 10, 254 A.3d 1171.

[¶9] The court first considered the objective nature and seriousness of the crimes to determine the "basic" term of imprisonment—the first step in the statutory sentencing process. See 17-A M.R.S. § 1252-C(1). The court set the basic term of imprisonment for the crimes at life imprisonment, with the sentences to run concurrently. The court based its determination on several factors indicating that the murders were among the most serious: Penley intended to kill multiple victims, the killings were premeditated, there were signs of domestic violence in both the relationship with Bickford and the committed crimes, and children were present at the scene of the murder. The court then went on at some length about domestic violence:

And on the domestic violence issue, I don't have before me evidence of exactly what happened during the ten-year relationship. That seems to have been an on and off relationship in part, but there was a lot of evidence about the end of that relationship and although ... it's definitely fair to state that there appears to have been a complicated relationship there, because they remained together ... at least to some degree, even after Mr. Penley learned that [the older child] was not his child, by the end ... it had soured to the point where Mr. Penley, based on those Facebook messages, had descended into what I can only describe as viciousness .... And based on some of the testimony at trial he was doing at the end stalking.

I have no reason to know what happened earlier in the relationship but it seems to have been triggered ... at least in part by ... the fact that not only was [Bickford] leaving but the fact she was going to someone else, particularly Mr. Hill, who [Penley] demonstrated, I think it's safe to say, extreme hatred for.

[¶10] In arriving at the basic term of imprisonment for the crimes, the court also compared the facts of this case to two other cases where sentencing courts imposed a basic term of imprisonment of life in prison when children were present at the scene of the crime. See State v. Waterman , 2010 ME 45, ¶ 46, 995 A.2d 243 (holding that placing children close to a scene of violence or murder can contribute to a determination that the murder is among the most serious); State v. Hayden , 2014 ME 31, ¶¶ 4-6, 19, 86 A.3d 1221 (affirming the court's determination of a basic period of incarceration of life in prison when the murder occurred in front of children and involved multiple victims, extreme cruelty, and domestic violence).

[¶11] In the second step, the court examined the mitigating and aggravating factors to determine the maximum sentences. See 17-A M.R.S. § 1252-C(2). In mitigation, the court found that Penley was a productive member of society in that he held down a job and provided for Bickford and the oldest child when they were together and that he was a loving father to the oldest child even after he learned that he was not the child's biological father. As aggravating factors, the court considered Penley's prior misdemeanor convictions, the conscious pain and suffering of Bickford, and the impact on the families of the victims, including the victims’ two children. The court concluded that the aggravating factors outweighed the mitigating factors and imposed two concurrent life sentences. The court also ordered Penley to pay $11,423.63 in restitution to the Victims’ Compensation Fund and statutorily required fees of $70. See 5 M.R.S. § 3360-I (2018).

[¶12] Penley timely appealed from the judgment of conviction and successfully applied to the Sentence Review Panel for appellate review of his sentences after the trial court enlarged the time for him to file the petition for sentence review. See 15 M.R.S. §§ 2115, 2151 - 2152 (2022) ; M.R. App. P. 2B(b)(1), 20(h). We review Penley's sentences as a part of his appeal from the judgment of conviction. See M.R. App. P. 20(h).

II. DISCUSSION

[¶13] Penley argues that the court erred in (A) admitting evidence of Bickford's fear of Penley and intention to obtain a protection order against him, (B) allowing prosecutorial arguments in closing that implied that Penley had a burden of proof, and (C) improperly taking domestic violence into account when setting...