State v. Thongsavanh

• Decision Date: 30 January 2007
• Citation: 915 A.2d 421,2007 ME 20
• Parties: STATE of Maine v. Brandon THONGSAVANH.
• Court: Maine Supreme Court

915 A.2d 421

2007 ME 20

STATE of Maine v. Brandon THONGSAVANH.

Supreme Judicial Court of Maine.

Argued: September 20, 2006.

Decided: January 30, 2007.

G. Steven Rowe, Attorney General, Donald W. Macomber, Asst. Atty. Gen. (orally), Lisa P. Marchese, Asst. Atty. Gen., Lara M. Nomani, Asst. Atty. Gen., Augusta, for State.

Scott J. Lynch, Esq. (orally), David J. Van Dyke, Esq., Hornblower Lynch Rabasco & Van Dyke, P.A., Lewiston, for defendant.

Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, and SILVER, JJ.

SAUFLEY, C.J.

[¶ 1] Maine juries have twice convicted Brandon Thongsavanh of murder, 17-A M.R.S.A. § 201 (1983 & Supp.2002),¹ for causing the death of Morgan McDuffee. We vacated the first conviction because the State was allowed to introduce unfairly prejudicial evidence at trial. See State v. Thongsavanh, 2004 ME 126, 861 A.2d 39. The second conviction, entered in the Superior Court (Cumberland County, Gorman, J.), is now before us. Thongsavanh argues that the court erred in failing to interpret the depraved indifference murder statute to require that the court give a jury instruction on criminally negligent manslaughter, 17-A M.R.S.A. § 203(1)(A) (Supp.2002),² and in declining to instruct on manslaughter as a lesser-included offense. He also asserts that the depraved indifference murder statute, 17-A M.R.S.A. § 201(1)(B) (1983), is unconstitutionally vague as applied in his case. Thongsavanh also appeals from his sentence of fifty-eight years of imprisonment, arguing that the sentence is excessive.

[¶ 2] We unanimously conclude that a criminally negligent manslaughter instruction is not required by statute every time the State charges depraved indifference murder, that the depraved indifference murder statute is not unconstitutionally vague as applied, and that the court did not misapply principle or abuse its discretion in imposing the sentence. We are evenly divided on the question of whether the trial evidence generated a jury instruction on manslaughter as a lesser-included offense. Accordingly, we affirm the judgment of conviction and the sentence.

I. BACKGROUND

[¶ 3] The following facts, taken from the record of the second trial, are relevant to the issues raised on this appeal.

[¶ 4] On the night of March 2, 2002, Thongsavanh left his Lewiston apartment in the vehicle of a friend, Nick Barajas, sometime between 7:30 and 8:00 P.M. They picked up Nate Tao and one other man. The men attended a party at the apartment of Melissa Ramos. Throughout the party, Tao, Barajas, and Thongsavanh went out to Barajas's vehicle to get beer. At some point, Thongsavanh started playing with a folding knife that had been in Barajas's vehicle.

[¶ 5] Barajas, Thongsavanh, and Tao next went to their acquaintance Justin Asselin's apartment. They arrived at around 2:00 A.M., and they continued to drink. After about a half-hour, an acquaintance named Chad Aube came in to say there was a party (or a fight, according to some testimony) underway. The men left Asselin's apartment. Barajas drove by a fight that was underway on Main Street in Lewiston. He stopped his vehicle and he, Thongsavanh, and Tao all got out and entered the fray.

[¶ 6] Here, the stories diverge. According to Tao, Aube was fighting with McDuffee when Thongsavanh arrived. Thongsavanh pulled McDuffee off Aube and McDuffee punched Thongsavanh in the face. Thongsavanh then put his arms out with Barajas's knife in his hand and stabbed McDuffee in the back and chest several times.

[¶ 7] Aube testified that he was exchanging blows with McDuffee. He had just punched McDuffee in the face when Thongsavanh intervened and began fighting with McDuffee. Aube did not see a knife and thought Thongsavanh was punching McDuffee. Aube saw Thongsavanh pick McDuffee up from underneath and punch him twice in the abdomen.

[¶ 8] Another witness, Mike Levesque, testified that he saw Aube fighting with McDuffee when Thongsavanh arrived. According to Levesque, someone punched Thongsavanh in the face and Levesque began to fight that person. Meanwhile, Levesque saw Thongsavanh begin fighting with someone else, but he could not identify the man as being the same person Aube had initially been fighting. Levesque saw Thongsavanh punch the man in the back and possibly wrap himself around the man.

[¶ 9] According to Thongsavanh's testimony, Aube had just struck a man when Thongsavanh arrived, and Thongsavanh caught the man as he fell. Thongsavanh punched the man in the face, after which an unknown individual hit him in the head and he saw stars. He dropped the man he was holding and put his hands up to his face. Aube and Levesque then cornered the person who had hit Thongsavanh. According to Thongsavanh, the events happened quickly and ended when someone screamed that the police were coming. He testified that he did not stab McDuffee and that he did not know who did.

[¶ 10] A woman who had been walking with McDuffee testified that she did not see what happened to him. On cross-examination, however, it was disclosed that she had previously testified that she had spoken with a Bates College security officer and may have identified an individual in a gray hooded sweatshirt. The Bates officer testified at trial that one or more of the Bates students had described a man in a gray hooded sweatshirt as being the person who had "slashed" McDuffee. However, the officer could not identify which student had made that comment, and he "ha[d] no idea" whether whichever student reported the information had personally seen the sweatshirt.³

[¶ 11] After McDuffee's fiancée yelled that she had called the police, the crowd dispersed. McDuffee was taken to a hospital by ambulance but did not survive. He had suffered five stab wounds, one of which, independently, would have been fatal because it had nicked his lung and entered his heart. That wound was five to six inches deep. Although it could not be determined if the wounds had been inflicted by one knife, if there had been only one knife, the blade likely would have measured five to six inches in length.

[¶ 12] After the stabbing, many of the people who had attended Justin Asselin's party returned to his apartment. Barajas, Tao, and Thongsavanh returned soon after Aube. During the ride to Justin Asselin's, Tao rode in the back seat, with Barajas driving and Thongsavanh in the front seat. Tao saw Thongsavanh wipe something on his pants, though he could not see what. According to Tao, Tao said, "You killed that kid," and Thongsavanh said nothing.

[¶ 13] When Thongsavanh arrived at Justin Asselin's apartment, he immediately went into the bathroom, accompanied by a friend named Jamie Asselin⁴ who was already at the apartment and had not been present at the fight. Thongsavanh was in the bathroom for fifteen minutes to a half-hour. For some period of time, the water was running in the bathroom. During part of the time, Levesque was also in the bathroom. According to Levesque's testimony he asked Thongsavanh about the stabbing, and Thongsavanh said he had better not go down for it.

[¶ 14] Thongsavanh testified that the water was on when he entered the bathroom and that when Jamie Asselin repeatedly asked him what had happened, he said he did not know. According to Thongsavanh, Levesque came in and was drunk, pacing, and mumbling incoherently to himself.

[¶ 15] Soon, Thongsavanh left with Tao and Barajas, who dropped him off at Ramos's apartment. After fifteen minutes there, Ramos's boyfriend drove Thongsavanh home. Thongsavanh testified that he entered his apartment, took off his clothes, put them in the laundry, and went to sleep. When he awoke, his girlfriend was doing laundry. He shaved his head. His clothing from the night of the stabbing was never recovered, despite a complete search of Justin Asselin's apartment and Thongsavanh's apartment.

[¶ 16] A grand jury indicted Thongsavanh for both intentional or knowing murder, 17-A M.R.S.A. § 201(1)(A) (1983), and depraved indifference murder, 17-A M.R.S.A. § 201(1)(B). His first jury trial resulted in a murder conviction, which we vacated because the State had been allowed to introduce unfairly prejudicial evidence at trial. See Thongsavanh, 2004 ME 126, ¶¶ 8-10, 861 A.2d at 42.

[¶ 17] At the second trial, after Thongsavanh testified, counsel for Thongsavanh requested a jury instruction on manslaughter, which the court had delivered to the jury in the first trial. He argued that, given the confusion during the brawl on Main Street, it was possible that Thongsavanh took the knife from the vehicle and rushed into the crowd without any deliberate intent to kill anybody. He argued that there was no evidence of motive and that Thongsavanh's own testimony did not preclude the jury from believing the testimony of others, or from finding that another knife was involved.

[¶ 18] The State argued that because McDuffee suffered five separate stab wounds, a manslaughter instruction was not generated.

[¶ 19] The court declined to give the jury instruction because it concluded that there was no rational basis for finding Thongsavanh guilty of manslaughter. The court reasoned that the evidence did not support Thongsavanh's theories of manslaughter. At the end of the trial, the jury found Thongsavanh guilty of murder.

[¶ 20] Thongsavanh moved for a new trial. First, he argued that 17-A M.R.S.A. § 201(1)(B), the depraved indifference murder statute, was unconstitutionally vague as applied in his case. Second, he argued (for the first time) that 17-A M.R.S.A. § 201(1-A) (Supp.2002) requires a criminally negligent manslaughter instruction every time that depraved indifference murder is charged. The court denied Thongsavanh's motion for a new trial.

[¶ 21] The court received sentencing memoranda and a presentence investigation report before sentencing Thongsavanh. The State argued for a basic sentence of fifty years and a final sentence of sixty years, taking into account the aggravating and...