State v. Tomah

• Decision Date: 12 July 1999
• Parties: STATE of Maine v. Leroy P. TOMAH Jr.
• Court: Maine Supreme Court

736 A.2d 1047

1999 ME 109

STATE of Maine v. Leroy P. TOMAH Jr.

Supreme Judicial Court of Maine.

Argued April 6, 1999.

Decided July 12, 1999.

Andrew Ketterer, Attorney General, Fernand R. LaRochelle, Asst. Atty. Gen., Donald Macomber, Asst. Atty. Gen. (orally), Augusta, for the State.

Paul F. Macri (orally), Berman & Simmons, Lewiston, for the defendant.

Before WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and CALKINS, JJ.

CLIFFORD, J.

[¶ 1] Leroy P. Tomah Jr. appeals from the judgments entered in the Superior Court (Androscoggin County, Delahanty, J.) following a jury trial at which he was found guilty of murder in violation of 17-A M.R.S.A. § 201(1)(A) (1983)¹ and robbery (Class A) in violation of 17-A M.R.S.A. § 651(1)(E) (1983).² Tomah contends that the trial court erred (1) in excluding as hearsay the written report of an expert regarding blood spatter patterns; (2) in instructing the jury on manslaughter and refusing to instruct the jury on duress; and (3) in several of its other evidentiary rulings. Finding no error or abuse of discretion, we affirm the judgments.

[¶ 2] Tomah was tried together with Brad Chesnel for the murder and robbery of Michael Allen. Allen was brutally beaten and his vehicle and other property were taken.³ Tomah's version of the murder and the robbery was very different from the version to which Chesnel testified. According to Tomah, he and Chesnel went to a Lewiston motel, where Chesnel arranged to have his friend, Allen, join them. Allen, who had been a Maine State Lottery Megabucks winner, had frequently paid Chesnel for sex, or paid Chesnel to find other males with whom to perform sexual acts. In the motel room, Chesnel appeared to be ingesting cocaine while apparently preparing to engage in sex with Allen. Chesnel then suddenly attacked Allen with a sledgehammer, and continued to beat him. Tomah said that he was present in the motel room, but was not involved in the beating. Following the beating, Chesnel cleaned up some of the blood, and took Allen's rings, his keys, and other belongings. According to Tomah, Chesnel told Tomah that he had to go with him because the motel room was registered in Tomah's name and the police would be looking for him. Tomah explained that he went with Chesnel because he was afraid Chesnel would kill him too.

[¶ 3] Chesnel drove Allen's truck to Old Orchard Beach, where he abandoned it. Chesnel disposed of the weapon and the pillowcase that contained Allen's belongings, and they rented motel rooms, first in Old Orchard Beach, and then in Portland, with Chesnel paying for the rooms. The next day Tomah and Chesnel left by bus for California. After a few days in California, Tomah called authorities in Maine and turned himself in. Initially Tomah told authorities that he was not present in the motel room. He later admitted to police that he was present and observed the beating.

[¶ 4] Chesnel testified to a much different version of the events in this case. According to Chesnel, prior to going to the motel, Chesnel made arrangements for Allen to have a sexual encounter with Tomah. Tomah had asked him "to set him up" with Allen because he needed money to pay his rent. Chesnel told Allen he would call him when they were settled in the motel room. When Tomah and Chesnel arrived at the motel room, Tomah, who had been drinking alcohol that afternoon, continued to drink to try to relax for the sexual encounter. When Tomah told Chesnel he was ready, Chesnel walked to a nearby store to call Allen. Chesnel was expecting to get paid $50 for arranging the encounter and also was hoping to borrow some additional money from Allen so he could leave the State. Upon Allen's arrival, because Tomah was still not relaxed, Allen gave both Tomah and Chesnel cocaine. Tomah took his shirt and pants off and laid them on the bed. Chesnel wanted Allen and Tomah to have some time alone together, so he decided to walk to the store to purchase more beer.

[¶ 5] Because he forgot his identification, Chesnel had to return to the motel room. When he got to the door, he heard screaming. He opened the door and saw blood on the bed and saw Tomah "kneeing" Allen in the face. Tomah told Chesnel that "he couldn't handle it." Chesnel got towels from the bathroom to try to clean the blood. Tomah continued to strike Allen because Allen was "making loud noises." Tomah stepped on Allen's throat then took a crow bar and struck Allen in the head. Tomah told Chesnel to take Allen's rings, keys, and identification and go outside to start Allen's truck.

[¶ 6] Chesnel and Tomah were tried together in Superior Court on charges of murder and robbery. The jury found both men guilty on both counts. Chesnel was sentenced to life in prison. Tomah received a prison sentence of forty-seven years on the murder charge and a concurrent sentence of twenty-seven years for robbery. This appeal by Tomah followed.

I.

[¶ 7] Tomah first contends that the court erred in refusing to admit in evidence a forensic report of Dr. Marilyn T. Miller, an expert on blood spatter patterns. Tomah retained Dr. Miller to corroborate his defense "that he had nothing to do with the murder, that he sat, mesmerized, in a chair in the hotel room and watched Brad Chesnel beat Michael Allen to death." The report concludes that the fact that there was considerably less blood on the pants worn by Tomah than on the pants worn by Chesnel is supportive of Tomah's version of the events, that Chesnel was responsible for the brutal murder of Allen, and that Tomah was a mere observer. Before the beginning of the fourth day of trial, Tomah's attorney informed the trial court that Dr. Miller, whom Tomah had scheduled to testify, "had a better offer from an attorney in New York City" and that she decided to appear in a court case in New York instead of attending Tomah's trial, at least at the time she was scheduled to testify. Tomah moved to continue the trial until the following Friday when Dr. Miller said she could be available. Tomah also moved for the admission of Dr. Miller's written report as an exception to the hearsay rule because of Dr. Miller's unavailability. The trial court denied both motions:⁴

Even though [Dr. Miller] is unavailable, I don't think the report falls within the exception to the hearsay rule as it is intended, in addition to the fact that an expert opinion like this should not be admitted into evidence without the opportunity of cross-examination and for any theories to be put to the test.

In denying the motion to continue, the court noted the late date on which the report was filed. Tomah contends that Dr. Miller's report should have been admitted pursuant to the business record exception to the hearsay rule. We review a trial court's decision to exclude evidence for an abuse of discretion or clear error. See State v. MacDonald, 1998 ME 212, ¶ 7, 718 A.2d 195, 198

.

[¶ 8] "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." M.R. Evid. 801(c). Either written or oral statements can fall within the definition of hearsay. See M.R. Evid. 801(a). Because it is a written statement made outside of the courtroom prior to trial that Tomah sought to offer in evidence to prove the truth of its contents, and to support its conclusion that the blood spatter patterns illustrate that Tomah did not participate in the beating, Dr. Miller's report falls within the definition of hearsay. See M.R. Evid. 801(c).

[¶ 9] Evidence that is otherwise hearsay can still qualify for admission pursuant to an exception to the hearsay rule. See M.R. Evid. 803. A record of regularly conducted business is one of those recognized exceptions. See M.R. Evid. 803(6).⁵ Properly authenticated business records are admissible pursuant to Rule 803(6) as an exception to the hearsay rule because they are thought to be sufficiently trustworthy if it is demonstrated that they are kept in the regular course of a business or profession, separate and distinct from any advocacy needs or pressures that may arise from litigation and affect accuracy or trustworthiness.⁶ "The reliability of the records is thought to rest on the systematic businesslike way they are kept." Field & Murray, Maine Evidence § 803.6 at 433 (4th ed.1997).

[¶ 10] Forensic expert reports are the antitheses of the business records meant to be addressed by Rule 803(6). They are advocacy reports, expressly prepared for litigation to support one party to the litigation. Although the preparation of such a record is in the course of the expert's business of advocacy support, the preparation is not routine and the record is not of the type that is contemplated by the business records exception to the hearsay rule set out in Rule 803(6). Indeed, that it is prepared in anticipation of litigation is a common reason for a finding that a report lacks trustworthiness. See State v. Therriault, 485 A.2d 986, 996 (Me.1984)

.

[¶ 11] Tomah, however, relies on Therriault, contending that Therriault stands for the proposition that reports of absent experts are admissible as business records. We disagree. In Therriault, the defendant was tried twice.⁷ At the first trial, a forensic report, that was prepared by a State Examiner at the State Police Crime Laboratory and that noted the physical results of a visual observation, chemical test, and microscopic examination, was offered by the defense and admitted without the State's objection. See id. at 991. Apparently, neither side thought it important to question the author about the report at the first trial. Subsequent to the first trial, the individual who prepared the report died, and the State successfully objected to the use of the report at the second trial. We vacated the conviction based on the exclusion of the State Crime Lab Report. See id. at 997.

[¶ 12] Our reliance on Rule 803(6) in Therriault was based on the...