State v. Wai Chan, Docket: Aro-19-203

• Court: Supreme Judicial Court of Maine (US)
• Writing for the Court: HORTON, J.
• Citation: 236 A.3d 471
• Parties: STATE of Maine v. WAI CHAN
• Docket Number: Docket: Aro-19-203
• Decision Date: 18 June 2020

236 A.3d 471

STATE of Maine
v.
WAI CHAN

Docket: Aro-19-203

Supreme Judicial Court of Maine.

Submitted On Briefs: April 14, 2020
Decided: June 18, 2020

236 A.3d 474

Rory A. McNamara, Esq., Drake Law, LLC, Berwick, for appellant Wai Chan

Todd R. Collins, District Attorney, Prosecutorial District #8, Caribou, for appellee State of Maine

Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

Majority: MEAD, GORMAN, HUMPHREY, and HORTON, JJ.

Concurrence: CONNORS and JABAR, JJ.

HORTON, J.

¶1] Wai Chan appeals from a judgment of conviction entered by the trial court (Aroostook County, Stewart, J. ) after a jury found him guilty of burglary (Class B), 17-A M.R.S. § 401(1)(B)(4) (2020), and theft by unauthorized taking or transfer (Class C), 17-A M.R.S. § 353(1)(B)(4) (2020). He argues that the trial court erred when it denied his motion to suppress portions of a surveillance video recording, where other portions of the recording were not preserved. He also contends that although he did not object, the court committed obvious error by failing to intervene after several of the prosecutor's comments made during the State's closing argument. We affirm the judgment.

I. BACKGROUND

[¶2] Viewing the evidence admitted at trial in the light most favorable to the State, the jury could have found the following facts beyond a reasonable doubt. See State v. Bethea , 2019 ME 169, ¶ 2, 221 A.3d 563. During the afternoon of September 3, 2017, while the victims were at work, Chan drove to their home in Caribou. Although he knew that he was not licensed or privileged to do so, he entered the residence through the locked front door using a key that was hidden in an unlocked entryway. Once inside, he gathered some of the victims' property, including a laptop computer, an electric shaver, a backpack, and cash. He carried the property to his vehicle, placed it inside, and drove away. The value of the property exceeded $1,000.

[¶3] Chan was familiar with the victims and their work schedules, as well as the residence and the location of the hidden key, because he had previously lived with the victims at the residence and worked with them at a restaurant. He had also helped one of the victims pick out the laptop computer and had accompanied the victim to the store to purchase it. About two weeks before the burglary and theft occurred, he had ended his employment at the restaurant and moved out of the residence.

[¶4] By complaint, and then by indictment, the State charged Chan with one count of burglary (Class B), 17-A M.R.S. § 401(1)(B)(4), and one count of theft (Class B), 17-A M.R.S. § 353(1)(B)(1) (2020). After Chan pleaded not guilty to both charges, he moved to suppress two surveillance video recordings that the police had obtained. He argued that the recordings

[236 A.3d 475

were excerpts from a longer recording and that the State's failure to preserve the full recording violated his due process rights.¹ The court held a suppression hearing and then denied Chan's motion.

¶5] The court's order denying the motion included the following findings, which are supported by competent evidence in the suppression record. See State v. McNaughton , 2017 ME 173, ¶ 10, 168 A.3d 807. After the burglary and theft were reported to the police, an officer contacted a convenience store located across the road from the victims' home to inquire whether the store had surveillance footage of the area. The store manager told the officer that the store did have a surveillance camera facing in the direction of the victims' home. The officer asked the store manager to review the recordings for the day in question "from morning (8 a.m.) until dark" and "to look for anything unusual, or anyone coming and going at unusual times."

[¶6] The store manager assigned the task to an employee, instructing the employee "to watch the video for the entire day, and to record ... all times when someone was seen coming or going from the house across the street."² The employee watched the video and identified three specific times for the store manager: first, 9:40 a.m., when people left the home; second, shortly after 2:00 p.m., when a person parked a car in the driveway and entered the home; and third, shortly after 4:00 p.m., when a person left the home, walked to the parked car while carrying things, and drove away.

[¶7] The store manager placed two separate video clips onto a data storage device—one showing the activity around 2:00 p.m., and the other showing the activity around 4:00 p.m.—and provided the device to the officer. The officer did not ask anyone who worked at the store to preserve any recordings or to provide any additional recordings. As the store's surveillance system accumulated new data, it automatically recorded over any data that had not been specifically preserved. At some point, all of the store's surveillance video data from September 3, 2017, was written over and lost.³

[¶8] Applying the legal standards we have set forth in, for example, State v. Cote , 2015 ME 78, ¶ 15, 118 A.3d 805, the court concluded that the State's failure to obtain or preserve other portions of the store's surveillance video recordings did not constitute a violation of Chan's due process rights. In reaching its conclusion, the court found that Chan had not met his burden to demonstrate either (1) that it was apparent that any unpreserved portions of the recordings had exculpatory value, or (2) that the State acted in bad faith in failing to preserve the remainder of the store's recording from the day in question.

[¶9] The court held a two-day jury trial in April 2019. Among other instructions that it gave before closing arguments, the court instructed the jury that statements by the attorneys, including closing arguments, were not evidence. The court also explained the presumption of innocence

[236 A.3d 476

and the State's burden of proof beyond a reasonable doubt, and instructed the jury that Chan had no burden to present any evidence or to prove anything.⁴

¶10] During Chan's closing argument, he suggested that he was a scapegoat and that someone else who worked at the restaurant must have known about and stolen the money. In response, during the State's rebuttal closing argument, the prosecutor suggested that Chan's theories were inconsistent with the evidence that had been admitted and commented on the lack of evidence to support them. Chan did not object to any part of the State's closing argument.

[¶11] The jury returned guilty verdicts on the burglary and theft counts, and found that the value of the stolen property was more than $1,000 but not more than $10,000.⁵ The court sentenced Chan to three years in prison on the burglary count, and two years in prison, concurrent, on the theft count.⁶ The court also imposed $1,000 in restitution for the benefit of the victims and $70 in surcharges. The court entered a judgment on the verdict. Chan timely appeals.⁷ See 15 M.R.S. § 2115 (2020) ; M.R. App. P. 2B(b)(1).

II. DISCUSSION

[¶12] Chan argues that the trial court erred when it denied his motion to suppress the preserved surveillance recordings, and that the prosecutor's comments during the State's closing argument constituted misconduct requiring a new trial. We address his arguments in turn.

A. Unpreserved Evidence

[¶13] When reviewing the denial of a motion to suppress evidence, we review the trial court's factual findings for clear error and its legal conclusions de novo. Cote , 2015 ME 78, ¶ 9, 118 A.3d 805. We "will uphold the court's denial of a motion to suppress if any reasonable view of the evidence supports the trial court's decision." State v. Diana , 2014 ME 45, ¶ 11, 89 A.3d 132 (quotation marks omitted).

[¶14] In Cote , we discussed and clarified the legal framework that applies when a defendant contends that his constitutional right to a fair trial was violated by the State's failure to preserve certain evidence. 2015 ME 78, ¶¶ 9-15, 118 A.3d 805. We explained that the inquiry requires the trial court "to conduct a bifurcated analysis." Id. ¶ 15. "First, the court must determine whether the evidence possessed ‘an exculpatory value that was apparent before the evidence was destroyed.’ " Id. (quoting California v. Trombetta , 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) ).

"If so, then the defendant must show only that the evidence was ‘of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ " Id. (quoting Trombetta , 467 U.S. at 489, 104 S.Ct. 2528 ). "If, however, the exculpatory value of the evidence was not apparent at the time of its loss or disappearance, the defendant cannot establish a constitutional deprivation without proof that the State also acted in bad faith in failing to preserve

[236 A.3d 477

the evidence." Id. (citing Arizona v. Youngblood , 488 U.S. 51, 57-58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) ); see Youngblood , 488 U.S. at 58, 109 S.Ct. 333 ("[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." (emphasis added)).

[¶15] We note at the outset that the cases applying this analysis have examined the government's failure to preserve evidence that, for at least some period of time, had come within its...