State of Maine v. Clifton Thomas , 2022 ME 27 ( 2022 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2022 ME 27Docket: And-21-216
Argued: April 6, 2022
Decided: May 17, 2022
Panel: MEAD, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
STATE OF MAINE
v.
CLIFTON THOMAS
JABAR, J.
[¶1] Clifton Thomas appeals from a judgment of conviction of six
offenses,1 entered by the trial court (Androscoggin County, McKeon, J.) after a
three-day jury trial. Thomas challenges the denial of his request for sanctions
for the State’s alleged discovery violations and the denial of his motion to
dismiss because of the makeup of the jury venire. Thomas also contends that
the trial court committed an obvious error by admitting testimony of a police
officer that contained hearsay; that the trial court abused its discretion by
1 The offenses for which Thomas was charged were domestic violence criminal threatening with
a dangerous weapon (Class C), 17-A M.R.S. § 209-A(1)(A) (2022) (Count 1); reckless conduct with a
firearm (Class C), 17-A M.R.S. § 211(1) (2022) (Count 2); domestic violence terrorizing (Class D),
17-A M.R.S. § 210-B(1)(A) (2022) (Count 3); threatening display of a weapon (Class D), 25 M.R.S.
§ 2001-A(1)(A) (2022) (Count 4); domestic violence assault (Class D), 17-A M.R.S. § 207-A(1)(A)
(2022) (Count 5); domestic violence assault (Class D), 17-A M.R.S. § 207-A(1)(A) (2022) (Count 6);
possession of a firearm by a prohibited person (Class C), 15 M.R.S. § 393(1)(A-1)(3) (2022) (Count 7).
The jury found Thomas not guilty on Count 5.
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failing to admit a letter that Thomas claimed was written on behalf of the victim
because it could not be authenticated; and that there was insufficient evidence
for the jury to convict him. We affirm.
I. BACKGROUND
A. Facts
[¶2] “Viewing the evidence in the light most favorable to the jury’s
verdict, the trial record supports the following facts.” See State v. Murray, 2021
ME 47, ¶ 2, 259 A.3d 1276. On February 7, 2020, Thomas beat the victim—a
former romantic partner and the mother of Thomas’s child—causing swelling
and bruising to her face. At the time, the victim did not report this incident to
the police.
[¶3] On February 26, 2020, Thomas entered the victim’s home and began
yelling at her. He drew a firearm, loaded it, and pointed it at her while she had
a child on her lap. He took the victim’s cell phone from her and stated that he
would give it back if she would let him shoot her in the leg. After hearing a noise
outside, Thomas left with the victim’s cell phone. Once Thomas departed, the
victim left the apartment, brought her children to safety, and reported this
incident, as well as the incident on February 7, to the police.
3
[¶4] On February 27, 2020, the police learned that Thomas might be
staying at an apartment in Lewiston. The police reviewed surveillance video of
the building and observed Thomas at the building. The police then searched
the apartment and found a .22-caliber handgun, ammunition, and the victim’s
cell phone.2 The victim later said that the gun found in the apartment was not
the gun that Thomas had threatened her with.
B. Arrest and Indictment
[¶5] Thomas was arrested on February 27, 2020. At the time of his
arrest, the police found two cell phones on his person. The next day, the cell
phones were turned over to the New York Police Department because they
were related to an ongoing investigation in New York.
[¶6] The State filed a two-count complaint against Thomas for the
domestic violence incidents that occurred on February 7 and February 26. On
July 6, 2020, an Androscoggin County Grand Jury returned a six-count
indictment for the events that allegedly occurred in February 2020. On
October 5, 2020, the Androscoggin County Grand Jury returned a seven-count
superseding indictment adding an additional charge of possession of a firearm
by a prohibited person. Thomas pleaded not guilty on all counts.
2 The legality of the entry and search of the apartment is not at issue on appeal.
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C. Motion for Discovery
[¶7] On November 17, 2020, Thomas filed a motion for discovery seeking
the two cell phones the police seized from him when he was arrested and that
were in the custody of the NYPD. Thomas claimed the phones contained
exculpatory evidence and sought sanctions against the State for not providing
them. The court (Stanfill, J.) held a hearing on this motion on March 26, 2021.
On April 23, 2021, the court denied the motion, determining that “the Lewiston
Police Department had no particular reason to think the cell phones would have
exculpatory information or indeed any relevant information on them when [the
phones] were turned over to the NYPD,” and that there was “no showing that
[evidence on the phones] was materially exculpatory.”
D. Jury Selection and Motion to Dismiss
[¶8] The jury was selected on May 10, 2021. While 350 prospective
jurors were summonsed to be in the jury venire, only 165 potential jurors
appeared. According to the court’s observations, there were three persons of
color in the jury venire.
[¶9] Thomas, who is African American, and two other African American
defendants in other cases shared the same jury venire. Each of the defendants
filed a motion to dismiss due to the failure of the jury venire to represent a fair
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cross section of the community. The court (McKeon, J.) held a hearing on all
three motions in all three cases on May 13, 2021. The court stated that it had
“no information . . . actually on the record except for perhaps [the 2019
Androscoggin County] census stat[istics] [provided by the State] and the jury
data the Court accumulated in preparation for today.” Instead of denying the
motion, the court gave Thomas the option of continuing his trials so that he
could better develop his arguments, but Thomas elected to proceed with the
jury trial. The court denied the motion to dismiss.
E. The Trial
[¶10] A three-day jury trial was held on May 18 through May 20, 2021.
Before the jury was brought into the courtroom for the first time, Thomas
indicated that he was going to cross-examine the victim about a letter that she
allegedly sent him while he was incarcerated in the county jail. The State
questioned the authenticity of the letter. The court deferred ruling on the
matter, indicating that, if the victim were to deny that she authored the letter,
then Thomas would have to authenticate it with other evidence. When the
victim was asked about the letter outside the presence of the jury, she denied
having written the letter. When Thomas later tried to present the letter as
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evidence during his testimony, the court did not admit the letter, ruling that
there was insufficient evidence to authenticate it.
[¶11] The State called the victim, who testified about her relationship
with Thomas and the incidents that occurred in February 2020. On
cross-examination, Thomas attacked the victim’s credibility, introducing a false
statement made by the victim to the police, a 9-1-1 call that refuted her claim
that she drove to the police station on February 26, and other examples of
purported embellishment. The State also called the Lewiston police officer who
first interviewed the victim, and he testified to statements that the victim made
on February 26, 2020, that were consistent with the victim’s testimony at trial.
Thomas did not object to the officer’s testimony regarding the victim’s
statements to him.
[¶12] The jury found Thomas guilty of Counts 1, 2, 3, 4, and 6. After the
jury was excused, the court found Thomas, a convicted felon, guilty of Count 7.
The court sentenced Thomas to three years and six months’ incarceration on
Counts 1, 2, and 7, concurrent with each other; 364 days’ incarceration on
Counts 3 and 4 to run concurrently with each other and with Count 1; and
364 days’ incarceration and two years’ probation on Count 6, to run
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consecutively to the other counts. Thomas timely appealed. 15 M.R.S. § 2115
(2022); M.R. App. P. 2B(b)(1).
II. DISCUSSION
[¶13] Thomas makes five claims on appeal: (1) the court should have
dismissed all charges as a discovery sanction after the state failed to preserve
the exculpatory evidence that was allegedly on the cell phones that were turned
over to the NYPD; (2) the court erred when it admitted statements of a police
officer that constituted hearsay; (3) the court abused its discretion by
determining that a letter offered by Thomas was not properly authenticated;
(4) the court should have dismissed all charges because the jury pool did not
represent an adequate cross-section of the community; and, (5) there was
insufficient evidence for a jury to convict Thomas of his crimes.3
A. Discovery Violation
1. State’s Duty to Preserve Evidence
[¶14] Thomas argues that the State’s failure to preserve the exculpatory
evidence that was allegedly on the cell phones turned over to the NYPD
Thomas has asserted and developed his constitutional claims based only on the Constitution of
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the United States, not the Maine Constitution, and therefore we review his claims by applying federal
law and principles. See State v. Philbrick, 481 A.2d 488, 493 n.3 (Me. 1984) (“Because the Defendant
does not argue that his state constitutional rights were infringed, we depart from our preferred
practice of deciding issues on the basis of our state constitution before we address federal
constitutional questions. Just as certain considerations of judicial restraint ordinarily impel us to
ground a decision on state, rather than federal[,] law, other considerations of judicial restraint lead
8
constituted a discovery violation, entitling him to a dismissal as a sanction. See
M.R.U. Crim. P. 16(e). Although “prosecutors have a constitutional duty to
preserve material evidence” to “protect a criminal defendant’s right to a fair
trial,” the defendant bears the burden of proving a violation of his constitutional
rights. State v. Cote, 2015 ME 78, ¶¶ 11, 14-15, 118 A.3d 805. We have
instructed that courts undertake a “bifurcated analysis” in which
[f]irst, the court must determine whether the evidence possessed
an exculpatory value that was apparent before the evidence was
destroyed. 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. 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 the evidence.
Id. ¶ 15 (citations and quotation marks omitted).
2. Application
[¶15] In conducting the first part of the analysis, we conclude that
Thomas has not shown that either cell phone contained apparent exculpatory
value. The motion court (Stanfill, J.) heard testimony from the detective who
first entered the phones into evidence at the Lewiston Police Department; he
us to refrain from deciding important state constitutional issues that have been neither briefed nor
argued.” (citations omitted)).
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testified that he did not review the data on the phones before they were sent to
the NYPD. Similar testimony was elicited from another detective and the
Lewiston Police Department’s evidence manager. There is no evidence that the
police had any indication that the phones had exculpatory value. There is “a
distinction between apparently exculpatory evidence and potentially useful
evidence.” Cote, 2015 ME 78, ¶ 13, 118 A.3d 805. Thomas did not offer any
evidence indicating that either cell phone had any specific exculpatory evidence
but instead relied on the generalization that domestic partners communicate
with each other using such devices.4
[¶16] Because there was no exculpatory value that was apparent at the
time the phones left Lewiston Police Department custody, Thomas had the
burden to prove that the police acted in bad faith in failing to preserve the cell
phones. An act of “bad faith” requires more than mere negligence. Id. ¶ 19 n.5.
[¶17] In the second part of the bifurcated analysis, Thomas must prove
that the phones contained “potentially useful” evidence and that “the State
acted in bad faith in failing to preserve [the evidence].” See id. ¶ 19. Thomas’s
4 Even if we agreed that the exculpatory value of the phones should have been apparent to
authorities, Thomas would still have to show “that the evidence was of such a nature that the
defendant would be unable to obtain comparable evidence by other reasonably available means.”
State v. Chan, 2020 ME 91, ¶ 14, 236 A.3d 471 (quotation marks omitted). However, Thomas admits
that he “did possess some copies of texts” between the victim and himself, and these text messages
were submitted as evidence at trial.
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motion asserted that the authorities acted in bad faith when they “intentionally
disposed” of the phones, but he presented no evidence or legal authority to
support his contention. Further, the court found that the police did not act in
bad faith, and this finding is supported by the evidence.
[¶18] We conclude that the court did not err in determining that Thomas
failed to establish the necessary elements proving that the police violated their
duty to preserve exculpatory evidence and that therefore the State’s failure to
provide access to the seized cell phones did not deny Thomas his constitutional
right to a fair trial.
B. Hearsay Evidence
[¶19] Thomas next argues that the trial court (McKeon, J.) committed
obvious error when it admitted testimony of a Lewiston police officer that
constituted hearsay under M.R. Evid 801. As Thomas recognizes, because
Thomas failed to object to the officer’s testimony, we review the court’s
admission of the evidence for obvious error. See State v. Dolloff, 2012 ME 130,
¶ 52, 58 A.3d 1032. “To demonstrate obvious error, the defendant must show
that there is ‘(1) an error, (2) that is plain, and (3) that affects substantial
rights.’” Id. ¶ 35 (quoting State v. Pabon, 2011 ME 100, ¶ 29, 28 A.3d 1147).
“[I]f these three conditions are met, we will set aside a jury’s verdict only if we
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conclude that (4) the error seriously affects the fairness and integrity or public
reputation of judicial proceedings.” Dolloff, 2012 ME 130, ¶ 35, 58 A.3d 1032(quotation marks omitted).
[¶20] “Hearsay is an out-of-court statement made by a declarant offered
in evidence by a witness to prove the truth of the matter asserted and is
generally inadmissible.” Needham v. Needham, 2022 ME 7, ¶ 11, 267 A.3d 1112;
see M.R. Evid. 801, 802. However, Maine’s rules of evidence set forth several
categories of statements that are not hearsay. M.R. Evid. 801(d). One such
statement is a declarant-witness’s prior statement that “[i]s consistent with the
declarant’s testimony and is offered: (i) to rebut an express or implied charge
that the declarant recently fabricated it or acted from a recent improper
influence or motive in so testifying; or (ii) to rehabilitate the declarant’s
credibility as a witness when attacked on another ground.” M.R.
Evid. 801(d)(1)(B). This type of statement can be used “both for its
rehabilitative and substantive effect.” M.R. Evid. 801 Advisory Committee Note
– August 2018.
[¶21] Here, the officer testified about what the victim had told him on
the night of February 26, 2020, when she first reported the February 2020
incidents. This included her statement that Thomas had brandished a gun at
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her, that he had made threats to her, that Thomas had taken her cell phone, and
that there had been previous episodes of domestic violence that Thomas had
committed against her. At this point in the trial, the victim had already testified
to these events and had been cross-examined by Thomas. During the
cross-examination, to demonstrate she was unable to “get her story straight,”
Thomas attacked her character for truthfulness, brought her memory and
recollection into question, and questioned the consistency of her statements.
[¶22] The officer’s testimony supported the victim’s credibility after
Thomas attacked it and was consistent with the victim’s in-court testimony.
These statements by the victim to the officer were not hearsay and were
admissible under M.R. Evid. 801(d)(1)(B). The trial court did not commit
obvious error in admitting the officer’s testimony.
C. Admissibility of the Letter
[¶23] Thomas next argues that the trial court abused its discretion when
it did not allow him to introduce a letter that he claimed that the victim had sent
him while he was in the Androscoggin County Jail. We review a trial court’s
ruling on admissibility of evidence for abuse of discretion. State v. Hussein,
2019 ME 74, ¶ 10, 208 A.3d 752. “A court abuses its discretion in ruling on
evidentiary issues if the ruling arises from a failure to apply principles of law
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applicable to the situation[,] resulting in prejudice.” Id. (quotation marks
omitted).
[¶24] The standard for authentication is articulated in M.R. Evid. 901(a),
which states that “[t]o satisfy the requirement of authenticating or identifying
an item of evidence, the proponent must produce evidence sufficient to support
a finding that the item is what the proponent claims it is.” This is “a flexible
approach to authentication reflecting a low burden of proof.” Hussein, 2019 ME
74, ¶ 11, 208 A.3d 752.
[¶25] Here, the letter in question, which is unsigned, was purportedly
written on behalf of the victim and claimed that the victim was angry with
Thomas at the time of her report and that she had given inconsistent statements
to the police. Thomas offered with the letter an envelope addressed to Thomas
at the Androscoggin County Jail. However, when asked about the letter outside
the presence of the jury, the victim denied writing the letter or having anyone
else write the letter for her. She admitted that she sent the envelope to the jail
but stated that it contained photographs and not the letter. The person who
Thomas claimed wrote the letter on the victim’s behalf was in the courtroom
and was a listed witness for Thomas, but she was not called to testify. Although
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Thomas testified that he received the letter, he produced no further evidence
that demonstrated that the letter was sent by the victim or on her behalf.
[¶26] In a sidebar conversation, the court clearly articulated Rule 901
and stated that Thomas—without a handwriting expert, the testimony of the
writer, or even the original letter—was unable to meet his burden. The court
did not abuse its discretion when it did not admit the unauthenticated letter.
D. Jury Venire
[¶27] The Sixth Amendment guarantees that “[i]n all criminal
prosecutions, the accused shall enjoy the right to a . . . trial, by an impartial jury
of the State and district wherein the crime shall have been committed.” U.S.
Const. amend. VI. This jury must be drawn from a “fair cross section of the
community,” but a “fair cross section” does not guarantee that juries be “of any
particular composition.” Taylor v. Louisiana, 419 U.S. 522, 527, 538 (1975).
Instead, the “jury wheels, pools of names, panels, or venires from which juries
are drawn must not systematically exclude distinctive groups in the community
and thereby fail to be reasonably representative thereof.” Id. at 538.
[¶28] Relying on the Supreme Court case Duren v. Missouri, 439 U.S. 357,
364 (1979), we have stated:
To establish a prima facie claim that a jury selection process
violates the constitutional requirement that the jury be selected
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from a pool representative of the community at large, the
challenging party has the burden to show that: (1) the group
alleged to be excluded is a “distinctive” group in the community;
(2) the representation of this group in jury pools from which juries
are selected is not fair and reasonable in relation to the number of
such persons in the community; and (3) this underrepresentation
is due to systematic exclusion of the group in the jury selection
process.
State v. Holland, 2009 ME 72, ¶ 23, 976 A.2d 227. “Certain groups—such as
those defined by race or sex—are unquestionably ‘distinctive.’” State v. Anaya,
456 A.2d 1255, 1260 (Me. 1983) (footnotes omitted).
[¶29] Here, Thomas, has met the first element of the Duren test by
alleging that a ‘distinctive’ group—African Americans—were excluded from
the jury venire. See Holland, 2009 ME 72, ¶ 24, 976 A.2d 227. However, Thomas
failed to carry his burden as to the other two elements of the test. The State,
not Thomas, provided limited evidence of the proportion of the community’s
population that was African American. Furthermore, Thomas provided no
evidence of a systematic exclusion in the jury selection process. Thomas was
given the option to continue the trial so he could better develop the record for
this challenge, but he chose to proceed with the trial. Because Thomas failed to
establish the second and third elements of the Duren test, the court did not err
in denying Thomas’s motion.
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E. Sufficiency of the Evidence
[¶30] We review a challenge to the sufficiency of the evidence by
reviewing the evidence adduced at trial “in the light most favorable to the State
to determine whether the trier of fact rationally could have found beyond a
reasonable doubt every element of the offense charged,” State v. Smen, 2006 ME
40, ¶ 7, 895 A.2d 319 (quotation marks omitted). Fact finders are “permitted
to draw all reasonable inferences from the evidence,” State v. Williams, 2012
ME 63, ¶ 49, 52 A.3d 911, and “[t]he weight to be given to the evidence and the
determination of witness credibility are the exclusive province of the jury.”
State v. Filler, 2010 ME 90, ¶ 24, 3 A.3d 365 (quotation marks omitted). “[A]
jury’s acquittal of a defendant on one charge does not limit the evidence that
can be considered in a post-trial determination of whether the evidence is
sufficient to support the jury’s guilty verdict on a different charge.” State v.
Lowe, 2015 ME 124, ¶ 29, 124 A.3d 156.
[¶31] Thomas does not challenge any specific elements of any of the
crimes the jury convicted him of, and broadly challenges all of the evidence.5
5 Thomas’s argument reads that “[n]o rational juror could have been convinced of Appellant’s
guilt beyond a reasonable doubt” and that there was “insufficient evidence for a jury to conclude
Appellant was guilty beyond a reasonable doubt.” Although the court did “note the jury verdict that
required a finding of possession of a weapon” given that Count 7 was the court’s decision,
independent of the jury, we interpret Thomas’s appeal as challenging only the jury verdicts on
Counts 1, 2, 3, 4, and 6.
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The jury heard testimony from the victim about the physical abuse that she
suffered from Thomas and the incident when Thomas pointed a gun at her. This
evidence was supported by the testimony of police officers, photographs of the
injuries she suffered, and items found in the apartment. While Thomas did
testify and claimed that he did not strike or threaten the victim, the jury
apparently did not find him credible. See Filler, 2010 ME 90, ¶ 24, 3 A.3d 365.
There was sufficient evidence for the jury to have rationally found that every
element of each count Thomas was convicted of was proved beyond a
reasonable doubt.
The entry is:
Judgment affirmed.
Verne E. Paradie, Jr., Esq. (orally), Lewiston, for appellant Clifton Thomas
Katherine E. Bozeman, Asst. Dist. Atty. (orally), and Katherine M. Hudson-
MacRea, Asst. Dist. Atty., Androscoggin County District Attorney’s Office,
Lewiston, for appellee State of Maine
Androscoggin County Unified Criminal Docket docket number CR-2020-610
FOR CLERK REFERENCE ONLY