State of Maine v. Gregory Nisbet

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 113 Docket: Cum-17-297
Argued: May 15, 2018
Decided: August 9, 2018
Panel: ALEXANDER, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
STATE OF MAINE
v.
GREGORY NISBET
JABAR, J.
[¶1] Gregory Nisbet appeals from a judgment of conviction for violating
a public safety fire rule (Class E), 25 M.R.S. § 2452(3) (2017), entered by the
Unified Criminal Docket (Cumberland County, Warren, J.) after a bench trial.
Nisbet was convicted of failing to comply with section 24.2.2.3.3 of the
2009 edition of the National Fire Protection Association (NFPA) 101: Life
Safety Code, as incorporated by rule by the Commissioner of the Department
of Public Safety.1 See 25 M.R.S. § 2452(3); 9 C.M.R. 16 219 020-1 § 1 (2011);
1 “The Life Safety Code is a model code established by the National Fire Protection Association.”
Estate of Smith v. Salvesen, 2016 ME 100, ¶ 7 n.2, 143 A.3d 780. The Commissioner of the
Department of Public Safety promulgated rules incorporating the 2009 edition of the National Fire
Protection Association (NFPA) 101: Life Safety Code, by reference, with certain modifications not
applicable here. See 25 M.R.S. § 2452(3) (2017); 9 C.M.R. 16 219 020-1 § 1 (2011); NFPA 101: Life
Safety Code (Nat’l Fire Prot. Ass’n 2009 ed.) (hereinafter “Life Safety Code”). Thus, the public fire
safety rules Nisbet was charged with violating were specific provisions of the Life Safety Code,
incorporated into the Code of Maine Rules by reference, and this opinion will reference those
provisions directly.
2
NFPA 101: Life Safety Code § 24.2.2.3.3 (Nat’l Fire Prot. Ass’n 2009 ed.)
(hereinafter “Life Safety Code”). On appeal, Nisbet makes the following
arguments: that (1) section 24.2.2.3.3 of the Life Safety Code is void for
vagueness pursuant to the due process clauses of the United States and Maine
Constitutions; (2) the court abused its discretion in determining that the
State’s failure to provide him with a policy statement regarding the
enforcement of section 24.2.2.3.3 did not constitute a violation pursuant to
Brady v. Maryland, 373 U.S. 83 (1963); and (3) the evidence presented at trial
was insufficient to sustain a conviction for failure to comply with section
24.2.2.3.3. We affirm the judgment.
I. BACKGROUND
A. Factual History
[¶2] “Viewing the evidence in the light most favorable to the State, the
trial record supports the following facts,” which the court found after a
five-day trial. State v. Jeskey, 2016 ME 134, ¶ 2, 146 A.3d 127. Nisbet was the
owner of an apartment building located on 20 Noyes Street in Portland. In
that capacity, he collected rent from the building’s occupants and exercised
management responsibility over the property. On November 1, 2014, a fire
occurred at 20 Noyes Street, resulting in the death of six people. The fire
3
began on the porch outside the front door and proceeded up the stairway that
served as the primary means of escape for those on the second and third
floors. On that particular day, the entrance to the back stairway on the second
floor was blocked by furniture because a tenant had recently moved in.
[¶3] Three of the building’s occupants survived the fire by exiting the
building through a window onto the back porch within ninety seconds after
two of them woke up. One of those survivors testified that before he escaped,
the front door was fully engulfed in flames, thick smoke was billowing from
the door and rising up the stairway, and he was having difficulty breathing. As
the survivors escaped, the front door opened and the fire proceeded up the
stairway very quickly, bringing intense heat with it. Smoke and accompanying
gases, including carbon monoxide, preceded the heat and rose up the
stairways to the third floor before spreading throughout the first and second
floors. According to expert testimony, a person could become unconscious in
as little as thirty seconds after breathing a significant amount of carbon
monoxide-laden smoke.
[¶4] Each victim except for one died from smoke inhalation. The
third-floor bedroom windows were considerably smaller than required by the
Life Safety Code and too small to use as a secondary means of escape. They
4
were double hung, and one witness testified that they could only be opened as
little as eight inches. There was also testimony that a person could remove
the entire window frame by removing certain clips—if the person knew how
to do that. Long before the fire, a contractor working for Nisbet told him that
the third-floor windows were not large enough to be a legal secondary means
of escape, and Nisbet brushed off those comments.
B. Preliminary Proceedings
[¶5] On July 10, 2015, Nisbet was charged by indictment with six
counts of manslaughter (Class A), 17-A M.R.S. 203(1)(A) (2017), and four
counts of violating public fire safety rules (Class E), 25 M.R.S. § 2452(3),
namely, provisions of the Life Safety Code. On September 31, 2016, after
Nisbet waived his right to a jury trial pursuant to M.R.U. Crim. P. 23(a), the
State charged an eleventh count by information, alleging violation of the Life
Safety Code provision that is the subject of this appeal, section 24.2.2.3.3. See
25 M.R.S. § 2452(3); 9 C.M.R. 16 219 020-1 § 1. That provision requires that
every sleeping area in one- and two-family dwellings have windows available
as a secondary means of escape, that the windows be operable from the inside
without “special effort,” and that the windows have a “clear opening” of
5
5.7 square feet, a minimum width of twenty inches, and a minimum height of
twenty-four inches. Life Safety Code § 24.2.2.3.3.
C. Trial and Sentencing
[¶6] The parties proceeded to a bench trial on October 3, 2016, and
evidence was presented over five days. On October 21, 2016, the court found
Nisbet not guilty on the six counts of manslaughter and the four counts of
violation of the Life Safety Code originally charged, and guilty on the
later-charged violation of section 24.2.2.3.3. On December 1, 2016, the court
sentenced Nisbet to ninety days’ imprisonment and a $1,000 fine.
D. Motion for a New Trial
[¶7] On December 19, 2016, Nisbet filed a motion for a new trial
pursuant to M.R.U. Crim. P. 33. In that motion, Nisbet alleged that the State
had failed to provide him with a policy memorandum that the State Fire
Marshal issued in October 2013 (2013 Memorandum).2 That document,
which indicates that it is in reference to a “[p]olicy for clarification of existing
egress windows,” states in pertinent part:
2 Pursuant to section 4.6.5 of the Life Safety Code, “Where it is evident that a reasonable degree
of safety is provided, the requirements for existing buildings shall be permitted to be modified if
their application would be impractical in the judgment of the authority having jurisdiction.” The
2013 Memorandum appears to have been issued pursuant to section 4.6.5.
6
Any building constructed before 1976 will be allowed to
meet the following specifications. The net clear opening would be
allowed to meet the minimum 20” in width and 24” in height with
a total net clear opening of 3.3 sq. ft.; if the window is constructed
of wood or vinyl and the overall window sash size meets a
minimum of 5.0 sq. ft.
The “special effort” provision from section 24.2.2.3.3 remained the same.
[¶8] According to Nisbet, because the size of his third-floor windows
met the minimum dimensions set forth in the memorandum—and there was
no dispute that his apartment building was built before 1976—the State’s
failure to provide the memorandum constituted a failure to disclose
exculpatory evidence pursuant to Brady, 373 U.S. at 87 (“We now hold that the
suppression by the prosecution of evidence favorable to an accused
. . . violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.”).
Nisbet argued that he could not have discovered the memorandum before
trial through the exercise of due diligence, and if the memorandum had been
provided to him, “it probably would have changed the verdict in this case.”
[¶9] A hearing on the motion for a new trial was held on
February 23, 2017, during which the court heard testimony from both parties
regarding the State’s nondisclosure of the 2013 Memorandum. The court then
denied Nisbet’s motion in an order dated June 15, 2017, in which it made the
7
following findings of fact, which are supported competent evidence in the
motion record. See State v. Twardus, 2013 ME 74, ¶ 29, 72 A.3d 523 (“When
reviewing the denial of a motion for a new trial pursuant to M.R. Crim. P. 33 on
the basis of newly discovered evidence, we review the court’s findings of fact
for clear error . . . .”).3
[¶10] Neither of the Assistant Attorneys General (AAG) prosecuting the
case was aware of the 2013 Memorandum until an assistant fire marshal
mentioned it to one of the AAGs on the evening of October 4, 2016—after the
second day of trial. The AAG told the assistant fire marshal to bring the
memorandum to court the next morning, but after receiving it on October 5,
the AAG read it quickly and did not correctly understand its contents. At the
time, he was primarily focused on drafting a stipulation with defense counsel.
When he and defense counsel first spoke via telephone on October 5, the AAG
told defense counsel that they needed to discuss the stipulation and
mentioned that he had a document to provide. The AAG and defense counsel
subsequently met to work on revisions to the stipulation, and although the
AAG had no specific recollection of giving defense counsel a copy of the
3 Although, unlike Twardus, this case involves the denial of a M.R.U. Crim. P. 33 motion for a new
trial based on alleged violations pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and not newly
discovered evidence, we nonetheless apply the same standard of review. See State v. Twardus,
2013 ME 74, ¶ 29, 72 A.3d 523.
8
2013 Memorandum, it was evident from his testimony that he believed he did.
Thus, although the AAG intended to provide the defense with the 2013
Memorandum, he failed to do so. For her part, defense counsel did not recall
receiving the 2013 Memorandum.
[¶11] The court found that each of the third-floor windows was
double-hung, with a bottom sash covering two-thirds of the window height
and a top sash covering one-third of the window height. As a result, the
windows could only be opened to a height that was one-third of the total
window height. The court also recognized that the only window
measurements offered at trial indicated that the window frames measured
34 inches high and 21.5 inches wide, but that it had previously declined to rely
on those measurements because—contrary to all photographic evidence—
those measurements would make the third-floor window openings taller than
the second-floor window openings, which the court found not to be the case.
[¶12] Even assuming that those measurements were reliable, however,
the court again noted that the window could then only be opened to a height
of approximately 11.3 inches. Assuming also that the windows were
21.5 inches wide, the clear opening they provided would have been 1.7 square
feet—only half of the clear opening required by the 2013 Memorandum. This
9
determination was consistent with witnesses’ testimony that the windows
only opened “eight inches,” “six inches,” “not very far . . . maybe about a foot,”
and “less than twelve inches.”
[¶13] Applying the test articulated by the Supreme Court in Brady,
373 U.S. at 87, the court reached several conclusions of law based on these
findings. First, the court reasoned that the 2013 Memorandum qualified as
exculpatory evidence, and that it was in the possession of the prosecution.
Second, the court determined that although the 2013 Memorandum was not
in the exclusive possession of the Fire Marshal’s Office—it had apparently
been made available to defense counsel by someone in the real estate
industry—there was “no evidence that the policy statement itself . . . had been
widely publicized, was readily available from public sources, or would likely
have been obtained by defense counsel through the exercise of reasonable
diligence in preparing for trial.” As such, the court concluded that the
memorandum’s nondisclosure was not excused by the possibility that it could
have come to defense counsel’s attention through another source before trial.
Finally, the court determined that the 2013 Memorandum was not “material”
for purposes of the Brady analysis because “all of the evidence offered at the
trial demonstrated beyond a reasonable doubt that . . . the third floor windows
10
did not comply with the Fire Code even applying [the more lenient
requirement contained in the 2013 Memorandum].”
[¶14] As such, the court denied Nisbet’s motion for a new trial. This
appeal followed. See 15 M.R.S. § 2115 (2017); M.R. App. P. 2(b)(2)(A) (Tower
2016).4
II. DISCUSSION
A. Life Safety Code Constitutionality
[¶15] Nisbet contends that Life Safety Code § 24.2.2.3.3 “is simply too
vague to comport with due process requirements,” such that “[n]o ordinary
person could reasonably be held to answer to its standard.” Nisbet
specifically takes issue with the section’s use of the terms “special effort” and
“clear opening," which he argues are void for vagueness. Life Safety Code
§ 24.2.2.3.3. He also argues that 25 M.R.S. § 2452(3) and section 24.2.2.3.3
violate his rights pursuant to the due process clause of the Maine and United
States Constitutions because he lacked notice of them.
[¶16] We normally review the constitutionality of a Maine statute
de novo. See State v. McLaughlin, 2002 ME 55, ¶ 5, 794 A.2d 69. However,
because Nisbet failed to raise this issue during the trial proceedings, we
4 The restyled Maine Rules of Appellate Procedure do not apply because this appeal was filed
before September 1, 2017. See M.R. App. P. 1 (restyled Rules).
11
review for obvious error the trial court’s failure to declare the statute
unconstitutional.5 M.R.U. Crim. P. 52(b); see State v. Greenleaf, 2004 ME 149,
¶ 34, 863 A.2d 877.
[¶17] The due process clauses of the United States and Maine
Constitutions “require that criminal defendants be given fair notice of the
standard of conduct to which they can be held accountable.” State v. Witham,
2005 ME 79, ¶ 7, 876 A.2d 40 (alteration omitted) (quotation marks omitted).
Because a statute is presumed to be constitutional, Union Mut. Life Ins. Co. v.
Emerson, 345 A.2d 504, 507 (Me. 1975), “[a] party claiming a statute is void
for vagueness must demonstrate that the statute has no valid application or
logical construction,” Stewart Title Guar. Co. v. State Tax Assessor, 2009 ME 8,
¶ 40, 963 A.2d 169. In order to find a statute void for vagueness, “we must
find that the statute fails to define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is prohibited
and in a manner that does not encourage arbitrary and discriminatory
enforcement.” State v. Falcone, 2006 ME 90, ¶ 6, 902 A.2d 141 (quotation
marks omitted). “Such an unacceptable statute would often be ‘so vague and
5 “For an error or defect to be obvious for purposes of Rule 52(b), there must be (1) an error,
(2) that is plain, and (3) that affects substantial rights. If these conditions are met, we will exercise
our discretion to notice an unpreserved error only if we also conclude that (4) the error seriously
affects the fairness and integrity or public reputation of judicial proceedings.” State v. Pabon,
2011 ME 100, ¶ 29, 28 A.3d 1147.
12
indefinite as really to be no rule or standard at all.’” Shapiro Bros. Shoe Co. v.
Lewiston-Auburn Shoeworkers Protective Ass’n, 320 A.2d 247, 253 (Me. 1974)
(quoting A. B. Small Co. v. Am. Sugar Ref. Co., 267 U.S. 233, 239 (1925)).
[¶18] However, “[i]n examining the sufficiency of statutory language,
[o]bjective quantification, mathematical certainty, and absolute precision are
not required.” Witham, 2005 ME 79, ¶ 7, 876 A.2d 40 (quotation marks
omitted). Indeed, a void-for-vagueness challenge will fail “[w]here the
meaning of a term can be adequately determined by examining the plain
language definition or the common law definition.” Falcone, 2006 ME 90,
¶ 10, 902 A.2d 141. “In a facial challenge to a statute on vagueness grounds,
we need not examine the facial validity of the statute and test its
constitutionality in all conceivable factual contexts.” State v. Aboda,
2010 ME 125, ¶ 15, 8 A.3d 719 (quotation marks omitted). Rather, “[w]e
address a void for vagueness challenge by testing it in the circumstances of
the individual case.” State v. Thongsavanh, 2007 ME 20, ¶ 36, 915 A.2d 421.
1. The Regulatory Language
[¶19] The rule Nisbet allegedly violated, Life Safety Code § 24.2.2.3.3,
provides in relevant part that a secondary means of escape
shall be an outside window or door operable from the inside
without the use of tools, keys, or special effort and shall provide a
13
clear opening of not less than 5.7 ft2 (0.53 m2). The width shall be
not less than 20 in. (510 mm), and the height shall be not less than
24 in. (610 mm).
[¶20] Although the Life Safety Code does not define the terms “clear
opening” or “special effort,” it provides that “[w]here terms are not defined
. . . they shall be defined using their ordinarily accepted meanings within the
context in which they are used.” Life Safety Code § 3.1. The Code further
specifies “Webster’s Third New International Dictionary of the English
Language, Unabridged,” as a source for ordinarily accepted meanings. Id. We
address each term in turn.
a. “Clear Opening”
[¶21] Webster’s Third New International Dictionary defines “clear” as
“free from obstruction, burden, limitation, defect, or other restricting
features,” and defines “opening” as “something that is open.” Webster’s Third
New International Dictionary of the English Language Unabridged (Webster’s)
419, 1580 (2002). That dictionary defines “open” as “fit to be traveled over or
through: presenting no serious obstacle to passage or view.” Id. at 1579. Accordingly, the ordinarily accepted meaning of the term “clear opening”—in
the context of section 24.2.2.3.3—plainly requires that a door or window
serving as a secondary means of escape must provide an obstruction-free
14
space that is fit to be traveled through. See Falcone, 2006 ME 90, ¶ 10,
902 A.2d 141.
[¶22] Even if this plain language were not so clear, however, Nisbet’s
void-for-vagueness argument is foreclosed by the fact that the term “clear
opening” is modified by precise measurements requiring that the space be at
least 20 inches (510 mm) wide and 24 inches (610 mm) tall, and a minimum
of 5.7 square feet (0.53 m2) in size. Life Safety Code § 24.2.2.3.3. This
standard can hardly be deemed to be so vague or indefinite “as really to be no
rule or standard at all.” Shapiro Bros. Shoe Co., 320 A.2d at 253 (quotation
marks omitted).
b. “Special Effort”
[¶23] Webster’s Third New International Dictionary defines “effort” as
“conscious exertion of physical or mental power,” and defines “special” as
“one outside of or in addition to the regular or normal number, quantity,
series, range, or similar category.” Webster’s at 725, 2186. As such, the plain
language of the term “special effort”—in the context of section 24.2.2.3.3—
requires that an occupant be able to operate a door or window serving as a
secondary means of escape without using an amount of physical exertion
greater than normally required. Although lacking in “mathematical certainty
15
[and] absolute precision,” Witham, 2005 ME 79, ¶ 7, 876 A.2d 40 (quotation
marks omitted), the term is sufficiently definite that ordinary people can
understand its meaning, see Falcone, 2006 ME 90, ¶ 6, 902 A.2d 141. As
Nisbet contends, the standard established by this term may be difficult to
apply in different scenarios. However, the fact that “in some hypothetical
instances [regulatory language] might require interpretation or present
formidable factual issues of proof . . . does not mean that the judiciary cannot
apply the law in accordance with the spirit of the legislative intent.” Shapiro
Bros. Shoe Co., 320 A.2d at 253-54.
[¶24] Finally—of equal applicability to the terms “clear opening” and
“special effort”—we have previously held that, when determining whether a
statute is void for vagueness, that statute may be construed “in light of its
context and purpose.” Stewart Title Guar. Co., 2009 ME 8, ¶ 41, 963 A.2d 169.
Here, the Life Safety Code’s stated purpose is “to provide minimum
requirements, with due regard to function, for the design, operation, and
maintenance of buildings and structures for safety to life from fire.” Life
Safety Code § 1.2. In light of that purpose, the meanings of the terms at issue
are further clarified—given that the Code is intended to ensure “safety to life
from fire,” id., it is reasonable to conclude that the regulation must be
16
construed to afford building occupants an unobstructed, easy-to-open
window or door in the event of a fire. Thus, construed both in isolation and
“in light of its context and its purpose,” Stewart Title Guar. Co., 2009 ME 8,
¶ 41, 963 A.2d 169, the terms “clear opening” and “special effort” are
sufficiently clear to put ordinary people on fair notice that they can be held
accountable for failing to provide a secondary means of escape that is easy to
operate and large enough to travel through.
2. Lack of Notice
[¶25] Nisbet additionally argues that both “the statutory scheme
created by [25 M.R.S. § 2452(3)] and the Life Safety Code [are] fundamentally
unfair” because he did not have notice of that scheme. This argument is
unavailing, given that the Life Safety Code is not unconstitutionally vague and
citizens “are generally required to know the law and cannot claim ignorance
of the law as a defense.” Falcone, 2006 ME 90, ¶ 23, 902 A.2d 141 (Dana, J.,
dissenting); see also State v. Goodenow, 65 Me. 30, 32-33 (1876) (“[The
defendants] plead their ignorance of the law. This cannot excuse them.
Ignorance of the law excuses no one.”); Jenks v. Mathews, 31 Me. 318, 320
(1850) (“It is a well known maxim that ignorance of law will not furnish an
17
excuse for any person, either for a breach or an omission of duty.” (quotation
marks omitted)).
[¶26] Moreover, even if Nisbet were not specifically aware of the
requirements set forth in section 24.2.2.3.3, he was at least generally aware of
them because a contractor informed him that the windows were not large
enough to serve as a legal secondary means of escape. Cf. Nichols v. Marsden,
483 A.2d 341, 343 (Me. 1984) (stating that although the common law rule
provides that “a landlord is not liable to a tenant for personal injuries caused
by a defective condition in premises under the tenant’s exclusive control,” an
exception to this rule occurs where the landlord “fails to disclose the existence
of a latent defect which he knows or should have known existed” (emphasis
added)).
B. Brady Violation
[¶27] Nisbet next argues that the court abused its discretion in
determining that the State’s failure to provide him with a copy of the
2013 Memorandum was not material and therefore not a Brady violation. He
contends that the 2013 Memorandum “could reasonably be taken to put the
whole case in such a different light as to undermine confidence in the verdict”
because, inter alia, both the court and the parties “prepared for the entire trial,
18
examined all the witnesses and evidence, deliberated and reached a verdict
informed by the wrong legal standard.”
[¶28] The denial of a motion for a new trial based on an alleged
Brady violation is reviewed for an abuse of discretion.6 Twardus, 2013 ME 74,
¶ 32, 72 A.3d 523 (citing United States v. Connolly, 504 F.3d 206, 211-12, 219
(1st Cir. 2007)). “[A] trial court has exceeded the bounds of its discretion
when, in discretionary decision-making, the court: (1) considers a factor
prohibited by law; (2) declines to consider a legally proper factor under a
mistaken belief that the factor cannot be considered; (3) acts or declines to act
based on a mistaken view of the law; or (4) expressly or implicitly finds facts
not supported by the record according to the clear error standard of
review.” Smith v. Rideout, 2010 ME 69, ¶ 13, 1 A.3d 441 (citations omitted).
[¶29] “A defendant’s due process rights are violated when the
prosecution withholds evidence favorable to him.” State v. Jobin,
510 A.2d 527, 529-30 (Me. 1986) (citing Brady, 373 U.S. at 87). A Brady
violation has three elements: (1) the evidence must be favorable to the
6 Although we generally review an alleged due process violation de novo, State v. Williamson,
2017 ME 108, ¶ 21, 163 A.3d 127, in the context of a denial of a M.R.U. Crim. P. 33 motion for a new
trial based upon a Brady violation, “an appreciable measure of respect is due to the presider’s sense
of the ebb and flow of the recently concluded trial,” United States v. Connolly, 504 F.3d 206, 211
(1st Cir. 2007) (quotation marks omitted). However, that distinction is minimal here because “a
[trial] court abuses its discretion whenever it predicates its ruling on an erroneous view of the law
and abstract questions of law engender de novo review.” Id. at 211-12 (citation omitted).
19
defendant because it was exculpatory or impeaching; (2) the evidence must
have been suppressed by the State, either willfully or inadvertently; and
(3) prejudice must have ensued. Twardus, 2013 ME 74, ¶ 32, 72 A.3d 523 (citing Strickler v. Greene, 527 U.S. 263, 281-82 (1999)). Evidence is
prejudicial when it is “material”—that is, “the nondisclosure was so serious
that there is a reasonable probability that the suppressed evidence would have
produced a different verdict.” Strickler, 527 U.S. at 281 (emphasis added). A
“reasonable probability” exists when “the likelihood of a different result is
great enough to undermine confidence in the outcome of the trial.” Smith v.
Cain, 565 U.S. 73, 75 (2012) (alteration omitted) (quotation marks omitted).
[¶30] Here, the State does not dispute that the 2013 Memorandum was
favorable to Nisbet and that it was not disclosed to him.7 Thus, the sole issue
before us is whether the 2013 Memorandum was material to the
determination of Nisbet’s guilt.
[¶31] We conclude the trial court did not abuse its discretion in holding
that, if the 2013 Memorandum had not been suppressed and Nisbet had
7 The State does cite to federal case law for the proposition that, pursuant to Brady, evidence is
not deemed to be suppressed where it is available to the defense through another source in the
exercise of due diligence. See United States v. Shields, 789 F.3d 733, 747 (7th Cir. 2015); Matthews v.
Ishee, 486 F.3d 883, 891 (6th Cir. 2007). However, we decline to address the issue because the
State acknowledges that the court determined the 2013 Memorandum had been suppressed and
does not affirmatively argue that we should conclude otherwise.
20
planned his “defense strategy, cross examination, witness presentations,
decisions about objections and stipulations, and arguments to the court”
based on that memorandum, there is no possibility that he could have
established that the window could have been opened to provide a clear
opening of 3.3 square feet.8 Each of the third-floor windows was double hung,
with a bottom sash covering two-thirds of the window and a top sash covering
one third of the window, thereby permitting the window to be opened only to
one-third of its total height. Therefore, even crediting the accuracy of the
measurements introduced at trial that the window frames were 34 inches tall
and 21.5 inches wide—which the court did not, given that those
measurements would, contrary to photographic evidence, make them larger
than the second-floor windows—the window could only have been opened to
a height of 11.3 inches, creating a clear opening of only 1.7 square feet.
[¶32] This conclusion is buttressed by the testimony of former
third-floor inhabitants, all of whom stated that the windows opened only
between six to twelve inches. Even using the most generous of these
recollections, the clear opening provided by the window would only then
8 As the court noted in its order denying Nisbet’s Rule 33 motion, “The trial testimony of defense
witnesses . . . demonstrates that the defense was aware at the time of trial that the 5.7 square foot
requirement did not necessarily apply. It did not pursue that issue.”
21
equal just over one square foot, less than half of the 3.3 square feet required
pursuant to the 2013 Memorandum.9 Accordingly, the 2013 Memorandum
was not material within the meaning of Brady because there is no reasonable
probability that the State’s production of the 2013 Memorandum and its
admission in evidence would have produced a different result for Nisbet in the
sense that confidence in the outcome of his trial has been undermined.10 See
Strickler, 527 U.S. at 281; Smith, 565 U.S. at 75.
9 At oral argument, Nisbet for the first time raised the alternative contention that if the
2013 Memorandum had been available to him, he would not have attempted to establish that the
windows met the minimum size requirements and would instead have focused on demonstrating
that the windows did not require “special effort” to operate. See Life Safety Code § 24.2.2.3.3.
However, because Nisbet failed to advance this theory both in his motion for a new trial and in his
briefs before us, we decline to consider it. See Laqualia v. Laqualia, 2011 ME 114, ¶ 16 n.6, 30 A.3d
838; Teel v. Colson, 396 A.2d 529, 534 (Me. 1979). Even if preserved, the issue would have been
unavailing given the court’s supported factual finding that removing the window altogether—which
is how Nisbet argues the opening permitted by the 2013 Memorandum would have been satisfied—
would require “special effort” because someone trying to escape could well be unaware that the
window could be removed and, in any event, would not have time to remove the window in an
emergency.
10 Nisbet’s more generalized argument, that the 2013 Memorandum was “material” because the
parties and the court had failed to apply the correct legal standard, is therefore misplaced. As the
case law makes clear, the Supreme Court’s reasoning regarding “confidence in the outcome of the
trial” is centered on the reasonable probability that a different outcome would have resulted with
the inclusion of the suppressed evidence, and not on the nature of the proceedings that occurred—
however erroneously—in the absence of that evidence. United States v. Bagley, 473 U.S. 667, 682-
84 (1985); see Smith v. Cain, 565 U.S. 73, 75-77 (2012); Strickler v. Greene, 527 U.S. 263, 290-96
(1999); Kyles v. Whitney, 514 U.S. 419, 434-35, 441-54 (1995); see also Twardus, 2013 ME 74,
¶¶ 34-50, 72 A.3d 523; State v. Silva, 2012 ME 120, ¶ 10, 56 A.3d 1230; State v. Harnish, 560 A.2d 5,
7 (Me. 1989).
22
C. Sufficiency of the Evidence
[¶33] Finally, Nisbet argues that the evidence was insufficient to
support his conviction for two reasons. First, he contends that due to the
existence of the 2013 Memorandum, the State was required to prove that
20 Noyes Street was constructed after 1976 in order for the court to apply the
standard set forth in section 24.2.2.3.3. Second, Nisbet argues that his
contractor’s testimony—that he informed Nisbet that the third-floor windows
were not large enough to be a legal secondary means of escape—was
insufficient to support the court’s finding that he knowingly violated section
24.2.2.3.3.
[¶34] “In assessing the sufficiency of evidence to support a criminal
conviction, we review the evidence, and all reasonable inferences drawn from
that evidence, in the light most favorable to the State to determine whether
the trier of fact could have found every element of the offense charged beyond
a reasonable doubt.” State v. Tayman, 2008 ME 177, ¶ 4, 960 A.2d 1151. “In
dwellings or dwelling units of two rooms or more,” Life Safety Code
§ 24.2.2.1.1, it is a Class E crime pursuant to 25 M.R.S. § 2452(3) to fail to
provide a secondary means of escape in compliance with the requirements of
23
section 24.2.2.3.3. Although section 2542(3) does not specify a culpable state
of mind, the court found that Nisbet’s violation had been knowing.11
1. The 2013 Memorandum
[¶35] Nisbet contends that “the State did not meet its threshold burden
of proving beyond a reasonable doubt that [section] 24.2.2.3.3 actually
applied to the Appellant, as the building in question was constructed prior to
1976 and that section, unmodified, does apply to buildings constructed in that
time period.” This argument is unpersuasive. Although the court found
Nisbet guilty after considering section 24.2.2.3.3—rather than the more
lenient specifications required by the 2013 Memorandum—any error was
harmless because, upon consideration of Nisbet’s motion for a new trial, the
court found that its determination of guilt would have remained the same
even if it had applied the 2013 Memorandum’s requirements. See M.R.U. Crim.
P. 52(a); State v. Larsen, 2013 ME 38, ¶ 23, 65 A.3d 1203.
2. The Contractor’s Testimony
[¶36] Finally, Nisbet argues that his contractor’s testimony—that he
informed Nisbet that the third-floor windows were legally too small—is
11 In post-trial memoranda, the State argued that a culpable state of mind was not required for a
violation pursuant to 25 M.R.S. § 2452(3) (2017), while Nisbet argued that “the appropriate mental
state to use is either intentional, knowing or reckless.” Because neither party on appeal contends
that the court erred in applying the culpable state of mind of “knowing,” we assume, without
deciding, that this is the mental state required by section 2453(3).
24
insufficient to support a finding that Nisbet knowingly violated section
24.2.2.3.3. “In a jury-waived trial, it is the duty of the fact-finder to reconcile
conflicting testimony, to determine its relative weight, and to determine what
part of the testimony is credible and worthy of belief.” State v. Cotton,
673 A.2d 1317, 1321 (Me. 1996) (alteration omitted) (quotation marks
omitted). Viewing the evidence in the light most favorable to the State, the
court, as the fact-finder, could have attached sufficient weight to Nisbet’s
interaction with his contractor to find beyond a reasonable doubt that Nisbet
was aware that the third-floor windows were impermissibly small. See id.; see
also Tayman, 2008 ME 177, ¶ 4, 960 A.2d 1151.
The entry is:
Judgment affirmed.
Luke S. Rioux, Esq. (orally), Rioux, Donahue, Chmelecki & Peltier, Portland, for
appellant Gregory Nisbet
Janet T. Mills, Attorney General, and Donald W. Macomber, Asst. Atty. Gen.
(orally), Office of the Attorney General, Augusta, for appellee State of Maine
Cumberland County Unified Criminal Docket docket number CR-2015-4030
FOR CLERK REFERENCE ONLY