State of Maine v. Troy D. Hastey , 2018 ME 147 ( 2018 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2018 ME 147Docket: Aro-16-556
Argued: September 14, 2017
Decided: November 6, 2018
Revised: January 8, 2019; November 19, 2019
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM, and HUMPHREY, JJ.
Dissent: JABAR, J.
STATE OF MAINE
v.
TROY D. HASTEY
HUMPHREY, J.
[¶1] In this appeal we address the question of whether evidence of the
factual circumstances underpinning a defendant’s prior manslaughter
conviction is admissible to establish an enhancing factor necessary to convict
the defendant of the Class B offense of operating a motor vehicle while under
the influence of intoxicants.
[¶2] In February 2016, Troy D. Hastey was indicted for aggravated
criminal OUI (Class B), 29-A M.R.S. § 2411(1-A)(D)(2) (2017).1 The enhancing
1 As relevant to this case, 29-A M.R.S. § 2411(1-A)(D)(2) (2017) provides that a person commits
the enhanced OUI offense if that person operates a motor vehicle while under the influence of
intoxicants and has “a prior criminal homicide conviction involving or resulting from the operation
of a motor vehicle while under the influence of intoxicating liquor or drugs . . . . For purposes of this
subparagraph, the 10–year limitation specified in section 2402 and Title 17-A, section 9-A,
2
factor alleged in the indictment is Hastey’s 1991 manslaughter conviction that
the State alleges “involve[ed] or result[ed] from the operation of a motor
vehicle while under the influence of intoxicating liquor or drugs.” 29-A M.R.S.
§ 2411(1-A)(D)(2).
[¶3] The State appeals from an order of the Unified Criminal Docket
(Aroostook County, Stewart, J.) granting Hastey’s motion in limine to exclude
evidence of his alleged intoxication at the time he committed the manslaughter
offense. The State argues that the trial court erred when it ruled that the State’s
proof regarding Hastey’s prior conviction is limited to the face of the 1990
indictment and 1991 judgment and commitment, which do not establish that
Hastey was operating while under the influence at the time of the homicide. We
agree, and we vacate the court’s order granting Hastey’s motion in limine and
remand for the entry of an order denying the motion.
I. BACKGROUND
[¶4] On March 8, 1990, Hastey was indicted for (1) one count of
manslaughter for “reckless and criminally negligent operation of a motor
vehicle” causing the death of another person (Class B), see 17-A M.R.S.A. § 203
subsection 3 does not apply to the prior criminal homicide conviction . . . . The convictions may have
occurred at any time.” 29-A M.R.S. § 2411(1-A)(A), (D)(2) (2017).
3
(Supp. 1989), and (2) one count of OUI (Class D), 29 M.R.S.A. § 1312-B
(Supp. 1989).2 On May 23, 1991, Hastey pleaded guilty to the manslaughter
offense and was sentenced. The OUI charge was dismissed.
[¶5] On December 12, 2015, Hastey was arrested for allegedly operating
a motor vehicle under the influence of intoxicants. He was later indicted for
aggravated criminal OUI (Class B), 29-A M.R.S. § 2411(1-A)(D)(2). The
indictment alleged that Hastey “had a prior conviction for a prior criminal
homicide involving or resulting from the operation of a motor vehicle while
under the influence.”
[¶6] On April 26, 2016, Hastey moved to dismiss the indictment, arguing
that because the 1990 OUI charge had been dismissed and there were no
findings of fact regarding the 1991 manslaughter conviction, he had not been
convicted of a criminal homicide involving or resulting from operation under
the influence as required to trigger the enhanced charge and sentencing
pursuant to section 2411(1-A)(D)(2). Hastey also argued that if the State is
2 The 1990 indictment contains a clerical error with respect to the OUI charge. It incorrectly
references 29 M.R.S. § 1312 (Supp. 1988). The text of the charge clearly indicates that Hastey was
charged pursuant to 29 M.R.S. § 1312-B(1) (Supp. 1989): “(1) Offense. A person is guilty of a criminal
violation under this section if he operates or attempts to operate a motor vehicle: (A) While under
the influence of intoxicating liquor or drugs or a combination of liquor and drugs; or (B) While having
0.08% or more by weight of alcohol in his blood. . . . The offense defined in subsection 1 is a Class D
crime.”
4
allowed to present evidence that he was intoxicated when he committed the
manslaughter offense, then “the State would have to, in effect, re-prosecute the
1990 charges” which would violate the “Double Jeopardy Clause’s protection
against a second prosecution for the same offense.” See U.S. Const. amend. V;
Me. Const. art. I, § 8.
[¶7] On July 1, 2016, the court denied Hastey’s motion to dismiss. Citing
the “categorical approach”3 established by federal courts to determine whether
certain prior state convictions qualify as predicate offenses under certain
federal laws, see, e.g., Taylor v. United States, 495 U.S. 575, 601-02 (1990), the
court noted that Hastey’s motion to dismiss “raise[d] significant and legitimate
questions as to admissible evidence and how evidence of prior convictions may
be reviewed at trial.”
3 As we explain in greater detail below, the categorical approach is an analytical process that the
United States Supreme Court first endorsed and applied in deciding whether a predicate burglary
conviction under Missouri law qualified as a violent felony under the federal Armed Career Criminal
Act, 18 U.S.C.S. § 924(e) (LEXIS through Pub. L. No. 115-196). See Taylor v. United States, 495 U.S. 575(1990). The approach was developed to address the lack of uniformity among state criminal codes.
In Taylor, the Court was dealing with a crime, “burglary,” that was one of the “violent” crimes
enumerated but not defined in the Act and that “has not been given a single accepted meaning by the
state courts.” Id. at 580. The Court’s solution was to hold that “burglary” under the Act “must have
[a] uniform definition independent of the labels employed by the various States’ criminal codes,” and
therefore the elements of a predicate burglary offense must substantially correspond to the elements
of “generic” burglary. Id. at 592, 598, 602. Thus, applying the “categorical approach, a court assesses
whether a crime qualifies as a [predicate offense] in terms of how the law defines the offense and not
in terms of how an individual offender might have committed it on a particular occasion.” Johnson v.
United States, 135 S. Ct. 2551, 2557 (2015) (quotation marks omitted).
5
[¶8] On August 19, 2016, Hastey moved in limine to exclude any evidence
of his alleged intoxication at the time of the 1990 offense, arguing that the
admission of such proof would contravene the categorical approach and the
Double Jeopardy Clause.4 The State opposed the motion, asserting that the
phrase “involving or resulting from” in section 2411(1-A)(D)(2) introduces an
evidentiary element that the government must prove in the prosecution of the
new case—that Hastey’s prior criminal homicide (manslaughter) conviction in
fact involved or resulted from the operation of a motor vehicle while he was
under the influence of intoxicants. The State indicated its intention to present
at trial testimonial evidence, certified records from the Bureau of Motor
Vehicles, and “properly sworn test results from the blood test administered to
[Hastey] in 1990.” The court granted Hastey’s motion. The State filed a “motion
for reconsideration and further conclusions of law,” which the court denied on
October 27, 2016.
4 Hastey does not raise the double jeopardy argument in his brief to us and therefore it is waived.
See Aseptic Packaging Council v. State, 637 A.2d 457, 463 n.4 (Me. 1994). Even if preserved, the
argument lacks merit because where a conviction is based on a plea, “jeopardy only attaches to those
counts of an indictment to which the defendant pleads guilty” and a “pretrial dismissal of an
indictment or count within an indictment does not invoke the double jeopardy clause because
jeopardy cannot attach until a jury is sworn on such charges.” United States v. Hawes, 774 F. Supp.
965, 969-70 (E.D.N.C. 1991); see also United States v. Vaughan, 715 F.2d 1373, 1376-77 (9th Cir.
1983).
6
[¶9] On November 10, 2016, after obtaining the written approval of the
Attorney General, the State timely appealed the court’s order granting Hastey’s
motion in limine and the order denying the motion for reconsideration and
further conclusions of law. See 15 M.R.S. § 2115-A(1) (2017); M.R. App. P.
2(b)(2)(A), 21 (Tower 2016).5
II. DISCUSSION
A. Interlocutory Appeal
[¶10] As a preliminary matter, Hastey argues that the State’s appeal of
the in-limine order is interlocutory and not ripe for appeal because the ruling
is subject to reconsideration by the trial court and is not final until the
challenged evidence is offered by the State at trial. See M.R.U. Crim. P. 12(c);
State v. Brackett, 2000 ME 54, ¶ 6, 754 A.2d 337.
[¶11] The State may appeal an interlocutory “order of the court prior to
trial which, either under the particular circumstances of the case or generally
for the type of order in question, has a reasonable likelihood of causing either
serious impairment to or termination of the prosecution.” 15 M.R.S.
§ 2115-A(1).
This appeal was commenced before September 1, 2017, and therefore the restyled Maine Rules
5
of Appellate Procedure do not apply. See M.R. App. P. 1.
7
[¶12] In our assessment of whether the State’s appeal meets the
requirements of section 2115-A(1), we first consider whether there is “any
reasonable likelihood that the State will be handicapped in trying the
defendant.” Brackett, 2000 ME 54, ¶ 5, 754 A.2d 337 (quotation marks
omitted). Without question, the State will be handicapped. Contrary to
Hastey’s contention, it is hard to imagine that the court’s in-limine order would
not impede the State’s ability to proceed in the trial of the case. In the absence
of evidence outside of the 1990 indictment and the 1991 judgment and
commitment, the State will not be able to prove beyond a reasonable doubt that
Hastey was intoxicated at the time he committed the predicate manslaughter
offense.
[¶13] We next consider “whether entertaining the appeal is consistent
with the strong public policy against piecemeal appeals and the impossibility of
this [C]ourt’s serving as an advisory board to trial lawyers and judges.” Id. ¶ 6(quotation marks omitted). In Brackett, we dismissed as interlocutory the
appeal of a motion in limine argued on the grounds that the evidence was
inadmissible under Maine Rule of Evidence 412. See id at ¶¶ 2, 7. We noted
that we are hesitant to entertain appeals from in-limine rulings involving
relevancy, probative value, and the prejudicial effect of evidence because “the
8
theoretical facts presented in the motion in limine may differ from the actual
facts presented at trial.” Id. ¶ 7 (discussing M.R. Evid. 403). In contrast, in State
v. Patterson, we determined that the appeal of a motion in limine was not
premature because the justice who granted the motion was to preside at the
trial the following week and clearly stated his intention to exclude the contested
evidence. 651 A.2d 362, 366 (Me. 1994).
[¶14] As in Patterson, it is appropriate for us to entertain this appeal
because it is not premature. Although it is possible that the justice who granted
Hastey’s motion may not preside at the eventual trial, the in limine ruling was
stated with finality. The court clearly excluded any extrinsic evidence that
Hastey was intoxicated at the time of the 1990 manslaughter offense, thus
creating a reasonable likelihood that the prosecution would be terminated.
B. Order on Motion in Limine
[¶15] In line with Hastey’s argument to us on appeal, the court
announced in its in-limine order that it “will follow the categorical approach to
determine whether the required elements of the predicate offense [in section
2411(1-A)(D)(2)] are established.” Applying that analytical framework, the
court granted Hastey’s motion and concluded that the State’s proof of the
9
enhancing factor would be limited to the 1990 indictment and the 1991
judgment and commitment because, although those documents
establish [Hastey] was convicted of manslaughter, which was the
result of criminally negligent operation of a motor vehicle[,] . . . [the
State] cannot establish the element “while under the influence”
without relying on extrinsic evidence outside from the 1990
indictment and 1991 judgment. To establish the predicate element
of “while under the influence,” evidence of [Hastey’s] intoxication
at the time of the 1990 offense would have to be offered and
admitted. This would surely be a factfinding endeavor, which
would unfairly require [Hastey] to defend very old and stale
allegations. It is the [c]ourt’s belief that is the type of unfairness
and potential prejudice that the categorical approach is meant to
avoid.
[¶16] The State argues that the court erred by depriving the State of the
opportunity to present extrinsic evidence at trial of Hastey’s alleged
intoxication because the statutory phrase “involving or resulting from”
introduces a specific enhancing element separate and distinct from the
homicide conviction that requires proof of the circumstances underlying the
commission of the manslaughter offense.
[¶17] We begin with a brief discussion of the categorical approach to
provide a context for our assessment of the trial court’s reasoning and decision.
We then examine section 2411(1-A)(D)(2) to determine whether the court
erred when it excluded evidence of the circumstances of Hastey’s prior criminal
homicide conviction.
10
1. The Categorical Approach
[¶18] In 1990, the United States Supreme Court first applied an analytical
process that came to be known as the “categorical approach” to determine the
meaning of the word “burglary” in a sentence-enhancing provision of the
federal Armed Career Criminal Act. See Taylor, 495 U.S. at 602.6 The Act
imposed an enhanced sentence “upon certain firearm-law offenders who also
have three prior convictions for ‘a violent felony,’” and defined “violent felony”
to include “burglary.” Nijhawan v. Holder, 557 U.S. 29, 34 (2009) (quoting 18
U.S.C.S. § 924(e) (LEXIS through Pub. L. No. 115-196)). Taylor entered a
conditional guilty plea to possession of a firearm by a convicted felon, 18
U.S.C.S. § 922(g)(1) (LEXIS through Pub. L. No. 115-196) and, because he had
four prior felony convictions, including two burglary convictions under
6 The Supreme Court appears to have coined the term “categorical approach” in Taylor:
[T]he enhancement provision [of § 924(e) of the Armed Career Criminal Act] always
has embodied a categorical approach to the designation of predicate offenses. . . .
....
First, the language of § 924(e) generally supports the inference that Congress
intended the sentencing court to look only to the fact that the defendant had been
convicted of crimes falling within certain categories, and not to the facts underlying
the prior convictions. . . .
Second, as [the Supreme Court has] said, the legislative history of the
enhancement statute shows that Congress generally took a categorical approach to
predicate offenses.
Taylor, 495 U.S. at 588, 600-01.
11
Missouri law, he received an enhanced sentence pursuant to the Armed Career
Criminal Act. See Taylor, 495 U.S. at 577-79. On appeal, Taylor argued “that his
burglary convictions should not count for enhancement, because they did not
involve ‘conduct that presents a serious potential risk of physical injury to
another,’ under § 924(e)(2)(B)(ii).” Id. at 579.
[¶19] The Supreme Court determined that Congress intended the
enhancement provision of the Act to embody a categorical approach. Id.
at 588-90. The Court reasoned that because “burglary” was not defined in
§ 924(e) and does not have “a single accepted meaning by the state courts,” it
“must have [a] uniform definition independent of the labels employed by the
various States’ criminal codes” that substantially corresponds to the elements
of “generic” burglary.7 Id. at 580, 592, 599, 602.
[¶20] In other words, under the categorical approach, “a state offense is
a categorical match with a generic federal offense only if a conviction of the
state offense ‘necessarily’ involved facts equating to the generic federal offense.
Whether the [defendant’s] actual conduct involved such facts is quite
irrelevant.” Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (alterations omitted)
7 “Although the exact formulations vary, the generic, contemporary meaning of burglary contains
at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or
other structure, with intent to commit a crime.” Id. at 598.
12
(citations omitted) (quotation marks omitted); see also Descamps v. United
States, 570 U.S. 254, 261, 264 (2013) (applying the categorial approach,
“[s]entencing courts may look only to the statutory definitions—i.e., the
elements—of a defendant’s prior offenses, and not to the particular facts
underlying those convictions” (quotation marks omitted) (emphasis in the
original)).8
[¶21] Because Hastey’s pending OUI charge and its alleged enhancing
provisions, including his predicate manslaughter conviction, are all products of
Maine law, we have no occasion to consider the categorical approach, nor are
we bound to adopt it. See State v. Burnett, 755 N.E.2d 857, 860-61 (Ohio 2001)
(explaining that the Supremacy Clause binds state courts to decisions of the
United States Supreme Court on questions of federal statutory and
constitutional law). We need only apply section 2411(1-A)(D)(2), and we have
8In contrast, when an enhancing provision of a federal statute is not based on a generic crime,
but instead “refer[s] to the specific way in which an offender committed the crime on a specific
occasion,” federal courts apply a circumstance-specific approach in which the court “must look to the
facts and circumstances underlying an offender’s conviction.” Nijhawan v. Holder, 557 U.S. 29, 34
(2009). In Nijhawan, after considering whether a prior offense “involve[d] fraud or deceit in which
the loss to the . . . victims exceeds $10,000,” id. (alteration in original), the Supreme Court “held that
the $10,000 threshold was not to be applied categorically as a required component of a generic
offense, but instead called for a ‘circumstance-specific approach.’” Moncrieffe v. Holder, 569 U.S. 184,
202 (2013).
13
no occasion to equate its enhancing provisions to a generic crime.9 The
categorical approach simply does not apply.
2. Title 29-A M.R.S. § 2411(1-A)(D)(2)
[¶22] Although we generally review a trial court’s decision to admit or
exclude evidence for an abuse of discretion or for clear error, see State v.
Mooney, 2012 ME 69, ¶ 9, 43 A.3d 972, the question presented in this case is a
purely legal one: whether the court erred when it applied the categorical
approach to the enhancement provision of 29-A M.R.S. § 2411(1-A)(D)(2).10
[¶23] This is a question of statutory interpretation that requires a
de novo review. See State v. Jones, 2012 ME 88, ¶ 6, 46 A.3d 1125. “In
interpreting a statute, our single goal is to give effect to the Legislature’s intent
in enacting the statute.” Dickau v. Vt. Mut. Ins. Co., 2014 ME 158, ¶ 19, 107 A.3d
621. To determine that legislative intent, “we first look to the plain language of
the provisions to determine their meaning.” Mainetoday Media, Inc. v. State,
2013 ME 100, ¶ 6, 82 A.3d 104. “We seek to discern from the plain language of
the statute the real purpose of the legislation, avoiding results that are absurd,
9 We express no opinion as to whether or under what circumstances we would consider adoption
or application of the analytical framework of a categorical approach.
10Because Hastey is being prosecuted for the Class B OUI offense and not being re-prosecuted for
the 1990 OUI offense, Hastey’s statute of limitations defense is without merit. See 17-A M.R.S. § 8
(2017).
14
inconsistent, unreasonable, or illogical. If the statutory language is clear and
unambiguous, we construe the statute in accordance with its plain meaning in
the context of the whole statutory scheme.” State v. Mourino, 2014 ME 131, ¶ 8,
104 A.3d 893 (quotation marks omitted). “If the plain language of a statute is
ambiguous—that is, susceptible of different meanings—we will then go on to
consider the statute’s meaning in light of its legislative history and other indicia
of legislative intent.” Mainetoday Media, Inc., 2013 ME 100, ¶ 6, 82 A.3d 104.
[¶24] Section 2411(1-A)(D)(2) is a provision within Maine’s OUI law that
enhances the penalty for OUI offenses committed under certain circumstances
and, in part, provides that a defendant will be guilty of a Class B OUI offense if
he “[o]perates a motor vehicle . . . [w]hile under the influence of intoxicants,”
29-A M.R.S. § 2411(1-A)(A), and has “a prior criminal homicide conviction
involving or resulting from the operation of a motor vehicle while under the
influence.” 29-A M.R.S. § 2411(1-A)(D)(2) (emphasis added); see also 29-A
M.R.S. § 2411(5)(D-2) (2017). This enhancing provision plainly requires the
State to prove beyond a reasonable doubt11 that (1) Hastey has a “prior criminal
11 The parties do not contest that, consistent with the Sixth Amendment, the factfinder must find
the predicate elements of the Class B OUI offense beyond a reasonable doubt. See Alleyne v. United
States, 570 U.S. 99, 108, 111-12 (2013) (“Facts that increase the mandatory minimum sentence are
[] elements and must be submitted to the jury and found beyond a reasonable doubt.”); see also
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); State v. Nugent, 2007 ME 44, ¶ 6, 917 A.2d 127.
15
homicide conviction” (2) that “involv[ed] or result[ed] from the operation of a
motor vehicle while under the influence of intoxicating liquor or drugs.” 12 29-A
M.R.S. § 2411(1-A)(D)(2). These are two distinct elements.13
[¶25] The first element of the enhancement provision requires proof of
a prior conviction for a specific type of criminal offense—a criminal homicide.
Id. Although “criminal homicide” is a category of offenses,14 the parties do not
12 The manslaughter charge to which Hastey pleaded guilty in 1991 alleged his reckless or
criminally negligent operation of a motor vehicle; however, that charge did not allege that he was
under the influence at the time.
13 The distinction in section 2411(1-A)(D)(2) between the elements of a “prior criminal homicide
conviction” and the factual circumstances underlying that criminal homicide—“involv[ed] or
result[ed] from the operation of a motor vehicle while under the influence of intoxicating liquor or
drugs”—is made all the more clear by “the whole statutory scheme.” State v. Mourino, 2014 ME 131,
¶ 8, 104 A.3d 893 (quotation marks omitted).
First, there is no criminal homicide offense in Maine law that has OUI as an element—such an
offense did not exist in 1990, nor does it exist now—and thus, OUI cannot be an element of any “prior
criminal homicide conviction.” Rather, OUI is an element for the enhancing provision of section
2411(1-A)(D)(2).
Second, the Legislature has enacted a number of other provisions that clearly require the State to
plead and prove certain definitional elements of an offense. See, e.g., 15 M.R.S. § 393(1)(A-1)(5)
(2017) (possession of a firearm by a prohibited person); 17-A M.R.S. § 151(4) (2017) (criminal
conspiracy); 17-A M.R.S. § 253(7) (2017) (gross sexual assault); 17-A M.R.S. § 451(2) (2017)
(perjury); 17-A M.R.S. § 802(2) (2017) (arson); 17-A M.R.S. § 1252(4-B)(B) (2017) (enhanced
sentence for repeat sexual offender). If the Legislature had intended to limit the type of qualifying
criminal homicides to those that include impaired operation as an element of the homicide offense—
even if such an offense existed in Maine law—we expect that the Legislature would have used that
demonstrated ability by stating that the enhancing homicide is one where the State was required to
plead and prove, as part of the prior criminal homicide prosecution, that the defendant had operated
under the influence or with a certain alcohol level in his system.
In fact, the trial court in its in-limine order appears to have recognized that these are two distinct
elements when it observed that the State “cannot establish the element ‘while under the influence’
without relying on extrinsic evidence outside from the 1990 indictment and 1991 judgment.”
14“Criminal homicide” is not a defined term in the laws of Maine, therefore we afford “criminal
homicide” its “plain, common, and ordinary meaning, such as people of common intelligence would
16
dispute that manslaughter falls within the category of “criminal homicide.” The
State can prove the first element because the 1991 judgment and commitment
demonstrates that Hastey was previously convicted of manslaughter.
[¶26] The second element—“involving or resulting from the operation
of a motor vehicle while under the influence”—unambiguously “refer[s] to the
specific way in which an offender committed the crime [of manslaughter] on a
specific occasion,” Nijhawan, 557 U.S. at 34, which in the context of this case
requires a present inquiry into Hastey’s conduct at the time that he committed
the manslaughter offense. The modifying phrase “involving or resulting from”
is framed in the disjunctive, thus allowing the State to prove either alternative
as an enhancement element. Hastey’s 1991 manslaughter conviction did not
contain a statutory element of impaired operation. Even if that conviction itself
usually ascribe to them.” See Dickau v. Vt. Mut. Ins. Co., 2014 ME 158, ¶ 22, 107 A.3d 621 (quotation
marks omitted). “Criminal homicide” is commonly defined as “[t]he act of purposely, knowingly,
recklessly, or negligently causing the death of another human being.” Criminal Homicide, Black’s Law
Dictionary (10th ed. 2014) (alternatively defining “criminal homicide” as “[h]omicide prohibited and
punishable by law, such as murder or manslaughter”).
Because manslaughter includes as an element “[r]ecklessly, or with criminal negligence, causes
the death of another human being,” 17-A M.R.S. § 203 (2017), we reasonably infer that the Legislature
intended to include manslaughter when it used the term “criminal homicide.”
The Legislature’s use of the term “criminal homicide” last appeared in the 1976 criminal code,
where crimes like murder and manslaughter were degrees of “criminal homicide.” See State v.
Shortsleeves, 580 A.2d 145, 149 (Me. 1990) (citing P.L. 1975, ch. 499, § 1 (effective Mar. 1, 1976)). “In
1977, the six degrees of criminal homicide were eliminated and the crimes were recategorized as
murder, felony murder, manslaughter and aiding or soliciting suicide.” Id. (citing P.L. 1977, ch. 510,
§§ 38-43 (effective Oct. 24, 1977) (codified at 17-A M.R.S.A. §§ 201-04 (Pamph. 1978))).
17
therefore did not “involv[e]” an OUI, section 2411(1-A)(D)(2) also entitles the
State to try to prove that the prior homicide conviction “result[ed]” from
impaired operation—an element that plainly must permit the presentation of
extrinsic evidence. 29-A M.R.S. § 2411(1-A)(D)(2).
[¶27] Precluding a factual probe into the circumstances of Hastey’s prior
manslaughter conviction is contrary to the plain language of the enhancement
provision of the statute and would frustrate the statutory scheme of imposing
the most severe penalties on repeat OUI offenders who have caused serious
bodily injury or death of other people while operating under the influence. See
Mourino, 2014 ME 131, ¶ 8, 104 A.3d 893; see generally 29-A M.R.S. § 2411
(2017).15
[¶28] Because section 2411(1-A)(D)(2) requires a present inquiry into
the factual circumstances underlying a prior homicide conviction, the State
must be permitted the opportunity to offer evidence in the current prosecution
15 In 1999, Public Law 1999, chapter 703, section 1, was enacted and added an enhancement
provision making it a Class C crime to operate a motor vehicle under the influence of intoxicants if a
person has a “prior criminal homicide conviction involving or resulting from the operation of a motor
vehicle while under the influence of intoxicating liquor or drugs.” P.L. 1999, ch. 703, § 1 (effective
Aug. 11, 2000) (codified at 29-A M.R.S.A. § 2411(6)(B) (Supp. 2000)) and in its current form is
codified at 29-A M.R.S. § 2411(1-A)(D)(2) (2017) (emphasis added). The Legislature increased the
offense from Class C to Class B in 2005. See P.L. 2005, ch. 606, § A-3 (effective Aug. 23, 2006) (codified
at 29-A M.R.S. § 2411(5)(D-2) (2017)).
18
to establish that Hastey’s 1991 manslaughter conviction involved or resulted
from his operation of a motor vehicle under the influence.16
3. Evidentiary Issues
[¶29] We recognize that, in part, the court’s motivation for applying the
limitations of the categorical approach was a thoughtful concern that allowing
evidence outside of the indictment and the judgment and commitment of an
event that occurred more than twenty-six years earlier would be unfair to
Hastey.17 However, several protective measures will shield Hastey from
potential unfairness. First, if Hastey seeks a jury trial,18 Maine Rule of Unified
16Although the “rule of lenity counsels us to resolve ambiguities in favor of the more lenient
punishment when construing an ambiguous criminal statute,” State v. Harrell, 2012 ME 82, ¶ 5, 45
A.3d 732 (quotation marks omitted), the rule of lenity only applies if “we can make no more than a
guess as to what [the Legislature] intended” because there is a “grievous ambiguity or uncertainty in
the statute.” Muscarello v. United States, 524 U.S. 125, 138-39 (1998) (quotation marks omitted).
Section 2411(1-A)(D)(2) does not present us with a grievous ambiguity, and the Legislature’s intent
is clear, so the rule of lenity does not apply.
17 Hastey also argues that Maine Rule of Evidence 410 bars admission of statements made during
his 1991 Rule 11 plea colloquy. See M.R.U. Crim. P. 11. Because there is no Rule 11 transcript
available in the record, we need not decide whether M.R. Evid. 410 applies to bar admission of
statements made in connection with or during his guilty plea proceedings. See M.R. Evid. 410 (“In
a . . . criminal case, evidence of the following is not admissible against the person who made the plea
or participated in the plea discussions: . . . (c) A statement made in connection with a guilty or nolo
contendere plea or during a proceeding on either of those pleas under Maine Rule of Criminal
Procedure 11 or a comparable Federal or state procedure.”); see also State v. Little, 527 A.2d 754, 756
(Me. 1987) (discussing the scope of conversations protected by M.R. Evid. 410 and noting that
“[g]iven the importance of guilty pleas and in the interest of protecting the plea bargaining process
which often culminates in a guilty plea, it is essential that an accused be free to negotiate a plea
without fear that any incriminating statements he makes while engaged in plea negotiations will be
used against him in other proceedings”).
Hastey previously waived his right to a jury trial. We do not reach the question of whether or
18
under what circumstances he may withdraw that waiver. See State v. Ouellette, 2006 ME 81, ¶ 28,
19
Criminal Procedure 26(e) permits the court to separate the trial of the “current
principal crime” from the trial to determine the existence and circumstances of
his prior conviction,19 thereby requiring the jury to determine Hastey’s guilt of
the principal OUI offense before considering evidence of the enhancement
portion of the charge alleging his prior manslaughter conviction. Second, the
State has the burden of proving beyond a reasonable doubt that his
manslaughter conviction involved or resulted from operating a motor vehicle
while under the influence of intoxicants. Third, while the State may seek to
introduce the types of evidence generally admissible in a criminal proceeding,20
its efforts will be subject to the Maine Rules of Evidence, the Maine Rules of
Unified Criminal Procedure, and other applicable laws, including 29-A M.R.S.
§ 2431 (2017) (imposing evidentiary rules for the admission of alcohol test
results). Fourth, the fact-finder will be required to assess the credibility of
n.6, 901 A.2d 800 (noting that “[s]ome states grant defendants an absolute right to withdraw jury
trial waivers while other states leave it to the discretion of the court to permit a withdrawal.”)
19 M.R.U. Crim. P. 26(e) permits bifurcation if “the prior conviction is for a crime that is identical
to the current principal crime or is sufficiently similar that knowledge of the fact that the defendant
has been convicted of the prior crime may, in the determination of the presiding justice, unduly
influence the ability of the jury to determine guilt fairly.”
20 The State has stated its intention to introduce extrinsic evidence—including testimony from
police officers, certified records from the Bureau of Motor Vehicles, and results from the blood test
administered to Hastey in 1990—to prove that the manslaughter conviction involved or resulted
from operation under the influence.
20
witnesses and the reliability of documentary evidence of an incident that by the
time of any trial will have occurred nearly thirty years before. See Nijhawan,
557 U.S. at 42 (“[U]ncertainties caused by the passage of time are likely to count
in the [defendant’s] favor.”). And, finally, in the exercise of its broad discretion,
particularly when considering the effect that a near thirty-year-old homicide
may have on jurors being asked to decide whether Hastey operated under the
influence in 2016, the court must assess the risk of unfair prejudice against the
probative value of the evidence that the State plans to offer. See M.R. Evid. 403;
State v. Renfro, 2017 ME 49, ¶ 10, 157 A.3d 775.
III. CONCLUSION
[¶30] In relevant part, the enhancement provision of 29-A M.R.S
§ 2411(1-A)(D)(2) requires the State to prove beyond a reasonable doubt the
existence of (1) a “prior criminal homicide conviction,” (2) that “involve[ed] or
result[ed] from the operation of a motor vehicle while under the influence [of
intoxicants].” The latter requirement is a factual element that the State must
prove in the present prosecution and may do so by offering extrinsic evidence
to establish that Hastey’s 1991 manslaughter conviction involved or resulted
from his operation of a motor vehicle while he was under the influence of
21
intoxicants. Therefore, we vacate the court’s in-limine order and remand for
the entry of an order denying Hastey’s motion in limine.
The entry is:
Order granting Hastey’s motion in limine
vacated. Remanded for further proceedings
consistent with this opinion.
JABAR, J., dissenting.
[¶31] I respectfully dissent because I believe that the sentence enhancer
contained in 29-A M.R.S. § 2411(1-A)(D)(2) (2017) is based on the existence of
a prior conviction, not on aggravating facts that may have occurred during the
course of the prior conviction. The phrase “involving or resulting from”
modifies the term “criminal homicide conviction.” See id. Accordingly, the
State’s burden must be to prove that the criminal homicide conviction involved
or resulted from operating under the influence, not that Hastey was both
convicted of criminal homicide and that, in the course of committing the
homicide, he operated under the influence.
I. DISCUSSION
[¶32] Sentence enhancers generally come in two categories—(1) prior
convictions and (2) facts associated with the commission of the crime presently
charged, usually called “aggravating factors.” For example, 17-A M.R.S.
22
§ 1252(4-B)(A) (2017) enhances the penalty of “repeat sexual assault
offenders” who have been previously convicted of certain offenses, while
17-A M.R.S. § 210(1)(B) (2017) increases a terrorizing offense from Class D to
Class C when it causes the evacuation of a building. The former requires proof
of a past conviction (usually for the same or similar conduct), while the latter
requires proof of specific facts associated with the present crime charged. The
Court references such enhancers in its opinion, but fails to make a distinction
between those based on aggravating factors and those based on prior
convictions. Court’s Opinion ¶ 24 n.14.
[¶33] The Court takes the position that the sentence enhancer in section
2411 is based on aggravating factors associated with a prior conviction. Court’s
Opinion ¶ 24. In its view, the language “involving or resulting from” does not
modify the prior criminal homicide conviction, but rather is a separate and
distinct element to be proved in addition to the prior conviction.21 Court’s
The Court notes that “involving or resulting from” is framed in the disjunctive, and that the
21
State may attempt to prove either alternative. Court’s Opinion ¶ 26. To prove “resulting from,” the
Court states, “plainly must permit the presentation of extrinsic evidence.” Court’s Opinion ¶ 26.
However, the plain language of the statute does not support such a reading.
To “involve” is “to include or contain as a part,” or alternatively, “to have as an essential feature or
consequence.” Involve, Webster’s New College Dictionary (3d ed. 2008). To “result” is “to happen or
exist as a result of a cause.” Result, Webster’s New College Dictionary (3d ed. 2008). Thus, the State
may use a conviction from a criminal homicide that “involve[ed]” operating under the influence—i.e.
that Hastey was operating under the influence when he committed the homicide that lead to his
conviction—or a conviction that “result[ed]” from operating under the influence—i.e., that Hastey’s
operation under the influence was the actual cause of the homicide leading to his conviction. Under
23
Opinion ¶ 24. I disagree with the Court’s assertion that a plain reading of the
statute supports its holding. At best, the language is ambiguous, and a
reasonable interpretation is that the language “involving or resulting from”
modifies the term “criminal homicide conviction” rather than being a separate
and distinct element.
[¶34] The legislative history behind section 2411 strongly supports the
proposition that it contains a sentence enhancement predicated on the prior
conviction. In 2003, the Legislature undertook a comprehensive revamp of
criminal and civil violations, seeking to create a one-to-one relationship
between each offense and the corresponding statutory cite. L.D. 1567,
Summary (121st Legis. 2003). In the summary of the bill, the Legislature stated
“[t]he enhancers that this bill includes are for prior convictions.”22 Id. This
could not be any clearer—the sentence enhancer is for the prior conviction, not
for facts associated with that conviction.
either alternative, however, the record of conviction will provide a sufficient basis for the State to
prove, in a subsequent prosecution under section 2411, that Hastey’s prior conviction involved or
resulted from operating under the influence without resort to extrinsic facts.
22 That the sentence enhancer in section 2411 is based on a prior conviction is further supported
by its reference to 17-A M.R.S. § 9-A (2017), which requires that the State plead the existence of a
prior conviction to be used as a sentence enhancer. See L.D. 1567, Summary (121st Legis. 2003)
(“When a person has a prior conviction for committing the same or another crime, that prior
conviction may sometimes be used to enhance the penalty, but the State must plead and prove to a
jury that the prior conviction did occur.”).
24
[¶35] The Nevada Supreme Court has recently dealt with an almost
identical issue. In Redeker v. Eighth Judicial District Court, the Nevada court was
faced with the interpreting of a statute enhancing the penalty of defendants
who had been “convicted of a felony involving the use or threat of violence to
the person of another.” 127 P.3d 520, 522 (Nev. 2006) (emphasis added).
There, the Nevada court refused to allow the state to treat the facts of the prior
conviction as a separate element and to present evidence of the underlying facts
of the prior case; the court limited the evidence to proof of the prior conviction.
The language of [the statute] . . . does not restrict the determination
of the character of a felony simply to consideration of its statutory
elements. On the other hand, the statute does not indicate that no
limits should be placed on the sort of evidence that can be
considered in making that determination. We believe that the
approach in Taylor and Shepard answers the concerns about due
process . . . as well as the practical difficulties and potential
unfairness of a factual approach recognized by the United States
Supreme Court.
Id. at 525-26. Succinctly, the Nevada court concluded that “[t]he statutory
language indicates that the felony itself must involve the use or threat of
violence, not that the defendant made threats of violence and also committed a
felony.” Id. at 528.
[¶36] Here, the Court’s holding in this case does just that—it creates a
sentence enhancer not based on the fact of a prior conviction, but on a prior
25
conviction plus facts occurring during the prior conviction. This creates an
element beyond the fact of a prior conviction. This added element is not
supported by the legislative history or apparent intent of section 2411.
[¶37] The approach adopted by the Court will allow the State to produce
extrinsic evidence that Hastey was operating under the influence at the time of
his manslaughter conviction, even though there is the possibility that the
conviction did not “involve or result from” the operation of a motor vehicle
while under the influence. The Court’s approach will necessarily result in a
retrial of the factual circumstance surrounding a twenty-six-year-old
manslaughter case. There are potential unintended consequences of such an
approach.
[¶38] In the long run, the Court’s holding will make it more difficult for
the State to prove the existence of an enhancer pursuant to section 2411. In
this case, the transcript for the Rule 11 hearing was not available, but in future
cases the categorical approach adopted by the federal courts and other state
courts would more readily establish a connection between the prior criminal
homicide conviction and operating under the influence than having to prove
that the defendant operated under the influence during the prior conviction.
The defendant would have another bite at the apple, and could convince a jury
26
that even though the court documents could establish that the prior conviction
for criminal homicide involved or resulted from operating under the influence,
they were not operating under the influence during the prior conviction.
[¶39] Besides the practical problems confronting the State in proving a
twenty-six-year-old incident of operating under the influence, it is
fundamentally unfair to Hastey to undo the terms of his plea to manslaughter.
After twenty-six years, Hastey now faces having to defend against the charge of
operating under the influence that was dismissed as part of his plea agreement.
See Descamps v. United States, 570 U.S. 254, 270-71 (2013) (stating that an
approach scrutinizing the facts underlying a conviction “will deprive some
defendants of the benefits of their negotiated plea deals”).
II. CONCLUSION
[¶40] The Court’s approach creates the practical difficulties and
potential unfairness that the United States Supreme Court has long cautioned
against. 23 See Taylor v. United States, 495 U.S. 575, 601-02 (1990); Descamps,
23 The Court points to Nijhawan v. Holder, 557 U.S. 29, 34 (2009), as showing that the Supreme
Court has required a circumstance-specific approach when a federal statute refers to the “specific
way in which an offender committed the crime on a specific occasion.” Court’s Opinion ¶ 20 n.8.
However, in Nijhawan, the Supreme Court was faced with an enhancing provision based on a prior
offenses that “involve[d] fraud or deceit in which the loss to the . . . victims exceeds $10,000.” Id.(quotation marks omitted). Importantly, the Supreme Court looked to “the italicized statutory
words”—in which—as a reference to the specifics of the crime committed, not that it “involve[d]
fraud or deceit.” Id. at 34, 39 (“The words ‘in which’ (which modify ‘offense’) can refer to the conduct
involved ‘in’ the commission of the offense of conviction, rather than to the elements of the offense.”).
27
570 U.S. at 270-71. The federal courts have adopted a categorical approach
regarding proof of prior convictions, not other facts surrounding the prior
conviction. Other state courts have acknowledged the categorical approach’s
wisdom. 24 See, e.g., Redeker v. Eighth Judicial Dist. Court, 127 P.3d 520, 525-26
(Nev. 2006); People v. Gallardo, 407 P.3d 55, 56, 64 (Cal. 2017) (holding, in
interpreting its own state criminal code, “that a court considering whether to
impose an increased sentence based on a prior qualifying conviction may not
determine the nature or basis of the prior conviction based on its independent
conclusions about what facts or conduct realistically supported the conviction”
(quotation marks omitted)); State v. Hancock, 65 N.E.3d 585, 587-92
(Ind. 2016) (applying the categorical approach to Indiana’s and Ohio’s state
statutes to determine whether a prior conviction in Ohio was substantially
Likewise, the Supreme Court looked to examples of other statutes that referenced the specific way a
crime was committed—“for the purpose of,” “if committed for commercial advantage,” “in which the
revenue loss . . . exceeds $10,000.” Id. at 37-38. Section 2411 does not include comparable language.
See 29-A M.R.S. § 2411(1-A)(D)(2).
24 The categorical approach requires a sentencing court to “compare the elements of the statute
forming the basis of the defendant’s conviction with the elements of the ‘generic crime,’” and the
“prior conviction qualifies . . . only if the statute’s elements are the same as, or narrower than, those
of the generic offense.” Descamps v. United States, 570 U.S. 254, 257 (2013); see Taylor v. United States,
495 U.S. 575, 600 (1990). A variant of this approach, the modified categorical approach, is applicable
to divisible statutes—statutes that set out means of committing a crime in the alternative. Descamps,
570 U.S. at 257. In the modified approach, the sentencing court is allowed to consult a “limited class
of documents,” such as the indictment, jury instructions, plea agreement, plea colloquy, and explicit
factual findings the defendant assented to. Descamps, 570 U.S. at 257; see Shepard v. United States,
544 U.S. 13, 25-26 (2005).
28
similar to the offense in Indiana); State v. Dickey, 350 P.3d 1054, 1057-58,
1067-68 (Kan. 2015) (applying the categorical approach in a comparison of two
of its own state criminal statutes). Although in Maine the issue must be
presented to a jury instead of a judge during sentencing, the issue before us
remains the same—whether the enhancer in section 2411 refers only to prior
convictions or to prior convictions plus facts that constitute an aggravating
factor. The precedents and process used by the federal courts is both
informative and persuasive.25
[¶41] We should affirm the trial court’s order granting Hastey’s motion
in limine regarding the introduction of extrinsic evidence and limit the State’s
25The Supreme Court has required that, pursuant to the Sixth Amendment, “other than the fact
of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury and proved beyond a reasonable doubt.” Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000); see also Alleyne v. United States, 570 U.S. 99, 108, 111-12 (2013).
Despite this, the Maine Legislature has gone further than what is constitutionally mandated by
requiring that all facts that serve to increase a sentence, including prior convictions, be included in
the charging document, submitted to a jury, and proved beyond a reasonable doubt. See 17-A M.R.S.
9-A (2017); L.D. 1740, Bill Summaries, Joint Standing Committee on Criminal Justice (120th Legis.
2001) (recognizing the prior convictions exception to the Sixth Amendment requirements, but not
implementing it into Maine law); L.D. 1567, Summary (121st Legis. 2003) (“[T]he State must plead
and prove to a jury that the prior conviction did occur, instead of the court making that determination
in order to enhance a crime at the point of sentencing.”). As a result of the Legislature’s decision,
Maine has a unique system in which sentence enhancement based on prior convictions must be
pleaded and proved to the jury, not to a sentencing judge. See State v. Averill, 2005 ME 83, ¶ 14, 887
A.2d 519 (Clifford, J., dissenting) (“Pursuant to our existing law, discrete prior criminal convictions
that lead to a higher classification of crime, or that can lead to longer sentences, have to be pleaded
and proved beyond a reasonable doubt.”).
29
proof to evidence of the conviction itself, including relevant court pleadings,
transcripts, and judicial findings.
Todd R. Collins, District Attorney, and Kurt A. Kafferlin, Asst. Dist. Atty. (orally),
8th Prosecutorial District, Houlton, for appellant State of Maine
Kirk D. Bloomer, Esq. (orally), Houlton, for appellee Troy D. Hastey
Aroostook County Unified Criminal Docket docket number CR-2015-30352
FOR CLERK REFERENCE ONLY