State of Maine v. Andrew J. Freeman , 87 A.3d 719 ( 2014 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2014 ME 35
Docket: Oxf-13-133
Argued: November 21, 2013
Decided: March 4, 2014
Panel: SAUFLEY, C.J., and LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.
STATE OF MAINE
v.
ANDREW J. FREEMAN
SILVER, J.
[¶1] Andrew J. Freeman appeals from a judgment of conviction in the trial
court (Alexander, J.) of aggravated attempted murder, Class A, 17-A M.R.S.
§ 152-A(1)(A) (2013); aggravated attempted murder, Class A, 17-A M.R.S.
§ 152-A(1)(B) (2013);1 arson, Class A, 17-A M.R.S. § 802(1)(B)(2) (2013); and
burglary, Class B, 17-A M.R.S. § 401(1)(B)(4) (2013). Freeman also appeals his
sentence, arguing that it is excessive and that the sentencing court failed to engage
in the proper sentencing analysis. We affirm the convictions and the sentence.
1
Count 1 of the indictment alleged that Freeman intentionally attempted to murder Kristen McLeod
and that his intention to kill was accompanied by premeditation-in-fact, which is an aggravating
circumstance pursuant to 17-A M.R.S. § 152-A(1)(A) (2013). Count 2 alleged that Freeman intentionally
attempted to cause the deaths of Edgar McLeod, Sandra McLeod, and Kristen McLeod. That the person
who committed attempted murder intended to cause multiple deaths is an aggravating circumstance
pursuant to 17-A M.R.S. § 152-A(1)(B) (2013). The sentencing justice considered the two convictions as
one for purposes of sentencing. See State v. Allard, 557 A.2d 960, 962 (Me. 1989).
2
I. BACKGROUND
[¶2] On December 6, 2011, seventeen-year-old Kristen McLeod ended her
dating relationship with Freeman, who was then twenty-one. That evening,
Freeman appeared at Kristen’s grandparents’ home, where Kristen also lived,
asking to speak with Kristen. Kristen’s grandmother, Sandra, refused to let him
into the house and turned him away. Freeman returned, and Sandra again refused
to let him in but did offer to give him a ride back to his apartment due to the cold
weather. Freeman asked her to drop him off at a nearby house instead, telling her
that it was the home of his aunt and uncle.2 Sandra agreed and dropped him off
outside the house around 7:30 p.m. Around 9:00 p.m., Kristen’s grandfather,
Edgar, locked the front and back doors.
[¶3] The following day, Sandra awoke around 5:00 a.m. and heard a noise
in the basement. Believing that there may be a problem with the furnace, she
opened the basement door and saw flames. She woke Edgar and Kristen, and
together they were able to put out the fire using pots and pans full of water from
the kitchen.
[¶4] An investigation revealed that two separate fires had been started in the
basement. The first had apparently been when a cloth draped over a tabletop was
2
Sandra and investigators later learned that Freeman’s aunt and uncle actually lived in a neighboring
house. The residents of the house where Sandra dropped Freeman off did not know Freeman, and did not
see him that evening.
3
ignited. The second fire involved a box spring frame that had been spray-painted
and scorched but failed to combust.
[¶5] Investigators noted several other things. The words “bye” and “Die
Kristen” were spray-painted on the basement walls. The house phones were
missing; one was later found in the basement without its battery. Several light
bulbs in the basement were missing from their sockets. The thermostat in the
basement had been turned up to ninety degrees. Several items from the kitchen,
including a jug of milk—on which Freeman’s DNA was later found—were found
in the basement. The sliding door leading outside from the basement was left open
about one half of an inch.
[¶6] Also on December 7, around 6:00 a.m., Freeman’s aunt, Rhonda
Maher, unexpectedly found Freeman sitting at her dining room table. Freeman
told her that he had spent the night helping friends move, and that he had just been
dropped off. He told a similar story to investigators later that day, but was unable
to provide details like the friends’ names or the location of either the house they
had moved to or the house they were moving from.
[¶7] On December 8, Maher and her husband found a butane lighter outside
their front door. There had been a significant amount of snow in the area where
the lighter was found, and the Mahers only discovered the lighter after rain had
melted the snow away. They turned the lighter over to the fire marshal after
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confirming that it had not come from their own home. Freeman’s DNA was found
on the lighter.
[¶8] Freeman was indicted on all four counts and was arraigned in
March 2012. A trial was held in September 2012. The prosecutor argued to the
jury that, after Sandra dropped Freeman off, he returned to the McLeod residence
and entered the basement through the sliding door. According to the State’s
theory, Freeman waited in the basement until everyone in the house had gone to
bed, helped himself to food and milk from the kitchen, and then set the fires.
Based on the fire marshal’s belief that the second fire had been interrupted, the
prosecutor argued that Freeman was still in the process of setting the second fire
when Sandra awoke, and that he fled through the sliding door in the basement
when he heard her get out of bed. The jury convicted Freeman of all four counts.
[¶9] At sentencing, the court heard statements from Edgar and Sandra
McLeod as well as several of Freeman’s friends and family members. Both the
State and defense counsel summarized Freeman’s troubled upbringing in foster
care, as well as his mental health and behavioral problems, which began when he
was a child. The State described Freeman’s criminal record and his history of
violating protection from abuse orders. Finally, Freeman addressed the court and
indicated that he was sorry for going into the McLeods’ basement to speak with
Kristen that night, and that he would never intentionally hurt anybody.
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[¶10] The sentencing court set the basic sentence for aggravated attempted
murder “somewhere in the range of thirty to forty years.” The court then
considered aggravating factors, including Freeman’s lengthy criminal history and
the fact that several young girls had protection orders against him, as well as his
mental health history. Finding no mitigating factors, the court enhanced Freeman’s
sentence to fifty years as the State had recommended. Finally, the court concluded
that Freeman would need some period of probation to help him readjust to society;
thus, it suspended ten years of the fifty-year sentence and imposed a four-year
period of probation. Freeman’s sentences on the other counts ran concurrently
with the sentence for aggravated attempted murder.3
II. DISCUSSION
[¶11] Freeman raises several challenges to the fairness of his trial and
argues that his convictions must be vacated. He contends that the trial court
abused its discretion when it denied his motion in limine to exclude evidence that
he attempted to put another person’s spit in his mouth before submitting to a cheek
swab for a DNA sample, and that the State engaged in prosecutorial misconduct
by, among other things, intentionally eliciting inadmissible testimony from Kristen
regarding her attitude toward the intimate aspects of her relationship with Freeman.
3
The court imposed a thirty-year sentence for arson and a ten-year sentence for burglary. Freeman
does not specifically contest his sentences for these offenses.
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We find these arguments to be unpersuasive, and turn to a discussion of Freeman’s
sentence.
[¶12] The Maine Constitution requires that all punishments be proportioned
to the offense. Me. Const. art. I, § 9; see State v. Stanislaw, 2013 ME 43, ¶¶ 26-28,
65 A.3d 1242. The sentencing court must engage in a three-step analysis: first,
considering only the nature and seriousness of the offense, the court must
determine the basic sentence; second, it must set the maximum period of
incarceration after considering aggravating and mitigating factors; and third, the
court must decide whether to suspend any portion of the sentence, and, if it does
so, determine an appropriate period of probation. 17-A M.R.S. § 1252-C (2013);
State v. Hewey, 622 A.2d 1151, 1154-55 (Me. 1993).
[¶13] “Our review of sentences is guided by statutorily mandated objectives
and factors.” Stanislaw, 2013 ME 43, ¶ 18, 65 A.3d 1242 (citations omitted). The
purposes of our sentence review are (1) “[t]o provide for the correction of
sentences imposed without due regard for the [statutory] factors[,]” (2) “[t]o
promote respect for the law by correcting abuses of the sentencing power and by
increasing the fairness of the sentencing process[,]” (3) “[t]o facilitate the possible
rehabilitation of an offender by reducing manifest and unwarranted inequalities
among the sentences of comparable offenders[,] and” (4) “[t]o promote the
development and application of criteria for sentencing which are both rational and
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just.” 15 M.R.S. § 2154 (2013). The factors we must consider are the propriety of
the sentence and the manner in which the sentence was imposed. 15 M.R.S.
§ 2155(1)-(4) (2013).
A. The Basic Sentence
[¶14] We review the first step of the sentencing analysis for misapplication
of principle. State v. Dwyer, 2009 ME 127, ¶ 35, 985 A.2d 469. A defendant
convicted of aggravated attempted murder may be sentenced to life imprisonment
or to imprisonment for any term of years. 17-A M.R.S. § 152-A(2) (2013). “It is
not enough that the members of this [C]ourt might have passed a different
sentence, rather it is only when a sentence appears to err in principle that we will
alter it.” State v. Hallowell, 577 A.2d 778, 781 (Me. 1990). We will review any
part of the sentence, including the basic term, for an abuse of the court’s
sentencing power. State v. Reese, 2010 ME 30, ¶ 23, 991 A.2d 806.
[¶15] In setting the basic sentence, the sentencing court must examine “the
crime, the defendant’s conduct in committing it, and, at its discretion, other
sentences for similar offenses.” Stanislaw, 2013 ME 43, ¶ 21, 65 A.3d 1242.
Although it is permissible, and often helpful, for the sentencing court to consider
sentences imposed for comparable crimes in determining the basic period of
incarceration, neither the sentencing statute nor our precedent requires that it do so.
State v. Nichols, 2013 ME 71, ¶ 20, 72 A.3d 503.
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[¶16] The sentencing court examined Freeman’s crimes and found them to
be very serious, noting that Freeman’s actions were premeditated and that he
attempted to kill multiple victims. Further, the court observed that the manner in
which Freeman attempted to kill the victims would have resulted in a painful and
tortured death⎯possibly causing the victims to be burned alive⎯had he been
successful.
[¶17] The sentencing court also compared Freeman’s conduct with the
crimes committed by the defendant in State v. Fortune, 2011 ME 125, 34 A.3d
1115, the case which resulted in the only other aggravated attempted murder
sentence we have reviewed. In Fortune, we affirmed the defendant’s life sentence
for his participation in a home invasion during which a ten-year-old girl and her
father were attacked with a machete, resulting in “devastating and disfiguring
life-long injuries.” Id. ¶¶ 8-14. Although the sentencing court found Freeman’s
crimes to be extremely serious, it appropriately concluded that they were not as
heinous as those committed in Fortune, and that they did not warrant the maximum
sentence of life imprisonment. The sentencing court’s analysis does not reflect any
error in principle in arriving at a basic sentence of thirty to forty years.
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B. The Maximum Sentence
[¶18] Freeman argues that the sentencing court erred by failing to consider
any mitigating factors. We review this stage of the sentencing analysis for an
abuse of discretion. State v. Robbins, 2010 ME 62, ¶ 10, 999 A.2d 936.
[¶19] The sentencing court explicitly found that there were no mitigating
factors. Although Freeman had no prior felony convictions, he had a long history
of misdemeanor convictions, almost all of which were for crimes he committed in
the nine-month period immediately preceding the aggravated attempted murder
committed on December 6, 2011. These convictions included (1) theft in
March 2011; (2) violation of a protection from harassment order, criminal trespass,
harassment by telephone, and violation of a condition of release in November
2011; and (3) violation of protection from abuse order and violation of a condition
of release in December 2011. He had frequently been subject to protection from
abuse and harassment orders as a result of inappropriate behavior with other young
women he dated; the sentencing court found it particularly troubling that he also
had a history of violating such orders. Finally, the court observed that Freeman
had failed to take any significant responsibility for his actions and had
demonstrated a lack of sensitivity that suggested his dangerous behavior would
likely continue.
10
[¶20] Freeman’s argument that the court failed to consider his age, mental
health problems, and lack of “serious criminal history” is unpersuasive. The
sentencing court considered these facts, but did not find them to be mitigating
factors. We note that, even if the court had found mitigating factors to exist, it
could have also concluded that the aggravating factors far outweighed the
mitigating factors and it would not have been required to reduce the basic period of
incarceration. Id. ¶ 12. We find no abuse of discretion in the court’s determination
that the aggravating factors justified enhancing Freeman’s maximum sentence to
fifty years.
C. The Final Sentence
[¶21] Freeman argues that the sentencing court abused its discretion by
failing to suspend a longer portion of the sentence. Having set the maximum
sentence at fifty years, the court suspended ten years of that sentence. The court
concluded that a period of probation was appropriate in order to help Freeman
reintegrate into society because, even with a long sentence in the range of forty to
fifty years, Freeman would likely be released from prison before the end of his life
expectancy. The sentencing court committed no abuse of discretion by suspending
ten years of Freeman’s sentence and imposing a four-year period of probation.4
4
There is also the possibility that Freeman will be released years before the end of his forty-year
incarceration as a result of good time calculations. In considering what period of probation would be
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D. Proportionality of the Overall Sentence
[¶22] An important purpose of our sentence review is to “facilitate the
possible rehabilitation of an offender by reducing manifest and unwarranted
inequalities among the sentences of comparable offenders.” 15 M.R.S. § 2154(3).
Thus, “we consider the length of a sentence to determine whether it is excessive.”
Stanislaw, 2013 ME 43, ¶ 25, 65 A.3d 1242. In assessing a sentence’s
proportionality, we first “compare the gravity of the offense with the severity of
the sentence.” Id. ¶ 29 (quotation marks omitted) (alteration omitted). If this
comparison “results in an inference of gross disproportionality,” we then compare
the defendant’s sentence with sentences received by other offenders. Id.
(Quotation marks omitted.)
[¶23] A jury found beyond a reasonable doubt that Freeman intentionally
attempted to murder three people. Although Freeman urges that a more lenient
sentence is justified because no one was injured and his actions resulted in only
minimal property damage, we cannot overlook the gravity of the offense for which
Freeman was convicted and sentenced. We have previously noted that the
culpability of a person who commits attempted murder is the same as the
culpability of one who commits murder, observing that “[t]he only difference
appropriate, the sentencing court observed that “with a sentence of forty or fifty years . . . reduced for
good time, [Freeman] will still be out before his life expectancy is reached. I think, therefore, it will be
essential to have a period of probation to help his adjustment back into society.”
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between attempted murder and murder is the fortuitous circumstance that the
victim did not die in an attempted murder.” Fortune, 2011 ME 125, ¶ 39, 34 A.3d
1115. Unlike Fortune, in which the victims suffered devastating and disfiguring
life-long injuries, the victims in this case suffered no physical injuries. Although
Freeman’s sentence is harsh and at the far end of the range of sentences that could
be imposed under these circumstances, it does not shock the conscience. See id.
Comparison of the gravity of the offense and the severity of Freeman’s sentence
does not result in an inference of gross disproportionality; thus, we need not
compare the defendant’s sentence with sentences received by other offenders. See
Stanislaw, 2013 ME 43, ¶ 29, 65 A.3d 1242.
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The entry is:
Judgment and sentence affirmed.
On the briefs:
Jeremy Pratt, Esq., Pratt & Simmons, P.A., Camden, for
appellant Andrew Freeman
Norman R. Croteau, District Attorney, and Joseph M.
O’Connor, Asst. Dist. Atty., Office of the District Attorney,
South Paris, for appellee State of Maine
At oral argument:
Jeremy Pratt, Esq. for appellant Andrew Freeman
Joseph M. O’Connor, Asst. Dist. Atty., for appellee State of
Maine
Oxford County Superior Court docket number CR-2011-558
FOR CLERK REFERENCE ONLY