State of Maine v. Philip S. Fournier

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 28
Docket: Pen-18-170
Argued: December 12, 2018
Decided: February 21, 2019

Panel: MEAD, GORMAN, JABAR, HUMPHREY, and CLIFFORD, JJ.

STATE OF MAINE

v.

PHILIP S. FOURNIER

JABAR, J.

[¶1] Philip S. Fournier appeals from a judgment of conviction of murder,

17-A M.R.S. § 201(1)(A) (2017), entered by the court (Penobscot County,

A. Murray, J.) after an eleven-day jury-waived trial. Fournier challenges (1) the

court’s method of considering evidence of alternative suspects, (2) the court’s

exclusion of a detective’s opinion testimony, (3) the court’s finding that

Fournier waived his religious privilege, and (4) the court’s factual findings

relating to Fournier’s whereabouts from 8:00 p.m. until 8:45 p.m. on the day of

the murder.1 We affirm.

1
Because there is competent evidence in the record to support the court’s factual findings
regarding Fournier’s whereabouts during this time period, we do not discuss this factual challenge
further. See State v. Black, 2000 ME 211, ¶ 17, 763 A.2d 109 (“It is the [trial court’s] duty to reconcile
conflicting testimony, determine its relative weight, and decide which part of the testimony was
credible and worthy of belief.”).
2

I. BACKGROUND

[¶2] Viewing the evidence in the light most favorable to the State, the

trial record supports the following facts, which were found by the court in its

judgment dated February 22, 2018. See State v. Jeskey, 2016 ME 134, ¶ 2,

146 A.3d 127. Because Fournier did not request findings of fact pursuant to

M.R.U. Crim. P. 23(c), we will also infer that the trial court found all of the facts

necessary to support its judgment, to the extent that those assumed facts are

supported by competent record evidence. See State v. Fox, 2017 ME 52, ¶ 12,

157 A.3d 778.

[¶3] In the early evening of August 8, 1980, a group of teenagers and

young adults gathered at Schenck High School in East Millinocket. Among the

group that gathered at the high school that evening was nineteen-year-old

Fournier. During the same evening, the sixteen-year-old victim left her home

in East Millinocket to go for a jog. At approximately 7:55 p.m.,2 three people

saw the victim heading down Orchard Street. The same three individuals saw

the victim turn off Orchard Street and proceed down a dirt road behind the first

2 Sunset in East Millinocket on August 8, 1980 was at 7:53 p.m., and civil twilight ended at

8:26 p.m.
 3

base dugout of a little league field;3 this was the last time that anyone reported

seeing the victim alive.

[¶4] At some point between 6:30 and 7:30 p.m., Fournier was seen by

several people with a person named Leroy; they were walking away from the

high school toward the little league field. One individual saw Fournier and

Leroy drinking whiskey out of a bottle on their way to the field.

[¶5] At approximately 8:15 p.m., Leroy was seen back at the high school

pacing, talking to himself, and exhibiting other strange behaviors. Fournier was

not seen again until approximately 8:45 p.m., when an East Millinocket police

officer saw Fournier with Leroy. Fournier was also seen by another individual

at around 9:00 p.m. He was running on the sidewalk by the high school and

carrying a bottle of whiskey; another person was seen running about eight to

ten feet behind him. In the early morning of August 9, 1980, Fournier stole an

oil truck and crashed it into another vehicle. After the crash, Fournier was

found unconscious; he had suffered severe head trauma and was in a coma for

a period of time.

3 The little league field is adjacent to the high school, with two dugouts along the first and third

base lines. A dirt road runs behind the first base dugout, parallel with the first base line, and
continues beyond the little league field, behind a soccer field, to a short path that leads through a
wooded area into a clear-cut area with power lines.
4

[¶6] When the victim did not return home on the evening of August 8,

1980, her mother made phone calls and drove around East Millinocket looking

for her. August 8, 1980, was a hot summer evening, and heavy thunderstorms

moving through East Millinocket made the victim’s mother’s search difficult.

The following day, a group of people, including a teenager named Peter, joined

in the search for the victim. The search efforts on Saturday, August 9, 1980,

were unsuccessful, and the group discontinued the search at night and made

plans to continue the search early the next morning.

[¶7] In the early morning of Sunday, August 10, 1980, Peter began

searching for the victim alone and, at approximately 6:00 a.m., he found the

victim’s body on the pole line behind the soccer and little league field. East

Millinocket and Maine State Police responded to the scene and quickly

discovered that the victim had a large jagged wound on the back of her head. A

large rock with ceramic debris on top of it was located next to the victim’s head,

and it was later determined that the ceramic debris came from an electric

insulator.

[¶8] A police dog employed at the scene assisted investigators in finding

several articles of the victim’s clothing and a partially broken insulator on the

ground. The next day, the police dog was brought back to the scene and it again
 5

alerted to the partially broken insulator, which at that time was collected by

investigators as the potential murder weapon. In addition, investigators

collected several pieces of insulator fragments and a rock that had some

discoloration.4

[¶9] As the investigation into the victim’s death continued, Fournier was

still in the hospital recovering from the injuries he suffered from the car

accident. Upon his release from the hospital, Fournier was admitted into a

substance abuse program and did not return to East Millinocket until late

December 1980. Although Fournier was identified as a suspect in the victim’s

death early on in the investigation, he was not questioned during the first

months of the investigation because of the injuries he suffered from the

accident.

[¶10] On May 5, 1981, Fournier met with investigators and led them

down the path behind the soccer field to the pole line and to the area where the

victim’s body was found. During this walk-through of the crime scene, Fournier

informed investigators that, sometime after dark on August 8, 1980, he walked

to the pole line alone and tripped over a dead body. Fournier accurately

4 Because of the heavy rain that occurred on Friday and Saturday night, no biological material was

discovered on the insulator, insulator fragments, or the rock. Overall, there was no forensic evidence
discovered that tied Fournier or anyone else to victim’s death.
6

pointed out the area where the victim’s body had been found and correctly

described to the investigators the state of the victim’s body.

[¶11] One week later, on May 12, 1981, Fournier had his stepfather drive

him to a local parsonage so that he could meet with a pastor. During that

meeting, Fournier revealed to the pastor that he had killed the victim by hitting

her with a pole with a knob on it, but stated that he did not sexually assault her.

The pastor told Fournier that he did not believe Fournier’s statement that he

had killed the victim and that he would only believe him if Fournier told his

mother and stepfather what he had done. Fournier’s mother and stepfather

arrived at the parsonage at the pastor’s request, and Fournier also told them

that he had killed the victim. Afterwards, the pastor drove Fournier to the

Bangor Police Department, where Fournier met with two Maine State Police

detectives. During this interview, Fournier stated that the victim had been tied

with a rope, was cut by someone, and that he “had a feeling” that three guys

sexually assaulted her. Fournier also said that the victim had kicked him in the

leg and that he hit her once with an insulator he found on the ground. Fournier

was not arrested after that interview.

[¶12] Fournier was interviewed by a different Maine State Police

detective on May 15, 1981. During this interview, Fournier said that he
 7

remembered leaving a party alone on August 8, 1980, and going to the pole line

where he tripped over a female body. Fournier accurately recounted the state

of the victim’s body. He stated that, after he tripped over the body, he got up

and ran from the crime scene. The next thing he remembered was being

involved in the oil truck accident. Fournier was not arrested after this

interview.

[¶13] Eight years later, in June 1989, Fournier began working at Husson

College as a janitor. During his first night on the job, Fournier met with his

supervisor, who asked Fournier some questions to get to know him. After

learning that Fournier was from East Millinocket, the supervisor asked

Fournier if he knew about the victim’s murder, and Fournier responded that he

knew about the murder because he was the one who had killed the victim with

a glass insulator. The supervisor later asked why he had not been arrested, and

Fournier proclaimed that he had “beat” all of the interviews.

[¶14] Twenty-seven years later, in March 2016, Fournier was indicted

for the victim’s murder. See 17-A M.R.S. § 201(1)(A). Several pre-trial motions

were filed by the State and Fournier; the State moved to exclude evidence of

alternative suspects, and Fournier filed a motion concerning a number of his

anticipated evidentiary objections, including the applicability of the religious
8

privilege to the statements he made to the pastor. The court determined that

Fournier had waived his religious privilege, but it did not make a preliminary

ruling on the State’s motion to exclude evidence of alternative suspects.

[¶15] During the eleven-day jury-waived trial, the court heard testimony

from one of Maine’s former Chief Medical Examiners, who opined that the

victim’s death was caused by blunt impact injury to her head, with a

contributing cause of neck injuries consistent with asphyxiation. Other

testimony regarding the autopsy established details about the victim’s body

that matched details provided by Fournier that had not been disclosed to the

public.

[¶16] Following the jury-waived trial, the court found Fournier guilty of

murder and imposed a forty-five-year sentence of incarceration. Fournier filed

a motion to vacate the judgment and grant a new trial, but the court denied the

motions. This timely appeal followed. See 15 M.R.S. § 2115 (2017); M.R.

App. P. 2B(b)(1).

II. DISCUSSION

A. Alternative-Suspect Evidence

[¶17] At trial, Fournier attempted to introduce evidence of a number of

alternative suspects. The proffered evidence was sometimes admitted de bene
 9

and was at other times excluded outright by the court. Fournier’s first

challenge to the court’s judgment concerns the method by which the court

considered the evidence of alternative suspects.5 Specifically, Fournier asserts

that the court should have considered all of the evidence regarding alternative

suspects collectively instead of considering it “piecemeal.” Further, Fournier

contends that the court’s judgment did not clearly demonstrate which evidence

the court had considered and which evidence it had excluded in determining

that the alternative-suspect evidence did not rise to a sufficient probative level

to create a reasonable doubt. We review a court’s decision to exclude

alternative-suspect evidence for an abuse of discretion. See State v. Mitchell,

2010 ME 73, ¶ 23, 4 A.3d 478.

[¶18] The defense strategy of presenting evidence of alternative

suspects is an attempt to demonstrate that the State has failed to meet its

burden of proving that the defendant was the person who committed the crime.

State v. Jaime, 2015 ME 22, ¶ 31, 111 A.3d 1050. This strategy does not alter or

shift the burden of proof; rather, “it is simply an evidentiary method utilized by

a defendant to demonstrate reasonable doubt . . . .” Id. ¶¶ 31-32. Evidence of

5 Fournier also requests that we reform the standard for admitting alternative-suspect evidence.

We decline to adopt Fournier’s invitation to reform the law regarding alternative-suspect evidence,
and do not address this issue further.
10

alternative suspects is admissible if it satisfies the requirements of a two-part

analysis. First, the “[a]lternative suspect evidence offered by the defendant, as

with any evidence, must be . . . admissible.” Id. ¶¶ 33-34. Second, the admissible

evidence of alternative suspects must be “of sufficient probative value to raise

a reasonable doubt as to the defendant’s culpability by establishing a

reasonable connection between the alternative suspect and the crime.”6 Id.

¶ 34.

The connection between the alternative perpetrator and the crime
must be reasonably established by the admissible evidence the
defendant is prepared to offer. Without such evidence, a defendant
cannot be allowed to use his trial to conduct an investigation that
he hopes will convert what amounts to speculation into a
connection between the other person and the crime.

State v. Dechaine, 572 A.2d 130, 134 (Me. 1990).

[¶19] Here, there was nothing improper in the manner by which the

court considered the evidence of alternative suspects. Contrary to Fournier’s

assertions, the court properly excluded inadmissible evidence of alternative

suspects under the first part of the analysis and admitted de bene other

evidence of alternative suspects to see if the evidence would, when combined

6 Maine, unlike other jurisdictions, does not require that the defendant “clearly link[]” the

alternative suspect to the crime. State v. Cruthirds, 2014 ME 86, ¶ 23, 96 A.3d 80. Rather, only a
“reasonable connection” is required for the evidence of alternative suspects to be admissible. Id.
¶¶ 22-23.
 11

with later-admitted evidence, create a reasonable doubt. See Jaime, 2015 ME

22, ¶¶ 34-37, 111 A.3d 1050. Further, the court properly excluded “evidence

that [was] too speculative or conjectural or too disconnected from the facts of

[the] defendant’s prosecution.” Dechaine, 572 A.2d at 134 (quotation marks

omitted).

[¶20] Lastly, if Fournier desired any clarification of the court’s judgment

and whether it considered the evidence admitted de bene, he could have filed a

post-judgment motion for additional findings of fact. See M.R.U. Crim. P. 23(c).

Because Fournier did not move for additional findings, we infer that the court

made all of the factual findings necessary to support its determination that the

admissible evidence of alternative suspects did not raise a reasonable doubt as

to Fournier’s culpability by establishing a reasonable connection between the

alternative suspects and the crime. See Fox, 2017 ME 52, ¶ 12, 157 A.3d 778.

In sum, we find no abuse of the court’s discretion in the method by which it

excluded and considered evidence of alternative suspects.

B. Exclusion of Detective’s Opinion Testimony

[¶21] Fournier’s second assignment of error relates to a line of

questioning between Fournier’s trial counsel and a Maine State Police detective

that was excluded by the court under M.R. Evid. 701. The line of questioning
12

concerned the inculpatory statements made by Fournier on May 12, 1981, and

why the detective had not arrested Fournier after he made those statements.

This inquiry drew an objection from the State, and the court ultimately made

the following ruling on the admissibility of the detective’s opinion: “I am not

going to allow him to give his opinion as to evaluation of the evidence. If there

are pieces that were -- of evidence that he believed were missing or wrong, then

I’m going to allow him to testify to that.” We review a trial court’s ruling on the

admissibility of nonexpert opinion testimony for an abuse of discretion. State

v. Dube, 2016 ME 50, ¶ 10, 136 A.3d 93.

[¶22] Rule 701 states, “If a witness is not testifying as an expert, opinion

testimony is limited to opinions that are . . . [r]ationally based on the witness’s

perception[] and . . . [h]elpful to clearly understanding the witness’s testimony

or to determining a fact in issue.” M.R. Evid. 701. “Determining admissibility

pursuant to Rule 701 is within the discretion of the trial court, which has the

opportunity to observe the witness.” State v. Robinson, 2015 ME 77, ¶ 24, 118

A.3d 242 (alterations omitted) (quotation marks omitted).

[¶23] Contrary to Fournier’s contention, the court did not abuse its

discretion by refusing to allow the witness to opine about the sufficiency of the

evidence against Fournier while allowing the witness to testify about
 13

subsidiary issues in the investigation, such as missing or inaccurate evidence.

Cf. State v. Cunningham, 1997 ME 60, ¶¶ 4-6, 691 A.2d 1219.

C. Waiver of Religious Privilege

[¶24] Lastly, Fournier contends that the court erred when it found that

Fournier had voluntarily waived his religious privilege by repeating to his

mother, stepfather, and law enforcement substantial portions of the statements

that he had made to the pastor. We review a trial court’s factual finding that an

evidentiary privilege has been waived for clear error. State v. Lipham, 2006 ME

137, ¶ 7, 910 A.2d 388.

[¶25] “A person has a privilege to refuse to disclose, and to prevent any

other person from disclosing, a confidential communication made to a member

of the clergy who was acting as a spiritual adviser at the time of the

communication.” M.R. Evid. 505(b). However, a person waives the privilege “if

the person . . . voluntarily discloses or consents to the disclosure of any

significant part of the privileged matter.” M.R. Evid. 510(a).

[¶26] Here, there is competent evidence in the record that Fournier

disclosed to his mother and stepfather a significant part of the confidential

communication he made to the pastor. Although Fournier did not disclose to

his mother and stepfather every detail of the information that he had disclosed
14

to the pastor, he disclosed a “significant part” of the privileged matter, namely,

that he had killed the victim. See Lipham, 2006 ME 137, ¶¶ 5-8, 910 A.2d 388

(quotation marks omitted). Therefore, the court did not err in determining that

Fournier had waived the religious privilege.

III. CONCLUSION

[¶27] In conclusion, the court did not abuse its discretion in the way it

considered alternative suspect evidence or by excluding the opinion testimony

of the Maine State Police detective, and it did not err in finding that Fournier

had waived his religious privilege.

The entry is:

Judgment affirmed.

Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant Philip
S. Fournier

Janet T. Mills, Attorney General, Lara M. Nomani, Asst. Atty. Gen. (orally), and
Leanne Robbin, Asst. Atty. Gen., Office of the Attorney General, Augusta, for
appellee State of Maine

Penobscot County Unified Criminal Docket docket number CR-2016-800
FOR CLERK REFERENCE ONLY