State of Maine v. F Daly

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 37
Docket: Pen-20-215
Argued: June 3, 2021
Decided: July 8, 2021

Panel: MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.

STATE OF MAINE

v.

F DALY

HUMPHREY, J.

[¶1] F Daly appeals from a judgment of conviction of knowing or

intentional murder, 17-A M.R.S. § 201(1)(A) (2021), entered by the court

(Penobscot County, A. Murray, J.) after a five-day jury trial, and from the court’s

imposition of a forty-two-year sentence and denial of his motion for a new trial.

Daly argues that the court erred or abused its discretion in excluding

alternative-suspect evidence, failing to provide an adequate explanation in

setting the basic sentence, and denying his motion for a new trial, which was

based on a juror’s statements made after the conviction.1 We affirm the

judgment, the sentence, and the denial of the motion for a new trial.

1 Daly also contends that the court misstated the burden of proof in its jury instruction regarding
the number of witnesses called by each party. Reviewing the jury instructions in their entirety, we
discern no error. See State v. Plummer, 2020 ME 106, ¶ 15, 238 A.3d 241.
2

I. BACKGROUND

[¶2] Based on the evidence presented at trial, the jury rationally could

have found beyond a reasonable doubt, see State v. Haag, 2012 ME 94, ¶ 17,

48 A.3d 207, that on January 7, 2018, Daly went to the victim’s residence and

shot the victim in the abdomen and the head, causing his death. After the police

learned of Daly’s confession to his girlfriend and discovered Daly’s gun hidden

in the ceiling of his apartment, Daly was charged by criminal complaint with the

victim’s murder. Daly was indicted for murder on February 28, 2018.2 He

entered a plea of not guilty.3

[¶3] In September 2019, two weeks before the start of the jury trial, the

State moved to exclude evidence of alternative suspects, asking that the court

hear outside the presence of the jury any proposed testimony regarding an

alternative suspect before admitting it in evidence. The court did not rule on

the motion in advance of trial. Instead, it ruled on objections to evidence of

2The indictment initially charged that he had committed the murder “with the use of a firearm
against a person,” but that language and the citation of the statute governing sentencing for Class A,
B, and C crimes committed with use of a firearm were stricken because the use of a firearm is not an
element of the crime of knowing or intentional murder and did not affect murder sentencing.
See 17-A M.R.S. § 201(1)(A) (2021); see also 17-A M.R.S. § 1252(5) (2018), repealed and replaced by
P.L. 2019, ch. 113, §§ A-1, A-2 (emergency, effective May 16, 2019) (codified at 17-A M.R.S.
§ 1604(5)(A) (2021).

The completed judgment-and-commitment form incorrectly indicates that Daly pleaded guilty.
3

Our mandate orders the correction of this error.
 3

alternative suspects during the trial. Specifically, the court sustained the State’s

objections to questions asking the victim’s girlfriend about an incident in the

summer of 2017 involving the victim and another person. Daly argued that he

was offering evidence that the other person had stabbed the victim during the

2017 incident in order to challenge the credibility of the testimony of the

victim’s girlfriend that she had never seen the victim get into fights. He argued

that the person who purportedly stabbed the victim was an alternative suspect

who had a motive to kill the victim and was in the area at the time of the victim’s

death. The court ruled that the evidence was not admissible as

alternative-suspect evidence and that it did not undermine the credibility of the

victim’s girlfriend unless there was evidence that she saw the fight that resulted

in the stabbing.

[¶4] Before the victim’s girlfriend was dismissed as a witness, Daly

renewed his objection to the exclusion of evidence of the earlier knife wound

the victim had suffered. He represented that the person who had purportedly

stabbed the victim had been prosecuted for the stabbing, was to begin serving

time for the resulting conviction near the time of the murder, and was in Bangor

the weekend of the victim’s death with individuals identified as “Truck” and

“Capitol” and therefore had the opportunity to murder the victim. The court
4

excluded the evidence, concluding that even if Daly established those facts,

there was no reasonable connection between the person who purportedly

stabbed the victim and the crime at issue.

[¶5] On the second day of trial, the State indicated that it had learned

that, contrary to Daly’s earlier representations, the person who purportedly

stabbed the victim in 2017 had not been arrested or charged for that conduct

and had had an upcoming court appearance only for an unrelated theft charge.

The court reaffirmed its ruling that no alternative-suspect evidence regarding

that person would be admitted because it “did not meet the threshold for

relevance necessary.”

[¶6] The court also excluded a small portion of an otherwise admitted

deposition of Daly’s roommate regarding the sale of drugs by the individuals

known as Capitol and Truck because there was no reasonable connection

between either of them and the crime. Daly did not offer any additional

foundation for the involvement of either of them in the murder. Daly’s

girlfriend did, however, later testify that Daly told her that he had visited Truck,

shown him the gun, and asked him to call Capitol just before Daly went to the

victim’s apartment and killed the victim.
 5

[¶7] The State presented evidence of the following to establish its case

against Daly:

• The bullets found in the victim’s head and in a pillow on his bed were
fired from the gun found in the ceiling above the closet in the apartment
where Daly resided with his girlfriend and his friend. The gun was in such
a location that it appeared it had been pushed through to that area above
the ceiling from above the suspended ceiling in the bathroom.

• On the day of the murder, just before 7:30 p.m., Daly called a friend who
knew the victim and asked for the victim’s address.

• After that phone call, Daly changed into his old glasses, put on two pairs
of gloves, and left his apartment.

• When Daly returned a half hour later, he confessed to his girlfriend that
he had “clapped” the victim by shooting him in the stomach and then the
head. He then cleaned the gun with bleach and water, bagged and hid the
gun, and later told his girlfriend that he had tossed his sneakers in a
dumpster. He bagged up his clothing. He showered and left the
apartment after asking his roommate for different clothes. Days later, he
had his roommate take out the trash bag containing his clothing.

• A convenience store’s surveillance video from the night of the murder
shows that at 6:47 p.m. Daly was wearing one set of clothing, but at
10:00 p.m. he was wearing a different set of clothing.

• A friend of Daly’s had previously seen him hide his gun in the closet or
the bathroom when a probation officer came to check the apartment.

• Daly had been aware of the bathroom ceiling as a hiding place for items.

• The victim and Daly did not get along, and the victim had hit on a
girlfriend of Daly’s in the past. During a disagreement with the victim,
Daly said to the victim, “I’m not worried about you. I’ve got something
for you.”
6

• After the day of the murder, Daly became paranoid and was not acting
like himself. He repeatedly washed and bleached his gun and moved it
around the apartment. The gun was rusted when it was found.

[¶8] After the State presented its case, Daly moved for a judgment of

acquittal, and the court denied his motion. Daly called one witness and then

rested. The jury found Daly guilty.

[¶9] After obtaining a presentence investigation report and a

psychological evaluation of Daly, the court held a sentencing hearing on July 16,

2020. The court first determined the basic sentence based on the nature and

seriousness of the crime as committed. See State v. Carrillo, 2021 ME 18, ¶ 38,

248 A.3d 193. The court found that the nature and seriousness of the crime did

not justify a life sentence. The court determined that a basic sentence of forty

to fifty years was appropriate because Daly made hurried calls to determine

where the victim lived and then quickly went to the victim’s home, with some

planning, and shot him for reasons unknown, but the facts were not as heinous

as in other cases, such as when a person was stabbed fifty times in the face, a

child was sexually abused and killed, a child was burned to death in a hot oven,

and people were burned to death in the back of a locked box truck.4

4 See State v. Hutchinson, 2009 ME 44, ¶¶ 13, 41, 969 A.2d 923 (affirming basic sentence of life

when the victim, in addition to the fatal injury, was stabbed fifty times in the face and was sexually
assaulted); State v. Wilson, 669 A.2d 766, 767-69 (Me. 1996) (affirming basic sentence of life when
the defendant had bound, gagged, sexually assaulted, and killed his eleven-year-old daughter);
 7

[¶10] The court then considered aggravating and mitigating factors to

determine the final sentence. See id. As aggravating factors, the court found

that the victim’s family was suffering, that Daly lacked remorse when speaking

of the crime to his girlfriend, and that Daly was “rigid, highly controlled, and

quite adept at providing a very limited scope of information about himself,”

which did “not bode well for the rehabilitative purpose of sentencing.” The

court found mitigating factors that included the lack of any significant criminal

history for Daly and his untreated trauma issues. The court determined that

the weight of the aggravating factors was “substantially similar” to the weight

of the mitigating factors. The court sentenced Daly to serve forty-two years in

prison and pay $4,650 in restitution.

[¶11] Daly timely appealed from the judgment of conviction.

See 15 M.R.S. § 2115 (2021); M.R. App. P. 2B(b)(1). He also applied for review

of his sentence. See 15 M.R.S. § 2151 (2021). The Sentence Review Panel

granted Daly leave to appeal his sentence.

State v. Lane, 532 A.2d 144, 145-46 (Me. 1987) (affirming a judgment of conviction of murder when
the defendant trapped a child in an oven and set the oven at a high heat causing severe burning and
death); State v. De St. Croix, 2020 ME 142, ¶¶ 1-2, 16, 243 A.3d 880 (affirming a sentence of life when
the victims were locked in a box truck that the defendant set on fire).
8

[¶12] While this appeal and the sentence review were pending, in

November 2020, Daly moved for a new trial on the ground of newly discovered

evidence that one of the jurors had contacted defense counsel to say that three

of the jurors had hesitated to find Daly guilty because they were not initially

convinced that Daly had not gone to the apartment of Truck and Capitol to give

one or both of them his gun before the victim was shot.5 See M.R.U. Crim. P. 33.

The juror informed counsel that the three jurors had ultimately voted to convict

because if Truck or Capitol had caused the victim’s death using Daly’s gun, “why

didn’t [Daly]’s attorneys say so?”

[¶13] Daly argued that this information justified a new trial when

considered in light of evidence that Daly told his girlfriend that he had gone to

Truck’s apartment first and had shown him the gun, asking him to call Capitol

before he left for the victim’s apartment. He argued that the juror’s statements

demonstrated that the exclusion of alternative-suspect evidence affected the

fairness of his trial. After accepting an opposing memorandum and a reply

memorandum, the court denied the motion for a new trial based on the lack of

any newly discovered evidence and the application of M.R. Evid. 606(b), which

provides that a court may not accept a juror’s affidavit as to most aspects of

5 We stayed the appeal while the motion for a new trial was pending.
 9

juror deliberations. The court reasoned that, even if it were permissible to

consider a juror’s affidavit regarding deliberations, the court would deny the

motion because a juror’s interest in inadmissible evidence does not render the

exclusion of that evidence erroneous. Daly timely appealed from the court’s

ruling on the motion. Upon Daly’s motions, we consolidated the appeals,

allowed supplemental briefing, and sealed the supplemental appendix

containing juror information.

II. DISCUSSION

A. Alternative-Suspect Evidence

[¶14] Daly challenges the constitutionality of our test for the

admissibility of alternative-suspect evidence and argues in the alternative that,

even under the existing test, his proffered alternative-suspect evidence should

have been admitted. We address each of his arguments separately.

1. Test for the Admission of Alternative-Suspect Evidence

[¶15] Daly contends that his trial was unfair and violated the state and

federal constitutions because the court applied a test for the admission of

alternative-suspect evidence that improperly placed a burden of production

and proof on him, deprived him of the right to a jury trial on the

alternative-suspect issue, violated due process, and deprived him of the right
10

to present a defense. See Me. Const. art. I, §§ 6, 6-A; U.S. Const. amend. VI; U.S.

Const. amend. XIV, § 1. Because Daly did not raise to the trial court his

contention that our test for the admission of alternative-suspect evidence

violated his state and federal constitutional rights, we review this issue for

obvious error. See State v. Proctor, 2020 ME 107, ¶ 13, 237 A.3d 896.

[¶16] “A criminal defendant is entitled to present evidence in support of

the contention that another is responsible for the crime with which he is

charged.” State v. Dechaine, 572 A.2d 130, 134 (Me. 1990). The court should

consider the effect of the proffered alternative-suspect evidence as a whole

because, as we have held, “[t]he court should allow the defendant wide latitude

to present all the evidence relevant to his defense, unhampered by piecemeal

rulings on admissibility.” State v. Conlogue, 474 A.2d 167, 172 (Me. 1984)

(quotation marks omitted).

[¶17] A defendant, by presenting such evidence, is arguing “that the State

has failed to meet its burden of proving that the defendant was the person who

committed the crime.” State v. Fournier, 2019 ME 28, ¶ 18, 203 A.3d 801. Thus,

the proffer of alternative-suspect evidence is “neither an affirmative defense

nor a justification defense.” State v. Jaime, 2015 ME 22, ¶ 31, 111 A.3d 1050.
 11

[¶18] The decision to offer alternative-suspect evidence “does not alter

or shift the burden of proof.” Fournier, 2019 ME 28, ¶ 18, 203 A.3d 801

(emphasis added). Thus, “the burden does not shift to the State to prove that

the alternative suspect did not commit the crime,” and “the defendant does not

have any burden to prove, by a preponderance of the evidence or otherwise,

that the alternative suspect did commit the crime.” Jaime, 2015 ME 22, ¶ 32,

111 A.3d 1050. “As in all criminal cases, the State’s burden remains the same

throughout the trial—to prove beyond a reasonable doubt all elements of the

crime charged, including that the defendant committed the crime.” Id.

[¶19] We have stated that alternative-suspect evidence is admissible if

“(1) the proffered evidence is otherwise admissible, and (2) the admissible

evidence is 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.” Id. ¶ 34 (quotation marks omitted).

[¶20] The first part of the test calls for a court to determine the

“preliminary admissibility of the evidence” before assessing relevance and the

balancing required by M.R. Evid. 401 to 403. See Jaime, 2015 ME 22, ¶ 34,

111 A.3d 1050. Thus, the court need not reach the next step if, for example, the

proffered evidence is inadmissible hearsay, see State v. Reese, 2005 ME 87,
12

¶¶ 11, 13, 877 A.2d 1090; Dechaine, 572 A.2d at 133 n.6; State v. Caulk, 543 A.2d

1366, 1371 (Me. 1988), or evidence of a prior bad act offered to prove a

person’s character for the purpose of showing that “on a particular occasion the

person acted in accordance with the character,” M.R. Evid. 404(b), see State v.

Bridges, 2003 ME 103, ¶¶ 38, 42, 829 A.2d 247.6 In the absence of admissible

evidence that the defendant is prepared to offer, “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.” Fournier, 2019 ME 28, ¶ 18, 203 A.3d 801 (quotation marks

omitted).

[¶21] The second part of the test amounts to a “specific application” of

“well-established rules of evidence [that] permit trial judges to exclude

evidence if its probative value is outweighed by certain other factors such as

unfair prejudice, confusion of the issues, or potential to mislead the jury.”

Holmes v. South Carolina, 547 U.S. 319, 326-27 (2006); see M.R. Evid. 401-403;

Fournier, 2019 ME 28, ¶ 18, 203 A.3d 801; State v. Boobar, 637 A.2d 1162, 1172

6We first summarized the test as having two parts, with the requirement of a preliminary
admissibility determination, in State v. Mitchell, 2010 ME 73, ¶ 25, 4 A.3d 478. In support of the test,
we cited State v. Bridges, 2003 ME 103, ¶ 42, 829 A.2d 247, in which we held that an alternative
suspect’s prior bad acts, even if they had some relevance, were inadmissible evidence offered to show
the suspect’s character and establish that the suspect acted in conformity with that character. Id.
¶¶ 38-42; see M.R. Evid. 404(b).
 13

(Me. 1994); State v. Mitchell, 2010 ME 73, ¶ 33, 4 A.3d 478; State v. Kotsimpulos,

411 A.2d 79, 81 (Me. 1980). The test for admitting a defendant’s

alternative-suspect evidence is no different than the test for admitting any

other evidence in a criminal trial, whether presented by the defendant or by the

State: in addition to being admissible under all of the other Rules of Evidence

and other sources of law, the evidence must be relevant to whether the

defendant is guilty beyond a reasonable doubt of the offense charged, M.R. Evid.

401-402,7 and even if the evidence is relevant, it may be excluded “if its

probative value is substantially outweighed by a danger of . . . unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence,” M.R. Evid. 403; see State v. Wyman,

2015 ME 2, ¶¶ 21-23, 107 A.3d 1134 (rejecting the defendant’s argument that

State’s evidence of cell phone records should have been excluded under M.R.

Evid. 403).

[¶22] The concerns weighing against admissibility under Rule 403—the

danger that the issues may be confused, the jury misled, the proceedings unduly

7 “Evidence is relevant if: (a) It has any tendency to make a fact more or less probable than it

would be without the evidence; and (b) The fact is of consequence in determining the action.” M.R.
Evid. 401. Relevant evidence is admissible unless a federal or state statute, another rule of evidence,
or another rule applicable in Maine courts provides otherwise. M.R. Evid. 402. “Irrelevant evidence
is not admissible.” Id.
14

delayed, or time wasted—will be considered in every criminal case in which

alternative-suspect evidence is being offered. See M.R. Evid. 403; Boobar,

637 A.2d at 1172 (“The court must take into account the extent to which the

alternative perpetrator evidence is in dispute, the time required to present it,

and the extent of rebuttal evidence that it would generate, i.e., the extent that it

would result in a trial within a trial.”). Thus, the focus of a trial court’s analysis

will ultimately turn to the probative value of the proffered alternative-suspect

evidence as compared to those concerns. See id.; see also Field & Murray, Maine

Evidence § 401.3 at 100 (6th ed. 2007) (stating that if alternative-suspect

evidence “is of little direct probative force, or the inference of another

perpetrator speculative, exclusion is likely to be upheld on grounds of lack of

relevance under Rules 401 and 403 or as collateral under Rule 403”). For these

reasons, a trial court must consider whether otherwise admissible evidence

should be excluded because it lacks “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.” Jaime, 2015 ME 22,

¶ 34, 111 A.3d 1050 (quotation marks omitted).

[¶23] As we have held, the defendant need not “clearly link[] the

alternative suspect to the crime,” and need only proffer evidence that
 15

demonstrates “a reasonable connection between the alternative suspect and

the crime.”8 Id. (quotation marks omitted). To determine whether the evidence

demonstrates a reasonable connection between the alternative suspect and the

crime, a trial court must consider whether a fact finder could reasonably view

the evidence as creating a reasonable doubt as to the identity of the person who

committed the criminal acts at issue. See id. If no fact finder could reasonably

view the proposed alternative-suspect evidence as sufficient to raise

reasonable doubt about guilt, the evidence is merely an invitation to

speculation, which would defeat the purposes of Rules 401 to 403.

[¶24] A trial court may therefore exclude evidence that another person

had the motive, intent, and opportunity to commit a crime when the proffered

evidence “is too speculative or conjectural or too disconnected from the facts of

the case against the defendant” to be reasonably connected to the crime. State

v. Le Clair, 425 A.2d 182, 187 (Me. 1981); see also State v. Ledger, 444 A.2d 404,

8 Like the Court of Appeals of New York, we have rejected the ostensibly heightened “clear link”

standard for alternative-suspect evidence because it “merely reinforce[s] the notion that remote
evidence of a third party’s culpability—though relevant—will not be sufficiently probative to
outweigh the risk of trial delay, undue prejudice or jury confusion.” People v. Primo, 753 N.E.2d 164,
168 (N.Y. 2001). Because that standard “may be easily misread as suggesting that evidence of
third-party culpability occupies a special or exotic category of proof,” id., courts in Maine must apply
the Maine Rules of Evidence, which require them to consider the “probative value [of the evidence]
to raise a reasonable doubt as to the defendant’s culpability by establishing a reasonable connection
between the alternative suspect and the crime.” State v. Cruthirds, 2014 ME 86, ¶ 22, 96 A.3d 80
(emphasis added and quotation marks omitted); see M.R. Evid. 401-403.
16

416 (Me. 1982) (“[A] defendant may introduce evidence tending to show that

another person committed or harbored an intent, motive, and opportunity to

commit the crime of which that defendant is charged, if such evidence is not too

remote in time or too weak in probative value under M.R. Evid. 403.”).

[¶25] Thus, our two-part test is in fact a shorthand articulation of the

application of the Rules of Evidence that, in step two, draws the attention of the

trial court to the crux of the decision that it must make in applying Rules 401 to

403 to determine, in its discretion, whether alternative-suspect evidence will

be admitted. We have summarized how to apply the Rules of Evidence in this

particular context because, unlike with discrete determinations of

admissibility, the alternative-suspect evidence must be considered as a whole

to prevent the piecemeal admission of evidence in a way that could waste time,

improperly lead to the litigation of factual disputes that are not material to the

case, or invite improper speculation or conjecture. See Fournier, 2019 ME 28,

¶ 18, 203 A.3d 801; Boobar, 637 A.2d at 1172; Le Clair, 425 A.2d at 187.

[¶26] Daly’s argument on appeal that our test imposes an

unconstitutional burden of production on a defendant by requiring that

alternative-suspect evidence be relevant and admissible under the Rules of
 17

Evidence is tantamount to an argument that jurors should be free to engage in

speculation and conjecture. We reject that proposition.

[¶27] The court did not commit obvious error—and therefore did not

violate Daly’s rights to due process, to present a defense, and to a jury trial—in

applying evidentiary rules that place no burden of production or proof on a

defendant and keep from a jury evidence that is “too speculative or conjectural

or too disconnected from the facts of the case against the defendant,” Le Clair,

425 A.2d at 187, to make its probative value outweigh the potential that jurors

would be misled or confused, or have their time wasted on what could devolve

into “a trial within a trial,” Boobar, 637 A.2d at 1172. See M.R. Evid. 401-403.

2. Review of the Court’s Exclusion of Alternative-Suspect Evidence

[¶28] Daly contends that the court should have admitted relevant

evidence of an alternative suspect, who was affiliated with Capitol and Truck

and who had purportedly stabbed the victim the year before the murder,

because the offer of proof established a reasonable connection between the

suspect and the crime. He also contends that, with the alternative-suspect

evidence, he could have argued to the jury that Daly’s roommate and girlfriend

got the gun and information about the gunshot wounds from Capitol or Truck,

with whom they trafficked in drugs, and framed Daly using that information.
18

[¶29] We review the court’s exclusion of alternative-suspect evidence

for clear error or an abuse of discretion, as we do any Rule 401 or 403

determination. See State v. Waterman, 2010 ME 45, ¶¶ 35, 37, 995 A.2d 243;

State v. Hassan, 2013 ME 98, ¶ 24, 82 A.3d 86. Because there is no dispute that

witnesses could have provided otherwise admissible testimony about the facts

proffered by Daly, our analysis is focused on the second part of the test for

admitting alternative-suspect evidence—whether Daly’s proffered evidence

established “a reasonable connection between the alternative suspect and the

crime.” Jaime, 2015 ME 22, ¶ 34, 111 A.3d 1050 (quotation marks omitted).

That determination is reviewed for an abuse of discretion. See Fournier, 2019

ME 28, ¶ 17, 203 A.3d 801.

[¶30] We have provided some specific examples of evidence that could

establish a reasonable connection between an alternative suspect and the

crime: (1) a confession by the alternative suspect, (2) physical evidence linking

the suspect to the crime, (3) evidence of mistaken identity, (4) the alternative

suspect’s motive or opportunity to commit the crime, (5) evidence of the

alternative suspect’s commission of a similar crime with the same signature

features, and (6) the alternative suspect’s suspicious behavior following the

crime. Mitchell, 2010 ME 73, ¶ 29, 4 A.3d 478.
 19

[¶31] When we have held that a court erred in excluding alternative

suspect evidence, we have done so because a reasonable connection was

evident on the face of the record without resort to speculation. For instance, in

State v. Jaime, there was evidence that the alternative suspect showed up at a

friend’s house “on the night of the murder with fist-sized bloodstains on his

shirt, seeking help to conceal a violent, bloody, fatal assault,” and that the

alternative suspect admitted that he was at the scene of the crime on the night

of the murder, had occasionally used drugs with the victim, and had

accompanied the defendant in scattering the victim’s remains in a stream.

Jaime, 2015 ME 22, ¶ 36, 111 A.3d 1050.

[¶32] In contrast, in other cases such as State v. Cruthirds, 2014 ME 86,

96 A.3d 80, and State v. Mitchell, 2010 ME 73, 4 A.3d 478, we affirmed the

exclusion of alternative-suspect evidence as insufficiently connected to the

crime. In Cruthirds, “the only connection between [the alternative suspect] and

the attack on the victim was established in the victim’s testimony that (1) he

was her baby’s father; and (2) he told her in a Facebook message on the evening

of the assault that he had come to her door earlier, knocked, and left when no

one answered.” 2014 ME 86, ¶ 24, 96 A.3d 80. We contrasted that evidence

with the evidence linking the defendant to the crime: “the victim’s testimony,
20

the recording of her 911 call, and the recording of [an eyewitness]’s police

interview all explicitly named [the defendant] as the assailant, and DNA

evidence corroborated those statements.” Id. ¶¶ 3, 24; see also Holmes, 547 U.S.

at 331 (holding that a rule governing alternative-suspect evidence must include

consideration of the strength of both the prosecution’s evidence against the

defendant and the defendant’s proffered evidence about the alternative

suspect).

[¶33] In Mitchell, there was more evidence than in Cruthirds regarding a

possible alternative suspect, but we still affirmed the trial court’s exclusion of

that evidence. 2010 ME 73, ¶ 39, 4 A.3d 478. There, the State’s case against

the defendant included evidence that (1) the defendant’s DNA was recovered

from the nails of the victim’s right hand; (2) a latent print examiner identified

a footprint at the scene that “was of the same size, had the same outsole design,

and came from the same manufacturing mold as [the defendant]’s shoe”;

(3) the defendant was upset because he thought that he should have inherited

the home in which the victim lived; and (4) the defendant drove a car that was

olive green with a tan roof and maroon primer paint on the driver’s side,

consistent with a mail carrier’s testimony that she saw a car with a maroon
 21

body and tan top in the victim’s driveway on the day of the murder. Id. ¶¶ 3-5,

10, 15-17.

[¶34] The defendant proffered otherwise admissible alternative-suspect

evidence regarding a neighbor of the victim who (1) also wore a size-ten shoe

and had been seen in shoes that looked similar to the defendant’s; (2) had a

beige jacket with a wool collar and sometimes wore a scarf, similar to the

description provided by the mail carrier that a man in the victim’s driveway

was wearing a tan coat and gray wool scarf; (3) had previously been seen in a

suede, camel-colored coat that was not seen again after the murder; (4) had

beaten another woman in the past; (5) owned a two-tone green automobile;

(6) had met the victim and referred to her as a slut; (7) provided a false alibi

and seemed nervous after the murder; (8) had features similar to those

depicted in a composite drawing produced with aid from the mail carrier;

(9) had previously fought with a girlfriend, who was the victim’s best friend,

and the victim had taken her friend’s side; and (10) could not be ruled out as a

source of certain fingerprints. Id. ¶¶ 10, 19; see id. ¶¶ 36-37.

[¶35] We held that, given the lack of any physical evidence connecting

the alternative suspect with the crime, the evidence regarding the alternative

suspect “provide[d] only weak proof of motive or propensity, and only
22

moderately probative evidence of opportunity, mistaken identity, or

suspicious post-crime behavior.” Id. ¶ 38. We held that the evidence “did not

rise above the level of speculation and did not establish a reasonable

connection between the neighbor and the crime.” Id. ¶ 38.

[¶36] We also affirmed the exclusion of alternative-suspect evidence and

a judgment of conviction when the excluded evidence would have showed only

that an alternative suspect was involved in drug dealing with the victim and

knew that the victim had been loaned money within two days before the victim

was killed, Waterman, 2010 ME 45, ¶ 39, 995 A.2d 243, and where the evidence

would establish only that the alternative suspect had a “familiarity with the

general vicinity in which the body was found, and that there had been a fleeting

contact between the alternative perpetrator and the victim on the date of her

disappearance,” Boobar, 637 A.2d at 1172.

[¶37] Here, Daly proffered evidence that (1) a person associated with

Truck and Capitol had stabbed the victim in 2017 and (2) the person was about

to begin serving time in jail or prison. Evidence was admitted that, on the day

of the murder, Truck resided in an apartment that was near the victim’s

apartment. Daly’s girlfriend also testified that Daly told her he had visited

Truck before going to the victim’s apartment and shooting the victim. Daly did
 23

not proffer evidence that Truck, Capitol, or the person who purportedly

stabbed the victim had been in possession of the murder weapon, had been in

contact with the victim, or had done or said anything before or after the victim’s

death that would suggest their involvement in the killing.

[¶38] In contrast to this attenuated connection between alternative

suspects and the crime, there was significant testimonial and physical evidence

connecting Daly with the crime, as set forth in detail above. See supra ¶ 7. Daly

challenged the State’s physical evidence primarily by cross-examining its

investigator about whether the police had reviewed all video of the comings

and goings at his residence between the time of the murder and the date when

the gun was discovered. Cf. Holmes, 547 U.S. at 322-23, 330-31 (holding that

evidence of another person’s confession could not be excluded on the basis of

the strength of the State’s physical evidence when the value of that evidence

had been challenged based on theories that the evidence had been

contaminated and police were framing the defendant).

[¶39] Nonetheless, without a proffer of any evidence suggesting that any

of the three purported alternative suspects had ever been to the victim’s

residence, or that any of them had visited Daly’s residence following the murder

and therefore could have hidden the gun in Daly’s apartment, any connection
24

between those individuals and the crime requires conjecture and speculation.

Cf. State v. Robinson, 628 A.2d 664, 667 (Me. 1993) (affirming the exclusion of

alternative-suspect evidence when, although there was evidence that the

alternative suspect may have conveyed to another person a threat against the

victim, no admissible evidence was proffered to place the alternative suspect in

the area of the victim’s home at the time of the crime). The court did not abuse

its discretion in excluding the evidence as insufficient to establish a reasonable

connection to the crime because the proffered evidence would have been only

weakly probative of any other suspect’s motive or opportunity to commit the

crime. See Mitchell 2010 ME 73, ¶ 38, 4 A.3d 478. A fact finder could not,

without resorting to speculation, view the evidence as creating a reasonable

doubt regarding the identity of the person who murdered the victim. See Jaime,

2015 ME 22, ¶ 34, 111 A.3d 1050.

B. Sentencing

[¶40] Daly argues that the court’s explanation of its reasons for setting

the basic period of imprisonment was inadequate and that the matter should

be remanded for resentencing.

[¶41] A person who has committed the crime of murder “must be

sentenced to imprisonment for life or for any term of years that is not less than
 25

25.” 17-A M.R.S. § 1251(1) (2018).9 A court employs a two-step process in

sentencing a defendant for murder: “First, the court determines the basic term

of imprisonment based on an objective consideration of the particular nature

and seriousness of the crime. Second, the court determines the maximum

period of incarceration based on all other relevant sentencing factors, both

aggravating and mitigating, appropriate to that case, including the character of

the offender and the offender’s criminal history, the effect of the offense on the

victim and the protection of the public interest.” Carrillo, 2021 ME 18, ¶ 38,

248 A.3d 193 (quotation marks omitted).

[¶42] At issue here is the first step of the court’s sentencing. We review

the basic sentence set by the court “de novo for a misapplication of legal

principles.” Id. ¶ 41. In setting the basic sentence in a murder case, the

information upon which the sentencing court relies must be factually reliable

and relevant to satisfy the requisites of due process. See id. ¶ 44.

[¶43] “Because the extent of a judge’s discretion is so broad, and because

the difficulty of the task makes it one that warrants precision and focus, the

process used by the sentencing court to reach the sentence imposed must be

9 This sentencing statute has been repealed and replaced without substantive change. See P.L.
2019, ch. 113, §§ A-1, A-2 (emergency, effective May 16, 2019) (codified at 17-A M.R.S. § 1603(1)
(2021)).
26

explained to the sentencing court’s audience, including the reviewing court.”

State v. Stanislaw, 2011 ME 67, ¶ 15, 21 A.3d 91. “Articulation of the process is

. . . the only method that allows for meaningful appellate review of the

sentence.” Id.

[¶44] Here, the court explained, based on facts that had support in the

trial record, its reasons for setting a basic sentence in the range of forty to

forty-five years. The court found that Daly had planned the murder and had

shot the victim twice for reasons that may never be known, but the facts were

not so severe as to warrant a term of years beyond the range of forty to

forty-five years. The court’s articulation of its reasoning was sufficient for

purposes of appellate review.

[¶45] The court did not misapply principle in establishing the basic

sentence. Cf. State v. Gaston, 2021 ME 25, ¶ 35, 250 A.3d 137 (affirming a basic

sentence of thirty-five years when the murder was “an act of domestic violence

that was impulsive rather than premeditated”); Carrillo, 2021 ME 18, ¶¶ 41, 44,

148 A.3d 193 (affirming a basic sentence of fifty years when a mother actively

participated in months of physical abuse that resulted in the death of her child);

State v. Leng, 2021 ME 3, ¶ 13, 244 A.3d 238 (affirming a basic sentence of fifty

to fifty-five years when the murder was an intentional crime of domestic
 27

violence involving multiple gunshots when the victim’s children were in the

home and saw their mother’s body); State v. Nichols, 2013 ME 71, ¶¶ 10, 32,

72 A.3d 503 (affirming a basic sentence of thirty-five to forty years when the

defendant committed a premeditated act in shooting his wife while one of the

couple’s children was in the home); State v. Dwyer, 2009 ME 127, ¶¶ 34-36,

985 A.2d 469 (affirming a basic sentence of sixty-five to seventy-five years

when the defendant lured a pregnant woman to a location where he bound,

robbed, and sexually assaulted her before killing her). Premeditation-in-fact is

an aggravating factor that can justify even a life sentence, see State v. De St. Croix,

2020 ME 142, ¶¶ 9-12, 243 A.3d 880 (citing cases), and the court did not

misapply sentencing principles in setting a basic sentence of forty to forty-five

years for Daly, who had planned the shooting.

C. Motion for a New Trial

[¶46] Daly argues that the court should have granted his motion for a

new trial based on newly discovered evidence regarding the jury’s

deliberations. He argues that the rule of evidence pertaining to jury

deliberations should not be applied in the context of his motion for a new trial

and that the court’s ruling violated his rights of due process and was unjust.
28

[¶47] When the trial court has denied a defendant’s motion for a new

trial based on newly discovered evidence, we “review the court’s findings of fact

for clear error and its determination of whether the defendant has met the

necessary elements for an abuse of discretion.” State v. Peaslee, 2020 ME 105,

¶ 18, 237 A.3d 861 (quotation marks omitted). Because of the public interest

in maintaining the integrity and finality of judgments, a defendant seeking a

new trial based on newly discovered evidence must show, by clear and

convincing evidence, that

(1) the evidence is such as will probably change the result if a new
trial is granted;

(2) it has been discovered since the trial;

(3) it could not have been discovered before the trial by the
exercise of due diligence;

(4) it is material to the issue; and

(5) it is not merely cumulative or impeaching, unless it is clear that
such impeachment would have resulted in a different verdict.

Id. (quotation marks omitted). Rulings on the admissibility of evidence are

reviewed for clear error or abuse of discretion. State v. Sargent, 656 A.2d 1196,

1199 (Me. 1995).

[¶48] The Maine Rules of Evidence include a provision pertaining to the

admissibility of evidence regarding jurors during any “inquiry into the validity
 29

of a verdict or indictment.” M.R. Evid. 606(b). Specifically, with exceptions that

do not apply here, see M.R. Evid. 606(b)(2),10 a juror may not, as part of such an

inquiry, testify about “[a]ny statement made or incident that occurred during

the jury’s deliberations,” the “effect of anything on that juror’s or another

juror’s vote,” or “[a]ny juror’s mental processes concerning the verdict or

indictment.” M.R. Evid. 606(b)(1). “The court may not receive a juror’s affidavit

or evidence of a juror’s statement on these matters.” M.R. Evid. 606(b)(1).

[¶49] This rule embodies the pre-rules holding of Patterson v. Rossignol

that a “reluctant juror’s statement that she agreed to the verdict through fear

and coercion and that the announced unanimous verdict was not her free and

deliberate act cannot serve as proper basis for an offer of proof in support of a

motion for a new trial.”11 245 A.2d 852, 856 (Me. 1968); see State v. Leon,

10 “A juror may testify about whether: (A) Extraneous prejudicial information was improperly
brought to the jury’s attention; or (B) An outside influence was improperly brought to bear on any
juror.” M.R. Evid. 606(b)(2).
11 The policy considerations that undergird Rule 606 include

(1) the need for stability of verdicts; (2) the need to conclude litigation and desire to
prevent any prolongation thereof; (3) the need to protect jurors in their
communications to fellow jurors made in the confidence of secrecy of the jury room;
(4) the need to save jurors harmless from tampering and harassment by disappointed
litigants; and (5) the need to foreclose jurors from abetting the setting aside of
verdicts to which they may have agreed reluctantly in the first place or about which
they may in the light of subsequent developments have doubts or a change of attitude.

State v. Leon, 2018 ME 70, ¶ 8, 186 A.3d 129 (alteration omitted) (quotation marks omitted).
30

2018 ME 70, ¶¶ 8-9, 186 A.3d 129. “It has been the settled doctrine in this State

that affidavits or testimony of jurors will not be received to show any

impropriety in the conduct of the jury in the jury room, or an improper mode

of arriving at their verdict . . . .” Patterson, 245 A.2d at 856.

[¶50] The law governing motions for a new trial based on newly

discovered evidence clearly contemplates that evidence of jury deliberations is

inadmissible. Newly discovered evidence is that which could have been

presented at trial if it had been discovered in time, and jury deliberations,

which occur after the presentation of evidence, are not probative of the

elements of the charged crime or crimes. See Peaslee, 2020 ME 105, ¶ 18, 237

A.3d 861; State v. Gatcomb, 478 A.2d 1129, 1130-31 (Me. 1984).

[¶51] Here, the motion for a new trial called for an inquiry into the

validity of the verdict, and the affidavit from counsel in this case presents an

offer of proof of precisely the type of juror statement that Rule 606(b)(1)

precludes. See M.R. Evid. 606(b)(1). The court did not err or abuse its

discretion in excluding from consideration “information about [the juror’s] own

thought process and the interchange among the jurors in the jury room as they

considered the evidence.” Leon, 2018 ME 70, ¶ 12, 186 A.3d 129.
 31

[¶52] Moreover, even if the information contained in counsel’s affidavit

were admissible, that information does not undermine the fairness of Daly’s

trial. See Peaslee, 2020 ME 105, ¶ 18, 237 A.3d 861 (holding that newly

discovered evidence requires a new trial only when the defendant establishes,

by clear and convincing evidence, that, among other things, “the evidence is

such as will probably change the result if a new trial is granted”). As the court

properly instructed, jurors “must not speculate on what other witnesses might

have been called or what other evidence might have been presented.”

See Alexander, Maine Jury Instruction Manual § 8-4 at 8-8 (2020-2021 ed.

2020). In ruling on the motion for a new trial, the court correctly characterized

Daly’s argument as suggesting “that any ruling on the admissibility of evidence

which might have interested a juror should support a new trial”—an argument

at odds with the purposes of the Maine Rules of Evidence. See Leon, 2018 ME

70, ¶¶ 8-9, 186 A.3d 129. Because the court did not err or abuse its discretion

in excluding the alternative-suspect evidence, it also did not err or abuse its

discretion in denying the motion for a new trial, which was based on a juror’s

interest in that properly excluded evidence.
32

The entry is:

Judgment affirmed. Remanded for the
correction of the judgment-and-commitment
form to indicate that Daly pleaded not guilty.

Rory A. McNamara, Esq. (orally), Drake Law, LLC, York, for appellant F Daly

Aaron M. Frey, Attorney General, and Donald W. Macomber, Asst. Atty. Gen.
(orally), Office of the Attorney General, Augusta, for appellee State of Maine

Penobscot County Unified Criminal Docket docket number CR-2018-286
FOR CLERK REFERENCE ONLY