State of Maine v. Clifton Thomas

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2022 ME 27
Docket: And-21-216
Argued: April 6, 2022
Decided: May 17, 2022

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

STATE OF MAINE

v.

CLIFTON THOMAS

JABAR, J.

[¶1] Clifton Thomas appeals from a judgment of conviction of six

offenses,1 entered by the trial court (Androscoggin County, McKeon, J.) after a

three-day jury trial. Thomas challenges the denial of his request for sanctions

for the State’s alleged discovery violations and the denial of his motion to

dismiss because of the makeup of the jury venire. Thomas also contends that

the trial court committed an obvious error by admitting testimony of a police

officer that contained hearsay; that the trial court abused its discretion by

1 The offenses for which Thomas was charged were domestic violence criminal threatening with
a dangerous weapon (Class C), 17-A M.R.S. § 209-A(1)(A) (2022) (Count 1); reckless conduct with a
firearm (Class C), 17-A M.R.S. § 211(1) (2022) (Count 2); domestic violence terrorizing (Class D),
17-A M.R.S. § 210-B(1)(A) (2022) (Count 3); threatening display of a weapon (Class D), 25 M.R.S.
§ 2001-A(1)(A) (2022) (Count 4); domestic violence assault (Class D), 17-A M.R.S. § 207-A(1)(A)
(2022) (Count 5); domestic violence assault (Class D), 17-A M.R.S. § 207-A(1)(A) (2022) (Count 6);
possession of a firearm by a prohibited person (Class C), 15 M.R.S. § 393(1)(A-1)(3) (2022) (Count 7).
The jury found Thomas not guilty on Count 5.
2

failing to admit a letter that Thomas claimed was written on behalf of the victim

because it could not be authenticated; and that there was insufficient evidence

for the jury to convict him. We affirm.

I. BACKGROUND

A. Facts

[¶2] “Viewing the evidence in the light most favorable to the jury’s

verdict, the trial record supports the following facts.” See State v. Murray, 2021

ME 47, ¶ 2, 259 A.3d 1276. On February 7, 2020, Thomas beat the victim—a

former romantic partner and the mother of Thomas’s child—causing swelling

and bruising to her face. At the time, the victim did not report this incident to

the police.

[¶3] On February 26, 2020, Thomas entered the victim’s home and began

yelling at her. He drew a firearm, loaded it, and pointed it at her while she had

a child on her lap. He took the victim’s cell phone from her and stated that he

would give it back if she would let him shoot her in the leg. After hearing a noise

outside, Thomas left with the victim’s cell phone. Once Thomas departed, the

victim left the apartment, brought her children to safety, and reported this

incident, as well as the incident on February 7, to the police.
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[¶4] On February 27, 2020, the police learned that Thomas might be

staying at an apartment in Lewiston. The police reviewed surveillance video of

the building and observed Thomas at the building. The police then searched

the apartment and found a .22-caliber handgun, ammunition, and the victim’s

cell phone.2 The victim later said that the gun found in the apartment was not

the gun that Thomas had threatened her with.

B. Arrest and Indictment

[¶5] Thomas was arrested on February 27, 2020. At the time of his

arrest, the police found two cell phones on his person. The next day, the cell

phones were turned over to the New York Police Department because they

were related to an ongoing investigation in New York.

[¶6] The State filed a two-count complaint against Thomas for the

domestic violence incidents that occurred on February 7 and February 26. On

July 6, 2020, an Androscoggin County Grand Jury returned a six-count

indictment for the events that allegedly occurred in February 2020. On

October 5, 2020, the Androscoggin County Grand Jury returned a seven-count

superseding indictment adding an additional charge of possession of a firearm

by a prohibited person. Thomas pleaded not guilty on all counts.

2 The legality of the entry and search of the apartment is not at issue on appeal.
4

C. Motion for Discovery

[¶7] On November 17, 2020, Thomas filed a motion for discovery seeking

the two cell phones the police seized from him when he was arrested and that

were in the custody of the NYPD. Thomas claimed the phones contained

exculpatory evidence and sought sanctions against the State for not providing

them. The court (Stanfill, J.) held a hearing on this motion on March 26, 2021.

On April 23, 2021, the court denied the motion, determining that “the Lewiston

Police Department had no particular reason to think the cell phones would have

exculpatory information or indeed any relevant information on them when [the

phones] were turned over to the NYPD,” and that there was “no showing that

[evidence on the phones] was materially exculpatory.”

D. Jury Selection and Motion to Dismiss

[¶8] The jury was selected on May 10, 2021. While 350 prospective

jurors were summonsed to be in the jury venire, only 165 potential jurors

appeared. According to the court’s observations, there were three persons of

color in the jury venire.

[¶9] Thomas, who is African American, and two other African American

defendants in other cases shared the same jury venire. Each of the defendants

filed a motion to dismiss due to the failure of the jury venire to represent a fair
 5

cross section of the community. The court (McKeon, J.) held a hearing on all

three motions in all three cases on May 13, 2021. The court stated that it had

“no information . . . actually on the record except for perhaps [the 2019

Androscoggin County] census stat[istics] [provided by the State] and the jury

data the Court accumulated in preparation for today.” Instead of denying the

motion, the court gave Thomas the option of continuing his trials so that he

could better develop his arguments, but Thomas elected to proceed with the

jury trial. The court denied the motion to dismiss.

E. The Trial

[¶10] A three-day jury trial was held on May 18 through May 20, 2021.

Before the jury was brought into the courtroom for the first time, Thomas

indicated that he was going to cross-examine the victim about a letter that she

allegedly sent him while he was incarcerated in the county jail. The State

questioned the authenticity of the letter. The court deferred ruling on the

matter, indicating that, if the victim were to deny that she authored the letter,

then Thomas would have to authenticate it with other evidence. When the

victim was asked about the letter outside the presence of the jury, she denied

having written the letter. When Thomas later tried to present the letter as
6

evidence during his testimony, the court did not admit the letter, ruling that

there was insufficient evidence to authenticate it.

[¶11] The State called the victim, who testified about her relationship

with Thomas and the incidents that occurred in February 2020. On

cross-examination, Thomas attacked the victim’s credibility, introducing a false

statement made by the victim to the police, a 9-1-1 call that refuted her claim

that she drove to the police station on February 26, and other examples of

purported embellishment. The State also called the Lewiston police officer who

first interviewed the victim, and he testified to statements that the victim made

on February 26, 2020, that were consistent with the victim’s testimony at trial.

Thomas did not object to the officer’s testimony regarding the victim’s

statements to him.

[¶12] The jury found Thomas guilty of Counts 1, 2, 3, 4, and 6. After the

jury was excused, the court found Thomas, a convicted felon, guilty of Count 7.

The court sentenced Thomas to three years and six months’ incarceration on

Counts 1, 2, and 7, concurrent with each other; 364 days’ incarceration on

Counts 3 and 4 to run concurrently with each other and with Count 1; and

364 days’ incarceration and two years’ probation on Count 6, to run
 7

consecutively to the other counts. Thomas timely appealed. 15 M.R.S. § 2115

(2022); M.R. App. P. 2B(b)(1).

II. DISCUSSION

[¶13] Thomas makes five claims on appeal: (1) the court should have

dismissed all charges as a discovery sanction after the state failed to preserve

the exculpatory evidence that was allegedly on the cell phones that were turned

over to the NYPD; (2) the court erred when it admitted statements of a police

officer that constituted hearsay; (3) the court abused its discretion by

determining that a letter offered by Thomas was not properly authenticated;

(4) the court should have dismissed all charges because the jury pool did not

represent an adequate cross-section of the community; and, (5) there was

insufficient evidence for a jury to convict Thomas of his crimes.3

A. Discovery Violation

1. State’s Duty to Preserve Evidence

[¶14] Thomas argues that the State’s failure to preserve the exculpatory

evidence that was allegedly on the cell phones turned over to the NYPD

Thomas has asserted and developed his constitutional claims based only on the Constitution of
3

the United States, not the Maine Constitution, and therefore we review his claims by applying federal
law and principles. See State v. Philbrick, 481 A.2d 488, 493 n.3 (Me. 1984) (“Because the Defendant
does not argue that his state constitutional rights were infringed, we depart from our preferred
practice of deciding issues on the basis of our state constitution before we address federal
constitutional questions. Just as certain considerations of judicial restraint ordinarily impel us to
ground a decision on state, rather than federal[,] law, other considerations of judicial restraint lead
8

constituted a discovery violation, entitling him to a dismissal as a sanction. See

M.R.U. Crim. P. 16(e). Although “prosecutors have a constitutional duty to

preserve material evidence” to “protect a criminal defendant’s right to a fair

trial,” the defendant bears the burden of proving a violation of his constitutional

rights. State v. Cote, 2015 ME 78, ¶¶ 11, 14-15, 118 A.3d 805. We have

instructed that courts undertake a “bifurcated analysis” in which

[f]irst, the court must determine whether the evidence possessed
an exculpatory value that was apparent before the evidence was
destroyed. If so, then the defendant must show only that the
evidence was of such a nature that the defendant would be unable
to obtain comparable evidence by other reasonably available
means. If, however, the exculpatory value of the evidence was not
apparent at the time of its loss or disappearance, the defendant
cannot establish a constitutional deprivation without proof that the
State also acted in bad faith in failing to preserve the evidence.

Id. ¶ 15 (citations and quotation marks omitted).

2. Application

[¶15] In conducting the first part of the analysis, we conclude that

Thomas has not shown that either cell phone contained apparent exculpatory

value. The motion court (Stanfill, J.) heard testimony from the detective who

first entered the phones into evidence at the Lewiston Police Department; he

us to refrain from deciding important state constitutional issues that have been neither briefed nor
argued.” (citations omitted)).
 9

testified that he did not review the data on the phones before they were sent to

the NYPD. Similar testimony was elicited from another detective and the

Lewiston Police Department’s evidence manager. There is no evidence that the

police had any indication that the phones had exculpatory value. There is “a

distinction between apparently exculpatory evidence and potentially useful

evidence.” Cote, 2015 ME 78, ¶ 13, 118 A.3d 805. Thomas did not offer any

evidence indicating that either cell phone had any specific exculpatory evidence

but instead relied on the generalization that domestic partners communicate

with each other using such devices.4

[¶16] Because there was no exculpatory value that was apparent at the

time the phones left Lewiston Police Department custody, Thomas had the

burden to prove that the police acted in bad faith in failing to preserve the cell

phones. An act of “bad faith” requires more than mere negligence. Id. ¶ 19 n.5.

[¶17] In the second part of the bifurcated analysis, Thomas must prove

that the phones contained “potentially useful” evidence and that “the State

acted in bad faith in failing to preserve [the evidence].” See id. ¶ 19. Thomas’s

4 Even if we agreed that the exculpatory value of the phones should have been apparent to

authorities, Thomas would still have to show “that the evidence was of such a nature that the
defendant would be unable to obtain comparable evidence by other reasonably available means.”
State v. Chan, 2020 ME 91, ¶ 14, 236 A.3d 471 (quotation marks omitted). However, Thomas admits
that he “did possess some copies of texts” between the victim and himself, and these text messages
were submitted as evidence at trial.
10

motion asserted that the authorities acted in bad faith when they “intentionally

disposed” of the phones, but he presented no evidence or legal authority to

support his contention. Further, the court found that the police did not act in

bad faith, and this finding is supported by the evidence.

[¶18] We conclude that the court did not err in determining that Thomas

failed to establish the necessary elements proving that the police violated their

duty to preserve exculpatory evidence and that therefore the State’s failure to

provide access to the seized cell phones did not deny Thomas his constitutional

right to a fair trial.

B. Hearsay Evidence

[¶19] Thomas next argues that the trial court (McKeon, J.) committed

obvious error when it admitted testimony of a Lewiston police officer that

constituted hearsay under M.R. Evid 801. As Thomas recognizes, because

Thomas failed to object to the officer’s testimony, we review the court’s

admission of the evidence for obvious error. See State v. Dolloff, 2012 ME 130,

¶ 52, 58 A.3d 1032. “To demonstrate obvious error, the defendant must show

that there is ‘(1) an error, (2) that is plain, and (3) that affects substantial

rights.’” Id. ¶ 35 (quoting State v. Pabon, 2011 ME 100, ¶ 29, 28 A.3d 1147).

“[I]f these three conditions are met, we will set aside a jury’s verdict only if we
 11

conclude that (4) the error seriously affects the fairness and integrity or public

reputation of judicial proceedings.” Dolloff, 2012 ME 130, ¶ 35, 58 A.3d 1032

(quotation marks omitted).

[¶20] “Hearsay is an out-of-court statement made by a declarant offered

in evidence by a witness to prove the truth of the matter asserted and is

generally inadmissible.” Needham v. Needham, 2022 ME 7, ¶ 11, 267 A.3d 1112;

see M.R. Evid. 801, 802. However, Maine’s rules of evidence set forth several

categories of statements that are not hearsay. M.R. Evid. 801(d). One such

statement is a declarant-witness’s prior statement that “[i]s consistent with the

declarant’s testimony and is offered: (i) to rebut an express or implied charge

that the declarant recently fabricated it or acted from a recent improper

influence or motive in so testifying; or (ii) to rehabilitate the declarant’s

credibility as a witness when attacked on another ground.” M.R.

Evid. 801(d)(1)(B). This type of statement can be used “both for its

rehabilitative and substantive effect.” M.R. Evid. 801 Advisory Committee Note

– August 2018.

[¶21] Here, the officer testified about what the victim had told him on

the night of February 26, 2020, when she first reported the February 2020

incidents. This included her statement that Thomas had brandished a gun at
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her, that he had made threats to her, that Thomas had taken her cell phone, and

that there had been previous episodes of domestic violence that Thomas had

committed against her. At this point in the trial, the victim had already testified

to these events and had been cross-examined by Thomas. During the

cross-examination, to demonstrate she was unable to “get her story straight,”

Thomas attacked her character for truthfulness, brought her memory and

recollection into question, and questioned the consistency of her statements.

[¶22] The officer’s testimony supported the victim’s credibility after

Thomas attacked it and was consistent with the victim’s in-court testimony.

These statements by the victim to the officer were not hearsay and were

admissible under M.R. Evid. 801(d)(1)(B). The trial court did not commit

obvious error in admitting the officer’s testimony.

C. Admissibility of the Letter

[¶23] Thomas next argues that the trial court abused its discretion when

it did not allow him to introduce a letter that he claimed that the victim had sent

him while he was in the Androscoggin County Jail. We review a trial court’s

ruling on admissibility of evidence for abuse of discretion. State v. Hussein,

2019 ME 74, ¶ 10, 208 A.3d 752. “A court abuses its discretion in ruling on

evidentiary issues if the ruling arises from a failure to apply principles of law
 13

applicable to the situation[,] resulting in prejudice.” Id. (quotation marks

omitted).

[¶24] The standard for authentication is articulated in M.R. Evid. 901(a),

which states that “[t]o satisfy the requirement of authenticating or identifying

an item of evidence, the proponent must produce evidence sufficient to support

a finding that the item is what the proponent claims it is.” This is “a flexible

approach to authentication reflecting a low burden of proof.” Hussein, 2019 ME

74, ¶ 11, 208 A.3d 752.

[¶25] Here, the letter in question, which is unsigned, was purportedly

written on behalf of the victim and claimed that the victim was angry with

Thomas at the time of her report and that she had given inconsistent statements

to the police. Thomas offered with the letter an envelope addressed to Thomas

at the Androscoggin County Jail. However, when asked about the letter outside

the presence of the jury, the victim denied writing the letter or having anyone

else write the letter for her. She admitted that she sent the envelope to the jail

but stated that it contained photographs and not the letter. The person who

Thomas claimed wrote the letter on the victim’s behalf was in the courtroom

and was a listed witness for Thomas, but she was not called to testify. Although
14

Thomas testified that he received the letter, he produced no further evidence

that demonstrated that the letter was sent by the victim or on her behalf.

[¶26] In a sidebar conversation, the court clearly articulated Rule 901

and stated that Thomas—without a handwriting expert, the testimony of the

writer, or even the original letter—was unable to meet his burden. The court

did not abuse its discretion when it did not admit the unauthenticated letter.

D. Jury Venire

[¶27] The Sixth Amendment guarantees that “[i]n all criminal

prosecutions, the accused shall enjoy the right to a . . . trial, by an impartial jury

of the State and district wherein the crime shall have been committed.” U.S.

Const. amend. VI. This jury must be drawn from a “fair cross section of the

community,” but a “fair cross section” does not guarantee that juries be “of any

particular composition.” Taylor v. Louisiana, 419 U.S. 522, 527, 538 (1975).

Instead, the “jury wheels, pools of names, panels, or venires from which juries

are drawn must not systematically exclude distinctive groups in the community

and thereby fail to be reasonably representative thereof.” Id. at 538.

[¶28] Relying on the Supreme Court case Duren v. Missouri, 439 U.S. 357,

364 (1979), we have stated:

To establish a prima facie claim that a jury selection process
violates the constitutional requirement that the jury be selected
 15

from a pool representative of the community at large, the
challenging party has the burden to show that: (1) the group
alleged to be excluded is a “distinctive” group in the community;
(2) the representation of this group in jury pools from which juries
are selected is not fair and reasonable in relation to the number of
such persons in the community; and (3) this underrepresentation
is due to systematic exclusion of the group in the jury selection
process.

State v. Holland, 2009 ME 72, ¶ 23, 976 A.2d 227. “Certain groups—such as

those defined by race or sex—are unquestionably ‘distinctive.’” State v. Anaya,

456 A.2d 1255, 1260 (Me. 1983) (footnotes omitted).

[¶29] Here, Thomas, has met the first element of the Duren test by

alleging that a ‘distinctive’ group—African Americans—were excluded from

the jury venire. See Holland, 2009 ME 72, ¶ 24, 976 A.2d 227. However, Thomas

failed to carry his burden as to the other two elements of the test. The State,

not Thomas, provided limited evidence of the proportion of the community’s

population that was African American. Furthermore, Thomas provided no

evidence of a systematic exclusion in the jury selection process. Thomas was

given the option to continue the trial so he could better develop the record for

this challenge, but he chose to proceed with the trial. Because Thomas failed to

establish the second and third elements of the Duren test, the court did not err

in denying Thomas’s motion.
16

E. Sufficiency of the Evidence

[¶30] We review a challenge to the sufficiency of the evidence by

reviewing the evidence adduced at trial “in the light most favorable to the State

to determine whether the trier of fact rationally could have found beyond a

reasonable doubt every element of the offense charged,” State v. Smen, 2006 ME

40, ¶ 7, 895 A.2d 319 (quotation marks omitted). Fact finders are “permitted

to draw all reasonable inferences from the evidence,” State v. Williams, 2012

ME 63, ¶ 49, 52 A.3d 911, and “[t]he weight to be given to the evidence and the

determination of witness credibility are the exclusive province of the jury.”

State v. Filler, 2010 ME 90, ¶ 24, 3 A.3d 365 (quotation marks omitted). “[A]

jury’s acquittal of a defendant on one charge does not limit the evidence that

can be considered in a post-trial determination of whether the evidence is

sufficient to support the jury’s guilty verdict on a different charge.” State v.

Lowe, 2015 ME 124, ¶ 29, 124 A.3d 156.

[¶31] Thomas does not challenge any specific elements of any of the

crimes the jury convicted him of, and broadly challenges all of the evidence.5

5 Thomas’s argument reads that “[n]o rational juror could have been convinced of Appellant’s

guilt beyond a reasonable doubt” and that there was “insufficient evidence for a jury to conclude
Appellant was guilty beyond a reasonable doubt.” Although the court did “note the jury verdict that
required a finding of possession of a weapon” given that Count 7 was the court’s decision,
independent of the jury, we interpret Thomas’s appeal as challenging only the jury verdicts on
Counts 1, 2, 3, 4, and 6.
 17

The jury heard testimony from the victim about the physical abuse that she

suffered from Thomas and the incident when Thomas pointed a gun at her. This

evidence was supported by the testimony of police officers, photographs of the

injuries she suffered, and items found in the apartment. While Thomas did

testify and claimed that he did not strike or threaten the victim, the jury

apparently did not find him credible. See Filler, 2010 ME 90, ¶ 24, 3 A.3d 365.

There was sufficient evidence for the jury to have rationally found that every

element of each count Thomas was convicted of was proved beyond a

reasonable doubt.

The entry is:

Judgment affirmed.

Verne E. Paradie, Jr., Esq. (orally), Lewiston, for appellant Clifton Thomas

Katherine E. Bozeman, Asst. Dist. Atty. (orally), and Katherine M. Hudson-
MacRea, Asst. Dist. Atty., Androscoggin County District Attorney’s Office,
Lewiston, for appellee State of Maine

Androscoggin County Unified Criminal Docket docket number CR-2020-610
FOR CLERK REFERENCE ONLY