STATE OF MAINE SUPERIOR COURT KENNEBEC, ss KENCD-CR-17-1009
STATE OF MAINE
v. COMBINED ORDER ON MOTIONS
SCOTT BUBAR
Before the Court are two motions, the State's Motion in Limine to allow introduction of
statements made by Jenny Shorey to a 911 operator, and Defendant's Motion to Suppress
statements made by the Defendant to law enforcement. Hearing on the motions was held on
August 16, 2018.The Court will address each motion in turn.
Motion in Limine
The State is seeking admission of statements made by Ms. Shorey' to a 911 operator on
May 19, 2017. The Court has reviewed the parties' filings, the testimony at hearing, and has
heard the recording made of these statements. For reasons stated, the Motion in Limine is
granted in part. Some of the statements made are admissible as statements of then-existing
emotional, or physical condition, some are admissible as present sense impressions, and some are
admissible as excited utterances.
' Originally the State was seeking admission of two other sets of statements by Ms. Shorey but as of the date of the hearing on these motions the Court was informed that the only statements at issue were the statements made by her to the 911 operator.
I Under M.R. Evid. 803(3) a statement that is otherwise hearsay may be admitted if it is a
statement of the declarant's then-existing emotional state of mind (such as motive, intent, or
plan) or emotional sensory or physical condition (such as mental feeling, pain, or bodily health).
The parties seem to agree that some of Ms. Shorey's statements qualify as exceptions under this
Rule but did not specify in the written filings which ones qualify or not.
Under M.R. Evid. 803(1) a statement that is otherwise hearsay may be admitted if it is a
"statement describing or explaining an event or condition made while or immediately after the
declarant perceived it." Just as with respect to the exception under Rule 803(3) the parties seem
to agree that some of Ms. Shorey's statements qualify as hearsay exceptions but have not been
specific in their filings on this issue.
The parties' fundamental disagreement has to do with the excited utterance exception
under Me. R. Evid. 803(2). In State v. Barnies, 680 A.2d 449 the Law Court set out the findings
a court must make in order to admit evidence under the "excited utterance" exception of Me. R.
Evid. 803(2). The Law Court held that these findings were pre1iminary questions for the trial
court under Rule 104. In order to determine if the exception applies to the statement, the Court
must find: (1) that a startling event occurred; (2) that the hearsay statement related to the startling
event; and (3) that the hearsay statement was made while the declarant was under the stress of
the excitement caused by the event." Id. at 451.
The Law Court has also held that the stress of "conscience, guilt or fear are not to be
equated with the stress of excitement." State v. Lafrance, 589 A. 2d at 45. It has also held that the
statement must be "spontaneous and unreflecting" and made "before there has been time to
contrive and misrepresent." Id.
2 In State v. Ellis, 297 A.2d at 93 the Law Court stated that under "certain external
circumstances of physical shock, a stress of nervous excitement may be produced which stills the
reflective faculties and removes their control, so that the utterance which then occurs is a
spontaneous and sincere response to the actual sensations and perceptions already produced by
the external shock."
The Court finds that the last shots fired in this incident occurred around 1044 pm. The
911 statements by Ms. Shorey were made approximately a half an hour later. Jenny Shorey is a
bed-ridden woman who was confined in this shooting incident and "standoff,. to her bed which
was in the trailer's living rooms. Her long-standing boyfriend and his son, the Defendant, had
been shot by law enforcement officers and her boyfriend was killed. During the call, which lasts
approximately 21 minutes and 57 seconds, she tells the 911 operator that she is scared, that she
wants the police to "get here soon though" and she is heard at several places moaning.
The Court finds that many of her statements qualify as excited utterances, and
alternatively many of them qualify as exceptions under Rule 801(1) and/or Rule 803(3). While
Ms. Shorey is not shouting into the phone it is clear to the Court that she is terrified at the
beginning of the interview and still subject to the nervous excitement produced by the exchange
of gunfire between the police and the Defendant and her father. She seems aware that her
boyfriend is dead, that the Defendant is seriously wounded, and she had almost been hit by
gunfire herself. Her physical inability to defend herself or move away from the gunfire would
obviously have produced the kind of physical shock the exception contemplates. However, it is
also dear to the Court that at some point in the interview the exchange between Ms. Shorey and
911 operator becomes more conversational and the Court finds that at that point the shock
produced by the violence she experienced had diminished sufficiently that the Court cannot find
3 her remaining statements qualify as exceptions to hearsay rule. They may, however, be
admissible still under Rule 803(1) and/or Rule 803(3).
The Court therefore concludes as follows:
1) Statements of Ms. Shorey on page one are admissible under either Rule 803(2) or Rule
803(3).
2) Statements of Ms. Shorey on page two are admissible under 803(2). They are also
admissible under either Rule 803(1) or Rule 803(3).
3) Statements of Ms. Shorey on page three are admissible under Rule 803(2). They are also
admissible under either Rule 803(1) and/or Rule 803(3) .
4) Statements of Ms. Shorey on page four are admissible under Rule 803(2). They are also
admissible under either Rule 803(1) and/or Rule 803(3).
5) Statements of Ms. Shorey on page 5 are admissible under Rule 803(2). They are also
6) Statements of Ms. Shorey on page 6 are admissible under Rule 803(2). They are also
admissible under Rule 803(1) and/or Rule 803(3).
7) Statements of Ms.Shorey on page 7 (through her answer "No" to the question "He won't
answer you?") are admissible under Rule 803(1). All other statements on that page from
Ms. Shorey are not admissible under any proffered exception.
8) Statements of Ms. Shorey on page 8 are admissible under Rule 803( 1) and/or 803(3),
9) Statements of Ms. Shorey on page 9 are not admissible under any of the proffered
exceptions.
4 10) Statements of Ms. Shorey on page 10 are not admissible up to when the 911 operator asks
her to call out to the Defendant. After that her statements are admissible under Rule
803(1) and/or 803(3).
11) Statements of Ms. Shorey on page 11 are admissible under Rule 803(1) and/or 803(3).
12) Statements of Ms. Shorey on page 12 are admissible either because they are not hearsay
or as exceptions under Rule 803(1).
13) Statements of Ms. Shorey on page 13 are admissible as they are not hearsay.
Motion to Suppress Statements of Defendant
In this motion the Defendant challenges statement made by the Defendant after being
shot by a Sheriff's deputy who was among a number of Jaw enforcement officers who
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STATE OF MAINE SUPERIOR COURT KENNEBEC, ss KENCD-CR-17-1009
STATE OF MAINE
v. COMBINED ORDER ON MOTIONS
SCOTT BUBAR
Before the Court are two motions, the State's Motion in Limine to allow introduction of
statements made by Jenny Shorey to a 911 operator, and Defendant's Motion to Suppress
statements made by the Defendant to law enforcement. Hearing on the motions was held on
August 16, 2018.The Court will address each motion in turn.
Motion in Limine
The State is seeking admission of statements made by Ms. Shorey' to a 911 operator on
May 19, 2017. The Court has reviewed the parties' filings, the testimony at hearing, and has
heard the recording made of these statements. For reasons stated, the Motion in Limine is
granted in part. Some of the statements made are admissible as statements of then-existing
emotional, or physical condition, some are admissible as present sense impressions, and some are
admissible as excited utterances.
' Originally the State was seeking admission of two other sets of statements by Ms. Shorey but as of the date of the hearing on these motions the Court was informed that the only statements at issue were the statements made by her to the 911 operator.
I Under M.R. Evid. 803(3) a statement that is otherwise hearsay may be admitted if it is a
statement of the declarant's then-existing emotional state of mind (such as motive, intent, or
plan) or emotional sensory or physical condition (such as mental feeling, pain, or bodily health).
The parties seem to agree that some of Ms. Shorey's statements qualify as exceptions under this
Rule but did not specify in the written filings which ones qualify or not.
Under M.R. Evid. 803(1) a statement that is otherwise hearsay may be admitted if it is a
"statement describing or explaining an event or condition made while or immediately after the
declarant perceived it." Just as with respect to the exception under Rule 803(3) the parties seem
to agree that some of Ms. Shorey's statements qualify as hearsay exceptions but have not been
specific in their filings on this issue.
The parties' fundamental disagreement has to do with the excited utterance exception
under Me. R. Evid. 803(2). In State v. Barnies, 680 A.2d 449 the Law Court set out the findings
a court must make in order to admit evidence under the "excited utterance" exception of Me. R.
Evid. 803(2). The Law Court held that these findings were pre1iminary questions for the trial
court under Rule 104. In order to determine if the exception applies to the statement, the Court
must find: (1) that a startling event occurred; (2) that the hearsay statement related to the startling
event; and (3) that the hearsay statement was made while the declarant was under the stress of
the excitement caused by the event." Id. at 451.
The Law Court has also held that the stress of "conscience, guilt or fear are not to be
equated with the stress of excitement." State v. Lafrance, 589 A. 2d at 45. It has also held that the
statement must be "spontaneous and unreflecting" and made "before there has been time to
contrive and misrepresent." Id.
2 In State v. Ellis, 297 A.2d at 93 the Law Court stated that under "certain external
circumstances of physical shock, a stress of nervous excitement may be produced which stills the
reflective faculties and removes their control, so that the utterance which then occurs is a
spontaneous and sincere response to the actual sensations and perceptions already produced by
the external shock."
The Court finds that the last shots fired in this incident occurred around 1044 pm. The
911 statements by Ms. Shorey were made approximately a half an hour later. Jenny Shorey is a
bed-ridden woman who was confined in this shooting incident and "standoff,. to her bed which
was in the trailer's living rooms. Her long-standing boyfriend and his son, the Defendant, had
been shot by law enforcement officers and her boyfriend was killed. During the call, which lasts
approximately 21 minutes and 57 seconds, she tells the 911 operator that she is scared, that she
wants the police to "get here soon though" and she is heard at several places moaning.
The Court finds that many of her statements qualify as excited utterances, and
alternatively many of them qualify as exceptions under Rule 801(1) and/or Rule 803(3). While
Ms. Shorey is not shouting into the phone it is clear to the Court that she is terrified at the
beginning of the interview and still subject to the nervous excitement produced by the exchange
of gunfire between the police and the Defendant and her father. She seems aware that her
boyfriend is dead, that the Defendant is seriously wounded, and she had almost been hit by
gunfire herself. Her physical inability to defend herself or move away from the gunfire would
obviously have produced the kind of physical shock the exception contemplates. However, it is
also dear to the Court that at some point in the interview the exchange between Ms. Shorey and
911 operator becomes more conversational and the Court finds that at that point the shock
produced by the violence she experienced had diminished sufficiently that the Court cannot find
3 her remaining statements qualify as exceptions to hearsay rule. They may, however, be
admissible still under Rule 803(1) and/or Rule 803(3).
The Court therefore concludes as follows:
1) Statements of Ms. Shorey on page one are admissible under either Rule 803(2) or Rule
803(3).
2) Statements of Ms. Shorey on page two are admissible under 803(2). They are also
admissible under either Rule 803(1) or Rule 803(3).
3) Statements of Ms. Shorey on page three are admissible under Rule 803(2). They are also
admissible under either Rule 803(1) and/or Rule 803(3) .
4) Statements of Ms. Shorey on page four are admissible under Rule 803(2). They are also
admissible under either Rule 803(1) and/or Rule 803(3).
5) Statements of Ms. Shorey on page 5 are admissible under Rule 803(2). They are also
6) Statements of Ms. Shorey on page 6 are admissible under Rule 803(2). They are also
admissible under Rule 803(1) and/or Rule 803(3).
7) Statements of Ms.Shorey on page 7 (through her answer "No" to the question "He won't
answer you?") are admissible under Rule 803(1). All other statements on that page from
Ms. Shorey are not admissible under any proffered exception.
8) Statements of Ms. Shorey on page 8 are admissible under Rule 803( 1) and/or 803(3),
9) Statements of Ms. Shorey on page 9 are not admissible under any of the proffered
exceptions.
4 10) Statements of Ms. Shorey on page 10 are not admissible up to when the 911 operator asks
her to call out to the Defendant. After that her statements are admissible under Rule
803(1) and/or 803(3).
11) Statements of Ms. Shorey on page 11 are admissible under Rule 803(1) and/or 803(3).
12) Statements of Ms. Shorey on page 12 are admissible either because they are not hearsay
or as exceptions under Rule 803(1).
13) Statements of Ms. Shorey on page 13 are admissible as they are not hearsay.
Motion to Suppress Statements of Defendant
In this motion the Defendant challenges statement made by the Defendant after being
shot by a Sheriff's deputy who was among a number of Jaw enforcement officers who
responded to a rep01t that shots had been fired in the vicinity of a trailer owned by
Defendant's father in Belgrade. The statements of the Defendant at issue are first, his
statement that his gun was "in the kitchen" which he is heard making on the 911 case placed
by Ms. Shorey. The defense claims that this statement was not admissible under the public
safety exception and also that it was involuntary. The Defendant made another statement to
law enforcement when he was taken into custody but not given Miranda warnings. The
Defense claims that this statement should be suppressed as he was in custody, did not receive
the warnings, that no public safety exception applies, and that the statements were
involuntary.
With respect to the statement made by the Defendant while in the trailer that his gun was
in the kitchen, the Court finds that he was not in custody under State v. Leonard, 2002 ME
5 125 which factually is similar to the allegations made against the Defendant in this case.
After locating a felony suspect in that case at his residence, and seeing what they believed to
be a weapon, police fired tear gas canisters at into his residence. The suspect fired at police
from his home and the police returned fire. After he surrendered to the police he filed a
motion to suppress statements made to police during the standoff and on the way to the
hospital. The Law Court stated: "Certainly during the standoff, Leonard was not free to
leave. Just as certainly, he was not in the custody and control of the police." Id. at par. 9.
Finding that the statements were not made during custodial interrogation, the Law Court
found that no Miranda warnings were warranted.
Further, the Court agrees with the State that the statements are within the public safety
exception established by the United States Supreme Court in New York v. Quarles, 467 U.S.
649 (1984). The questions put to the Defendant here were limited, appropriate, necessary and
were motivated by a concern for public safety.
With respect to the statements made to law enforcement officers after his surrender
regarding the location of firearms, the Defense argues that he was in custody, no Miranda
warnings were given, and the statement "in the kitchen' should be suppressed.
The Court finds that the Defendant was in fact in custody for purposes of Miranda when
this statement was made, but again given the timing of the interrogation,just after his arrest,
the public safety exception applies. While Ms. Shorey told law enforcement by this time that
the Defendant's father was dead, it was not unreasonable for the officer's concern for their
safety, as well as the safety of Ms. Shorey, to be ongoing in the moment the question was
asked.
6 Finally, the Defendant argues that even if adm.issible under the public safety exception,
both statements are inadmissible in that the State has not proven that they were voluntary
beyond a reasonable doubt. State v. Mikulewicz, 462 A.2d 497, 501 (Me. 1983). A statement
is voluntary of it results "from the free choice of a rational mind, if it is not the product of
coercive police conduct, and if under all of the circumstances its admission would be
fundamentally fair." Id. at par. 16.
The Court finds for the following reasons that the State has proven beyond a reasonable
doubt that the statements were voluntary. There is evidence in the record regarding the
Defendant's physical condition, namely that he had been shot by the police, that he lost a
sufficient amount of blood to leave impressive amounts of visible stains, and that he emerged
from the trailer naked wearing only a blanket. There is also evidence in the record that he had
been drinking. Both of these circumstances could call into question whether the statements
regarding the location of the gun resulted from the free choice of a rational mind .
However, the State has provided testimonial evidence from eyewitnesses about the
Defendant's functioning in the moments before the statements were made that make it almost
certainly true that the statements he made regarding the location of the guns, both from
inside and outside the trailer, were voluntary. Sgt. Tyler Stephenson testified that while the
Defendant was sti11 in the house that he was trying to engage him in a conversation to
encourage him to come out peaceably. The Defendant responded by telling him that he had
been shot, and that he needed medical treatment for his injury. He testified that shortly after
when the Defendant exited the trailer he was able to follow commands, and when told to
drop the blanket and get on his knees he readily complied. When asked where the guns were
he said that his father's was with his father, and that his was in the kitchen. While he had
7 previously stated from the trailer that he could not move, it is clear he had only minimal
problem ambulating to the outside. Sgt. Mark Ferreira echoed these observations of the
Defendant, as did Detective Gregory Roy who described the Defendant as responding
without hesitation, and cooperative.
In addition, there is on this record no evidence of improper inducement, improper use of
physical force, or coercion by Jaw enforcement. See e.g., State v. Wiley, 2013 ME 30. The
Court therefore concludes that under all of the circumstances the admission of the
Defendant's statements regarding the location of the guns would be fundamentally fair,
The entry will be: State's Motion in Lirnine is GRANTED in part. The Defendant's
Motion to Suppress is DENIED.
DATE SUPERIOR COURT