State of Maine v. Gregory Nisbet

2018 ME 113, 191 A.3d 359
CourtSupreme Judicial Court of Maine
DecidedAugust 9, 2018
DocketDocket: Cum-17-297
StatusPublished
Cited by7 cases

This text of 2018 ME 113 (State of Maine v. Gregory Nisbet) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State of Maine v. Gregory Nisbet, 2018 ME 113, 191 A.3d 359 (Me. 2018).

Opinion

JABAR, J.

[¶ 1] Gregory Nisbet appeals from a judgment of conviction for violating a public safety fire rule (Class E), 25 M.R.S. § 2452(3) (2017), entered by the Unified Criminal Docket (Cumberland County, Warren, J. ) after a bench trial. Nisbet was convicted of failing to comply with section 24.2.2.3.3 of the 2009 edition of the National Fire Protection Association (NFPA) 101: Life Safety Code, as incorporated by rule by the Commissioner of the Department of Public Safety. 1 See 25 M.R.S. § 2452(3) ; 9 C.M.R. 16 219 020-1 § 1 (2011); NFPA

*363 101: Life Safety Code § 24.2.2.3.3 (Nat'l Fire Prot. Ass'n 2009 ed.) (hereinafter "Life Safety Code"). On appeal, Nisbet makes the following arguments: that (1) section 24.2.2.3.3 of the Life Safety Code is void for vagueness pursuant to the due process clauses of the United States and Maine Constitutions; (2) the court abused its discretion in determining that the State's failure to provide him with a policy statement regarding the enforcement of section 24.2.2.3.3 did not constitute a violation pursuant to Brady v. Maryland , 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963) ; and (3) the evidence presented at trial was insufficient to sustain a conviction for failure to comply with section 24.2.2.3.3. We affirm the judgment.

I. BACKGROUND

A. Factual History

[¶ 2] "Viewing the evidence in the light most favorable to the State, the trial record supports the following facts," which the court found after a five-day trial. State v. Jeskey , 2016 ME 134 , ¶ 2, 146 A.3d 127 . Nisbet was the owner of an apartment building located on 20 Noyes Street in Portland. In that capacity, he collected rent from the building's occupants and exercised management responsibility over the property. On November 1, 2014, a fire occurred at 20 Noyes Street, resulting in the death of six people. The fire began on the porch outside the front door and proceeded up the stairway that served as the primary means of escape for those on the second and third floors. On that particular day, the entrance to the back stairway on the second floor was blocked by furniture because a tenant had recently moved in.

[¶ 3] Three of the building's occupants survived the fire by exiting the building through a window onto the back porch within ninety seconds after two of them woke up. One of those survivors testified that before he escaped, the front door was fully engulfed in flames, thick smoke was billowing from the door and rising up the stairway, and he was having difficulty breathing. As the survivors escaped, the front door opened and the fire proceeded up the stairway very quickly, bringing intense heat with it. Smoke and accompanying gases, including carbon monoxide, preceded the heat and rose up the stairways to the third floor before spreading throughout the first and second floors. According to expert testimony, a person could become unconscious in as little as thirty seconds after breathing a significant amount of carbon monoxide-laden smoke.

[¶ 4] Each victim except for one died from smoke inhalation. The third-floor bedroom windows were considerably smaller than required by the Life Safety Code and too small to use as a secondary means of escape. They were double hung, and one witness testified that they could only be opened as little as eight inches. There was also testimony that a person could remove the entire window frame by removing certain clips-if the person knew how to do that. Long before the fire, a contractor working for Nisbet told him that the third-floor windows were not large enough to be a legal secondary means of escape, and Nisbet brushed off those comments.

B. Preliminary Proceedings

[¶ 5] On July 10, 2015, Nisbet was charged by indictment with six counts of manslaughter (Class A), 17-A M.R.S. 203(1)(A) (2017), and four counts of violating public fire safety rules (Class E), 25 M.R.S. § 2452(3), namely, provisions of the Life Safety Code. On September 31, 2016, after Nisbet waived his right to a jury trial pursuant to M.R.U. Crim. P. 23(a), the State charged an eleventh count by information, alleging violation of the Life Safety *364 Code provision that is the subject of this appeal, section 24.2.2.3.3. See 25 M.R.S. § 2452(3) ; 9 C.M.R. 16 219 020-1 § 1. That provision requires that every sleeping area in one- and two-family dwellings have windows available as a secondary means of escape, that the windows be operable from the inside without "special effort," and that the windows have a "clear opening" of 5.7 square feet, a minimum width of twenty inches, and a minimum height of twenty-four inches. Life Safety Code § 24.2.2.3.3.

C. Trial and Sentencing

[¶ 6] The parties proceeded to a bench trial on October 3, 2016, and evidence was presented over five days. On October 21, 2016, the court found Nisbet not guilty on the six counts of manslaughter and the four counts of violation of the Life Safety Code originally charged, and guilty on the later-charged violation of section 24.2.2.3.3. On December 1, 2016, the court sentenced Nisbet to ninety days' imprisonment and a $1,000 fine.

D. Motion for a New Trial

[¶ 7] On December 19, 2016, Nisbet filed a motion for a new trial pursuant to M.R.U. Crim. P. 33. In that motion, Nisbet alleged that the State had failed to provide him with a policy memorandum that the State Fire Marshal issued in October 2013 (2013 Memorandum). 2 That document, which indicates that it is in reference to a "[p]olicy for clarification of existing egress windows," states in pertinent part:

Any building constructed before 1976 will be allowed to meet the following specifications. The net clear opening would be allowed to meet the minimum 20? in width and 24? in height with a total net clear opening of 3.3 sq. ft.; if the window is constructed of wood or vinyl and the overall window sash size meets a minimum of 5.0 sq. ft.

The "special effort" provision from section 24.2.2.3.3 remained the same.

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Bluebook (online)
2018 ME 113, 191 A.3d 359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-maine-v-gregory-nisbet-me-2018.