State of Maine v. Nightingale

• Court: Superior Court of Maine
• Decided: November 23, 2022
• Docket: AROcr-19-40973
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT AROOSTOOK, ss. DOCKET NO.AROCD-CR-2019-40973

STATE OF MAINE ORDER ON DEFENDANT'S vs. MOTION FOR DISMISSAL

BOBBY NIGHTINGALE Defendant

By motion dated October 11, 2022, Defendant has renewed his previously

addressed Motion to Dismiss. The renewed motion notes "the on! y argument here is that

the State is blatantly violating the Defendant's constitutional rights, by withholding

significant information that very well may shed light on what was heard by Detective

Roy." Renewed Motion to Dismiss at page 2-3. The motion appears to be entirely related to

an email between Detective Roy and the prosecution, which Defendant contends has not

been disclosed (that it exists and if so, it has not been turned over).

The court conducted a telephonic conference on the motion on October 14, 2022.

Assistant Attorneys General Robbin and Elam represented the State. Attorneys Tebbetts,

Randall, and Paradie represented the Defendant. The court notes that subsequent to the

filing of the motion, Attorney Paradie conceded that, contrary to the many assertions in

the Renewed Motion to Dismiss, Detective Roy did reference an email regarding what he

may have heard in the batch of calls provided by the jails in his affidavit that is part of

the court record on the original Motion to Dismiss. Email of Paradie dated 10/14/22 at 2:30

p.m. Despite this concession, the Defendant contends that this email is of significance and

should be turned over to the defense. The Court received the actual email correspondence chain referenced in the prior affidavit, and discussed by the prosecution

during the prior hearing, for in camera review.

Not only was the email previously referenced, discussed, and its existence

disclosed, nearly the entire substance of the email correspondence related to this issue

was provided to the court and the defense by way of the affidavits submitted in support

of the State's opposition to the Motion to Dismiss and representations by the prosecution

at the prior hearing on the Motion to Dismiss. See, Opposition to Motion for DiscovenJ and/or

Dismissal - dated 7/19/22; Affidavit of Elam - dated 7/12/22; Affidavit ofRoy- dated 7/18/22.

Despite an opportunity to call Detective Roy as a witness at the hearing on the

Motion to Dismiss on August 4, 2022, the Defendant elected not to do so. There is not

even a scintilla of evidence in the record to support the contention that the State has in its

possession anything further than what Detective Roy stumbled upon, which was limited

to listening briefly to two calls, only for such time as was necessary to ascertain that it

might have been Defendant's attorney or a member of Defendant's attorney's staff. The

court notes that the calls were recorded due to the failure by Mr. Nightingale to designate

the attorney numbers as privileged pursuant to the jail regulations previously cited.

Although there is an argument to be made that the correspondence between the

lead investigator and the prosecutor fell under the purview of Rule 16(a)(3)1, the court

finds that the previous disclosure of all of the information contained in the emails is such

1 "Exception: Work Produ~t. The attorney for the State is not required to disclose legal research or records,

correspondence, reports, or memoranda to the extent that they contain the mental impressions, conclusions, opinions, or legal theories of the attorney for the State or member of his or her legal staff." M.R.Unif.Crim.P. 16(a)(3). that the purpose of the rule is not served by continuing to deny the defense access to the

actual emails to put the matter to rest. See, Opposition to Motion for Discovery and/or

Dismissal - dated 7/19/22; Affidavit of Elam - dated 7/12/22; Affidavit of Roy - dated 7/18/22.

The emails shall be made available for review by the Defendant and all counsel of record.

It is abundantly clear to this court that what occurred here is not a discovery

violation by the State. After reviewing the record and the actual emails, it is now clear

that the inadvertent disclosures were handled in an exemplary manner by the

prosecution and by the officer. Further, having viewed the entirety of the trial from start

to finish, the court is left with the inescapable conclusion that any development of the

facts and circumstances related to this issue during the trial would have at best yielded

evidence of nominal probative value, even as it relates to impeachment. 2 The probative

value of that evidence clearly would have been substantially outweighed by the danger

of confusing the jury and waste of time. M.R.Evid. 403.

In light of the foregoing, the Defendant's Renewed Motion for Dismissal is hereby

DENIED.

/1 /;;;3 Date: -~+--.--t UoJ:?;J, ,~--­ Justice, Maine Superior Court

2 In light of the circumstances and actions by the officer and the State, it is equally or more likely that the evidence would have the opposite effect. STATE OF MAINE ~ 0 l\~IFIED CRIMINAL DOCKET AROOSTOOK, ss. ~~(},"6 \! Docket No. AROCD-CR-19-40973 \}J'­ STATE OF MAINE, ) ) v. ) ORDER ON MOTION TO SUPPRESS ) BOBBY NIGHTINGALE, ) Defendant )

Defendant has been charged by way of an eight-count indictment with:

1. Burglary of a Dwelling, 17-A M.R.S. § 401(1)(B)(l) & (B)(4) - Class A,

2. Robbery, 17-A M.R.S. §651(1)(D) & (E) - Class A,

3. Possession of a Firearm by a Prohibited Person, 15 M.R.S. §393(1)(A-1)(1) & (A­

l )(2) - Class C,

4. Criminal Threatening with a Dangerous Weapon, 17-A M.R.S. §209(1), 1252(4) ­

Class C,

5. Possession of a Firearm by a Prohibited Person, 15 M.R.S. §393(1)(A-1)(1) & (A­

1)(2) - Class C,

6. Possession of a Firearm by a Prohibited Person, 15 M.R.S. §393(1)(A-1)(1) & (A­

7. Intentional or Knowing Murder, 17-A M.R.S. §201(1)(A), and

8. Intentional or Knowing Murder, 17-A M.R.S. §201(1)(A).

Before the court is Defendant's Motion to Suppress dated November 24, 2020. A

hearing on the motion was conducted at the Caribou Superior Court on June 21, 2021.

Defendant participated remotely by Zoom with one of his attorneys, Robert Ruffner, Esq., participating by Zoom and his other attorney, John Tebbetts, Esq., participating in person.

The State was represented by Assistant Attorney General Leanne Robbin and Assistant

Attorney General Megan Elam. The court received testimony from Jonathan St. Peter. At

the commencement of the hearing, Defendant made clear that by way of his motion, the

Defendant's request for suppression was limited to the identification of the Defendant by

Jonathan St. Peter.

BACKGROUND

On the night of August 5, 2019, Jonathan St. Peter (hereinafter "St. Peter") was at

his home when he encountered a masked man coming up the stairs to his apartment.

The intruder's head and face were partially covered with a balaclava. Approximately a

three (3) inch band across the intruder's face around his eyes was visible to St. Peter. The

intruder backed St. Peter into his bedroom and the two engaged in a struggle. The

struggle lasted for approximately ten (10) minutes. St. Peter and the intruder were "toe

to toe" and "chest to chest" during the struggle. The intruder had a firearm. During the

struggle, the intruder discharged the firearm. After the firearm was discharged, the

intruder hit St. Peter in the head with the firearm and thereafter left the apartment.

St. Peter immediately called 911 and law enforcement officers were dispatched to

the apartment. The officers were in St. Peter's home for approximately an hour and

interviewed him in his bedroom. St. Peter could not positively identify the intruder at

the time of the interview. At some point during the time the officers were in St. Peter's

bedroom, one of the officers was speaking to another officer and said that "it sounds like

Bobby Nightingale." This was not a statement to St. Peter but it was uttered in St. Peter's

2 presence. The officers never asked St. Peter about "Bobby Nightingale" or referenced

"Bobby Nightingale" in any other way.

The day following the encounter and police interview, St. Peter made a few phone

calls to unknown third parties. Following those phone calls, St. Peter logged on to

Facebook and searched for Bobby Nightingale. Upon viewing the photographs on

Facebook, St. Peter positively identified the Defendant as the intruder. St. Peter was

"100%" confident that the intruder was the Defendant, "without a doubt."

St. Peter was never shown a photograph of the Defendant or anyone else for

identification purposes by law enforcement officers. The officers never suggested in any

way that St. Peter search Facebook or any other database to identify the intruder.

DISCUSSION

When a court is presented with a challenge to the admission of an out-of-court

identification under the due process clause, the following two-step test must be met:

"First, the defendant must prove, by a preponderance of the evidence, that the identification procedure was suggestive. Second, if the court finds that the procedure was suggestive, the State then bears the burden of proving, by clear and convincing evidence, that in the totality of the circumstances the identification, although made under a suggestive procedure, is nevertheless reliable." State of Maine v. Nigro, 2011 !vIE 81, ,r 21, 24 A.3d 1283 (citations omitted)( quotation marks omitted).

Focusing on the first prong, a defendant can meet his burden by proving by a

preponderance of the evidence that the suggestive identification procedure, as

precipitated by "improper state conduct", "tended to increase the likelihood of

misidentification." State v. Davis, 2018 1vIE 116, ,r 18, 191 A.3d 1152 (citing State v. Kelly,

20001vIE 107, ,r,r19-20, 752 A.2d 188). As noted by the Law Court in Davis:

3 "We have explained that "[a]mong the most suspect of all procedures is a confrontation in which a single subject is presented to the witness [by the State] in such a way that the witness knows that the police believe that subject to be the perpetrator of the crime." True, 464 A.2d at 950. The danger of such a suggestive identification procedure "is that the witness, eager to cooperate with the police ... will subtly alter his or her own recollected image of the perpetrator's appearance and other characteristics to match those of the suspect presented." State v. Davis, 2018 JvIE 116, ,r18, 191 A.3d 1147, 1152-1153.

Here, the officers did not show the witness a photograph of the Defendant at any

time. The officers did not even ask St. Peter about the Defendant and further did not

suggest that St. Peter do anything to ascertain the identity of the intruder. The officers

did not employ any identification procedure. St. Peter took it upon himself to check

Facebook to try to identify the intruder. Unlike Davis, the photograph in this matter was

from a Facebook page, not a booking photograph that shows an individual in police

custody. The court finds that the Defendant has failed to show that the officers arranged

or otherwise directly influenced the witness's identification in a suggestive way,

therefore the court finds he has failed to show "improper state conduct." Id. at ,r21(citing

Perry v. New Hampshire, 565 U.S. 228, 245 (2012).

While there was not improper state conduct, there was conduct by one officer that

was suggestive. The statement of one officer to another officer that it "sounds like Bobby

Nightingale", clearly reflected that the speaker thought that the Defendant was a good

suspect. See, State v. St. Onge, 392 A.2d 47, 50 (Me. 1978). Although this statement was

not intended to be to St. Peter, St. Peter heard the statement and understood that the

particular officer opined that the Defendant might be the suspect. Therefore, the court

4 now proceeds to assess whether the identification of the Defendant is still reliable despite

the suggestive nature of the comment that preceded the identification by St. Peter.

Here, St. Peter was locked in combat with an armed intruder to his home for

approximately ten (10) minutes. The encounter was dire immediately and the court finds

this to be a tremendous amount of time for St. Peter to be struggling "toe to toe" and

"chest to chest" with an armed intruder in his home. Even with the intruder's face

partially concealed by the balaclava, St. Peter had more than ample time to view the

unconcealed portions of the intruder's face, including the three-inch section around the

intruder's eyes. The identification was the day after the incident, while it would have

remained sharp in St. Peter's mind. His level of confidence in the identification was

exceptional. St. Peter is "100%" sure it was the Defendant and he has "no doubt" that the

Defendant was the intruder he fought with that night. The court finds by clear and

convincing evidence that the State has shown that the reliability of the identification

outweighs the corruptive influence of the suggestive comment and is therefore

nevertheless reliable. State v. Nigro, 2011 :ME 81, , 23, 24 A.3d 1283.

CONCLUSION Accordingly, based on the above findings of fact and conclusions of law, it is

hereby ORDERED that Defendant's Motion to Suppress is DENIED.

DATED: Jus ·ce, Maine Superior Court

5 STATE OF MAINE ru~ ~ cl'"' e,J

STATE OF MAINE, ) ) v. ) ORDER ON MOTION TO SEVER ) BOBBY NIGHTINGALE, ) Defendant )

Defendant has been charged by way of an eight-count indictment with:

1. Burglary of a Dwelling, 17-A M.R.S. § 401(1)(B)(1) & (B)(4) - Class A,

3. Possession of a Firearm by a Prohibited Person, 15 M.R.S. §393(1)(A-1)(1) & (A­

4. Criminal Threatening with a Dangerous Weapon, 17-A M.R.S. §209(1), 1252(4) ­

5. Possession of a Firearm by a Prohibited Person, 15 M.R.S. §393(1)(A-1)(1) & (A­

6. Possession of a Firearm by a Prohibited Person, 15 M.R.S. §393(1)(A-1)(1) & (A­

7. Intentional or Knowing Murder, 17-A M.R.S. §201(1)(A), and

Before the court is Defendant's Motion to Sever dated November 24, 2020. A

nontestimonial hearing on the motion was conducted at the Caribou Superior Court on

June 21, 2021. Defendant participated remotely by Zoom with one of his attorneys, Robert Ruffner, Esq., participating by Zoom and his other attorney, John Tebbetts, Esq.,

participating in person. The State was represented by Assistant Attorney General Leanne

Robbin and Assistant Attorney General Megan Elam.

Defendant contends that the counts in the indictment reflect three separate

criminal episodes. He therefore seeks separate trials on Counts I, II, and III; Counts IV

and V; and VI, VII and VIII. The Defendant concedes that possession of a gun and

common witnesses link these three groups of charges, but contends there is a lack of

evidence that the gun that was allegedly used in each criminal episode was the same.

The State contends that joinder is appropriate as a much of the evidence related to the

separate counts would be admissible as to the other counts, due to a significant issue in

the case being the identification of the perpetrator.

Maine Rule of Criminal Procedure 8(a) states that "two or more crimes should be

charged in the same indictment ... in a separate count for each crime if the crimes

charged ... are of the same or similar character or are based on the same act or transaction

or on two or more acts or transactions which are connected or which constitute parts of a

common scheme or plan." (Emphasis added). "If the offenses charged are connected in

any reasonable manner, they are properly joinable." State v. Pierce, 2001 ME 14, ,r13, 770

A.2d 630 (Citing, State v. Pierce, 474 A.2d 182, 184 (Me. 1984). To avoid a danger of undue

prejudice to the defendant, Rule 8( d) of the Maine Rules of Criminal Procedure provides

that a court "may order an election or separate trials of counts ... or provide whatever

other relief justice requires ... "

2 "U] oinder is the rule rather than the exception; the party moving for severance

bears the significant burden of showing that joinder is so prejudicial that it outweighs the

benefits associated with joinder- namely, judicial economy and swift resolution of the

charges. See id. P 23; State v. Boucher, 1998 ME 209, P 9,718 A.2d 1092; see also United States

v. Richardson, 515 F.3d 74, 81 (1st Cir. 2008) ("Garden variety prejudice ... will not, in and

of itself, warrant severance. The defendant must demonstrate that the prejudicial joinder

likely deprived him of a fair trial. 11 (citation omitted)); United States v. Baltas, 236 F.3d 27,

33 (1st Cir. 2001) (stating that reversal is only appropriate where the defendant makes a

"strong showing of evident prejudice 11 (citation omitted))." State v. Olmo, 2014 ME 138,

,r12, 106 A.3d 396.

In Olmo the Law Court identified "three types of prejudice that can result from a

joinder of charges ... " specifically that "a defendant may become embarrassed or

confounded in presenting separate defenses, that proof that defendant is guilty of one

offense may be used to convict him of a separate offense, and that a defendant may wish

to testify in his own behalf on one of the offenses but not another, forcing him/her to

choose the unwanted alternative of testifying as to both or testifying as to neither." Id.

Regarding the joinder of Counts I, II, and III with Counts VI, VII and VIII, the court

finds that the counts are connected in a reasonable manner. The State contends that

evidence will be presented at trial to establish that the .45-caliber bullet fired by the

intruder in the St. Peter home could have been fired from the same firearm as the bullets

retrieved from the Castle Hill murder scene and autopsies, based on the caliber number,

rifling and width of the bullets. As the identity of the perpetrator is a central issue in VI,

3 VII, and VIII, much of the evidence related to counts I, II, and III would be admissible as

to those counts. See, State v. Fournier, 554 A.2d 1184, 1186 (Me. 1989)("Here

the murder charged in Count I was committed with the firearm that is the subject of

Count III. The two charges thus meet the "connected in any reasonable manner" standard

necessary to satisfy the joinder requirements of M.R. Crim. P. 8(a)").

The identification of the Defendant, the ATV, and the sound of that ATV, from the

alleged interaction with the Defendant and Mitchell Clark and Tammy Clark related to

Counts IV and V are components of the State's theory of the case as to Counts VI, VII,

and VIII. Therefore, the counts are also connected in a reasonable manner. The benefits

in terms of judicial economy and swift resolution of the charges in leaving the counts

joined outweigh any potential prejudice to the Defendant.

Defendant further contends that the joinder infringes upon this Fifth Amendment

right to testify in his own defense. In order to prevail on this claim, Defendant '"must

make a threshold showing that he has salient testimony to give [concerning] one count

and an articulable need to refrain from giving testimony on the other(s).' Fenton, 367 F.3d

at 22. He is required to give a 'particularized offer of proof [detailing] the testimony that

he proposes to give and indicating how it would further his defense," rather than just

"bald assertion[s] of innocence.' Id.; accord, e.g., State v. Lakin, 2006 NIE 64, ,r 8, 899 A.2d

777 (stating that the party moving for severance bears the burden of showing facts prior

to trial to establish that joinder would result in prejudice)." State v. Lemay, 2012 l\1E 86,

P29, 46 A.3d 1113, 1121. Defendant has failed to make the necessary threshold showing

regarding his testimony and failed to give a "particularized offer of proof."

4 The court also finds that any risk of potential prejudice due to joinder can be

addressed by providing an appropriate instruction in that regard. See Instruction § 6-3,

Alexander, Maine Jury Instruction Manual (2018-19).

It is hereby ORDERED that DEFENDANT'S MOTION TO SEVER IS DENIED.

Date:

Justice, Maine Superior Court