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State v. Deane Brown
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Decision: 	1998 ME 129
Docket:	Kno-96-493
 on Briefs:	January 16, 1998
Decided:	June 1, 1998




	[¶1]  Deane R. Brown appeals from the judgments entered in the
Superior Court (Knox County, Atwood, J.) following a jury verdict finding
him guilty of four counts of robbery (Class A) in violation of 17-A M.R.S.A.
§ 651 (1983){1}; eighteen counts of burglary (Classes B and C) in violation of
17-A M.R.S.A. § 401 (1983 & Supp. 1997){2}; and eleven counts of theft
(Classes B, C, and E) in violation of 17-A M.R.S.A. § 353 (1983).{3}  Brown
contends that the thirty-three charges were misjoined in a single
indictment; or, alternatively, that the court exceeded the bounds of its
discretion in denying his motion for relief from prejudicial joinder pursuant
to M.R. Crim. P. 8(d).  Brown also appeals directly the sentences imposed as
a result of the convictions, contending that the court lacked the authority to
impose consecutive sentences pursuant to 17-A M.R.S.A. § 1256 (1983 &
Supp. 1997).{4}  We affirm the judgments and the sentences.  
	[¶2]  In April 1995 Frank Bowen informed the Rockland police that
he, Brown, and several other individuals were responsible for a string of
burglaries, thefts, and robberies in Knox County that occurred from October
1994 to April 1995.  Following Brown's arrest, a grand jury indicted him on
a total of thirty-three{5} offenses stemming from nineteen separate incidents. 
The single indictment alleged, inter alia, that over the course of seven
months, Brown had burglarized three homes, eleven businesses, and five
churches, and that he had committed various thefts and robberies during
the course of most of these burglaries.  In August 1995 Brown a filed pre-
trial motion for relief from joinder of the multiple offenses, which was
denied without prejudice.  Shortly before the trial was commenced Brown
renewed his motion for relief from joinder, which the court once again
	[¶3]  At Brown's jury trial in March 1996, Frank Bowen provided
detailed accounts of his participation with Brown in each of the nineteen
incidents alleged in Brown's indictment.  Bowen testified, inter alia, that he
and Brown recruited other men to drive them to and from the crime
scenes, usually in exchange for proceeds from the stolen loot; that they
always wore black clothing during the crimes{6}; that they wore gloves during
most of the crimes; that they frequently targeted businesses with safes; that
they generally carried police scanners and two-way radios during the
crimes; that all of the crimes took place at night, usually between midnight
and sunrise; and that during home burglaries they covered the victims' faces
with pillows or newspapers.  Bowen described each of the nineteen
incidents separately and in detail, and his testimony was corroborated by the
testimony of the victims of the burglaries, the police officers who
investigated the crimes, and other witnesses called by the State.
	[¶4]  At the conclusion of the trial, the court instructed the jury on the
elements of each of the charged crimes, and repeatedly cautioned the jurors
that they must examine the evidence relevant to each crime separately.{7} 
The jury found Brown guilty on all counts, and the court entered judgments
accordingly. Brown was sentenced to fifty-nine years of  imprisonment,
which included consecutive terms of imprisonment for eight of the thirty-
three counts.  Brown filed an application to allow an appeal of his sentence
pursuant to M.R. Crim. P. 40(b), which was denied.  This direct appeal
pursuant to M.R. Crim. P. 37 followed.  
	[¶5]   Brown first argues that because the elements of the various
crimes with which he was charged were not identical, joinder pursuant to
M.R. Crim. P. 8(a) was improper.  He did not raise misjoinder in his pre-trial
motions for relief from prejudicial joinder and therefore failed to preserve
that objection.  See M.R. Crim. P. 12(b)(2) (failure to present objection based
on defects in the indictment, information, or complaint, other than that it
fails to show jurisdiction or to charge an offense, by motion before trial
constitutes a waiver of that objection); see also 1 Cluchey & Seitzinger, Maine
Criminal Practice § 8.4, at III-56 (1993) (citing M.R. Crim. P. 12(b)(2)).   
	[¶6]  Brown next contends that even if joinder was permissible
pursuant to Rule 8(a), the court nevertheless exceeded the bounds of its
discretion by denying his pre-trial motions for relief from joinder because of
the risk that the jury would be prejudiced by the sheer number of offenses
charged in the indictment.  M.R. Crim. P. 8(d) authorizes the court to order
separate trials of various counts if it appears that the defendant is prejudiced
by an otherwise appropriate joinder of offenses.  The denial of a defendant's
severance motion pursuant to Rule 8(d) is reviewed for an abuse of
discretion, and we will not vacate a decision to deny the motion "unless the
case is one in which the potential for confusion or prejudice is obviously
serious."  State v. Doody, 434 A.2d 523, 527 (Me. 1981); see State v. Lakin,
536 A.2d 1124, 1126 (Me. 1988); see also State v. Pierce, 474 A.2d 182,
184 (Me. 1984); State v. Littlefield, 389 A.2d 16, 19 (Me. 1978).  
	[¶7]  In making a Rule 8(d) determination, "the court should balance
the policy favoring trials of more than one offense against the potential
prejudice to the defendant that may result."  State v. Fournier, 554 A.2d
1184, 1187 (Me. 1989) (citing 1 Cluchey & Seitzinger, Maine Criminal
Practice § 14.1, at 14-2 (1987)).  	While we have recognized that "[i]n some
egregious case the potential for jury confusion may be so obvious that a
presiding Justice would abuse his discretion" by denying a pre-trial motion
to sever, we have also recognized that "typically . . . it is not apparent from
the nature of the crimes charged or the state of the pleadings that a jury,
despite proper instruction, will be unable to treat the evidence relevant to
each crime separately and distinctly."  Bradley, 414 A.2d at 1239; see
Littlefield, 389 A.2d at 19; Doody, 434 A.2d at 527.  
	[¶8]  Brown failed to make a sufficient showing of a serious risk of
prejudice to support his pre-trial motions for relief.  Although the instant
case is unusual in terms of the number of offenses charged, this fact alone is
not dispositive of the joinder issue. Cf. United States v. Randazzo, 80 F.3d
623, 629 (1st Cir. 1996) (jury confusion from joinder of charges "cannot be
proved by simply noting the number of offenses").  Neither the nature of the
crimes charged-burglaries, thefts and robberies involving different victims
and occurring on different dates and in different locations-nor the state of
the pleadings established that a properly instructed jury would be unable to
evaluate the evidence pertaining to each distinct count separately.  See
Bradley, 414 A.2d at 1239.  
	[¶9]  Although we have recognized that numerous joined charges can
create a risk that the jury will infer improperly a defendant's general
propensity to commit crimes, see Pierce, 474 A.2d at 184, Brown failed to
establish that the risk of such juror prejudice was necessarily enlarged by
the joinder here.  To the extent that the multiple charges suggested that
Brown's alleged crime spree constituted a "common scheme or plan" to
steal money and property, and to the extent that the evidence relating to
those charges revealed a recurring modus operandi, evidence of many or all
of his offenses may have been admissible even at separate trials.  See M.R.
Evid. 404(b); see, e.g., Pierce, 474 A.2d at 185 (risk of prejudice was not
enlarged by joinder; even if separate trials been granted, evidence of other
offenses would have been admissible as proof of common scheme, intent,
identity, or modus operandi); Lakin, 536 A.2d at 1127; Bradley, 414 A.2d at
1239; Littlefield, 389 A.2d at 19.  In these circumstances, we conclude that
the court acted within the bounds of its discretion by denying Brown's pre-
trial motion for relief from prejudicial joinder.
	[¶10]  If Brown believed that a serious risk of juror prejudice arose
during the course of the trial, his remedy was to move for a mistrial,
particularizing his grounds therefor.  See Bradley, 414 A.2d at 1240; see also
Pierce, 474 A.2d at 185 (if prejudice resulting from joinder becomes
manifest during trial and cannot be cured by appropriate instructions, the
court may grant a motion for a mistrial).  He did not do so, and to the extent
a serious risk of juror confusion or prejudice may have developed during the
trial-a proposition for which we find no evidence in the record{8}-he failed
to preserve any claim of error.  See Bradley, 414 A.2d at 1240.        
	[¶11]  Brown argues that the court lacked the authority to impose
consecutive sentences pursuant to 17-A M.R.S.A. § 1256. In imposing the
consecutive sentences, the court expressly found, inter alia, that Brown's
convictions were based on different conduct or arose from different criminal
episodes.  See 17-A M.R.S.A. § 1256 (2)(A).  Brown contends that there is an
inherent inconsistency in the court's determination that the offenses were
subject to joinder pursuant to M.R. Crim. P. 8(a) and its determination that
his convictions were for offenses based on "different conduct or arising from
different criminal episodes" pursuant to section 1256(2)(A).{9}
	[¶12]  Pursuant to M.R. Crim. P. 8(a), the joinder of offenses is
permitted if the offenses 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
plan or scheme."  M.R. Crim. P. 8(a).  The rule promotes judicial efficiency
and economy, and has been construed liberally to permit joinder "[i]f the
offenses charged are connected in any reasonable manner."  Pierce, 474
A.2d at 184.  Contrary to Brown's contention, there is no inconsistency in a
determination that offenses are "of the same or similar character" or
"connected" with one another and a determination that a defendant's
convictions were for offenses based on different conduct or arising from
different criminal episodes. The record supports the court's determination
that Brown's convictions were for offenses based on different conduct or
arising from different episodes, and the court did not err in imposing
consecutive sentences. 
	The entry is:
				Judgments affirmed.  Sentences affirmed.
Attorneys for State: Geoffrey Rushlau, District Attorney Eric J. Walker, Asst. Dist. Atty. 62 Union Street Rockland, ME 04841 Attorney for defendant: Marina K. Whitfield, Esq. P O Box 36986 Albuquerque, NM 87176
FOOTNOTES******************************** {1} 17-A M.R.S.A. § 651 provides in pertinent part: 1. A person is guilty of robbery if he commits or attempts to commit theft and at the time of his actions: A. He recklessly inflicts bodily injury on another; B. He threatens to use force against any person present with the intent (1) to prevent or overcome resistance to the taking of the property, or to the retention of the property immediately after the taking; or (2) to compel the person in control of the property to give it up or to engage in other conduct which aids in the taking or carrying away of the property; C. He uses physical force on another with the intent enumerated in paragraph B, subparagraphs (1) or (2), D. He intentionally inflicts or attempts to inflict bodily injury on another; or E. He or an accomplice to his knowledge is armed with a dangerous weapon in the course of a robbery as defined in paragraphs A through D. . . . {2} 17-A M.R.S.A. § 401 provides in pertinent part: 1. A person is guilty of burglary if he enters or surreptitiously remains in a structure, knowing that he is not licensed or privileged to do so, with the intent to commit a crime therein. . . . {3} 17-A M.R.S.A. § 353 provides in pertinent part: 1. A person is guilty of theft if he obtains or exercises unauthorized control over the property of another with intent to deprive him thereof. . . . {4} 17-A M.R.S.A. § 1256 provides in pertinent part: 2. [T]he court shall state in the sentence of imprisonment whether a sentence shall be served concurrently with or consecutively to any other sentence previously imposed or to another sentence imposed on the same date. The sentences shall be concurrent unless, in considering the following factors, the court decides to impose sentences consecutively: A. That the convictions are for offenses based on different conduct or arising from different criminal episodes; B. That the defendant was under a previously imposed suspended or unsuspended sentence and was on probation, under incarceration or on a release program at the time that the person committed the subsequent offense; C. That the defendant had been released on bail when that person committed a subsequent offense, either pending trial of a previously committed offense or pending the appeal of a previous conviction; or D. That the seriousness of the criminal conduct involved in either a single criminal episode or in multiple criminal episodes or the seriousness of the criminal record of the convicted person, or both, require a sentence of imprisonment in excess of the maximum available for the most serious offense. {5} The indictment originally contained thirty-four counts, one of which was dismissed for reasons not relevant to this appeal. {6} Bowen testified that on one occasion they wore all white clothing because it had snowed recently. {7} The court warned the jurors to avoid cumulating the evidence and to treat the evidence pertaining to each offense separately: Let me emphasize that it's very important that you deliberate on each of these charges separately and that you vote on each of them separately. You must not permit yourselves individually or as a jury to assume or to infer that the defendant is guilty of one or more of the charges because you believe he's guilty of one or others or some of them. The defendant is entitled to the presumption of innocence of each of these charges, and may not be convicted on any one of them until you are satisfied beyond a reasonable doubt that the State has proven the particular charge. The court later reiterated this instruction: The other instruction I want to emphasize, which I've already indicated before, is that you are going to be deliberating as to each individual count. That means, of course, that you may find the defendant guilty on all counts, you may find the defendant guilty of some, you may find him guilty of some lesser included offense. Or you may find that the defendant is guilty of none of these counts, depending on what you find the facts to be as to each individual count alleged. {8} We note that the evidence presented during the trial, although voluminous, was not so complicated or overlapping that the jury would be unable to distinguish among the nineteen separate incidents comprising the thirty-three counts. The detailed testimony of Frank Bowen was presented in a clear and logical fashion, and the proof of each discrete crime was uncomplicated and easily segregated into distinguishable factual scenarios in the minds of jurors. Moreover, the court prudently and carefully instructed the jury that it must distinguish among the counts, and that the evidence relevant to each distinct count must be considered separately. See supra note 7; see also D