Argued May 14, 2015.
On the briefs: Steven C. Peterson, Esq., West Rockport, for appellant Dennis J. Dechaine.
Janet T. Mills, Attorney General, and Donald W. Macomber, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee State of Maine.
At oral argument: Steven C. Peterson, Esq., for appellant Dennis J. Dechaine.
Donald W. Macomber, Asst. Atty. Gen., for appellee State of Maine.
Panel: ALEXANDER, MEAD, GORMAN, and CLIFFORD, JJ.
[¶1] Dennis J. Dechaine appeals from a judgment of the Superior Court (Knox County, Bradford, J. ) denying his motion for a new trial, which was brought pursuant to the post-conviction DNA analysis statute, 15 M.R.S. § § 2136-2138 (2014). Dechaine contends that the court erred or abused its discretion in (1) finding that the new DNA evidence admitted at the hearing, " when considered with all the other evidence in the case, old and new," did not make it probable that a different verdict would result from a new trial, id. § 2138(10)(C)(1); (2) limiting the evidence that could be presented at the hearing to evidence concerning the new DNA testing and analysis; and (3) denying his motion to recuse. We affirm the judgment.
[¶2] In 1989, Dechaine was convicted of the kidnapping, sexual assault, and murder of twelve-year-old Sarah Cherry. State v. Dechaine, 572 A.2d 130, 131-32 (Me. 1990), cert. denied, 498 U.S. 857, 111 S.Ct. 156, 112 L.Ed.2d 122 (1990). We have addressed the case three times before today: id. (direct appeal); State v. Dechaine, 630 A.2d 234 (Me. 1993) (affirming the trial court's denial of Dechaine's motion for a new trial based on newly discovered evidence); and State v. Dechaine,
644 A.2d 458 (Me. 1994) (affirming the trial court's order requiring Dechaine to return certain trial exhibits). In two of those decisions we summarized portions of the evidence heard by the jury at Dechaine's trial, concluding that " [b]ased on all the evidence, the jury's conclusion that Dechaine was guilty beyond a reasonable doubt of all charges submitted to it was rational." Dechaine, 572 A.2d at 131-32 & n.3; see Dechaine, 630 A.2d at 236-37.
[¶3] In 2000, the United States District Court for the District of Maine ( Carter, J. ) denied Dechaine's petition for a federal writ of habeas corpus, affirming the recommended decision of United States Magistrate Judge David M. Cohen. Dechaine v. Warden, 2000 WL 33775285 (D. Me. Nov. 21, 2000), aff'g Dechaine v. Warden, 2000 WL 1183165 (D. Me. July 28, 2000). Because the Superior Court's judgment in the case at bar rested in part on its finding that " as several other courts have found, the evidence of Dechaine's guilt is substantial," we think it useful, before discussing the facts specific to Dechaine's current motion for a new trial, to begin with Magistrate Judge Cohen's extensive review of that evidence insofar as it is relevant to this appeal.
A. Pre-Trial Motion To Obtain DNA Evidence
On January 26, 1989[,] Dechaine, through counsel Thomas J. Connolly, filed a motion for a continuance and permission to conduct DNA testing, then " a radical and new technique," on fingernail clippings taken from Cherry's body. The court promptly scheduled a hearing at which Judith Brinkman, a forensic chemist with the Maine State Police Crime Lab, testified and explained the forensic significance of DNA testing. Brinkman testified that in contrast to traditional serological testing methods, DNA " should be like a fingerprint, much more discriminating from one person compared to another except for in identical twins because identical twins have the exact same DNA." There were three methods of DNA testing; the method that Connolly proposed to use was known as " polymerase chain reaction," or " PCR," then conducted only by one laboratory in California (which had a three- to four-month backlog) and in the " research stages" at the FBI laboratory.
Brinkman testified that she had been provided with ten fingernail clippings obtained during Cherry's autopsy and had used up eight of them (all but the thumbnails) to perform blood-typing tests. The blood adhering to the nails was found to be human blood containing A and H antigens, consistent with type A blood but also possibly resulting from a mixture of bloods of type A and/or type O. The blood on the nails could not have been contributed by someone with type AB or B blood; however, that ruled out a relatively small percentage of the population inasmuch as persons with type A blood comprised forty-one percent of the population and persons with type O forty-five percent.
Brinkman had tested the whole blood of both Dechaine and Cherry, determining that of Dechaine to be type O and that of Cherry to be type A. She theorized that the blood on the nails was solely that of Cherry, noting that Cherry's hands were found bound and positioned near her neck, which had been bleeding. She further explained, " There was nothing that led me to believe that
there was a mixture [of bloods]. If someone had scratched someone hard enough to make them bleed and cause crust underneath the fingernails, you would expect to find tissue, some type of skin material or something indicating that there you know, that there had been scratching or you would expect to find some type of trauma to the nail such as broken nails or something like that and there didn't they didn't appear to be that way."
Brinkman reported that she had spoken with Jennifer Mehavolin of the California testing laboratory, who had advised that based on the small amount of blood available on the thumbnail clippings, it did not " sound like the possibility of getting good results." In Brinkman's opinion, high heat and humidity at the time of the murder also could have degraded the DNA. At the conclusion of the hearing the motion to continue for purposes of performing DNA testing was denied.
Venue in the case was changed to Knox County, Maine, where Dechaine was tried from March 6-18, 1989[,] with Superior Court Justice Carl O. Bradford presiding.
Testimony at trial revealed that John and Jennifer Henkel of Lewis Hill Road, Bowdoin, hired Cherry, a twelve-year-old girl who had just finished sixth grade, to babysit their ten-month-old infant on Wednesday, July 6, 1988. Cherry's mother, Debra Cherry Crossman, reminded her daughter the previous evening (as she always told her children when leaving) not to let anyone into the house or to inform any caller that she was alone. Only Cherry's mother, stepfather, Christopher Crossman, sister Hillary, great-grandmother and friend Julie Wagg knew she was babysitting that day. At noon Jennifer Henkel called home and spoke with Cherry, who said that she was feeding the baby and about to fix herself some lunch.
Holly Johnson, a neighbor across the street from the Henkels, testified that at approximately 1 p.m. she heard a vehicle slowing down at the Henkels' driveway and heard the Henkel dogs barking. About fifteen minutes later she saw a red Toyota truck heading northbound. She could not be sure that the two vehicles were the same or that the truck was in fact a Toyota.
Jennifer Henkel arrived home at about 3:20 p.m. She immediately noticed some papers[,] a little looseleaf notebook and a car-repair bill in the driveway and picked them up. She found both the garage-level and upper-level doors to the house, which she had left unlocked but closed, slightly ajar. Upon entering she saw the television set turned on, Cherry's eyeglasses folded neatly in a rocking chair and her blue-jean jacket, sneakers and socks in a little neat pile next to a couch. Nothing seemed disturbed, misplaced or damaged. The baby was asleep in her crib, but Cherry was nowhere to be found. After a half-hour of fruitless searching an increasingly frantic Jennifer Henkel called police. Following his arrival home from work at between 3:30 p.m. and 3:45 p.m. John Henkel noticed what he thought was an unusual tire impression in the driveway and set some rocks around it to preserve it.
Sometime between 4:20 p.m. and 4:49 p.m. Leo Scopino and Daniel Reed, deputy sheriffs with the Sagadahoc County Sheriff's Department, responded to Henkel's call. Jennifer Henkel showed them the car-repair bill and notebook she had found in the driveway. The car-repair bill had the name " Dennis Dechaine"
on top of it and described damage to a 1981 Toyota pickup truck. Neither the Henkels nor Cherry's mother ever had heard of Dechaine.
Scopino and Reed found a phone-book listing for a Dennis Dechaine on Old Post Road in Bowdoinham and drove to the residence, arriving sometime after 5 p.m. Dechaine was not there, but the officers spoke to his wife. As the evening wore on, additional police officers became involved in a search for Cherry, Dechaine or Dechaine's vehicle. A command post was set up at the corner of Lewis Hill and Dead River roads.
Arthur Spaulding, whose house is set back in the woods about five or six hundred feet off of Dead River Road, testified that sometime that evening between 8 and 8:30, after he had started his generator, he saw a man in a blue polo shirt who appeared to be in his twenties walk past his window in the direction of Dead River Road.
At about 8:45 p.m. Helen Small Buttrick of Dead River Road, who was driving home with her husband Harry, spotted a man walking across the lawn of her mother's home, which was about seven hundred feet from the Buttricks' residence. The Buttricks stopped and asked the man, who turned out to be Dechaine, what he wanted. Dechaine told the Buttricks he had been fishing and could not find his truck. Harry Buttrick offered to help Dechaine find it following a brief stop at the Buttrick home. Helen Buttrick, who noticed nothing unusual about Dechaine's behavior, asked him where he lived. Dechaine responded that he lived in Yarmouth, was visiting in Bowdoinham " and sort of on the side he said I should have stayed there." He also said that he had been in the woods for two hours and had followed the sound of a generator and come out. Dechaine left with Harry Buttrick to look for his truck.
At about 9 p.m. Mark Westrum, a detective with the Sagadahoc County Sheriff's Department, and Deputy John Ackley reported to the command post at the intersection of Lewis Hill and Dead River roads. Within thirteen minutes Ackley received a call from Helen Small Buttrick advising that her husband was driving with a man who stated that he had lost his pickup truck. Ackley and Westrum set off to find the Buttrick vehicle, which they quickly located. Buttrick suggested that the police might be able to help Dechaine find his vehicle, and Dechaine got into the back seat of the police cruiser.
Ackley and Westrum drove Dechaine to the command post, where Ackley exited the vehicle and Reed got in. Reed gave Dechaine a Miranda warning and explained that the police were investigating the disappearance of a twelve-year-old girl. Dechaine stated that he had been fishing and lost his truck. According to Reed, Dechaine initially denied that the papers found in the Henkel driveway were his. He then acknowledged that they were his and stated that he kept them in the passenger seat of his truck. Dechaine and Reed engaged in a heated exchange over how the papers could have gotten into the Henkel driveway, after which Dechaine told Reed, " whoever grabbed the girl saw these, placed them up at the head of the driveway to set me up."
Following the questioning Westrum [patted] Dechaine down. He noticed a handprint, fingers pointing downward, on the back of Dechaine's shirt. Scopino also searched Dechaine. He found no weapons but observed a one-to-two-and-a-half inch scratch and circular bruise on Dechaine's inner left arm and a circular scratch on Dechaine's right
knuckle, which appeared to be fresh. Scopino observed that Dechaine was trembling and his eyes were extremely large. He saw no blood on Dechaine's clothes.
Dechaine was moved to a different cruiser, in the process of which Westrum discovered Dechaine's keys placed underneath the seat behind which Dechaine had been seated. Dechaine then was taken on a search for his truck, which was located at approximately 12:05 a.m. on July 7th. The truck, a red Toyota pickup with damage to the right-hand fender, was locked. Dechaine consented to its removal and search.
At approximately 2:40 a.m. Dechaine was again questioned, this time by Maine State Police Detective Alfred Hendsbee. Hendsbee asked Dechaine point-blank if [he] had taken Cherry, to which Dechaine responded that he did not do it and never would do such a thing. Hendsbee examined Dechaine and noticed, in addition to a bruise on his arm and a muddy handprint on the back of his shirt, faint scratch marks in his kidney area on the right-hand side that had not drawn blood. Dechaine's pants appeared damp. Dechaine stated that he had made the handprint swatting flies and got the scratches walking through the woods. After being photographed at Bowdoinham Town Hall Dechaine was driven home at approximately 4 a.m.
In the early-morning hours of July 7th Maine State Police Trooper Thomas Bureau performed a search with a dog in the vicinity of Dechaine's truck. The dog picked up a track from the driver's door that headed in a northeasterly direction for approximately one hundred and fifty feet to the edge of a bog, made a loop and came back to the driver's door. Bureau casted the dog around the truck, and when he got to the passenger side he picked up a track that looped back in a westerly direction toward the Hallowell/Litchfield Road, crossed that road and continued in a westerly direction to a stream, crossed the stream and began to head in a southerly direction, at which point the dog stopped tracking. Bureau could not tell whether the tracks picked up from the driver and passenger side were the tracks of the same person. The truck was secured and taken to the Maine State Police crime lab in Augusta.
On July 7th Dechaine and his wife, Nancy Emmons, consulted with attorney George Carlton. Emmons testified that on that day, when a photograph of Cherry was shown on the television news, Dechaine exclaimed, " my God, I've never seen that girl before." He also remarked that he had never kidnapped anyone.
A search team discovered Cherry's body concealed under a pile of brush at about noon on July 8th. The body was found in a wooded area off of Hallowell Road approximately four hundred feet from the spot on the opposite side of the road where Dechaine's truck had been located. The distance from the Henkel residence on Lewis Hill Road north to the intersection of Dead River Road was about 1.9 miles; the distance from that intersection west on Dead River Road to Hallowell Road was about one mile; and the Dechaine truck was found about three-tenths of a mile north of that intersection off of Hallowell Road. The Spaulding residence was four-tenths of a mile west of the intersection of Dead River and Hallowell roads.
Dr. Ronald Roy, chief medical examiner for the State of Maine, supervised removal of the body and conducted an autopsy upon it. Cherry was found bound and gagged . . . . She had been
grazed and stabbed repeatedly in the head, neck and chest by a sharp instrument (in Dr. Roy's opinion a small knife, like a penknife) and strangled with a scarf. She had died on July 6th, the precise time unknown. Cherry's bound hands were positioned in front of her chest, just below her neck, and there was blood under her fingernails. Dr. Roy stated that he would not expect the blood to be that of her assailant inasmuch as even if she had scratched her assailant, " when you scratch somebody you don't come away with bloody fingernails." In Dr. Roy's opinion, the stab wounds were small enough that he would not have been surprised if no blood transferred to the assailant.
Following discovery of the body, at approximately 2 p.m. on July 8th Hendsbee drove to the Dechaine residence and found Dechaine and Emmons sitting on their porch. According to Hendsbee, Dechaine immediately approached the vehicle and stated, " I can't believe I could do such a thing. The real me is not like that. I know me. I couldn't do anything like that. It must be somebody else inside of me." Dechaine cooperated in the execution of a search warrant, saying, " do what you've got to do." Hendsbee testified that during the search Dechaine also said that he could not believe he killed this girl when he could not even kill his own chickens. Hendsbee asked Emmons whether Dechaine carried a knife. Emmons responded that he had a penknife on his key ring. Hendsbee then informed her that the knife was not on Dechaine's key chain. She was surprised.
Dechaine was arrested that afternoon and charged with the murder of Cherry. Westrum, who helped book Dechaine that day, testified that Dechaine became emotional, crying and sobbing and saying, " Oh my God; it should have never happened. . . . Why did I do this?" According to Westrum, Dechaine's comments at that time included the following: " I didn't think it actually happened until I saw her face on the news; then it all came back to me. I remembered it. . . . Why did I kill her? . . . What punishment could they ever give me that would equal what I've done." Dechaine was transferred that evening to Lincoln County Jail. Darryl Robert Maxcy, a Lincoln County corrections officer, testified that Dechaine said, " You people need to know I'm the one who murdered that girl, and you may want to put me in isolation." A second corrections officer who was also present, Brenda Dermody, recalled Dechaine having made a nearly identical statement.
Following removal of the body Bureau returned to the vicinity to confirm his suspicion that his dog had refused to continue tracking in the early-morning hours of July 7th because he had never scented a dead body and did not like the smell. The dog hesitated to go near the spot where the body had lain. Bureau estimated that during the earlier search the dog had stopped tracking approximately seventy-five to one hundred feet away from the body.
On July 8th the dog also discovered a piece of yellow rope on the ground two hundred and fifty eight feet from the location in which Dechaine's truck had been found and one hundred and forty five feet from the location of the body. Later testing revealed that the piece of rope used to bind Cherry's wrists, a piece of rope recovered from inside Dechaine's truck and the piece of rope found in the woods all had the same basic characteristics. The piece of rope found in the woods and that from Dechaine's truck matched exactly; they " were once one rope." The rope binding
Cherry's wrists was too damaged to permit a conclusion whether there was an exact match with the rope found in the woods.
Four latent fingerprints were found on the surfaces of Dechaine's truck. One could not be identified; the other three matched those of Dechaine. No fingerprint of Cherry's was found on the numerous items inside the truck, nor any hair that matched hers. Nor was any blood found, except blood on a napkin that appeared to be old.
Dusting of the two doors and doorframes leading to the Henkel residence yielded two latent fingerprints, neither of which matched those of Dechaine or Cherry. The notebook and autobody-receipt were not tested for latent fingerprints in part because so many people had handled them. Scopino in addition had written in the notebook upon first responding to Jennifer Henkel's call[,] an admitted mistake. The tire imprint detected by John Henkel was found to have a design consistent with the tread design of the left front tire of Dechaine's truck. No conclusive determination was possible because of the faintness of the cast of the tire that the Maine Crime Lab had prepared and the relatively poor quality of the impression in the driveway.
No blood or unidentified hairs or fibers were found on the clothes Dechaine had been wearing on July 6th; however, they happened to have been laundered by the time police seized them. No blood, hairs or fibers matching any from Cherry's body (other than blue cotton of negligible probative value) were found under his fingernails. A pink synthetic fiber discovered on a tree near the body did not match fibers found on either Dechaine or Cherry.
Dechaine took the stand in his own defense at trial, denying that he had abducted, tied up, buried or killed Cherry. He also denied having confessed. Dechaine, who was thirty-one years old at the time of trial, testified that on the afternoon of July 6th he went to a wildlife refuge on Merry Meeting Bay where he injected a drug that he had purchased in a museum bathroom in Boston from a person who told him it was speed. He then took a route that led him to Hallowell Road, noticed a woods road and pulled into it. He wandered into the woods off the side of the road and injected more of the drug. Feeling " more lucid" and " more energetic," he wandered for some period of time in the Hallowell Road area, stopping frequently and finishing the remainder of the drug. At one point he was unable to find his truck, which may or may not ultimately have been found where he last left it. He did not believe that he had left it locked.
[Dechaine testified that] [a]t about dusk he followed the sound of a generator and came out to a dirt road. He lied to the Buttricks about where he was from and his activities that afternoon for fear that they would notice he was under the influence of drugs. He told the same lie (that he had been out fishing) to police for the same reason. He recalled having immediately acknowledged ownership of the auto-body receipt and notebook when presented with those items by Reed. He hid his keys from the police when he discovered them after mistakenly informing the police that he had left them in his truck. He wanted to avoid further confrontation, particularly with Reed. He was not carrying a penknife on his key ring in July 1988. Asked whether there was any period of which he had no memory, Dechaine replied, " I can safely say there are periods
of time where my memory is probably not as sharp as it could have been, but I think that's because I was doing nothing of any significance to have to cause me to have reference points."
Dechaine had a reputation for peacefulness and non-violence. He was upset by violence and the sight of blood.
. . . .
After approximately nine hours of deliberation the jury returned a verdict of guilty as to all counts.
. . . .
E. Custody of Clippings
Prior to the filing of Dechaine's motion for a new trial Connolly sought to remove certain of the defense exhibits in the Dechaine case. At a hearing held February 4, 1991[,] Connolly and prosecutor [Eric] Wright represented to the court that they had agreed that the exhibits in issue, which included some obtained by the state but offered by the defense, should be maintained in the custody of the court. The court thereafter issued an order " that the clerk of court shall not permit the removal of any exhibit in this case without further Order of the court" and that " insofar as any person ...