Argued: May 3, 2016
County Unified Criminal Docket docket number CR-2012-3778
J. Drake, Esq., and Rory A. McNamara, Esq., Drake Law, LLC,
Auburn for appellant Randall Daluz
T. Mills, Attorney General, and Leanne Robbin, Asst. Atty.
Gen., Office of the Attorney General, Augusta, for appellee
State of Maine
J. Drake, Esq., for appellant
Randall Daluz Leanee Robbin, Asst. Atty. Gen., for appellee
State of Maine
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
Randall Daluz appeals from the trial court's (Penobscot
County, Anderson, J.) denial of his motion for a new
trial following his conviction after a jury trial of three
counts of murder, 17-A M.R.S. § 201(1)(A) (2015), and
one count of arson (Class A), 17-A M.R.S. § 802(1)(A)
(2015). In his motion for a new trial, Daluz argued that
statements made by counsel for his co-defendant, Nicholas
Sexton, had impermissibly commented upon Daluz's race and
his decision not to testify. Because we conclude that the
trial court did not abuse its discretion when, after
evaluating the entire record, it denied the motion for a new
trial, we affirm.
Viewing the evidence in the light most favorable to the
State, the following facts are supported by the trial record.
See State v. Reed, 2013 ME 5, ¶ 9, 58 A.3d
On August 13, 2012, around 3:30 a.m., a white 2001 Pontiac
Grand Prix was discovered burning in a Bangor
industrial park. The bodies of Daniel Borders, Nicolle
Lugdon, and Lucas Tuscano were inside the car. Borders and
Lugdon had each died of a single gunshot wound to the head;
the bullet entered behind the left ear of each victim.
Tuscano's head was badly damaged by the fire, but the
Deputy Chief Medical Examiner was able to determine that
Tuscano had died from head trauma.
On August 11, 2012, in Rhode Island, Nicholas Sexton had
renewed a rental agreement on that same Pontiac Grand Prix.
Later that day, Sexton picked up his friend, Daluz, in
Massachusetts. Daluz told his girlfriend he was going
The night of August 11, at a hotel in Brewer, Sexton and
Daluz met with Borders and his girlfriend, who was also
Lugdon's sister. Borders and Lugdon's sister had a
history of purchasing drugs from Sexton and Daluz, which
Borders and his girlfriend then used or Borders sold to
others. For a time prior to August 2012, the couple had been
making fewer drug buys from Sexton and Daluz because Lugdon
was supplying the couple with a less expensive and better
During the August 11 meeting, Sexton and Daluz displayed
cocaine, heroin, and Percocet for sale. There were two guns
on the bed-a silver gun with a rounded barrel and a smaller,
darker gun with two holes. Sexton put the silver gun under
his shirt; Daluz played with the smaller gun. Borders and
Lugdon's sister bought some cocaine from Sexton and Daluz
"[j]ust to keep them happy, " but they purchased
less than they usually did and did not buy any Percocet.
Towards the end of the meeting, Lugdon's sister felt that
"it got a little hostile, " and Sexton cornered her
and demanded to know where Lugdon "was getting her
stuff." At that point, Borders and Lugdon's sister
The next day, on August 12, Sexton and Daluz went to a house
in Dedham to pick up a friend. The friend rented a room above
the garage, and the homeowner lived in the house. Sexton and
Daluz had previously visited that residence. Sexton drove
Daluz and the friend to Bangor in the Pontiac. At
Sexton's request, the friend booked Sexton and Daluz a
room at the Ramada Inn in Bangor for the night. The three men
eventually went to a Bangor bar called Carolina's Sports
That same evening, Lugdon and Borders were at an apartment on
Bolling Drive in Bangor selling drugs. They were trying to
locate Percocet for a customer, and Borders called and texted
Sexton to obtain the drug. Tuscano arrived at the home with
Percocet for the customer. Borders then texted and eventually
called Sexton to tell him that they did not need the Percocet
At the bar, Sexton and Daluz's friend observed Sexton to
be "pissed" after his phone call with Borders.
Sexton and Daluz left the bar sometime around 10:30 or 11:00
p.m. in the Pontiac. Sexton told the friend that he and Daluz
would "be right back, " but they did not return to
Around 11:00 p.m. on August 12, there was a knock on the
front door of the apartment on Bolling Drive. One of the
apartment's two tenants answered the door, and Sexton,
whom the tenant did not recognize, was alone in the doorway
with his sweatshirt hood up and drawn. Sexton told her his
name was "Mike, " but Lugdon and Borders identified
him as Sexton. Sexton asked Borders to "go smoke a
blunt" with him. Lugdon invited herself to join them,
and she convinced Tuscano to come along. The other tenant
witnessed Sexton and the three victims leave in the Pontiac.
The tenant did not see Daluz, but it was dark and he could
not see into the car.
Shortly after the victims left the house with Sexton, the
tenants called and texted Lugdon and Borders when other
people arrived at the house to buy drugs. Neither Lugdon nor
Borders ever answered. After about fifteen to twenty-five
minutes, calls to their cell phones started going straight to
At 11:02 p.m., Borders sent Sexton a text message: "Dude
what's going on man is some thing up." At 11:06
p.m., Lugdon's cell phone connected to the cellular
network for the last time, using a cell phone tower that
serviced the Bolling Drive area. At 11:16 p.m., Borders's
cell phone had its last connection to the network, using a
tower located in Old Town.
After 11:00 p.m. that night, until around 3:32 to 3:37 a.m.,
Sexton's and Daluz's cell phones were using the same
or nearby cell phone towers. Around 11:00 p.m., both of their
phones were using towers that service Bolling Drive. At 11:06
and 11:08, their phones were moving away from that area.
Their phones next used towers in Old Town, then Holden, then
Dedham. The phones kept using the Dedham tower from 11:50
p.m. until 12:32 a.m.
Sometime that night, the owner of the house in Dedham where
Sexton and Daluz's friend lived saw a car slowly drive
past the house. A few days later, he noticed that a blue can
of diesel fuel was missing from the garage. The burned
Pontiac contained remnants of a blue container and remnants
of a "heavy petroleum distillate, " specifically a
"diesel range product."
Around 12:38 a.m., Sexton's and Daluz's cell phones
began moving back toward Bangor. Between 1:15 and 1:50 a.m.,
both phones were using a tower in Bangor near the Bangor
International Airport. Around 2:45 a.m., Daluz called their
friend and asked for the room number of the room he had
booked at the Ramada Inn. From 3:02 to 3:21 a.m.,
Sexton's phone used towers near the industrial park where
the burning Pontiac was discovered. From 3:03 to 3:25 a.m.,
Daluz's phone used towers servicing the Ramada Inn. Phone
records demonstrate that Sexton and Daluz were communicating
with each other by phone from 3:03 to 3:32 a.m.
Around 3:07 a.m., surveillance cameras at the industrial park
captured the Pontiac driving into the lot. Around 3:13 a.m.,
a person moved quickly away from the car, and moments later
the car was visibly ablaze.
Between 3:32 and 3:37 a.m., Sexton's phone began using
towers servicing the Ramada Inn. During that time,
Daluz's phone began moving away from the Ramada Inn area,
eventually registering at a tower servicing First Street in
Bangor. Around 3:30 a.m., a taxi driver picked up Daluz at
the Ramada Inn and dropped him off at a friend's house on
First Street. He arrived at his friend's house with a bag
of laundry, which he washed at some point while he was there.
A day or two later, Daluz left Bangor for Massachusetts.
Later in the morning of August 13, Sexton called his
girlfriend and asked her to bring their children to Maine,
citing it as an opportunity for them to spend time together.
When Sexton's family arrived at the Ramada Inn, Sexton
appeared to be "upset, " and instead of the family
staying overnight, they ordered dinner in the hotel room and
then all left Bangor together.
In March 2013, months after these events, a man was using a
metal detector on the bank of the Penobscot River in Bangor.
There, he discovered two firearms (a Davis Industries D32
derringer pistol and a Jimenez JA-380 pistol), several rounds of
ammunition, and a cell phone. Sexton had purchased the
derringer from an acquaintance sometime before the shootings.
A forensic specialist from the Maine State Police Crime Lab
concluded that the bullet recovered from Lugdon had been
fired from the bottom barrel of the derringer. He was unable
to conclude that the bullet fragments recovered from Borders
had been fired from the Jimenez, but he was unable to rule
the gun out either.
In September 2012, Daluz was indicted on three counts of
murder, 17-A M.R.S. § 201(1)(A), and one count of arson
(Class A), 17-A M.R.S. § 802(1)(A). He entered pleas of
not guilty. Sexton was similarly indicted, and the State
elected to try Sexton and Daluz together. See
U.C.D.R.P.–Bangor 8(b) (2014) (repealed 2015); M.R.
Crim. P. 8(b) (2014) (repealed 2015).
In June 2013, Daluz moved for relief from prejudicial
joinder, arguing that he would be prejudiced by a joint trial
with Sexton. See U.C.D.R.P.– Bangor 8(d)
(2014) (repealed 2015); M.R. Crim. P. 8(d) (2014) (repealed
2015). Initially, after a hearing, the court granted the
motion, determining that there would be a
"Bruton problem" if the defendants were
tried together by a single jury, referencing Bruton v.
United States, 391 U.S. 123 (1968). The court's
decision was based on the State's representation that it
planned to introduce at trial incriminating out-of-court
statements made by Daluz, implicating himself and Sexton in
the crimes. Daluz had made the statements to law
enforcement officers and to a cellmate after his indictment
Pursuant to M.R. Evid. 801(d)(2),  the statements would be
admissible against Daluz but not against Sexton, and a joint
trial by a single jury would therefore run afoul of the
United States Supreme Court's holding in Bruton
if the statements were admitted, see Bruton, 391
U.S. at 126. After the court's initial grant of the
motion for relief from prejudicial joinder, the State
informed the court that it would not introduce Daluz's
statements. The court then denied Daluz's motion for
relief from prejudicial joinder and ruled that the defendants
would be tried together by one jury.
The defendants proceeded to a joint trial that began on May
1, 2014. Two attorneys represented each
defendant. The record on appeal contains jury
selection transcripts, which indicate that potential jurors
were asked to fill out a confidential questionnaire, under
oath, to aid the court and parties in selecting jurors who
were "free of any bias . . . [or] prejudice."
Although a copy of the questionnaire does not appear in the
record, the jury selection transcript indicates that one of
the questions "concern[ed] attitudes toward race and
whether any of that could cause a person to be unable to be
fair and impartial." The record indicates that Sexton is
white and Daluz is black. No issue regarding jury selection
or the composition of the jury is presented on appeal.
On the first day of the trial, the parties presented opening
statements. The jurors then were taken to view the industrial
park, the Ramada Inn, the house on Bolling Drive,
Carolina's Sports & Spirits, and an intersection near