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State v. Daluz

Supreme Court of Maine

July 12, 2016


          Argued: May 3, 2016

         Penobscot County Unified Criminal Docket docket number CR-2012-3778

         On the briefs:

          Jamesa J. Drake, Esq., and Rory A. McNamara, Esq., Drake Law, LLC, Auburn for appellant Randall Daluz

          Janet T. Mills, Attorney General, and Leanne Robbin, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee State of Maine

         At oral argument:

          Jamesa J. Drake, Esq., for appellant

          Randall Daluz Leanee Robbin, Asst. Atty. Gen., for appellee State of Maine


          ALEXANDER, J.

         [¶1] 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.

         I. CASE HISTORY

         [¶2] 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 1130.

         [¶3] On August 13, 2012, around 3:30 a.m., a white 2001 Pontiac Grand Prix[1] 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.

         [¶4] 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 "to work."

         [¶5] 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 quality product.

         [¶6] 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 left.

         [¶7] 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 & Spirits.

         [¶8] 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 anymore.

         [¶9] 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 the bar.

         [¶10] 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.

         [¶11] 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 voicemail.

         [¶12] 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.[2] At 11:16 p.m., Borders's cell phone had its last connection to the network, using a tower located in Old Town.[3]

         [¶13] 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.

         [¶14] 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."

         [¶15] 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.

         [¶16] 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.

         [¶17] 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.

         [¶18] 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.

         [¶19] 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), [4]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.

         [¶20] 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).[5]

         [¶21] 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.[6] Daluz had made the statements to law enforcement officers and to a cellmate after his indictment and arrest.

         [¶22] Pursuant to M.R. Evid. 801(d)(2), [7] 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.

         [¶23] The defendants proceeded to a joint trial that began on May 1, 2014. Two attorneys represented each defendant.[8] 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.

         [¶24] 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 the ...

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