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State v. Hein

Superior Court of Maine, Kennebec

January 17, 2017



          Eric J. Walker Judge.

         This matter comes before the Court on the Defendant's Motion to Suppress filed on August 4, 2016. A hearing was held on the Motion on September 22, 2016. The State was represented by Deputy District Attorney Paul Cavanaugh, Esq. and the Defendant was represented by Scott Hess, Esq. Both parties were fully heard.

         The Defendant is charged with one count of Cruelty to Animals, a Class D criminal offense under 17 M.R.S. § 1031(1)(D). The charge stems from alleged conduct by the Defendant while he was jogging on the Kennebec River Rail Trail in Augusta on November 23, 2015. In his Motion, the Defendant originally moved to suppress (1) complainant's pretrial identification of the Defendant from a photographic lineup and (2) a video of the Defendant running at a local gym. In addition, the Defendant argued that complainant should be precluded from identifying the Defendant at trial because the pretrial identification process has tainted her ability to do so independently. Subsequently, at the time of the hearing on the Motion, the Defendant indicated that the video was no longer at issue and he would not be pursuing it as part of his Motion. However, the Defendant clarified that there are still two questions before the Court: (1) is the photo lineup admissible at trial and (2) should an in-court identification of the Defendant by complainant at trial be excluded because the pretrial identification so tainted her as a witness that she is unable to render an independent identification.

         During the hearing on the Motion, the Court heard testimony from complainant, AmyLou Craig, as well as Animal Control Officer Francois Roodman and Officer David Adams, both of the Augusta Police Department. The State and the Defendant each presented multiple exhibits that were entered into evidence, and the Court heard closing arguments from both sides. The Court also gave the parties the opportunity to submit additional written argument to the Court, which they did not ultimately avail themselves of.

         I. Findings of Fact

         On November 23, 2015, Ms. Craig was walking her dog, Brewer, on a leash, along the Kennebec River Rail Trail in Augusta. She was walking in the direction of Hallo well. At approximately 3:00 p.m., Ms. Craig encountered a man who was jogging in the opposite direction from her on the Trail. She observed the man jogging toward her "for at least 30 seconds" and initially at "quite a distance." The man was wearing a winter hat, but the hat was of a design such that it still revealed that the man had "short, faded hair." Except for the man jogging toward her, Ms. Craig was alone on the Trail at that time and she was aware of his approach. Eventually, the man stopped when he reached Ms. Craig and exchanged words with her, and then he kicked Brewer forcefully. After the man kicked Brewer, Ms. Craig knelt down to comfort the dog, which was a puppy at the time, and while doing so she "looked up at" the man and exchanged more words with him, during which the man smiled at her, and afterward he jogged away. At that time, Ms. Craig did not know who the man was, although he did "look familiar" and "distinctive" to her. Ms. Craig, described the weather at the time of the incident as "a nice day."

         Soon after the incident on the Trail and on the same day, Ms. Craig spoke to Augusta Police Department Officer David Adams about what had happened. She also submitted a written statement. Then she posted on her Facebook page about the incident. Her post included a description of the man who kicked Brewer on the Trail. Her post said the man was "about 6" [sic], 40 years old, dressed in running shorts, navy and grey sweatshirt, and a winter hat." In response to Ms. Craig's post, as well as her subsequent discussions about the incident at her place of work (College Carry-Out restaurant in Augusta, where she has frequent, in-person contact with a large number of customers), two people told her that the man could be "Mike Hein" because of similar experiences they had with him on the Trail in the past. Ms. Craig searched for Mr. Hein, the Defendant in this case, on Facebook, she found his profile and reviewed at least eight pictures of him, "instantly" recognizing the Defendant as the man who kicked Brewer. Some of the Facebook photos she saw "looked exactly like" the Defendant, although others did not because the Defendant's weight and hair length were different. At approximately the time that Ms. Craig was looking into the Defendant's Facebook account, people sent her the names and photos of four to six other men they said could have been the man who kicked Brewer, but Ms. Craig did not recognize any of them.

         In the days that followed the incident, Officer Adams and Ms. Craig communicated about the case and she told him that she suspected the Defendant. She showed Officer Adams, on her cellular phone, photos of the Defendant from his Facebook page, but she did not provide him with any copies. The photos were a diverse collection and included the Defendant in a variety of settings and clothing, including in a sweatshirt and ball cap, in a suit and tie, and in athletic gear. Ms. Craig also provided Officer Adams with the names of the two people who initially gave her the Defendant's name in response to her Facebook post, and Officer Adams followed up with them as part of his investigation. In addition to Officer Adams, Ms. Craig spoke with Augusta Police Department Animal Control Officer Francois Roodman. Ms. Craig was asked to write a second statement and she did so on November 27, 2015. In her statement, she wrote: "I looked him (Mike Hein) up on Facebook, and he does look like the man I met on the trail, other than his length of hair in profile picture." When she submitted the second statement, Officer Roodman was present and Ms. Craig showed him Facebook photos of the Defendant on her cellular phone, as she had done previously with Officer Adams. While this police investigation was taking place, the incident itself was receiving significant attention in the local press, and Ms. Craig was interviewed about it on multiple occasions.

         At another point during this time frame, Officer Adams investigated the possibility that a different man could have been the man who kicked Brewer. To this end, Officer Adams showed a single picture of the second man to Ms. Craig, but Ms. Craig said that the photo of the second man did not match her recollection of the man she encountered. A commenter on Ms. Craig's original Facebook post was the person who suggested that it could have been the second man, and Ms. Craig was not involved in suggesting the second man as a suspect in any way.

         On December 3, 2015, Officers Roodman and Adams presented a photo lineup to Ms. Craig while she was at work, telling her to "be honest" and take her time, in addition to other standard instructions. The lineup was prepared by Officer Roodman under the guidance of Bureau of Criminal Investigations Lieutenant Chris Massey, and it contained six photos of men. Officer Roodman had searched the Augusta Police IMC electronic database for photos to use in the lineup, but he could not recall the search terms he used. The Defendant's photo was pre-existing in IMC, being uploaded in 2013. Ms. Craig identified the Defendant saying the photo of him "looks exactly like the guy" she "encountered that day." The photo of the Defendant from the lineup was not on the Defendant's Facebook page, but the lineup photo does appear among the many results from an online Google image search of the Defendant's name. The source of the Google image is an online news article written about the Defendant by the Bangor Daily News. The Bangor Daily News article was a story involving the Defendant as an Augusta political figure. Ms. Craig does not keep up with politics and only learned that the Defendant was politically active after she recognized him on Facebook. She recognized him from his Facebook photos only, and she was unsure if she had searched for him on Google and viewed pictures of him there. Ms. Craig stated that she had also served the Defendant at College Carry-Out years earlier.

         Subsequently, Defendant was charged with Animal Cruelty and this Motion followed.

         II. Discussion

         a. Ms. Craig's Preliminary Research

         As a threshold matter, the Court does not find that Ms. Craig's independent, pre-photo lineup research into the identity of the Defendant poses a problem in this case. This is an issue that was discussed by the parties during the hearing on the Motion. The Court does not believe that it is a problem because, according to United States Supreme Court precedent, due process applies only to "improper police arrangement of the circumstances surrounding an identification." Perry v. New Hampshire, 565 U.S. 228, 242 (2012). "[W]hat triggers due process concerns is police use of an unnecessarily suggestive identification procedure, whether or not they intended the arranged procedure to be suggestive." Id. at 232 n.l. In other words, due process does not apply to Ms. Craig's personal, independent research into the identity of the Defendant on Facebook. To be clear, under Perry, even suggestive circumstances surrounding a witness's identification do not implicate the due process clause if the identification procedure was not arranged by law ...

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