Argued: October 26, 2016
Pratt, Esq. (orally), and Ellen Simmons, Esq., Camden, for
appellant Nicholas Sexton
T. Mills, Attorney General, and Leanne Robbin, Asst. Atty.
Gen. (orally), Office of the Attorney General, Augusta, for
appellee State of Maine
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
Nicholas Sexton appeals from a judgment of conviction of one
count of murder, 17-A M.R.S. § 201(1)(A) (2016), and one
count of arson (Class A), 17-A M.R.S. § 802(1)(A)
(2016), following a jury trial. A jury also found Randall
Daluz, Sextons co-defendant, guilty of three counts of murder
and one count of arson.
Sexton contends that the trial court (Penobscot County,
Anderson, J.) erred when it instructed the jury on
the defense of duress only for the arson charge and not for
the murder charges; erred when it denied his motion for
relief from prejudicial joinder with Daluz; abused its
discretion and violated his right to due process when it
allowed a witness to testify about guns she observed in a
motel room during a meeting with Sexton and Daluz; erred when
it denied his motion to suppress cell phone records used to
locate Sexton; and erred when it allowed testimony that
insinuated Sexton "harmed people over drug debts."
We disagree and affirm the judgment.
Viewing the evidence in the light most favorable to the
verdict, a fact-finder could have rationally found the
following facts. See State v. Reed, 2013 ME 5,
¶ 9, 58A.3d1130');">58A.3d1130.
On August 11, 2012, Sexton renewed a rental agreement for a
white 2001 Pontiac Grand Prix. At around 3:30 a.m. on August
13, 2012, that same vehicle was discovered burning in a
Bangor industrial park. Inside the vehicle were the bodies of
three murdered individuals, later identified as Daniel
Borders, Nicolle Lugdon, and Lucas Tuscano, who were last
seen on the night of August 12, 2012, leaving an apartment on
Bolling Drive in Bangor with Sexton.
On August 14, 2012, the day after the Pontiac was discovered,
police requested and obtained, pursuant to the Stored
Communications Act (SCA), 18 U.S.C.S. § 2702(c)(4)
(LEXIS through Pub. L. No. 115-9),  cell phone location
information in order to determine Sextons whereabouts. That
same day, police investigators used the location information
obtained from a cell phone belonging to Sextons girlfriend to
locate Sexton at a hotel in Danvers, Massachusetts, where
Sexton and his girlfriend stayed after they left Bangor
together on August 13, 2012. Sexton declined to be
interviewed by police investigators at that time.
On September 26, 2012, Sexton was charged by indictment with
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).
Sexton pleaded not guilty to all counts.
On September 27, 2012, the State filed a notice of joinder
indicating that Sexton and Daluz would be tried together.
U.C.D.R.P.-Bangor 8(b); M.R. Crim. P. 8(b) (Tower
2014). Sexton moved for relief from joinder in
July 2013 because Daluz gave statements to the police that
implicated Sexton. The court (Anderson, J.)
initially granted the motion because a joint trial would
present a "Bruton problem, " see
Bruton v. United States, 391 U.S. 123 (1968), but
indicated that it was "still considering whether to have
two simultaneous trials with two juries." See
M.R. Evid. 105; see also State v. Boucher, 1998 ME
209, ¶ 12, 718 A.2d 1092. Sexton then moved again for
relief from prejudicial joinder, arguing against simultaneous
trials. After the State moved to reconsider the courts
decision to sever the trials and represented that Daluzs
statements would not be introduced at trial, the court denied
Sextons motion for relief from prejudicial joinder,
concluding that there was no longer a Bruton
problem, and that Sexton did not demonstrate that joinder was
sufficiently prejudicial to warrant severance. The court
denied Sextons motion to reconsider.
Sexton filed a motion to suppress the cell phone location
information that led police to locate and attempt to
interview him on August 14, 2012. On April 1, 2014, the court
denied the motion to suppress, concluding that the SCA
request did not constitute a "search" implicating
constitutional protections; that probable cause existed and
there were exigent circumstances; that officers acted in good
faith in making the SCA request; and that police located
Sexton using Sextons girlfriends cell phone location
information and Sexton had no expectation of privacy in her
The joint trial commenced on May 1, 2014. Katelyn Lugdon,
sister of victim Nicolle Lugdon, testified that she and
Borders met with Sexton and Daluz in a motel room on the
night of August 11, 2012. During the meeting, Katelyn saw two
firearms on the bed, one silver with a rounded barrel and the
other darker and smaller with two holes. She observed Sexton
place the silver gun under his shirt, while Daluz played with
the other gun. Katelyn testified that during a prior
interview with police, she described the guns and then was
shown photographs of a derringer and a Jimenez .380 caliber
handgun that had been recovered from the Penobscot River. She
testified about the interview and photos, but was not shown
the guns or photos of the guns at trial.
Sexton attempted to ask Katelyn questions that would
potentially lead to the admission of Daluzs statements to a
fellow inmate at the Penobscot County Jail that Daluz shot
Nicolle Lugdon to gain Sextons trust. The court ruled that
the question was improper and stated that an objection would
be sustained, prompting Sexton to move to sever the cases in
order to use the statement to establish who possessed the
guns. The court denied the motion to sever. A second attempt
was made to introduce Daluzs statement to the inmate during
Sextons testimony; the court reiterated that an objection to
such a question would be sustained.
The State rested on May 16, 2014. Sexton took the stand on
May 19 and called no other witnesses.
Sexton testified that after leaving the Bolling Drive
apartment on the night of August 12, 2012, he, Daluz,
Borders, Tuscano, and Lugdon rode in the white Pontiac Grand
Prix to smoke marijuana. Sexton drove and Borders sat in the
front passenger seat. The others sat in the rear with Daluz
on the passenger side, Lugdon in the middle, and Tuscano on
the driver side. Borders made a comment, prompting Daluz to
"smack him in the head" with the Jimenez .380
caliber handgun several times. "Then all of a sudden the
gun" fired, shooting Borders in the head and
"everybody just start[ed] panicking." Tuscano
"was flipping out on Daluz" and then Daluz shot
Tuscano. While Lugdon was screaming, yelling, and crying,
Daluz collected their cell phones and instructed Sexton to
Sexton testified that because the car was running out of gas
and Daluz wanted to avoid gas stations, they drove to a
friends house in Dedham and took a gas can of fuel. Daluz
instructed Sexton to put some in the car and save some to
burn the car. They drove to a remote area in Hermon, where
Daluz forced Lugdon to eat pills. Daluz then shot Lugdon.
Sexton testified that Daluz then told him not to say
anything, or else Daluz would shoot him and his
family. When Sexton dropped Daluz off at the
hotel, Daluz ordered him at gunpoint to burn the car and
threatened to shoot him and burn him in the car if he did
not. Sexton agreed, drove to the industrial park, and set the
car on fire.
Daluz called three witnesses and elected not to testify. The
parties made closing arguments on May 20, 2014. The court
submitted the case ...