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State v. Perry

Supreme Court of Maine

April 25, 2017


          Argued: March 2, 2017

          Andrea S. Manthorne, Esq. (orally), Roach, Hewitt, Ruprecht, Sanchez & Bischoff, Portland, for appellant Lee Perry

          Kathryn Loftus Slattery, District Attorney, and Shira S. Burns, Asst. Dist. Atty. (orally), Prosecutorial District #1, Alfred, for appellee State of Maine


          JABAR, J.

         [¶1] Lee Perry appeals from a judgment of conviction entered by the trial court (York County, Douglas, J.) after a jury found him guilty of three counts of aggravated assault (Class B), 17-A M.R.S. § 208(1) (2016); two counts of domestic violence assault (Class D), 17-A M.R.S. 207-A(1)(A) (2016); and one count each of domestic violence criminal threatening with a dangerous weapon (Class C), 17-A M.R.S. 209-A(1)(A) (2016), and domestic violence reckless conduct with a dangerous weapon (Class C), 17-A M.R.S. § 211-A(1)(A) (2016). He also challenges the consecutive sentences imposed for two of the convictions. We affirm the judgment and sentences.

         I. BACKGROUND

         [¶2] Viewing the facts in the light most favorable to the State, the jury rationally could have found the following facts beyond a reasonable doubt. See State v. Hurd, 2010 ME 118, ¶ 4, 8 A.3d 651. At the time of the events in question, the victim and the defendant, Lee Perry, were sexual partners residing together at an apartment in North Berwick. On the afternoon of December 5, 2014, the victim and Perry engaged in a verbal altercation after the victim accused Perry of taking money and prescription medications from her purse. At some point during the altercation, the victim attempted to walk away from Perry and, when she turned her back to do so, Perry shoved her to the ground, causing the victim to injure her wrist when she extended her arm to break her fall.

         [¶3] Shortly after the shoving incident, Perry went into the bedroom to take a nap. When Perry awoke, the altercation reignited, and Perry grabbed the victim and threw her to the ground. While the victim was face down on the apartment floor, Perry grabbed her around her neck and began tightening his grip, inhibiting her ability to breathe. Perry continued applying pressure to the victims neck until she lost control of her bowels and bladder. Perry eventually stopped, and the victim pulled herself off the ground and went into the bathroom to take a shower and change her clothes.

         [¶4] While the victim was in the shower, Perry broke the lock on the bathroom door, grabbed the victim by her hair, and slammed her head against the bathroom wall and the toilet basin. Perry then proceeded to pull the victim out of the bathroom on her hands and knees. While the victim was on the floor, Perry grabbed a knife and threatened to kill her, remarking that "12 to 14 [years in prison] dont look too bad about now." To defend herself, the victim raised her hand to deflect the blade and suffered lacerations on her hand.

         [¶5] The victim eventually left the apartment she shared with Perry and went upstairs to a friends apartment. Initially, the victim did not want to contact the authorities; only after she saw the extent of her injuries in the mirror did she decide to place a call to a friend and ask that the friend call the police.

         [¶6] In the early morning hours of December 6, 2014, an officer from the North Berwick Police Department received a call reporting a domestic disturbance. Accordingly, he responded to the victims apartment and was joined shortly thereafter by another officer. When the officer arrived, he was greeted by the victim, who bore visible injuries. The victim informed him that she and Perry had been involved in an altercation and that Perry had physically assaulted her. Based on this conversation and in accordance with "standard police protocol" the officer then went to speak with Perry. While the other officer remained outside, the victim led the first officer into the apartment and the room in which Perry was sleeping. The first officer woke Perry by announcing his presence as a police officer. The first officer proceeded to ask Perry a series of questions about what had transpired earlier that evening and if he had been drinking. Perry admitted that he and the victim had argued earlier but denied hurting her or knowing how she received her injuries. Perry also admitted that he drank four or five beers that evening. At no time during this exchange was Perry advised of his Miranda rights. After hearing Perrys responses, the first officer left Perry in the bedroom and reunited with the other responding officer outside of the apartment. At that time, the first officer expressed to the other officer his intent to arrest Perry. The first officer then re-entered the apartment and placed Perry under arrest.

         [¶7] On March 2, 2015, the State filed a seven-count indictment against Perry. Three of the seven counts alleged aggravated assault based on separate and distinct episodes of alleged criminal conduct in violation of three distinct provisions of the Criminal Code. Count I alleged aggravated assault in violation of 17-AM.R.S. § 208(1)(A). Count II alleged aggravated assault causing bodily injury under circumstances manifesting extreme indifference to the value of human life. 17-A M.R.S. § 208(1)(C). Count III alleged aggravated assault causing bodily injury with a dangerous weapon. 17-AM.R.S. §208(1)(B).

         [¶8] A three-day jury trial on the indictment commenced on May 24, 2016. Prior to trial, Perry moved the court to suppress statements he made to the first officer before his arrest. After a hearing, the court (Douglas, J.) denied the motion, concluding that Perry was not in custody for Miranda purposes during the interview and therefore the statements were admissible at trial.

         [¶9] At trial, the State elicited testimony from various individuals describing the extent of the victims injuries, which included a broken wrist requiring surgery and a laceration on her right hand. In addition, the victim testified to the symptoms and injuries she experienced during and after Perry strangled her on the floor of the apartment, namely incontinence, nausea, blurred vision, headache, and neck pain. Over Perrys objection, the State also presented the testimony of a strangulation expert who provided the technical definition of "strangulation, " specifically as it differs from the colloquial term "choking, " and described the physiological effects and symptoms of strangulation.

         [¶10] Relying upon the testimony summarized above, the State, in both its opening statement and closing argument, explained to the jury that Count I of the indictment, aggravated assault, pertained to Perrys shoving of the victim that resulted in her breaking her wrist; that Count II, aggravated assault with extreme indifference to the value of human life, pertained to Perrys strangulation of the victim; and that ...

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