Argued: September 14, 2017
R. Collins, District Attorney, and Kurt A. Kafferlin, Asst.
Dist. Atty. (orally), 8th Prosecutorial District, Houlton,
for appellant State of Maine
D. Bloomer, Esq. (orally), Houlton, for appellee Troy D.
SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and
Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, HJELM,
and HUMPHREY, JJ.
In this appeal we address the question of whether evidence of
the factual circumstances underpinning a defendant's
prior manslaughter conviction is admissible to establish an
enhancing factor necessary to convict the defendant of the
Class B offense of operating a motor vehicle while under the
influence of intoxicants.
In February 2016, Troy D. Hastey was indicted for aggravated
criminal OUI (Class B), 29-A M.R.S. § 2411(1-A)(D)(2)
(2017). The enhancing factor alleged in the
indictment is Hastey's 1991 manslaughter conviction that
the State alleges "involve[ed] or result[ed] from the
operation of a motor vehicle while under the influence of
intoxicating liquor or drugs." 29-A M.R.S. §
The State appeals from an order of the Unified Criminal
Docket (Aroostook County, Stewart, J.) granting
Hastey's motion in limine to exclude evidence of his
alleged intoxication at the time he committed the
manslaughter offense. The State argues that the trial court
erred when it ruled that the State's proof regarding
Hastey's prior conviction is limited to the face of the
1990 indictment and 1991 judgment and commitment, which do
not establish that Hastey was operating while under the
influence at the time of the homicide. We agree, and we
vacate the court's order granting Hastey's motion in
limine and remand for the entry of an order denying the
On March 8, 1990, Hastey was indicted for (1) one count of
manslaughter for "reckless and criminally negligent
operation of a motor vehicle" causing the death of
another person (Class B), see 17'-A M.R.S.A.
§ 203 (Supp. 1989), and (2) one count of OUI (Class D),
29 M.R.S.A. § 1312-B (Supp. 1989). On May 23, 1991,
Hastey pleaded guilty to the manslaughter offense and was
sentenced. The OUI charge was dismissed.
On December 12, 2015, Hastey was arrested for allegedly
operating a motor vehicle under the influence of intoxicants.
He was later indicted for aggravated criminal OUI (Class B),
29-A M.R.S. § 2411(1-A)(D)(2). The indictment alleged
that Hastey "had a prior conviction for a prior criminal
homicide involving or resulting from the operation of a motor
vehicle while under the influence."
On April 26, 2016, Hastey moved to dismiss the indictment,
arguing that because the 1990 OUI charge had been dismissed
and there were no findings of fact regarding the 1991
manslaughter conviction, he had not been convicted of a
criminal homicide involving or resulting from operation under
the influence as required to trigger the enhanced charge and
sentencing pursuant to section 2411(1-A)(D)(2). Hastey also
argued that if the State is allowed to present evidence that
he was intoxicated when he committed the manslaughter
offense, then "the State would have to, in effect,
re-prosecute the 1990 charges" which would violate the
"Double Jeopardy Clause's protection against a
second prosecution for the same offense." See
U.S. Const, amend. V; Me. Const, art. I, § 8.
On July 1, 2016, the court denied Hastey's motion to
dismiss. Citing the "categorical
approach" established by federal courts to determine
whether certain prior state convictions qualify as predicate
offenses under certain federal laws, see, e.g., Taylor v.
United States, 495 U.S. 575, 601-02 (1990), the court
noted that Hastey's motion to dismiss "raise[d]
significant and legitimate questions as to admissible
evidence and how evidence of prior convictions may be
reviewed at trial."
On August 19, 2016, Hastey moved in limine to exclude any
evidence of his alleged intoxication at the time of the 1990
offense, arguing that the admission of such proof would
contravene the categorical approach and the Double Jeopardy
Clause. The State opposed the motion, asserting
that the phrase "involving or resulting from" in
section 2411(1-A)(D)(2) introduces an evidentiary element
that the government must prove in the prosecution of the new
case-that Hastey's prior criminal homicide (manslaughter)
conviction in fact involved or resulted from the operation of
a motor vehicle while he was under the influence of
intoxicants. The State indicated its intention to present at
trial testimonial evidence, certified records from the Bureau
of Motor Vehicles, and "properly sworn test results from
the blood test administered to [Hastey] in 1990." The
court granted Hastey's motion. The State filed a
"motion for reconsideration and further conclusions of
law," which the court denied on October 27, 2016.
On November 10, 2016, after obtaining the written approval of
the Attorney General, the State timely appealed the
court's order granting Hastey's motion in limine and
the order denying the motion for reconsideration and further
conclusions of law. See 15 M.R.S. § 2115-A(1)
(2017); M.R. App. P. 2(b)(2)(A), 21 (Tower
As a preliminary matter, Hastey argues that the State's
appeal of the in-limine order is interlocutory and not ripe
for appeal because the ruling is subject to reconsideration
by the trial court and is not final until the challenged
evidence is offered by the State at trial. See
M.R.U. Crim. P. 12(c); State v. Brackett, 2000 ME
54, ¶ 6, 754 A.2d 337.
The State may appeal an interlocutory "order of the
court prior to trial which, either under the particular
circumstances of the case or generally for the type of order
in question, has a reasonable likelihood of causing either
serious impairment to or termination of the
prosecution." 15 M.R.S. § 2115-A(1).
In our assessment of whether the State's appeal meets the
requirements of section 2115-A(1), we first consider whether
there is "any reasonable likelihood that the State will
be handicapped in trying the defendant."
Brackett, 2000 ME 54, ¶ 5, 754 A.2d 337
(quotation marks omitted). Without question, the State will
be handicapped. Contrary to Hastey's contention, it is
hard to imagine that the court's in-limine order would
not impede the State's ability to proceed in the trial of
the case. In the absence of evidence outside of the 1990
indictment and the 1991 judgment and commitment, the State
will not be able to prove beyond a reasonable doubt that
Hastey was intoxicated at the time he committed the predicate
We next consider "whether entertaining the appeal is
consistent with the strong public policy against piecemeal
appeals and the impossibility of this [C]ourt's serving
as an advisory board to trial lawyers and judges."
Id. ¶ 6 (quotation marks omitted). In
Brackett, we dismissed as interlocutory the appeal
of a motion in limine argued on the grounds that the evidence
was inadmissible under Maine Rule of Evidence 412. See
id at ¶¶ 2, 7. We noted that we are hesitant
to entertain appeals from in-limine rulings involving
relevancy, probative value, and the prejudicial effect of
evidence because "the theoretical facts presented in the
motion in limine may differ from the actual facts presented
at trial." Id. ¶ 7 (discussing M.R. Evid.
403). In contrast, instate v. Patterson, we
determined that the appeal of a motion in limine was not
premature because the justice who granted the motion was to
preside at the trial the following week and clearly stated
his intention to exclude the contested evidence. 651 A.2d
362, 366 (Me. 1994).
As in Patterson, it is appropriate for us to
entertain this appeal because it is not premature. Although
it is possible that the justice who granted Hastey's
motion may not preside at the eventual trial, the in limine
ruling was stated with finality. The court clearly excluded
any extrinsic evidence that Hastey was intoxicated at the
time of the 1990 manslaughter offense, thus creating a
reasonable likelihood that the prosecution would be
Order on Motion in Limine
In line with Hastey's argument to us on appeal, the court
announced in its in-limine order that it "will follow
the categorical approach to determine whether the required
elements of the predicate offense [in section
2411(1-A)(D)(2)] are established." Applying that
analytical framework, the court granted Hastey's motion
and concluded that the State's proof of the enhancing
factor would be limited to the 1990 indictment and the 1991
judgment and commitment because, although those documents
establish [Hastey] was convicted of manslaughter, which was
the result of criminally negligent operation of a motor
vehicle[, ]... [the State] cannot establish the element
"while under the influence" without relying on
extrinsic evidence outside from the 1990 indictment and 1991
judgment. To establish the predicate element of "while
under the influence," evidence of [Hastey's]
intoxication at the time of the 1990 offense would have to be
offered and admitted. This would surely be a factfinding
endeavor, which would unfairly require [Hastey] to defend
very old and stale allegations. It is the [c]ourt's
belief that is the type of unfairness and potential prejudice
that the categorical approach is meant to avoid.
The State argues that the court erred by depriving the State
of the opportunity to present extrinsic evidence at trial of
Hastey's alleged intoxication because the statutory
phrase "involving or resulting from" introduces a
specific enhancing element separate and distinct from the
homicide conviction that requires proof of the circumstances
underlying the commission of the manslaughter offense.
We begin with a brief discussion of the categorical approach
to provide a context for our assessment of the trial
court's reasoning and decision. We then examine section
2411(1-A) (D)(2) to determine whether the court erred when it
excluded evidence of the circumstances of Hastey's prior
criminal homicide conviction.
In 1990, the United States Supreme Court first applied an
analytical process that came to be known as the
"categorical approach" to determine the meaning of
the word "burglary" in a sentence-enhancing
provision of the federal Armed Career Criminal Act. See
Taylor, 495 U.S. at 602. The Act imposed an enhanced
sentence "upon certain firearm-law offenders who also
have three prior convictions for 'a violent felony/"
and defined "violent felony" to include
"burglary." Nijhawan v. Holder, 557 U.S.
29, 34 (2009) (quoting 18 U.S.C.S. § 924(e) (LEXIS
through Pub. L. No. 115-196)). Taylor entered a conditional
guilty plea to possession of a firearm by a convicted felon,
18 U.S.C.S. § 922(g)(1) (LEXIS through Pub. L. No.
115-196) and, because he had four prior felony convictions,
including two burglary convictions under Missouri law, he
received an enhanced sentence pursuant to the Armed Career
Criminal Act. See Taylor, 495 U.S. at 577-79. On
appeal, Taylor argued "that his ...