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State v. Bilodeau

Superior Court of Maine, Kennebec

June 26, 2019

STATE OF MAINE
v.
ANDREW BILODEAU

          ORDER ON DEFENDANT'S MOTIONS FOR NEW TRIAL AND FOR JUDGMENT OF ACQUITTAL

         Before the Court is Andrew Bilodeau's Amended Motion for New Trial dated May 3, 2019. Defendant had previously timely filed another Motion for Acquittal and for New Trial on December 19, 2018 after a Kennebec County Jury found him guilty of Manslaughter on December 13, 2018. Both motions are opposed by the State. The State is represented by Deputy District Attorney (DDA) Frayla Tarpinian and the Defendant is represented by Attorney Kevin Sullivan. Oral argument on the motions was held May 15, 2019. The Court has reviewed the parties' filings, pertinent case law, as well as a transcript of the trial proceedings. For reasons stated, the motions are denied.

         Defendant had moved for an acquittal at the close of the State's case. In the first motion, the Defendant argued that "the interests of justice" required a new trial due to an improper question of a law enforcement witness about the Defendant's statements regarding the victim's medical status. In the amended motion, the Defendant asserts that the trial evidence is insufficient to sustain a conviction for manslaughter because, in part, the Defendant had fully disclosed to the State Bureau of Motor Vehicles that his disability made it difficult for him to stop his motor vehicle, and that he sometimes needed to maneuver around obstacles or motor vehicles because of his impaired ability to effectively apply his brakes, particularly when faced with an emergency. Because the Defendant was nevertheless legally permitted to drive by the State, he argues that under all the circumstances his conduct was not criminal in nature.

         Defendant's statements regarding victim's medical status

         On the first day of trial, Sgt. Christopher Shaw from the Augusta Police Department testified. He was asked by the Deputy District Attorney (DDA) about his interview of the Defendant at the scene of the motor vehicle/pedestrian accident that resulted in the death of Emile Morin. The DDA asked Sgt. Shaw if the Defendant asked any question about Mr. Morin's condition at the scene and Sgt. Shaw responded as follows: "He - no, no, he was - it was kind of odd because there was no remorse, there was no -I told him...." Although Defense Counsel did not object, the Court initiated a sidebar where an extended colloquy took place. After a few exchanges between the Court and the DDA about the relevance of Sgt. Shaw's opinion about the Defendant's level of remorse, Defense Counsel stated that "this is a pretty major issue" for the defense. The Court indicated that it would tell the jury that Sgt. Shaw's statement would be stricken from the record, and the DDA indicated that Sgt. Shaw's statement in Court about "no remorse" was different than what was in his report. She clarified that the Defendant did in fact ask about the condition of Mr. Morin, contrary to what Sgt. Shaw said on direct examination. The DDA was then directed to "make it very clear what the truth of the events was" by impeaching Sgt. Shaw about the Defendant's inquiry about Mr. Morin's condition.

         The Defendant now argues that the interests of justice requires a new trial because the curative instruction and impeachment by the DDA were insufficient to address the prejudice of Sgt. Shaw's opinion that the Defendant lacked remorse at the scene.

         A review of the trial transcript supports the defense argument that while it was the Court that ordered the sidebar, an objection was in fact made by defense counsel after a few moments. However, the central issue for the Court is whether the prosecutor's question was intentionally designed to obtain a prejudicial response from Sgt. Shaw. The Court has concluded that it was not. As the State notes in its written argument, the jury had already heard the audio recording of the Defendant speaking with Sgt. Shaw in which he expressed his concern for the victim's condition. Sgt. Shaw gave an answer in Court which was unexpected, and which was at odds with the verbatim recording heard by the jury before Sgt. Shaw testified. The Court concludes that any prejudice to the Defendant was adequately addressed by the instruction by the Court to disregard Sgt. Shaw's opinion, and by the State's corrective impeachment of him, and that a new trial is therefore not justified for what occurred.

         State's arguments regarding the Defendant's disability

         It is quite clear that Mr. Bilodeau suffers from a significant physical impairment of his ability to ambulate, and that he lacks strength and coordination in his extremities. The jury was able to see him walk to the witness stand, and he testified without rebuttal that he has suffered from cerebral palsy since birth. He uses either crutches or a wheelchair as he cannot walk without one or the other. He also testified that he has no depth perception in his right eye due to cataracts, and has trouble seeing how far away objects or obstacles are from his vehicle. He also testified without rebuttal that the Maine Bureau of Motor Vehicles (BMV) is aware of his disability, and that he had asked the BMV that he be allowed to use "hand controls". No corroborating evidence about his disabilities or his communication with BMV was admitted at trial, but the State does not contest that he has significant physical limitations.

         In the State's closing arguments, the DDA made the following statements about the Defendant's disabilities:

1) "Fact: Andrew Bilodeau has physical impairments that make it hard to see when he drives, that make it hard for him to operate his car, and make it hard for him to stop." [Tr. pg. 133]
2) "Let's look at the facts. Andrew Bilodeau - it is beyond a reasonable doubt that Andrew Bilodeau committed manslaughter. He told you when he spoke to you yesterday that he has a physical condition that makes it hard for him to drive and he went into detail about that. He is conscious of that, he is aware of the risk, and how do we know that? He limits his driving. He explained how he does that. He swerves to avoid hitting things, he does not apply his brakes. He told you that he needs hand brakes to drive that car safely, he told you that, and he told you about past times when he had collided with objects. Reasonable and prudent people do not drive cars they can't bring to a stop. Reasonable and prudent people use their brakes. This was a gross deviation of what a reasonable and prudent person would do, to get behind the wheel of a car that you cannot bring to a stop, to plan ahead to swerve if something comes in your way. To drive up a hill, a big hill, see a pedestrian ahead of you and make a decision to keep going. Andrew Bilodeau is conscious that he is a risk to others when he drives, he knows that. He chooses to drive anyway. That choice cost Emile Morin his life on that evening." Id. at 134-135.
3) "Andrew Bilodeau acted recklessly that night. Andrew Bilodeau acted recklessly when he did not stop his car. He acted recklessly when he hit and killed Emile Morin. He acted recklessly when he got behind the wheel of a vehicle and put everybody around him at risk that night. That is why Andrew Bilodeau is guilty." Id. at 137.

         When Defense Counsel addressed the jury in closing, after reminded the jury that his client was operating at or below the speed limit, and that he had no alcohol or drugs in his system, and then he made the following statements about his client's disability and how it relates to his driving:

1) "The biggest issue here is did Andrew disregard any laws while driving his car on Northern Avenue last year? You heard Andrew had an active driver's license. You heard testimony that he has gone to the Bureau of Motor Vehicles, he has taken the test, he has explained to them his physical ability. We all have, if you have a driver's license, you have taken the test, but if you don't' have a driver's license know you have to take a driving test in order to get your driver's license, Andrew has done that. They have seen his condition, they have been in the car with him during a driving test. The issue of his physical abilities have been from birth. He testified that he has vision in one eye from birth, that does not prohibit him from getting a driver's license. He testified he has had some issues, he has dealt with the Bureau of Motor Vehicles on it, he has actually requested from them hand controls, which has been denied. The Bureau of Motor Vehicles is on top of this, they are on top of the issue, they know what is going on with Andrew, he had an active driver's license last November. When you look at the definitions of ...

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