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State v. Armstrong

Supreme Court of Maine

July 23, 2019


          Argued: April 10, 2019

          Scott F. Hess, Esq. (orally), the Law Office of Scott F. Hess, LLC, Augusta, for appellant Aubrey Armstrong

          Aaron M. Frey, Attorney General and Leanne Robbin, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine


          HJELM, J.

         [¶1] Aubrey Armstrong was charged with murder, felony murder, and robbery in connection with a drug-related homicide. After a jury-waived trial, the court (Kennebec County, Billings, /.) acquitted Armstrong of murder but found him guilty of the other two charges. Armstrong appeals the resulting judgment, contending that the court abused its discretion by excluding evidence of hearsay statements made by a witness who was not available to testify at trial, see M.R. Evid. 804(b)(3), and that his constitutional protection from double jeopardy precludes a conviction for both felony murder and the underlying felony of robbery, see U.S. Const, amend. V; Me. Const, art. I, § 8. Although Armstrong did not raise the double jeopardy issue in the trial court, the State agrees with Armstrong on that point. We conclude that the court committed no error in its evidentiary ruling at issue here, but we vacate the judgment and remand for further post-trial proceedings, including resentencing limited to one count.

         I. BACKGROUND

         [¶2] The following facts are drawn from the court's findings, which are supported by the evidence, and from the trial record viewed in the light most favorable to the State. See State v. Fournier, 2019 ME 28, ¶ 2, 2O3A, 3d8Ol.

         [¶3] On the night of November 23, 2015, several police officers responded to a report of a disturbance in an apartment building in Augusta. The officers entered the building, and, as they ascended the stairs to an apartment on the fourth floor, they heard banging from the apartment, including a sound suggestive of an object being dropped. When the officers reached the apartment, one of them knocked on the door several times. The officers heard movement inside, and after several moments the apartment door was opened by a male later identified as Damik Davis, who was Armstrong's constant companion-and enforcer. Davis was breathing heavily, sweating profusely, and had blood on one of his hands.

         [¶4] From the doorway, the officers could see that the apartment was in disarray. It appeared that there was blood on the walls, on the floor, and on a survey stake; a broken chair was on the floor; and clothing was strewn about. As the officers spoke with Davis, they observed a person-whom they believed to be male and who was wearing a hooded sweatshirt covering most of his head-walk behind Davis and then out of view.

         [¶5] An officer asked Davis about the whereabouts of the apartment's residents, Zina Fritze and Michael Sean McQuade, who were long-term partners and had a child together. Davis called for Fritze and then walked into the kitchen and out of the officers' sight. One of the officers went downstairs and around to the back of the building, where he observed Davis running from the building.[1] The officer also discovered a white cell phone on the ground, which was later collected as evidence and identified as Armstrong's. Meanwhile, the other officer entered the apartment and discovered the body of a man in the bedroom. The man's hands were bound behind his back by ligatures, his ankles were also bound, and his face was bloody and swollen. A forensic pathologist later determined that the cause of death was multiple blunt force injuries to the head-including injuries to the victim's brain, which were so extensive as to be fatal by themselves-and to his neck, including a fractured hyoid bone.

         [¶6] Fritze and McQuade went into hiding until, two days after the homicide, they were found and surrendered to the police. After Fritze was given Miranda warnings, see Miranda v. Arizona, 384 U.S. 436, 478-79 (1966), she was interviewed about the murder by four detectives. Following the interview, Fritze accompanied detectives to the scene of the murder and showed the officers what she claimed had occurred.

         [¶7] In January of 2016, Armstrong was indicted for intentional or knowing or depraved indifference murder, 17-A M.R.S. § 201(1)(A), (B) (2018); felony murder (Class A), 17-A M.R.S. § 202(1) (2018); and robbery (Class A), 17-A M.R.S. § 65l(1)(C) (2018). Davis, McQuade, and Fritze were charged with the same crimes. On January 27, 2016, while being held on the charges against her, Fritze committed suicide.

         [¶8] Armstrong was arrested in New York pursuant to a warrant and, after being extradited to Maine, pleaded not guilty to each charge. The cases against Armstrong, Davis, and McQuade were joined for trial, see M.R.U. Crim. P. 8(b), but McQuade and Davis each subsequently pleaded guilty to felony murder and robbery, and each agreed to cooperate with the State. Armstrong waived his right to a jury trial, and the court held a six-day bench trial in May of 2018.

         [¶9] The only eyewitness to the crime who testified was McQuade.[2] He told the court that on the night of the murder, while he, Armstrong, Davis, and Fritze were at a neighbor's apartment, Armstrong stated that he wanted to rob the victim of drugs. The four developed a plan to commit the robbery, which resulted in luring the victim to the apartment where the four conspirators were present. All of them then traveled in the victim's van to McQuade and Fritze's nearby apartment. Fritze, Davis, and the victim entered the apartment using the front stairway; McQuade and Armstrong went into the apartment by a rear staircase and entrance. Once inside, Fritze went into the kitchen and McQuade went into the bedroom, and the other three remained in the living room. From the bedroom, McQuade saw Armstrong "smash[]" the victim across the head with a bottle, and Davis hit the victim on the head with a chair. McQuade testified that as Armstrong and Davis continued to assault the victim, he- McQuade-went into the kitchen and told Fritze that they needed to leave. Armstrong continued to beat the victim with what McQuade described as a "property stick" as Davis tried to stop Armstrong.

         [¶10] According to McQuade, when the police knocked on the apartment door, Fritze and McQuade fled from the apartment through the back door. As they ran down the back stairs, McQuade saw Armstrong behind them. The three ran through nearby woods to the neighbor's apartment where they had met the victim earlier that night. McQuade testified that Armstrong and the neighbor made statements that he perceived as threats to him and his child, and that Armstrong instructed McQuade not to say anything about him.[3] Because of their fear of ...

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