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State v. Rutherford

Supreme Court of Maine

August 6, 2019


          Argued: May 7, 2019

          Jeremy Pratt, Esq. (orally), and Ellen Simmons, Esq., Camden, for appellant Donald F. Rutherford

          Maeghan Maloney, District Attorney, and Frayla Tarpinian, Asst. Dist. Atty. (orally), Prosecutorial District IV, Augusta, for appellee State of Maine


          SAUFLEY, C.J.

         [¶1] In this appeal, we clarify the evidentiary foundation required for the admission of an otherwise hearsay statement as the adoptive admission of a defendant in a criminal trial. Donald F. Rutherford appeals from a judgment of conviction of operating under the influence (Class D), 29-A M.R.S. § 2411(1-A)(A), (5) (2018), entered by the court (Kennebec County, Marden, J.) after a jury trial in which the court admitted, as an adoptive admission and over Rutherford's objection, the inculpatory statement of Rutherford's friend, who did not testify at trial. Because silence alone is not enough, and there was no other evidence that Rutherford adopted his friend's statement identifying him as the driver, we vacate the judgment and remand for further proceedings.[1]

         I. BACKGROUND

         [¶2] At about 11:15 p.m. on December 2, 2017, Gardiner Police Department officers responded to a call and found Rutherford and a friend standing near a vehicle that was in a ditch near the entrance to an apartment complex. Rutherford was arrested at the scene and, after the administration of a breath test at the police department, was issued a uniform summons and complaint charging him with operating under the influence. He entered a plea of not guilty.

         [¶3] During the jury trial held in September 2018, the officer who spoke with Rutherford at the scene of the accident testified, over Rutherford's hearsay objection, that when she asked Rutherford and his friend what had happened, Rutherford's friend said that Rutherford was not from the area and had missed the turn, thus indicating that Rutherford had been driving. The court admitted the statement of the friend as an admission adopted by Rutherford, ruling that the statement was admissible as an opposing party's statement. See M.R. Evid. 801(d)(2)(B) (providing that a statement is not hearsay if "[t]he statement is offered against an opposing party and . . . [i]s one the party manifested that it adopted or believed to be true"). The friend did not testify and was not present at trial.

         [¶4] The court also admitted-over the same objection-a prearrest video recording, with audio, from the officer's body-worn camera that included the friend's statement identifying Rutherford as the driver and also Rutherford's own response to law enforcement that he was the owner of the vehicle. Rutherford objected to the admission of the friend's statement a third time after consulting additional legal resources. He argued that he had not manifested adoption of the statement by merely standing next to his friend when she said he had missed the turn. The court reiterated its earlier rulings, finding-based on the officer's testimony and the video-that Rutherford had been standing two feet away from his friend when they were both being questioned, he had heard the question and answer, he had not disputed her representation that he was the driver, and he had cooperated fully in field sobriety tests thereafter.

         [¶5] Rutherford did not testify, and when all evidence had been presented, he moved for a judgment of acquittal. See M.R.U. Crim. P. 29. He argued, among other things, that there was no properly admitted evidence that could show beyond a reasonable doubt that Rutherford had been the driver. The court denied the motion for a judgment of acquittal.

         [¶6] The jury found Rutherford guilty. The court sentenced Rutherford to forty-eight hours in jail and $650 in fines, surcharges, and assessments. His license was suspended for 150 days. Rutherford timely appealed from the judgment and moved to stay the execution of his sentence pending appeal-a motion that the court granted.


         [¶7] Rutherford contends that the statement of his friend was hearsay and did not constitute an admission by him that he was driving the car. Hearsay, which is a "statement that . . . [t]he declarant does not make while testifying at the current trial" and that is offered by a party "to prove the truth of the matter asserted in the statement," is generally inadmissible. M.R. Evid. 801(c), 802. A statement is not hearsay, however, if "[t]he statement is offered against an opposing ...

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