State of Maine v. Donald F. Rutherford, 214 A.3d 27

Background

On Dec. 2, 2017, police found Rutherford and a friend near a vehicle in a ditch; Rutherford was arrested and charged with operating under the influence.
At trial the arresting officer testified that, when asked what happened, Rutherford’s friend said Rutherford (not she) had missed the turn — implying Rutherford was driving. The friend did not testify.
The State admitted the friend’s out-of-court statement as an adoptive admission under M.R. Evid. 801(d)(2)(B); the prosecution argued Rutherford’s silence and proximity amounted to adoption.
The court also admitted body-camera video that captured the friend’s statement and Rutherford saying he owned the vehicle and acknowledged drinking.
Rutherford did not testify, was convicted by a jury, and appealed arguing the friend’s statement was inadmissible hearsay because silence alone cannot establish adoption.
The Supreme Judicial Court vacated the conviction and remanded, holding the State failed to present sufficient foundation that Rutherford adopted the friend’s statement.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a third party’s out-of-court statement made in the defendant’s presence could be admitted as the defendant’s adoptive admission	The State: Rutherford’s proximity, hearing the remark, and subsequent cooperation supported inference he adopted the statement	Rutherford: Mere silence/presence while the friend spoke is insufficient to prove adoption; admission was hearsay	Silence alone is insufficient; State failed to show words or conduct manifesting adoption, so the statement was inadmissible hearsay
Whether police questioning context changes the adoptive-admission analysis	The State relied on the conversation during police questioning to establish adoption	Rutherford argued he had a right to remain silent during police questioning, so silence cannot be treated as adoption	Court: Right to remain silent prevents inferring adoption from silence during police questioning; additional affirmative conduct needed
Burden and standard for admitting an adoptive admission	State: Admission should be allowed where jury could reasonably infer adoption from circumstances	Rutherford: State bears burden to show adoption was intended and must introduce sufficient facts	Court: State bears burden; trial court must find sufficient foundational facts that defendant was present, heard, understood, and manifested adoption before admitting statement
Whether other trial evidence (ownership, drinking, sobriety tests) could substitute as adoption evidence	State: Rutherford’s statements about ownership and drinking and participation in sobriety tests show he adopted the friend’s identification	Rutherford: Those facts do not amount to affirmative adoption of the friend’s statement that he was the driver	Court: The State clarified it did not rely on sobriety responses; ownership/drinking statements alone did not establish adoption of the friend’s statement, and no other affirmative adoption evidence was offered

Key Cases Cited

State v. Cookson, 657 A.2d 1154 (Me. 1995) (State must show defendant intended adoption; mere presence/silence insufficient in criminal cases)
State v. Marshall, 491 A.2d 554 (Me. 1985) (admissions in an ongoing conversation may be mutually adoptive when defendants affirmatively participate)
State v. McKenney, 459 A.2d 1093 (Me. 1983) (presence alone does not establish adoption)
State v. Johnson, 472 A.2d 1367 (Me. 1984) (admission excluded where defendant likely did not hear the remark)
State v. Robinson, 403 A.2d 1201 (Me. 1979) (adoption insufficient where defendant contemporaneously and vehemently denied the statement)
State v. Marr, 536 A.2d 1108 (Me. 1988) (adoption improper where no evidence defendant heard, understood, and manifested adoption)
State v. Elwell, 380 A.2d 1016 (Me. 1977) (inadmissible where identity of speaker in multi-person conversation unclear)
State v. Kimball, 424 A.2d 684 (Me. 1981) (admission upheld where defendant actively participated in the conversation)
State v. Anderson, 409 A.2d 1290 (Me. 1979) (adoption supported by close involvement in planning and conduct)
State v. Blouin, 384 A.2d 702 (Me. 1978) (admissible where defendant’s reply manifested adoption)
State v. Anaya, 456 A.2d 1255 (Me. 1983) (admissible where defendant’s words demonstrated assent)
State v. Parker, 461 A.2d 501 (Me. 1983) (admission upheld where defendant explicitly said, "I don't disagree with that")
State v. Diaz, 681 A.2d 466 (Me. 1996) (right to remain silent attaches before formal proceedings and applies during police questioning)
State v. Lovejoy, 89 A.3d 1066 (Me. 2014) (discusses right to remain silent in pre-arrest questioning contexts)
State v. Figueroa, 146 A.3d 427 (Me. 2016) (distinguishes cases involving an affirmative waiver of Miranda rights)