State of Maine v. Mark D. Penley, 288 A.3d 1183

Background

On January 1, 2019, Mark D. Penley went to an apartment where his ex‑girlfriend, Heather Bickford, was staying with Dana Hill and two children, and shot and killed Bickford and Hill. Penley was charged and tried for two counts of intentional or knowing murder.
Before trial, the court preliminarily admitted testimony that Bickford told others she was afraid of Penley and intended to seek a protection‑from‑abuse order, under M.R. Evid. 803(3), but excluded the underlying factual reports of Penley’s prior conduct.
At trial the defense argued the State had manipulated Facebook phone‑location data; in rebuttal the prosecutor said it is "easy to make an accusation and not have to back it up with evidence," and criticized defense counsel’s repeated challenges to Facebook data. No contemporaneous objection was made to that remark.
The jury convicted Penley on both counts. At sentencing the court applied the two‑step statutory process, set the basic term at life imprisonment, citing among other factors that the murder was an act of domestic violence and that children were present, and imposed concurrent life sentences.
On appeal Penley challenged (1) admission of evidence that Bickford feared him and planned to seek a protection order, (2) prosecutorial remarks implying Penley bore a burden to produce evidence, and (3) the sentencing court’s use of domestic‑violence history in step one of the sentencing analysis.
The Supreme Judicial Court affirmed the convictions, ruled admission of the victim’s statements was an abuse of discretion but harmless, found the prosecutor’s comment improper but not obvious error, vacated the sentences, and remanded for resentencing because the court improperly relied on prior domestic‑violence history in step one.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admission of victim’s statements that she feared defendant and planned to seek protection	The statements were admissible under the state‑of‑mind exception (M.R. Evid. 803(3)) to show Bickford’s intent/fear.	The statements were hearsay not probative of Penley’s intent or identity and were unfairly prejudicial and effectively evidence of prior bad acts (403, 404).	Admission was an abuse of discretion because victim’s state of mind was not material to elements or defenses, but the error was harmless given abundant other evidence linking Penley to the murders.
Prosecutorial remark implying defendant had burden to rebut Facebook data	The prosecutor was addressing the record and the weight of evidence, not shifting the burden.	The remark improperly suggested Penley had a duty to produce evidence and shifted the burden of proof.	The isolated remark was improper (implied burden‑shifting) but, viewed in context and with the court’s jury instructions, did not constitute obvious error requiring reversal.
Use of domestic‑violence history in determining the basic term of imprisonment (step one)	The murder’s domestic‑violence character is an objective factor appropriately considered in step one; the court’s focus on the relationship context supported life as the basic term.	The court improperly relied on prior domestic‑violence history in step one; such history (apart from the act constituting the murder) belongs in step two as aggravation.	The court properly considered that the murder was an act of domestic violence in step one but erred by also using prior relationship history and stalking as step‑one factors; sentences vacated and remanded for resentencing.

Key Cases Cited

State v. Mahaney, 437 A.2d 613 (Me. 1981) (limits on state‑of‑mind hearsay exception).
State v. Tieman, 207 A.3d 618 (Me. 2019) (standard of review for hearsay rulings).
State v. Athayde, 277 A.3d 387 (Me. 2022) (domestic‑violence factor may be an objective step‑one consideration when murder is an act of domestic violence).
State v. Stanislaw, 21 A.3d 91 (Me. 2011) (misapplication of law in setting basic term requires vacatur and remand).
State v. Robbins, 215 A.3d 788 (Me. 2019) (prosecutorial burden‑shifting can require reversal).
State v. Cheney, 55 A.3d 473 (Me. 2012) (review of prosecutorial conduct and standards).
State v. Discher, 597 A.2d 1336 (Me. 1991) (improperly admitted victim‑related statement held harmless where defendant made similar statement and evidence was overwhelming).
Woods v. State, 733 So.2d 980 (Fla. 1999) (victim’s statements of fear generally inadmissible under state‑of‑mind exception).