STATE OF MAINE v. KEITH COLEMAN
Pen-17-35
MAINE SUPREME JUDICIAL COURT
March 22, 2018
2018 ME 41
Decision: 2018 ME 41
Argued: November 15, 2017
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
MEAD, J.
[¶1] Keith Coleman appeals from a judgment of conviction for three counts of murder,
I. FACTS
[¶2] “When viewed in the light most favorable to the jury‘s verdict, the recоrd supports the following facts.” State v. Diana, 2014 ME 45, ¶ 2, 89 A.3d 132 (alteration omitted) (quotation marks omitted). The bodies of an eight-year-old girl, her ten-year-old brother, and the children‘s mother were found in their home in Garland on the evening of December 20, 2014. Keith Coleman, the mother‘s on-and-off boyfriend of a few years, had been living
[¶3] By all reports, Coleman‘s and the mother‘s relationship was a tumultuous one, plagued by incidents of Coleman‘s physical abuse of the mother. Shortly before the deaths, the mother told Coleman that he needеd to deal with his drinking or move out; she was also considering reconciling with her daughter‘s father. Coleman was very upset by this situation and told a coworker, on three different occasions, that he “wouldn‘t have a problem with killing them all.”
[¶4] The children were last seen on December 19, 2014, as they left school on the final day of classes before Christmas vacation. On the same day, the mother made her last known communication in a text message to her aunt concerning a fight she and Coleman had that day. On the morning of December 20, shortly after 7:00 a.m., Coleman drove away from the home, then returned about five to ten minutes later, and left by 10:00 or 11:00 а.m. in the family‘s tan minivan. Coleman stopped at a local store for beer and cigarette rolling papers before driving to Bangor to return a remote-control car at a store, a gift he had intended to give to the son. Coleman later arranged, via direct messaging from one of his Facebook accounts, to meet up with
[¶5] During the afternoon of December 20, after repeated failed attеmpts to reach the mother, the aunt whom the mother had texted the previous day asked another niece to go to the home and check on the mother and the children. At around 9:00 p.m., the niece and a number of other family members arrived at the home, broke through the locked front door, and discovered the mother‘s body in one bedroom and the daughter‘s body in another; the daughter was found gagged and on her back, each leg dangling off the end of the bed on either side of one of its corners. The family members called 9-1-1 and awaited the first responders’ arrival outside of the home. The first to arrive was a deputy from the Penobscot County Sheriff‘s Office who located the son‘s body in the third bedroom, underneath a pile of bedding.
[¶6] The next morning in Bucksport, law enforcement officers responded to an apartment where Coleman reportedly had spent the previous night and took Coleman, who was cooperative, into custody. At the time of his arrest, Coleman was in possession of the family‘s tan minivan, the mother‘s
[¶7] On December 21 and 22, 2014, the Medical Examiner‘s Office performed the victims’ autоpsies and concluded that the cause of death for all three was asphyxiation by ligature strangulation. During the daughter‘s autopsy, the Chief Medical Examiner, Doctor Mark Flomenbaum, detected no trauma to her genitals and found that her hymen was intact, but he observed blunt force trauma to her face; two superficial abrasions on her buttocks, each slightly less than an inch long; and what he suspected was dried blood in her vaginal area and on the crotch of the pink shorts she was wearing. The daughter also had a plastic shopping bag stuffed tightly into her mouth and throat, which, Dr. Flomenbaum opined, occluded the passage of all air and sound. These observations prompted either Dr. Flomenbaum or the assisting nurse, acting under his supervision, to collect four swabs from the daughter‘s vaginal area using a sexual assault kit. During the afternoon of December 22, the four swabs were dried and placed together in an envelope inside the kit, which was sealed and left in the Medical Examiner‘s Office. The sealed kit remained there until December 24 at 10:00 a.m., when the same state police
[¶8] On December 31, 2014, a crime laboratory technician confirmed that the items of evidence delivered by the state police detective from the autopsy were contained in sealed bags, with the seals unbroken, and processed the individual items. Two of the four swabs in the envelope labeled “vaginal swabs” as well as the stained cutting from the shorts tested positive for, and were verified as containing, blood and semen. Samples of the vaginal swab with the highest concentration of forensic material and of the stained shorts were sent for DNA analysis.
[¶9] Mixtures of DNA were found on the ligatures associated with the victims. The mixture on the ligature found on the mother was consistent with the DNA profiles of Coleman, the mother, and at least one unknown donor; a ligature found on the daughter revealed DNA consistent with Coleman, the daughter, and at least one other unknown donor; on another ligature found on the daughter, there was DNA matching her and at least one unknown donor; a ligature found on the son contained DNA that was consistent with the son, the daughter, and at least one unknown donor. A forensic DNA
II. PROCEDURAL HISTORY
[¶10] Coleman was initially charged by complaint with three counts of murder and later with one count of gross sexual assault and was subsequently indicted by the Penobscot County Grand Jury for those charges.
[¶11] On September 13, 2015, the State moved in limine to bar Coleman from cross-examining the medical examiner, Dr. Mark Flomenbaum, concerning a Connecticut judge‘s finding that Dr. Flomenbaum‘s testimony as an expert witness for a defendant in a child death case was not credible; and, Dr. Flomenbaum‘s removal from his previous position as the Massachusetts Chief Medical Examiner. The court reserved ruling on the motion until
[¶12] On November 10, 2016, after an eleven-day trial, the jury found Coleman guilty on all charges and the court continued the matter for sentencing. On January 19, 2017, the court imposed concurrent sentences of life imprisonment on each of the murder counts and a concurrent twenty-year term of imprisonment for the gross sexual assault. Coleman appealed directly from his conviction, pursuant to
III. DISCUSSION
A. Limitation on Coleman‘s Impeachment of Dr. Flomenbaum
[¶13] Prior to trial and again at trial, Coleman sought, pursuant to
[¶14] We afford a trial court wide discretion in its evidentiary rulings pursuant to
[¶15] In determining whether specific instances of a witness‘s conduct are sufficiently probative of the witness‘s character for truthfulness or untruthfulness, a court may consider (1) “the importance of the witness to the case“; (2) “how probative of truthfulness or untruthfulness the bad acts are“; and (3) “[t]he reliability of the information that the bad acts in fact
1) Connecticut Testimony and Judge‘s Credibility Determination
[¶16] We have not dealt with the admissibility pursuant to Rule 608(b) of past judicial credibility determinations concerning an expert witness. We have, however, done so in the context of expert opinions regarding another
[¶17] In May 2016, Dr. Flomenbaum appeared in his personal capacity as a forensic expert at a trial in the Connecticut Superior Court on behalf of the defendant in a criminal case. Coleman asserts that if the court had allowed him, he would have asked Dr. Flomenbaum about this exchange during the State‘s Attorney‘s cross-examination in that case:
[State‘s Attorney]: And you were [working for Massachusetts] for—I can‘t recall from your direct—how many years?
[Dr. Flomenbaum]: Two years.
. . . .
[State‘s Attorney]: Two years before they fired you?
[Dr. Flomenbaum]: No. Two years before I left.
[State‘s Attorney]: Well, didn‘t the [S]tate of Massachusetts tеrminate you, Doctor?
[Dr. Flomenbaum]: The governor did. Yes, he did.
State v. Bumgarner-Ramos, No. WMM-CR13-0151026-T (Conn. Super. Ct. May 11, 2016).
[¶18] Although we have said that “falsifying testimony is . . . probative of whether someone has a truthful or untruthful character,” the above exchange cannot be construed in any sense as falsification of testimony. See Almurshidy, 1999 ME 97, ¶ 30 n.6, 732 A.2d 280. Dr. Flomenbaum appears to have simply disagreed with the characterization that he was fired but, more importantly, he also acknowledged—in his very next answer—that his employment was indeed terminated. Bumgarner-Ramos, No. WMM-CR13-0151026-T. Even considering Dr. Flomenbaum‘s importance to the State‘s case, this instance of his conduct completely lacks any relevance or probative value regarding his charactеr for truthfulness. See State v. Ericson, 2011 ME 28, ¶ 20, 13 A.3d 777; Almurshidy, 1999 ME 97, ¶ 30 n.6, 733 A.2d 280.
[¶19] Coleman next points to the judge‘s finding, in the same Connecticut case, that Dr. Flomenbaum‘s “testimony [was] not credible and [that the court] rejects Dr. Flomenbaum‘s conclusions [concerning the cause
[¶20] It is not clear that the Connеcticut court‘s finding regarding Dr. Flomenbaum‘s testimony would be admissible in this case according to Cedeño,4 which is distinguished from these facts by the judicial finding at issue there, i.e., a determination that the witness had lied under oath in a previous case. 544 F.3d at 81, 83. Furthermore, several of the cases cited in Cedeño specifically differentiate between a finding that a witness had lied or was not credible and a court finding the “defense witnesses more credible than the
[¶21] We note also that the overarching, bright-line rule of
2) Dr. Flomenbaum‘s Prior Employment Termination
[¶22] Coleman next argues that the reasons for Dr. Flomenbaum‘s removal as Massachusetts Chief Medical Examiner—that according to the Massachusetts Supreme Judicial Court decision included his administrative shortcomings and lack of candor with his superiors5—are also specifiс instances of Dr. Flomenbaum‘s conduct that are probative of his character for truthfulness. Coleman postulates that Dr. Flomenbaum‘s termination from his prior employment may provide a motive or bias on Dr. Flomenbaum‘s part to please the Attorney General‘s Office and thereby secure his continued employment in Maine‘s Office of the Chief Medical Examiner, which is a division within the Office of the Attorney General. Coleman contends that, “[g]iven the importance of Dr. Flomenbaum, his testimony, and his credibility,” this bias was another proper avenue for cross-examination and
[¶23] If Dr. Flomenbaum‘s administrative capabilities are relevant to his collection and supervision of the sexual assault kit evidence, then it was error for the court to exclude this impeachment evidence unless its probative value was substantially outweighed by the risks of unfair prejudice or confusion of the jury and the issues before it.
[¶24] Evidence of Dr. Flomenbaum‘s administrative shortcomings and lack of candor with his superiors when he was the Chief Medical Examiner in another state are relevant to his performance of his administrative duties as
[¶25] We must next decide whether the court‘s error in limiting cross-examination of a state‘s witness was harmless based upon “the importance of the witness‘[s] testimony in the prosecution‘s case, whether the testimony was cumulative, the presence or absence of evidence corroborating
[¶26] In sum, we conclude that the circumstances surrounding Dr. Flomenbaum‘s termination from his employment in Massachusetts due to his administrative shortcomings and lack of candor are arguably probative of his ability to supervise and process the taking of forensic samples and could have tempered the jury‘s view of his administrative skill and candor in his work in Maine. See York, 933 F.2d at 1365-66; Filler, 2010 ME 90, ¶¶ 17-20, 3 A.3d 365. Although the court erred by finding that this impeachment evidence was not at all relevant in this case and by precluding any related
B. Prosecutorial Misconduct
[¶27] We review preserved claims of prosecutorial misconduct for harmless error. State v. Pillsbury, 2017 ME 92, ¶ 18, 161 A.3d 690; State v. Dolloff, 2012 ME 130, ¶¶ 31-34, 58 A.3d 1032. According to this standard, we disregard “[a]ny error, defect, irregularity, or variance that does not affect substantial rights.”
[¶28] The State used these terms in its opening statement, as the Chief Medical Examiner did, to accurately describe where the evidence of a sexual aсt was found—inside the labia majora and external to the hymen, not from deeper within the victim‘s vagina, as Coleman claims the prosecutor said.8 The State‘s opening statement, which was preceded and followed by the court‘s admonitions that the opening statements were not evidence, was free of any misconduct and was “fairly based on the facts [anticipated] in evidence.” State v. Cote, 2017 ME 73, ¶ 27, 159 A.3d 831 (quotation marks omitted); State v. Lockhart, 2003 ME 108, ¶¶ 47-49, 830 A.2d 433.
C. Sufficiency of the Evidence of Gross Sexual Assault
[¶29] Next, Coleman contends that there was insufficient evidence supporting his conviction for gross sexual assault, namely that there was not proof beyond a reasonable doubt of direct genital-to-genital contact or prоof that the victim was alive at the time that such contact occurred. See
[¶30]
D. Chain of Custody of the Sexual Assault Kit
[¶31] Coleman next asserts that the court erred by finding that the State had established a proper chаin of custody of the sexual assault kit, which was stored under unknown conditions at the Medical Examiner‘s Office from the afternoon of December 22 until 10:00 a.m. on December 24, 2014. We review for clear error a finding that an item of physical evidence has been authenticated by a sufficient chain of custody. Diana, 2014 ME 45, ¶¶ 26-27, 89 A.3d 132; see
E. Sentencing
[¶32] Coleman finally argues for the first time on appeal that we should adopt a clear and convincing standard of proof for aggravating factors considered at sentencing. He contends that the sentencing court abused its discretion in considering as aggravating factors, upon a less than clear and convincing quantum of proof, his prior domestic violence against the mother and the victims’ conscious fear and suffering. Where a challenge to the court‘s application of a standard of proof at sentencing is unpreserved, we review the court‘s actions for obvious error. See State v. Butsitsi, 2015 ME 74, ¶¶ 19, 22, 118 A.3d 222; State v. Schofield, 2005 ME 82, ¶ 28, 895 A.2d 927. As Coleman acknowledged in his brief, we have instructed sentencing courts to consider any “reliable and relevant” evidence of mitigating or aggravating factors. State v. Waterman, 2010 ME 45, ¶ 48, 995 A.2d 243. This is precisely what the court did in Coleman‘s case, and we decline to announce a new standard.
[¶33] Considering the sentence that the court imposed, we review the court‘s application of the first step of the sentencing analysis—the determination of a basic sentence—de novo and we review the court‘s second
The entry is:
Judgment and sentences affirmed.
Jeremy Pratt, Esq. (orally), and Ellen Simmons, Esq., Camden, and Logan E. Perkins, Esq., Perkins Law Office, Belfast, fоr appellant Keith Coleman
Janet T. Mills, Attorney General, and Donald W. Macomber, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine
Penobscot County Unified Criminal Docket docket number CR-2014-4662
FOR CLERK REFERENCE ONLY