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State v. Joe-Pete Saucier
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:	2001 ME 107
Docket: 	Cum-00-540
Argued:  	May 15, 2001
Decided:	July 18, 2001

Panel: 	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.




STATE OF MAINE v. JOE-PETE SAUCIER


CALKINS, J.

	[¶1]  Joe-Pete Saucier appeals from the judgment entered in the
Superior Court (Cumberland County, Delahanty, J.) following a jury trial in
which Saucier was found guilty of manslaughter (Class A), 17-A M.R.S.A.
§ 203(1)(A) (Supp. 2000).{1}  Saucier argues the court should have granted
his motion for a change of venue and that the court erred in its jury
reinstructions on the presumption of innocence and on manslaughter.  He
further argues that evidence of causation was insufficient.  We affirm the
judgment.
I. FACTS
	[¶2]  Brandi Butterfield died on December 12, 1999, from drowning
in the Nonesuch River in Scarborough.  Her body was located under the bed
of a pick-up truck which had been driven off an embankment and which was
found overturned in the river.  Earlier that evening Butterfield met Saucier
for the first time.  Saucier was with Butterfield's friends when Butterfield
joined the group at a restaurant.  After leaving the restaurant, the group
stopped at a residence in Old Orchard Beach where Saucier's pick-up truck
was parked, and Butterfield then accompanied Saucier in his truck.  
	[¶3]  Saucier drove his truck with Butterfield in the passenger seat. 
An Old Orchard Beach police officer began following the truck because it
exceeded the speed limit.  The police officer turned on his blue lights and
siren for the purpose of stopping Saucier's truck, but Saucier did not stop,
and a high speed chase ensued.  At times the truck's speed was eighty
miles-per-hour.  The truck momentarily stopped when it became stuck near
railroad tracks.  Before the officer could reach it, the truck was backed out
of its location.  The truck continued traveling down a railroad bed, and the
police officer lost sight of it.  Moments later, however, a Scarborough police
officer, whose dispatcher had alerted him about the chase, saw Saucier's
truck after it turned from the railroad tracks onto a road.  The Scarborough
officer followed the truck on a paved road, and he saw it crash through a
gate which separated the paved portion of the road from the dirt portion. 
After breaking through the gate, the truck continued down the rough dirt
road.  The Scarborough officer saw the truck drive up an earthen barrier,
become airborne, and disappear.  The truck had gone into the Nonesuch
River where it landed upside down.  
	[¶4]  Saucier was able to get out of the truck, and he yelled for help. 
As the Scarborough officer reached the point where the truck had gone into
the river, Saucier said that someone was still in the truck.  When the officer
asked where in the truck the other person was, Saucier replied:  "Well, she
was driving."
	[¶5]  Butterfield's body was retrieved from under the truck. 
Resuscitation efforts failed.  The medical examiner later determined that
the cause of death was drowning.  Saucier was charged with manslaughter,
operating a motor vehicle after having been declared an habitual offender,
and eluding a police officer.
	[¶6]  At trial, the State's theory was that Saucier had been driving
throughout the high speed chase including at the time the truck went into
the river.  The forensic evidence supported this theory in that fibers
consistent with Saucier's shirt were imprinted on the steering wheel, and
fibers consistent with Butterfield's jacket were found on the passenger side
of the windshield.  Photos of Saucier taken two days after the incident
showed a large bruise on his chest consistent with having slammed into a
steering wheel.  
	[¶7]  Saucier's version was that after the chase started he and
Butterfield traded positions in the truck, and she was driving at the time the
truck went into the river.  Saucier gave a statement to the police after the
incident, which was read into evidence.  According to Saucier's statement,
he told Butterfield he would be arrested because he did not have a license,
and she offered to switch places with him.  Somewhere near the railroad
tracks, they changed places, and Butterfield began driving.  He asked her to
keep going because he was afraid he would get arrested anyway.  Butterfield
asked him what to do when they encountered a gate at a dirt road, and
Saucier told her to drive through it.
	[¶8]  After four days of trial and several hours of deliberation, the jury
returned a guilty verdict on all counts.{2}
II. DENIAL OF MOTION FOR CHANGE OF VENUE
A.	The Pretrial Publicity

	[¶9]  Two months before trial, the State and Saucier reached a plea
agreement.  The court (Cole, J.) rejected the agreement on June 22, 2000. 
The local television stations and print media covered the plea proceeding. 
Saucier then moved to change venue to another county on the ground that
an impartial jury could not be ensured because of the pretrial publicity.  The
motion was supported by copies of five articles and one editorial from the
Portland Press Herald; four articles from the Biddeford Journal Tribune; and
three articles from the Lewiston Sun Journal.  No affidavits accompanied the
motion, but the motion alleged that four local television stations broadcast
stories about the failed plea agreement on both the evening and late night
newscasts on June 22.  In addition, two stations carried the news on their
early morning news programs on June 23.    
	[¶10]  Of the twelve newspaper articles, seven are dated
mid-December 1999, and cover the death of Butterfield.  They are straight
forward accounts of the incident.  They emphasize that Butterfield had not
known Saucier previously and that Saucier was driving even though his
license had been suspended previously several times.  The editorial from the
Portland paper is dated December 15, 1999, and it urges Maine judges to
jail habitual offenders "to keep dangerous people like Joe Pete Saucier from
driving."  A month later, a brief account of Saucier's indictment appeared in
the Portland paper.
	[¶11]  Another brief article in the Portland paper, dated June 3, 2000,
reports that the State and Saucier had reached an agreement which would
be presented to the court on June 22.  The remaining three articles, one
from each of the three newspapers, are dated June 23 and 24 and concern
the failed plea agreement.  Only the Biddeford paper printed this
development on the front page.  The gist of the three articles is that Saucier
was to enter a guilty plea in exchange for a recommendation from the State
that he be sentenced to seven years, but when the judge indicated that
seven years was not sufficient, the deal collapsed.  These June news stories
briefly summarize the incident and quote or paraphrase both the prosecutor
and Saucier's counsel.

B.	Jury Selection

	[¶12]  Jury selection took place on August 25, 2000.  Ninety-one
potential jurors appeared for voir dire.  The members of the jury panel were
asked if they had seen or read any publicity concerning the case the
previous December or January.  Those who answered affirmatively were
asked individually whether they recalled any of the details of the news
stories and whether they had formed an opinion about the case from the
publicity.  The court denied Saucier's request to excuse all members of the
jury panel who indicated they had seen or read the news stories.  The twelve
members of the panel who indicated they had formed an opinion on the
basis of the publicity were excused for cause.  Other members of the panel
were excused for cause on other grounds.  The court informed the
remaining members of the panel that there had been news accounts of the
court proceedings in the case as recently as a month ago, and the court
inquired if anyone had heard or read about the case through news accounts
published or broadcast after the initial news stories.  None of the members
of the jury panel responded in the affirmative.  
	[¶13]  Following additional voir dire and challenges for cause, the
panel was narrowed to forty-three members from which thirty-two names
were drawn to obtain a jury of twelve members and two alternates.  Before
the names were drawn, Saucier renewed his motion for a change of venue
which the court denied.  Of the fourteen people selected for the jury,
including the alternates, only three had responded affirmatively when asked
about the December and January publicity.  These three had read about the
matter in the Portland newspaper and two had seen something on
television.  When asked individually if they had formed an opinion about the
case, they all responded that they had not.  When asked individually if they
could be impartial, they all said that they could.  When asked individually if
they would be able to base their decision only upon the evidence presented
at trial, they all answered affirmatively.

C.	Motion for Change of Venue

	[¶14]  We review a trial court's denial of a motion for a change of
venue for an abuse of discretion.  State v. Chesnel, 1999 ME 120, ¶ 6, 734
A.2d 1131, 1134.  A change of venue based upon pretrial publicity is
required in two circumstances.  The first is a situation of presumed
prejudice, and the second is actual prejudice.

	1.	Presumed Prejudice

	[¶15]  Where the publicity is so extensive and pervasive or so taints
the atmosphere of the trial we will presume that an impartial jury in that
location is not possible.  Id. ¶ 5.  "Prejudice is presumed when the
defendant demonstrates that the pretrial publicity has the 'immediacy, the
intensity, or the invidiousness sufficient to arouse general ill will and
vindictiveness against the accused at the time of jury selection.'"  State v.
Cochran, 2000 ME 78, ¶ 21, 749 A.2d 1274, 1280 (quoting Chesnel, 1999
ME 120, ¶ 7, 734 A.2d at 1134-35). 
	[¶16]  Saucier did not request an evidentiary hearing on the motion to
change venue, and none was held.  The court denied the motion without
prejudice.  Saucier argues the court prevented him from demonstrating
presumed prejudice because it did not hold a hearing on his motion.  The
purpose of an evidentiary hearing on a motion for change of venue is to allow
the court to resolve any disputed factual issue concerning the motion.  See
State v. Pritchett, 302 A.2d 101, 103  n.1 (Me. 1973).  The State does not
appear to have disputed the nature or contents of the pretrial publicity.  The
rule governing motions for change of venue, M.R. Crim. P. 21, does not
require a hearing on such motions.  On the basis of what was presented to it,
the Superior Court was in a position to make a determination on the motion
without holding an evidentiary hearing.  
	[¶17]  The newspaper articles presented by Saucier, and the radio and
television broadcasts as described by Saucier in his motion, are not so
extensive or invidious that they require a court to presume prejudice.  As
indicated above, most of the articles were straight forward accounts of the
tragedy and appeared nine months before trial.  Only the editorial could be
considered as rhetoric or argument written to persuade, and it is directed
at judges.  It, along with the December news accounts, lacks immediacy. 
	[¶18]  The June newspaper articles, taken together with the fact that
there were also television news accounts of the failed plea agreement, do
not amount to that level of saturation or invidiousness that requires a
presumption of prejudice.  The newspaper reports are balanced and hardly
so extensive as to permeate the communities with a sense of outrage,
vindictiveness, or ill will toward Saucier such that finding a truly impartial
jury would be impossible.  It also must be remembered that the jury was
chosen from people in Cumberland County, not Androscoggin County where
the Lewiston paper appears, nor York County where the Biddeford paper is
published.  
	[¶19]  The court did not abuse its discretion in refusing to conclude
that the pretrial publicity required a presumption of prejudice.  The court
acted appropriately in acknowledging that Saucier could renew the motion
to change venue at the time of jury selection.

	2.	Actual Prejudice

	[¶20]  The second situation in which a change of venue is required is
that of actual prejudice, that is, when it is demonstrated that it was not
possible to select an impartial jury.  Chesnel, 1999 ME 120, ¶ 8, 734 A.2d at
1135.  The focus in determining actual prejudice is "the impartiality of the
available panel members," id. ¶ 6, 734 A.2d at 1134, and not whether jurors
are totally ignorant of the facts and issues involved, State v. Coty, 229 A.2d
205, 211 (Me. 1967) (citing Irvin v. Dowd, 366 U.S. 717, 721 (1961)).  
	[¶21]  As indicated above, individual voir dire of the potential jurors
who said that they had been exposed to the publicity was conducted.  Each
juror who had formed an opinion was excused for cause.  All others stated
that they had not formed an opinion and would be impartial.  The court was,
in fact, able to select an impartial jury; the jury panel from which the jurors
were chosen had not become biased because of the publicity.  Saucier failed
to show actual prejudice.  The court did not abuse its discretion in denying
the motion for change of venue.
III. JURY INSTRUCTIONS
	[¶22]  After the jury had been deliberating for some time, it submitted
a note asking the court for a "legal definition of doubt and beyond a
reasonable doubt," and whether Saucier could be guilty of manslaughter
"because Saucier created a situation that ultimately resulted in the death of
someone."  After conferring with counsel, the court recessed and then
presented counsel with copies of written instructions that it intended to
submit to the jury.  Saucier did not object to the reasonable doubt
reinstruction but he did object to the manslaughter reinstruction.
	[¶23]  When we review jury instructions, we review them "as a whole,
taking into consideration the total effect created by all the instructions and
the potential for juror misunderstanding."  State v. Cote, 462 A.2d 487, 490
(Me. 1983).

A. 	Reinstruction on Reasonable Doubt

	[¶24]  The court's written reinstruction on reasonable doubt provided
to the jury begins with the following two sentences:
The law presumes a defendant to be innocent.  Thus, a
defendant, although accused, begins the trial with a "clean
slate"-with no evidence against him.
	[¶25]  When the judge orally stated the reinstruction to the jury, he
misspoke but immediately corrected himself.  With respect to the above two
sentences, he said:
And as I previously instructed you, ladies and gentlemen, the law
presumes a defendant in any criminal case to be innocent.  Any
defendant, although accused, technically begins-or actually
begins a trial with a clean slate, that is no evidence at all against
him.
	[¶26]  After the court had completed the reinstruction session and the
jury had been sent to resume deliberations, Saucier pointed out that the
judge had used the word "technically."  Saucier said the use of the word was
prejudicial, but he made no request of the court.  Reviewing the court's
instructions on reasonable doubt as a whole, including the first time the
court gave the reasonable doubt instruction, the written reinstruction, and
the court's own immediate correction, we cannot find that the court's
mistaken use of the word "technically" amounts to prejudicial error.

B.	Reinstruction on Manslaughter

	[¶27]  In its reinstruction on manslaughter, the court orally stated:
You may consider all of the facts in evidence to consider
whether or not the State has proven these elements [of
manslaughter] beyond a reasonable doubt, including conduct of
the defendant while operating or not operating the vehicle.  By
conduct, ladies and gentlemen, what we mean are any acts done
by the defendant or things that the defendant may have said.
When the jury had been instructed on manslaughter at the close of the
evidence, the instruction did not contain the above language.  Saucier timely
objected to the reinstruction. 
	[¶28]  Saucier argued that the reinstruction allowed the jury to convict
him of manslaughter even if it found that he had not been driving the truck
at the time it went into the river.  He is correct that the jury was
reinstructed that it could find Saucier guilty of manslaughter even if he had
not been driving at the time of Butterfield's death.  Indeed, it is not
essential, in a manslaughter case involving a death in a motor vehicle
accident, for the State to prove that the defendant was operating the vehicle
at the time of the death.  The essential elements of manslaughter are the
death of a human being caused by the defendant acting recklessly or with
criminal negligence.  17-A M.R.S.A. § 203(1)(A).  As long as the State proved
to the jury, beyond a reasonable doubt, that Saucier's conduct caused
Butterfield's death and that in causing her death, Saucier's conduct was
reckless, or he acted with criminal negligence, Saucier is guilty of
manslaughter.  If the jury concluded that Butterfield was driving the truck at
the time it went into the river, it could nonetheless have found that Saucier
was guilty of manslaughter as long as it concluded that he caused her death
by acting recklessly or with criminal negligence.  
	[¶29]  Here the instructions, taken as a whole, correctly instructed
the jury that Saucier could not be convicted unless the jury found, beyond a
reasonable doubt, that Butterfield's death was caused by Saucier and that
Saucier's conduct was reckless or he acted with criminal negligence.  The
court's reinstruction on manslaughter fairly stated the law.
	[¶30]  When Saucier objected to the manslaughter reinstruction, he
requested that, if the instruction was given, a causation instruction be given
as well.  He specifically referred to the causation definition in the Criminal
Code.  17-A M.R.S.A. § 33 (1983).  The court agreed that it would give a
"standard causation instruction," and defense counsel did not object to the
causation instruction given to the jury.  The court orally instructed the jury
on causation as follows:
[T]he State must prove that it was the defendant who caused the
defendant's [sic] death.  Unless otherwise provided, when
causing a result is an element of a crime, as it is here, causation
may be found where the result would not have occurred but for
the conduct of the defendant, operating either alone or
concurrently with another cause, unless the concurrent cause
was clearly sufficient to produce the result and the conduct of 
the defendant was clearly insufficient.  So, in other words the
State must prove to you beyond a reasonable doubt that but for
the conduct of the defendant Brandi Butterfield would not be
dead.
Except for the first and last sentences, this instruction is essentially the text
of section 33.  The court had not given the causation instruction initially.  
	[¶31]  The specific objection to the causation instruction which
Saucier raises now, but which he did not articulate at the trial, is that the
instruction is incomplete because the court should have explained further
how the causation instruction should be applied to the facts of the case. 
Saucier's objection is without merit.  While the court could have rephrased
the causation statute in more concrete terms using the names of the
defendant and the decedent, the court was not required to do so.  We
understand the time pressures upon a trial court which feels compelled to
answer a jury's question as quickly as possible and answer it correctly.  As
long as the causation instruction is correct and fairly apprises the jury, we
will not require the court to further amplify it. 
IV. SUFFICIENCY OF THE EVIDENCE
	[¶32]  Saucier also contends that the evidence was insufficient to
convict him of manslaughter.  He argues that insofar as the State was
attempting to prove manslaughter, even if he was not driving at the time the
truck plunged into the water, there was insufficient evidence that he caused
Butterfield's death.
	[¶33]  On the one hand, there was evidence from which the jury could
have found, beyond a reasonable doubt, that Saucier was driving at the
crucial point.  There was also sufficient evidence that, if Butterfield was
driving, Saucier spurred her to elude the police by driving at a high speed
and to crash through a gate.  This evidence was in Saucier's own words,
from the statement he gave to the police after the incident.  Saucier's
description of the chase, in addition to the other evidence concerning it,
was sufficient for a jury acting rationally to conclude that Butterfield's death
would not have occurred but for Saucier's conduct in prodding her to drive
at a high rate of speed at night on a rough dirt road and in telling her to
crash through a gate.  The evidence was also sufficient to allow the jury to
find, if it found that Butterfield was driving, that Saucier's conduct in
initially speeding away from the police, creating an atmosphere of anxiety
and urgency, and then urging her to elude the police and drive through the
gate was reckless or with criminal negligence. 
	The entry is:
			Judgment affirmed.
             
Attorneys for State: Stephanie Anderson, District Attorney Julia Sheridan, Asst. Dist. Atty., (orally) 142 Federal Street Portland, ME 04101 Attorney for defendant: Clifford B. Strike, Esq., (orally) Strike & Gordon 400 Allen Avenue Portland, ME 04103
FOOTNOTES******************************** {1} . Saucier was also found guilty of habitual motor vehicle offender (Class C), 29-A M.R.S.A. § 2557 (1996 & Supp. 2000), and eluding an officer (Class C), 29-A M.R.S.A. § 2414(3) (1996), but his appeal is limited to the manslaughter conviction. {2} . The court sentenced Saucier to twenty years for manslaughter, five years for habitual offender, and five years for eluding an officer, to be served concurrently with all but fourteen years suspended, and six years of probation. This sentence was ordered to be served consecutively to a sentence for a probation violation.