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State v. Pineo
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MAINE SUPREME JUDICIAL COURT					                                    Reporter of Decisions
Decision:    2002 ME 93
Docket:		Cum-01-707
Argued:		April 2, 2002
Decided:	June 7, 2002

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


STATE OF MAINE

v.

ROBERT PINEO


CALKINS, J.
	[¶1]  Robert Pineo appeals from a judgment of conviction of two counts of
aggravated assault (Class B), 17-A M.R.S.A. § 208 (1983), one count of
aggravated OUI (Class C), 29-A M.R.S.A. § 2411(6) (Supp. 2001), and two
counts of driving to endanger (Class E), id. § 2413 (1996), entered after a jury
trial in Superior Court (Cumberland County, Cole, J.).  Pineo challenges the
admissibility of a blood-alcohol test and the imposition of multiple convictions
and consecutive sentences.  We modify the judgment to correct one minor error
and affirm as modified.

                                             I.  BACKGROUND

	[¶2]  On the night of August 21, 2000, Robert Pineo was driving on the
wrong side of Broad Turn Road in Scarborough when his vehicle nearly collided
with three other vehicles.  He then drove his pick-up truck head-on into a car
driven by Sarah Buckingham, causing injuries to her, including a broken wrist,
and permanent injuries to her mother, Diane Buckingham.{1}  Pineo's blood-alcohol
level was 0.16%.

	[¶3]  Pineo waived indictment and was charged in a five-count
information.{2}  He filed a motion in limine to exclude the results of the
blood-alcohol test.  The court held a hearing on the motion immediately prior to
trial.  Department of Human Services chemist John Bangeman testified that he had
performed the test on Pineo's blood using a gas chromatograph, as part of a series
of tests of blood and breath samples and tests using certain controls.  He noted
some anomalies in the tests but opined that under DHS standards the anomalies
were not scientifically significant; that his tests established the absence of
contamination and the accuracy of the machine's ethyl alcohol measurement; and
that he saw nothing that would affect the integrity of that measurement.  Pineo's
expert, chemist Patrick Demers, testified that the anomalies noted by Bangeman
should have been a red flag requiring further investigation, because they could
have been caused by a problem with the machine or by some outside
contamination.  He opined that Bangeman's test of Pineo's blood was
scientifically unreliable.

	[¶4]  The court found that the test was sufficiently reliable to present to the
jury and denied the motion in limine.  At trial, the witnesses included Bangeman
for the State and Demers for Pineo.  The jury found Pineo guilty on all counts.  

	[¶5]  Before sentencing, Pineo filed a motion to dismiss the aggravated OUI
count and one driving to endanger count on double jeopardy grounds.  The court
denied the motion at the sentencing hearing.{3}  The court sentenced Pineo to ten
years imprisonment on the two aggravated assault counts, concurrent with each
other; five years imprisonment on the aggravated OUI count, consecutive to the
ten year sentence, and a license suspension of six years; and six months
imprisonment on the driving to endanger counts, concurrent with the other
sentences, and a license suspension of 180 days (consecutive to the six years).  The
court ordered the license suspensions to begin after the end of the period of
incarceration.  Pineo brought this appeal and sought leave to appeal his sentence,
which the Sentence Review Panel denied.

                                     II.  BLOOD-ALCOHOL TEST

	[¶6]  "[B]lood alcohol test results are admissible unless unreliable."  State v.
Poulin, 1997 ME 160, ¶ 13, 697 A.2d 1276, 1279.  The trial court's
determination that the results of a blood-alcohol test are sufficiently reliable to be
admitted in evidence is reviewed for clear error.  Id.; State v. Harnisch, 607 A.2d
527, 529 (Me. 1992).  Once a foundational showing of reliability has been made,
the accuracy and reliability of a test result are questions for the fact-finder.  State
v. Pike, 632 A.2d 132, 133 (Me. 1993); State v. Pickering, 462 A.2d 1151, 1156
(Me. 1983).  In making the initial reliability determination, the court can rely
solely on the testimony of the State's chemist that the result was reliable, State v.
Kennedy, 657 A.2d 773, 774 (Me. 1995), and is free to reject the contrary
testimony of the defendant's expert, Harnisch, 607 A.2d at 529.  The reliability
determination for blood-alcohol tests fits within the general standards for
application of M.R. Evid. 702, under which the trial court must decide whether
proffered expert testimony "is sufficiently reliable to be held relevant" and "will
assist the trier of fact to understand the evidence or to determine a fact in issue." 
State v. Williams, 388 A.2d 500, 504 (Me. 1978).
	
[¶7]  In light of these standards, the court did not clearly err in finding
Pineo's blood test reliable.  Bangeman testified that he performed the test
according to DHS standards, just as he had done thousands of times before, and
opined that the anomalies were not scientifically significant and the test was
reliable.{4}  Demers did not dispute Bangeman's compliance with DHS standards
but contended that the anomalies made the test unreliable.  The court was free to
reject Demers's opinion or, at least, to conclude that the State had made a
sufficient foundational showing of reliability, so that Demers' criticisms went to
the weight, not the admissibility, of the evidence. 

                                                       III.  DOUBLE JEOPARDY

	[¶8]  Pineo contends that the Double Jeopardy Clause of the Maine
Constitution, Article I, Section 8, precludes his convictions for aggravated OUI
and one count of driving to endanger when he was also convicted of aggravated
assault for the same conduct, viz. drunkenly smashing his truck into the
Buckinghams' car and causing serious injuries.

	[¶9]  As we have held numerous times, the right to be free from double
jeopardy under the Maine Constitution is coextensive with the right under the U.S.
Constitution.  E.g., State v. Jordan, 1998 ME 174, ¶ 7, 716 A.2d 1004, 1005-06;
State v. Wilson, 671 A.2d 958, 960 (Me. 1996).


The Maine courts apply the same test applied by the United States
Supreme Court to determine whether two offenses are the same for
double jeopardy purposes: the same act can be punished under two
different statutory provisions as long as a conviction under each
provision requires proof of a factual element that the other does not.
This test may be satisfied notwithstanding a substantial overlap in the
proof offered to establish the crimes.


State v. Davis, 580 A.2d 163, 164 (Me. 1990) (citations omitted); accord United
States v. Dixon, 509 U.S. 688, 704 (1993); Blockburger v. United States, 284
U.S. 299, 304 (1932).  Thus in Davis, and again in State v. Poulliot, 1999 ME
39, ¶ 11, 726 A.2d 210, 213, we held that the defendant could be convicted of
both aggravated assault and attempted murder based on a single criminal act of
shooting a victim.  The same rule applies here: Pineo could be convicted of
multiple crimes for the same act because aggravated assault, aggravated OUI, and
driving to endanger each require proof of a factual element that the others do not. 
Aggravated assault{5} requires proof of intentional, knowing or reckless conduct
which is not true for either aggravated OUI or driving to endanger; aggravated
OUI{6} requires operating a motor vehicle while under the influence of intoxicants,
an element not required for either aggravated assault or driving to endanger; and
driving to endanger{7} requires proof of operating a motor vehicle with criminal
negligence in a manner endangering property or people, not required for either
aggravated assault or aggravated OUI.

	[¶10]  Pineo admits that this conclusion is correct as a matter of federal
constitutional law but argues that we recognized greater protections under the
Maine Constitution in State v. Robinson, 1999 ME 86, ¶¶ 12-14, 730 A.2d 684,
687.  Contrary to Pineo's contention, nothing in Robinson indicates that we
intended to depart from our long-standing view that the Maine and United States
Constitutions provide identical protections against double jeopardy.  Pineo's
multiple convictions did not violate the State or Federal Double Jeopardy Clause.

                             IV.  CONSECUTIVE SENTENCES

	[¶11]  Pineo challenges the consecutive sentences he received on the
aggravated assault and aggravated OUI counts.  He does not argue that the court
exceeded the bounds of its discretion because the seriousness of his criminal
conduct and criminal record did not justify imposing consecutive sentences
pursuant to 17-A M.R.S.A. § 1256(2)(D) (1983).  That argument could be raised
only in a sentence appeal pursuant to 15 M.R.S.A. § 2151 (Supp. 2001).  See
State v. Weeks, 2000 ME 171, ¶ 11, 761 A.2d 44, 47.  Instead, Pineo contends
that the consecutive sentences violated the specific prohibition of 17-A M.R.S.A.
§ 1256(3)(B) (1983).  The imposition of consecutive sentences in violation of
section 1256(3)(B) is an illegality that can be raised on direct appeal.  State v.
Mahan, 1998 ME 143, ¶¶ 1 n.3, 8, 711 A.2d 1314, 1315-16.	 

	[¶12]  Section 1256(3) provides in pertinent part: "A defendant may not be
sentenced to consecutive terms for crimes arising out of the same criminal episode
when: . . . B.  One crime consists only of a conspiracy, attempt, solicitation or
other form of preparation to commit, or facilitation of, the other . . . ."  Pineo
argues that his aggravated OUI facilitated his aggravated assaults against the
Buckinghams because if he had not been driving drunk, he would not have
crashed into their car and injured them.

	[¶13]  Section 1256(3)(B), like its identical predecessor 17-A M.R.S.A.
§ 1155(5)(B) (Pamph. 1978), was intended "to prevent consecutive sentences for
offenses which were committed as a part of a single course of conduct during
which there was no substantial change in the nature of the criminal objective. 
Thus we focus upon the purpose for which the defendant engaged in the criminal
conduct."  State v. Bunker, 436 A.2d 413, 419 (Me. 1981) (citation and internal
quotation marks omitted).  As the focus on criminal purpose might suggest, all of
the caselaw discussing this provision has dealt with intentional crimes.{8}  Pineo's
crimes were not intentional; he had no criminal purpose.  It follows that section
1256(3)(B) does not apply because Pineo cannot meet "the Bunker purpose test." 
State v. Tellier, 580 A.2d 1333, 1335 (Me. 1990).  

	[¶14]  This interpretation of the statute is logical for at least two reasons. 
First, as a limitation on the otherwise wide discretion of the court to impose
consecutive sentences in appropriate circumstances, section 1256(3)(B) should be
interpreted narrowly.  Second, in that section facilitation is listed along with
conspiracy, attempt, solicitation, and other preparation--all specific-intent
concepts to which the Bunker purpose test would always apply.  In that context, it
is illogical to apply a completely different test to a small subset of facilitation
cases, especially since it is not clear to us, and Pineo does not explain, what that
new test would be.  In addition, we note that Pineo never raised his section
1256(3)(B) argument before the sentencing court, denying the court the
opportunity to make factual findings on the facilitation issue.  Cf. State v.
Fleming, 644 A.2d 1034, 1035 (Me. 1994) (upholding finding of no facilitation
as not clearly erroneous).{9}

                                    V.  STAY OF LICENSE SUSPENSION

	[¶15]  The court stayed the suspension of Pineo's driver's license until he is
released from prison.  On appeal, Pineo and the State agree that the court lacked
authority to stay the suspension.  Pursuant to 29-A M.R.S.A. § 2434(4), (8)
(1996), a license suspension begins immediately on announcement of sentence,
except that the court may stay it for up to four hours for reasonable cause.  The
Legislature has not yet given the court the authority to stay a license suspension to
a later date when the defendant is sentenced to a significant period of
incarceration.  The stay authorized by 17-A M.R.S.A. § 1103(6) (Supp. 2001),
cited in the notice of suspension, applies only to persons convicted of drug
trafficking, and no other statute authorizes the stay imposed by the court.  

	The entry is:


Judgment modified to delete stay of license suspension
and, as modified, affirmed.


Attorneys for State:

Stephanie Anderson, District Attorney
Julia Sheridan, Asst. Dist. Atty.   (orally)
142 Federal Street
Portland, ME 04101

Attorney for defendant:

Edmond Folsom, Esq.   (orally)
The Boulos Law Firm
P O Box 856
Saco, ME 04072
FOOTNOTES******************************** {1} . Diane Buckingham's injuries included a shattered jaw, two shattered wrists, a leg broken in three places, loss of hearing, and permanently impaired vision. She was in an induced coma for several days and was hospitalized for six weeks. She had numerous surgeries and faces the prospect of several more. Because of multiple permanent disabilities, she may never be able to return to work. {2} . Count 1 charged Pineo with aggravated assault by causing serious bodily injury to Diane Buckingham. Count 2 charged aggravated assault by causing serious bodily injury to Sarah Buckingham or by causing bodily injury with the use of a dangerous weapon, that is, a vehicle. Count 3 charged aggravated OUI by alleging operating under the influence or with a blood-alcohol level of 0.16% and causing serious bodily injury to Diane Buckingham or Sarah Buckingham. Count 4 alleged driving a motor vehicle in such a manner as to endanger Diane Buckingham or Sarah Buckingham or the property of either. Count 5 alleged driving a motor vehicle in such a manner as to endanger Elizabeth Pike or her property. {3} . At the sentencing hearing, Pineo's criminal history was disclosed. He has a long string of drunk driving and driving to endanger convictions going back to the 1960s. In 1987 he was convicted of OUI, habitual offender, and three counts of aggravated assault arising from a motor vehicle accident with facts strikingly similar to the instant case. In the 1987 incident he caused an accident, resulting in serious injuries, when he crashed into a car containing a family of four while driving drunk on the wrong side of the road. The 1987 accident occurred while Pineo was out on bail having been charged with various driving offenses stemming from still another motor vehicle collision. {4} . Pineo did not object to Bangeman's testimony at trial, but the State concedes that the court's ruling on the motion in limine was sufficiently final that his objection was preserved for appeal. See M.R. Evid. 103(c). {5} . Title 17-A M.R.S.A. § 208(1) provides in pertinent part: A person is guilty of aggravated assault if he intentionally, knowingly, or recklessly causes: A. Serious bodily injury to another; or B. Bodily injury to another with use of a dangerous weapon . . . . {6} . Title 29-A M.R.S.A. § 2411 provides in pertinent part: 1. Offense. A person commits OUI, which is a Class D crime unless otherwise provided, if that person operates a motor vehicle: A. While under the influence of intoxicants; or B. While having a blood-alcohol level of 0.08% or more. . . . . 6. Aggravated punishment category. An operator commits a Class C offense if the State pleads and proves that the operator, while operating a motor vehicle in violation of this section: A. In fact caused serious bodily injury . . . to another person . . . . {7} . Title 29-A M.R.S.A. § 2413(1) provides in pertinent part: "A person commits a Class E crime if, with criminal negligence . . . , that person drives a motor vehicle in any place in a manner that endangers the property of another or a person . . . ." {8} . See State v. Mahan, 1998 ME 143, ¶ 9, 711 A.2d 1314, 1317 (carrying concealed weapon did not facilitate criminal trespass, or vice versa); State v. Fleming, 644 A.2d 1034, 1035-36 (Me. 1994) (attempted murder did not facilitate gross sexual assault); State v. Tellier, 580 A.2d 1333, 1335-36 (Me. 1990) (kidnapping facilitated unlawful sexual contact but not aggravated assault); State v. Walsh, 558 A.2d 1184, 1188 (Me. 1989) (terrorizing did not facilitate rape); State v. Prentiss, 557 A.2d 619, 621 (Me. 1989) (burglary facilitated gross sexual misconduct; factors justifying consecutive sentence under section 1256(2)(D) cannot trump prohibition of 1256(3)(B)); State v. Winchenbach, 501 A.2d 1282, 1287 (Me. 1985) (burglarizing garage and stealing truck did not facilitate passing a roadblock and eluding an officer); Bunker, 436 A.2d at 419 (kidnapping facilitated rape and gross sexual misconduct). {9} . Pineo does not argue that any of the other limitations on consecutive sentences in section 1256(3) apply, and on the facts of this case any such argument would be meritless.