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State v. Tomah, attorneys and footnotes
Attorneys for the State: Andrew Ketterer, Attorney General Fernand R. LaRochelle, Asst. Atty. Gen. Donald Macomber, Asst. Atty. Gen. (orally) State House Station 6 Augusta, ME 04333 Attorney for the defendant: Paul F. Macri, Esq. (orally) Berman & Simmons, P.A. P O Box 961 Lewiston, ME 04243-0961
FOOTNOTES******************************** {1} . Title 17-A M.R.S.A. § 201(1)(A) provides, "A person is guilty of murder if . . . [h]e intentionally or knowingly causes the death of another human being . . . ." {2} . Title 17-A M.R.S.A. § 651 provides, 1. A person is guilty of robbery if he commits or attempts to commit theft and at the time of his actions: . . . D. He intentionally inflicts or attempts to inflict bodily injury on another; or E. He or an accomplice to his knowledge is armed with a dangerous weapon in the course of a robbery as defined in paragraphs A through D. {3} . According to Dr. Henry Ryan, the Chief Medical Examiner, the victim's jaw, nose, and facial bones were fractured and his face, head, hands, legs, and back contained many abrasions and lacerations. Brain tissue was seeping through fractures in his skull. In Dr. Ryan's opinion, the injuries were inflicted with a fist as well as with a steel weapon such as a tire iron. The cause of death was blunt head injury. {4} . The court's denial of Tomah's motion to continue was within its discretion. See State v. Dechaine, 572 A.2d 130, 132 (Me. 1990). {5} . M.R. Evid. 803 provides: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . . (6) Records of Regularly Conducted Business. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regular conducted business, and if it was the regular practice of that business to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. . . . {6} . A proponent of a business record must show, through the testimony of a qualified witness, that: (1) the record was made "at or near the time" of the events reflected in the record by, or from information transmitted by, a person with personal knowledge of the events recorded therein; (2) the record was kept "in the course of a regularly conducted business"; (3) it was the regular practice of that business to make records of the type involved; and (4) no lack of trustworthiness is indicated from the source of information from which the record was made or the method or circumstances under which the record was prepared. State v. Hager, 691 A.2d 1191, 1193 (Me. 1996) (citations omitted). {7} . The first trial resulted in a hung jury. See Therriault, 485 A.2d at 989. {8} . The four to three majority opinion in Therriault has been subject to substantial criticism: The ruling, from which three justices dissented, is a troublesome one. The Maine State Police Crime Laboratory is a public agency. The public records exception, Rule 803(8), specifically excludes 'investigative reports by police and other law enforcement personnel.' It is hard to logically justify how terming the activity of the Maine State Police Crime Laboratory as a 'regularly conducted business' should lead to a different result. It appears that the majority of Therriault has sought to create a new exception to the hearsay rule for governmental investigative reports when offered by the defendant. The question remains, however, whether or not it would have been preferable to have amended Rule 803(8) rather than attempt to find this exception within the language of Rule 803(6). Field & Murray, Maine Evidence § 803.6 at 436-37 (4th ed. 1997); see Therriault, 485 A.2d at 998-99 (Wathen, J., dissenting). {9} . The State contends that Tomah did not preserve his objection to the manslaughter charge. Although Tomah's objection to the instruction could have been clearer, the trial court was aware of Tomah's prior expressed reservations about the manslaughter instruction, and informed Tomah that it was giving the instruction irrespective of Tomah's position because both the State and Chesnel requested the instruction. {10} . Although Tomah testified that he was afraid of Chesnel, he also testified that when Chesnel asked him to clean up the blood, he refused to assist Chesnel and threw the towel Chesnel gave him onto the floor. {11} . See State v. Williams, 388 A.2d 500, 504 (Me. 1978); cf. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999) (addressing generally application of Rule 702 of the Federal Rules of Evidence).

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