The opinion
STATE OF MAINE UNIFIED CRIMINAL DOCKET
KENNEBEC, ss. AUGUSTA
DOCKET NO. CD-CR-16-1233
STATE OF MAINE
v. ORDER ON DEFENDANT'S
MOTION FOR RELIEF FROM
PREJUDICIAL JOINDER
THURLOW MASON,
Defendant
This matter came before the Court on 9 / 27 / 16 with respect to the
Defendant's Motion For Relief From Prejudicial Joinder pursuant to Rule 8(d) of
the Maine Rules of Unified Criminal Procedure. Specifically, the Defendant
seeks to sever Count II of the indictment charging Defendant with OUI Class D
from Count I charging Defendant with Domestic Violence Criminal Threatening
Class C and Count III charging Defendant with Criminal Mischief, Class D. The
three offenses all occurred on the same date in Augusta, Maine. The alleged
victim in Counts I and III presumably will be called as a witness concerning
Defendant's sobriety on the night in question, whether Defendant was operating
a motor vehicle, etc., with respect to Count II.
For the reasons articulated below the Court denies Defendant's Motion
for Relief From Prejudicial Joinder:
1. On the one hand, the rule governing joinder of charges is construed
broadly, and the Law Court has held it will uphold joinder if the offenses
charged are connected in any reasonable manner. M.R.Crim. P. 8(c); State v.
Lemay, 2012 ME 86.
2. On the other hand, the Law Court has also held that the rule
permitting severance of charges for which joinder is otherwise appropriate is to
be construed liberally in order to adequately protect a defendant from undue
prejudice. Id.; M.R. Unified Crim. P. 8(c).
3. The undersigned is supposed to balance the advantages that result
from joinder--namely, judicial economy and swift resolution for the defendant-
against the potential for prejudice for the defendant. State v. Pierce, 2001 ME 14.
4. Three specific types of prejudice have been recognized resulting from a
joinder of charges: (1) the defendant may become embarrassed or confounded in
presenting separate defenses; (2) proof that the defendant is guilty of one offense
may be used to convict him of a second offense, even though such proof would
be inadmissible in a separate trial for the secon d offense; and (3) a defendant
may wish to testify in his own behalf on one of the offenses but not another,
forcing him to choose the unwanted alternative of testifying as to both or
testifying as to neither. United States v. Jordan , 112 F.3d 14 (1st Cir. 1997).
5. The ·sheer n umber of charges or the possibility of juror confusion is not
inherently prejudicial, State v. Brown, 1998 ME 129.
6. The Court finds that there is a very substantial connection between
Counts I and III and Count II. A limiting instruction can be given to the jury
that would mitigate the potential for prejudice.' See State v. Lemay, 2012 ME 86.
7. The Court also finds that Defendant has made an insufficient showing
of any of the specific types of prejudice outlined above that would justify the
Court to sever Count II from the other two Counts, and accordingly the Motion
should be, and is denied.
Date: 11 / 1/ 2016
ullen, Deputy_Chief Justice
Maine Superior Court
' See Instruction§ 6-3, Alexander, Maine Jury Instruction Manual (2014).
STATE OF MAINE UNIFIED CRIMINAL DOCKET
KENNEBEC, ss. AUGUSTA
DOCKET NO. CD-CR-16-1233
STATE OF MAINE
v. ORDER ON DEFENDANT'S
MOTION TO SUPPRESS
THURLOW MASON,
Defendant
This matter came before the undersigned on 9 /27 /16 with respect to
Defendant's Motion To Suppress filed 8/16/16. After hearing, and after the
Court has had an opportunity to review r levant case law and statutes, the Court
makes the following Findings of Fact and Conclusions of Law upon which the
Order set forth below is based:
I. Findings of Fact:
1. On or about May 29, 2016 at approximately 8:53 p.m. Officer Lowe11 of
the Augusta Police Department was dispatched to 66 Court Street in Augusta1
Maine to investigate a call concerning a possible disturbance at that address.
2. The officer was told that an occupant of the residence had "escaped"
through a window of the residence in an effort to get away from the Defendant
and had made her way to the local jail to complain.
3. Upon arrival at the residence the officer observed the Defendant sitting
in a vehicle. The Defendant was addressing. cuts on his hand. The Defendant
had bloodshot, watery eyes and his speech was slow and slurred. There was an
odor of alcohol coming from the vehicle. Defendant acknowledged that
Defendant had consumed one beer previously in the evening.
4. The officer administered the Horizontal Gaze Nystagmus test and
witnessed cues from the Defendant concerning Defendant's sobriety. The officer
also administered the so-called "one leg stand test" as well as the "heel to toe
test" to the Defendant. The Defendant's performance on these two tests also
called into question Defendant's sobriety.
5. Although it was not mentioned in the officer's report, the officer
testified at the suppression hearing that Defendant acknowledged that
Defendant had operated the motor vehicle in question. Furthermore, the officer
testified that the alleged victim had told law enforcement that Defendant had
driven to her residence earlier in the evening, was intoxicated, and then driven
away, only to drive back a second time to the residence.
II. Conclusions of Law:
6. The probable cause standard for requumg a person to take a
blood alcohol test has a very low threshold. A person is guilty of operating
under the influence if his or her senses are "impaired however slightly" or "to any
extent" by the alcohol that person has had to drink. For there to be probable
cause to arrest someone for operating under the influence, therefore, an officer
must have probable cause to believe that the person's senses are affected to the
slightest degree, or to any extent, by the alcohol that person has had to drink. A
reasonable suspicion to support probable cause can exist independent of any
evidence of ach1al impaired driving. See State v. 'Eastman, 1997 ME 39, P9, 691
A.2d 179, 182; State v. Wood, 662 A.2d 919, 920-921 (Me. 1995); State v. Webster,
2000 ME 115; State v. Morrison, 2015 ME 153.
7. Here the Defendant was behind the wheel of a motor vehicle, exhibited
classic signs of intoxication, and acknowledged drinking one beer earlier. When
performing field sobriety tests the Defendant exhibited "cues" that were
consistent with intoxication. According to the officer's testimony Defendant
admitted to operating the motor vehicle. Clearly the probable cause standard
was met.
8. Accordingly, the Defendant's Motion to Suppress is denied.
Date: 11/1/2016
BY T?ltzt ~ a
Robert E. Mullen, Deputy Chief Justice
Maine Superior Court
2