State of Maine v. Keith Coleman

MAINE SUPREME JUDICIAL COURT Reporter of Decisions

Decision: 2018 ME 41

Docket: Pen-17-35

Argued: November 15, 2017

Decided: March 22, 2018

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

STATE OF MAINE

v.

KEITH COLEMAN

MEAD, J.

[¶1] Keith Coleman appeals from a judgment of conviction for three

counts of murder, 17-A M.R.S. § 201(1)(A) (2017), and one of gross sexual

assault (Class A), 17-A M.R.S. § 253(1)(C) (2017), entered by the trial court

(Penobscot County, A. Murray, J.) following a jury trial; he also appeals his

sentences of life imprisonment on each of the murder counts. See 15 M.R.S.

§§ 2151, 2152 (2017); M.R. App. P. 20 (Tower 2016).1 Coleman argues that

the court (1) abused its discretion by limiting his cross-examination of the

State’s Chief Medical Examiner, (2) clearly erred by finding that the State had

sufficiently established the chain of custody of the sexual assault kit used

1

This appeal was filed before September 1, 2017; therefore, the restyled Maine Rules of

Appellate Procedure do not apply. See M.R. App. P. 1.

2

during the autopsy of one of the victims, and (3) applied an incorrect standard

of proof and abused its discretion in determining the facts considered at

sentencing. Coleman also asserts that there was insufficient evidence to

support the jury’s guilty verdict on the gross sexual assault charge and that

the State committed prosecutorial misconduct in its opening statement.

Although we conclude that the court abused its discretion by foreclosing

Coleman’s cross-examination of the Chief Medical Examiner concerning his

termination from his position as Chief Medical Examiner in Massachusetts,

the error was harmless in the face of the overwhelming evidence of Coleman’s

guilt. We are unpersuaded by the remainder of his arguments and affirm the

judgment and sentences.

I. FACTS

[¶2] “When viewed in the light most favorable to the jury's verdict, the

record 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

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with the victims in their home for about a year prior to their deaths but was

absent from the home when their bodies were discovered.

[¶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 needed

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 a.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

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friends in Bucksport. While messaging with his friends in Bucksport, he sent

another set of Facebook messages, telling another friend that he was “[o]n the

run for capital murder” and asking “[c]ould you send me anything to get me

to the hood.”

[¶5] During the afternoon of December 20, after repeated failed

attempts 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

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EBT card, and her purse. Coleman was interrogated that evening for five

hours by two detectives; slightly over four hours into questioning, he

admitted to “killing [the mother] and the kids.”

[¶7] On December 21 and 22, 2014, the Medical Examiner’s Office

performed the victims’ autopsies 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

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detective who had been present at the autopsy retrieved the kit and brought

it to a temporary evidence locker and, later, to the Maine State Police Crime

Laboratory for testing.

[¶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

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analyst found that a sample from the daughter’s stained shorts had too little

material for DNA analysis of the sperm or blood. The vaginal swabs contained

two DNA profiles—one obtained from skin cells, which was consistent with

the daughter, and the other from sperm cells, which was consistent with

Coleman. The DNA analyst calculated that there was a statistical possibility

of less than 1 in 300 billion that the sperm fraction profile came from someone

other than Coleman.

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. 17-A M.R.S.

§§ 201(1)(A); 253(1)(c). At his arraignment, Coleman entered pleas of not

guilty.

[¶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

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hearing Dr. Flomenbaum’s testimony and later granted the State’s motion

over Coleman’s repeated objection.2 The court found that the Connecticut

court’s credibility determination was not a specific instance of conduct

probative of a character for truthfulness. See M.R. Evid. 608(b). The court

additionally found that Dr. Flomenbaum’s removal from an administrative

position in Massachusetts was not only irrelevant to his medical findings in

an individual autopsy but also was likely to confuse, and needlessly add to,

the issues more properly before the jury; the court therefore foreclosed any

cross-examination on this issue pursuant to M.R. Evid. 403.

[¶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 M.R. App. P. 20 and 15 M.R.S. § 2151. Upon

his application, the Sentence Review Panel granted him leave to appeal from

The court referenced with approval two trial court decisions in unrelated cases that had

2

similarly limited impeachment of Dr. Flomenbaum. State v. Davis, No. AROCD-CR-2013-137 Unified

Criminal Docket (Aroostook Cty., August 29, 2016) (order granting motion in limine); State v.

Haji-Hassan, CUMCD-CR-2014-7716 Unified Criminal Docket (Cumberland Cty., August 10, 2016)

(order on motion for in camera review), appeal docketed, No. Cum-17-149 (Apr. 7, 2017).

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his sentence. State v. Coleman, No. SRP-17-60 (Mar. 13, 2017). We

consolidated our review of his sentence with his direct appeal.

M.R. App. P. 20(h).

III. DISCUSSION

A. Limitation on Coleman’s Impeachment of Dr. Flomenbaum

[¶13] Prior to trial and again at trial, Coleman sought, pursuant to

M.R. Evid. 608(b), to impeach Dr. Flomenbaum’s character for truthfulness by

inquiring on cross-examination into (1) his expert testimony in a May 2016

child death case that a Connecticut judge found was not credible and (2) his

termination as Massachusetts’s Chief Medical Examiner due to his

administrative shortcomings and lack of candor with his superiors. Coleman

made an offer of proof consisting of a letter from a Connecticut State’s

Attorney regarding a judge’s finding that Dr. Flomenbaum’s testimony was

not credible; the transcript of that testimony; a newspaper story about

Dr. Flomenbaum’s termination in Massachusetts; and the Massachusetts

Supreme Judicial Court’s opinion affirming Dr. Flomenbaum’s for-cause

termination. See Flomenbaum v. Commonwealth, 889 N.E.2d 423

(Mass. 2008). On appeal, Coleman asserts that the court committed an abuse

of discretion and violated his constitutional right to effectively cross-examine

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a witness when it denied him the opportunity to further impeach

Dr. Flomenbaum with evidence of these circumstances. See U.S. Const.

amends. VI, XIV; Me. Const. art. I, § 6; M.R. Evid. 608(b).

[¶14] We afford a trial court wide discretion in its evidentiary rulings

pursuant to M.R. Evid. 403 and 608(b) and review such rulings for an abuse

of discretion. State v. Maderios, 2016 ME 155, ¶¶ 10-11, 149 A.3d 1145; State

v. Williams, 2012 ME 63, ¶ 42, 52 A.3d 911. Rule 608(b) prohibits use of

extrinsic evidence of specific instances of a witness’s conduct, other than a

criminal conviction pursuant to M.R. Evid. 609, to attack or support that

witness’s character for truthfulness but allows a court to permit “a witness’s

credibility [to] be attacked through cross-examination on specific instances of

the witness’s prior conduct that are probative of truthfulness or

untruthfulness.” Williams, 2012 ME 63, ¶ 42, 52 A.3d 911 (emphasis added)

(citation omitted) (quotation marks omitted).

[¶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

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occurred . . . .” State v. Almurshidy, 1999 ME 97, ¶ 30, 732 A.2d 280; see Field

& Murray, Maine Evidence § 608.2 at 299 (6th ed. 2007). The limited

opportunity to inquire, on cross-examination, into specific acts by the witness

relating to the witness's character for truthfulness or untruthfulness,

however, does not open the door to the admission of extrinsic evidence

relating to those acts.3 Almurshidy, 1999 ME 97, ¶ 25 n.4, 732 A.2d 280

(“[P]ursuant to Rule 608(b)(1), extrinsic evidence . . . is not admissible.”). Nor

does the limited opportunity to inquire into specific acts on

cross-examination override our well-established rule that opinion testimony

on a particular witness’s credibility is inadmissible. See State v. Woodburn,

559 A.2d 343, 346 (Me. 1989); State v. Caulk, 543 A.2d 1366, 1372 (Me. 1988).

We now analyze each of the proffered specific instances of Dr. Flomenbaum’s

conduct in turn.

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

3 If a cross-examiner asks a question regarding a specific act, after satisfying the court that he

has a good faith basis to ask the question, and the witness denies the act, the questioner is left with

the answer and cannot offer extrinsic evidence to rebut the witness’s answer. See Field & Murray,

Maine Evidence § 608.2 at 299 (6th ed. 2007).

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witness’s credibility. See Woodburn, 559 A.2d at 346 (affirming the exclusion

of a psychologist’s expert testimony that the child victim was unable to

distinguish truth from falsehood) (citing M.R. Evid. 608(a), (b)). Coleman

contends that evidence of Dr. Flomenbaum’s responses to a Connecticut

prosecutor’s questions about his termination from Massachusetts and a

Connecticut judge’s finding that Dr. Flomenbaum’s “testimony [was] not

credible” are proper subjects for impeaching Dr. Flomenbaum’s credibility as

a witness pursuant to Rule 608(b).

[¶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.

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[State’s Attorney]: Well, didn’t the [S]tate of Massachusetts

terminate 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 character 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

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of death].” Bumgarner-Ramos, No. WMM-CR13-0151026-T (Conn. Super. Ct.

May 17, 2016). Coleman contends that this instance of Dr. Flomenbaum’s

conduct is admissible impeachment evidence on the authority of United States

v. Cedeño, where the Court of Appeals for the Second Circuit held that the

defendant should have been allowed to cross-examine a government witness

about a judge’s finding in a prior case that the witness had lied while testifying

under oath, but ultimately concluded that this error was harmless.

644 F.3d 79, 81, 82-83 (2d Cir. 2011); see Fed. R. Evid. 608(b).

[¶20] It is not clear that the Connecticut 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

4 The Second Circuit’s approach contrasts with others that allow impeachment by inquiry into

the underlying facts of a past judicial or executive branch proceeding but disallow questions about

the proceeding’s conclusions or consequences, which are extrinsic evidence. See

Fed. R. Evid. 608(b), Advisory Committee’s Note to 2003 amend.; United States v. Whitmore,

384 F.3d 836, 836-37 (D.C. Cir. 2004); United States v. Davis, 183 F.3d 231, 256, 257 n.12

(3d Cir. 1999); Deary v. City of Gloucester, 9 F.3d 191, 196-97 (1st Cir. 1993); United States v. Lopez,

944 F.2d 33, 37-38 (1st Cir. 1991); Waymire v. Miami Cty. Sheriff’s Office, 2017 U.S. Dist. LEXIS

160918, at *6-7 (S.D. Ohio Sept. 29, 2017).

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government’s witness.” United States v. Whitmore, 359 F.3d 609, 620

(D.C. Cir. 2004) (quotation marks omitted); see also United States v. Dawson,

434 F.3d 956, 959 (7th Cir. 2006) (approving of the exclusion of questions

about past judicial credibility findings “when the witness . . . had been

disbelieved in only one case or where it was unclear whether and why the

witness’s testimony had been rejected.”). We need not decide whether the

Second Circuit’s approach should be applied in Maine in cases where the court

is left with an inescapable conclusion that the witness has previously lied

under oath because in Dr. Flomenbaum’s case no such conclusion is possible

on the facts presented here. See Cedeño, 644 F.3d at 81-83. The obvious

conclusion to be drawn from reading the transcript of the Connecticut trial is

that the judge was presented with conflicting expert opinions and elected, as

typically happens, to find one credible and the other not—a far cry from

finding that a witness lied.

[¶21] We note also that the overarching, bright-line rule of

M.R. Evid. 608(a) prevents the admission of personal opinions regarding a

witness’s credibility or truthfulness. See Woodburn, 559 A.2d at 346. The

Connecticut judge’s opinion of Dr. Flomenbaum’s testimony is just the sort of

opinion evidence prohibited by Rule 608(a). The court acted well within its

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discretion to preclude Coleman’s inquiry on cross-examination into

Dr. Flomenbaum’s testimony and the judge's finding on the credibility issue

in the Connecticut case. See id.; Caulk, 543 A.2d at 1372.

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 specific

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

5 The Massachusetts decision cited actions by Dr. Flomenbaum including his delayed reporting

of a missing body and underestimation of the backlog of bodies awaiting autopsies. Flomenbaum

v. Commonwealth, 889 N.E.2d 423, 430-31 (Mass. 2008).

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that the court abused its discretion by excluding this impeachment evidence

pursuant to M.R. Evid. 401 and 403.

[¶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. M.R. Evid. 401, 403. The State

sought to qualify Dr. Flomenbaum as an expert when it inquired about his

education, experience, and the number of autopsies he had performed. In

response, Dr. Flomenbaum provided a summary of his medical training and

employment history, including his time as Massachusetts Chief Medical

Examiner, and an estimate that he had conducted 3,000 to 4,000 autopsies.

At the time Dr. Flomenbaum conducted the daughter’s autopsy, he was

Maine’s Chief Medical Examiner and he supervised or personally undertook

the collection of the sexual assault kit and the other evidence from the

daughter’s autopsy.

[¶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

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the State of Maine’s Chief Medical Examiner, contrary to the trial court’s

findings. See United States v. York, 933 F.2d 1343, 1365-66 (7th Cir. 1991)

(affirming expert medical doctor’s impeachment with questioning about his

allegedly unprofessional conduct at his previous position as Chief Medical

Examiner), overruled on other grounds by Wilson v. Williams, 182 F.3d 562

(7th Cir. 1999). Additionally, the circumstances of Dr. Flomenbaum’s

termination are directly relevant to an aspect of his professional credentials

that the State used to qualify Dr. Flomenbaum as an expert in this case. See id.;

Maderios, 2016 ME 155, ¶¶ 10-11, 149 A.3d 1145; State v. Filler, 2010 ME 90,

¶¶ 17-20, 3 A.3d 365 (“[E]vidence tending to impeach [the State’s primary

witness’s] credibility has greatly enhanced probative value.” (quotation

marks omitted)). In establishing Dr. Flomenbaum's expert credentials, the

State included the fact that he had previously held a prestigious position—a

fact that may be properly tempered by the fact of his involuntary removal

from that position.

[¶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

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or contradicting the testimony of the witness on material points, the extent of

cross-examination otherwise permitted, and, of course, the overall strength

of the prosecution’s case.’” State v. Johnson, 2009 ME 103, ¶ 18, 982 A.2d 320

(quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). In this case,

Dr. Flomenbaum’s testimony was just one of many pieces of evidence

presented at trial. In addition to that evidence, the court heard testimony

from the detectives who recounted Coleman’s confession to the murders; the

family members and first responders who established that, of the three

victims, only the daughter was found gagged and straddling the end corner of

a bed, thus supporting in part a finding that she was sexually assaulted; and

two forensic analysts from the crime laboratory who corroborated

Dr. Flomenbaum’s testimony by positively identifying blood and semen on the

sexual assault kit samples, as well as matching Coleman’s DNA with that in the

sperm found on the daughter and with the DNA found on one of the ligatures.

We conclude that the court’s error was harmless, in part, because despite

Dr. Flomenbaum’s importance to the State’s case on the gross sexual assault

charge, the State presented significant circumstantial evidence to corroborate

that the blood and semen evidence Dr. Flomenbaum collected was as he

characterized it in his testimony. In addition, Coleman was able to

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cross-examine Dr. Flomenbaum generally as to his credibility and alleged bias

in favor of the State, which decreased any prejudice resulting from the lack of

cross-examination regarding the Massachusetts termination.6 The above

factors along with the other circumstantial evidence and “the record as a

whole demonstrate[ ] beyond a reasonable doubt that the error did not affect

the substantial rights of the defendant or contribute to the verdict obtained.”

State v. Norwood, 2014 ME 97, ¶ 14, 97 A.3d 613; Johnson, 2009 ME 103, ¶ 18,

982 A.2d 320.

[¶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

6

Coleman’s cross-examination of Dr. Flomenbaum, while not as extensive as he wished,

satisfied his right to confront an adverse witness. The Confrontation Clause guarantees an

adequate and effective, but not unlimited, cross-examination, and the court’s error in limiting this

questioning did not rise to a deprivation of Coleman’s constitutional right. See State v. Johnson,

2009 ME 103, ¶ 15, 982 A.2d 320; State v. Brown, 321 A.2d 478, 485 (Me. 1974).

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questioning, those errors were harmless in the face of the overwhelming

evidence of Coleman’s guilt.7

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.” M.R.U. Crim. P. 52(a). Coleman complains about the

State’s opening statement that evidence from “vaginal swabs” would show

“sperm found on a young girl’s vagina” because he claims that the swabs

should have been referred to as “external genitalia” swabs, in keeping with

the sexual assault kit’s protocol. Several witnesses for the State testified that

sexual assault kits indeed have separate envelopes and instructions for

“vaginal swabs,” used for internal vaginal collections, and for collections from

“external genitalia.” Dr. Flomenbaum testified that he labeled the sexual

7 Coleman correctly notes that he did not confess to the sexual assault charge, on which it was

the State’s burden to prove beyond a reasonable doubt that genital-to-genital contact occurred. See

infra ¶¶ 29-30. Dr. Flomenbaum’s testimony provided support for such a finding. Specifically,

Dr. Flomenbaum testified that the daughter was gagged; that she had blunt force trauma to her

face; that the abrasions on her buttocks and blood around her vagina and in the crotch of her shorts

suggested that she was alive when the abrasions occurred; and he concluded that her intact hymen

ruled out penetrative sex but not necessarily direct genital contact. Neither Coleman nor the

Massachusetts termination proceedings challenged Dr. Flomenbaum’s forensic abilities in

performing autopsies and reporting his findings.

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assault kit swabs, taken from the daughter’s “vaginal area” between the labia

majora and minora, as vaginal swabs.

[¶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

act 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 proof

that the victim was alive at the time that such contact occurred.

See 17-A M.R.S. §§ 251(1)(C), 253(1)(C), 508 (2017). We review a challenge

that there is insufficient evidence to support the jury’s verdict by viewing all

8 The forensic evidence indicated that the semen was found between the labia majora and

minora, external to the intact hymen.

23

the evidence and reasonable inferences drawn therefrom in the light most

favorable to the State. See State v. Diana, 2014 ME 45, ¶ 2, 89 A.3d 132; State

v. Skarbinski, 2011 ME 65, ¶ 6, 21 A.3d 86.

[¶30] Section 253(1)(C) requires, in this case, proof of a sexual act, in

the form of direct genital-to-genital contact, with a person who was not

Coleman’s spouse and who had not reached twelve years of age. Coleman

concedes that the daughter was unmarried and under twelve years old. We

have repeatedly said that “[a] criminal conviction may be based solely on

circumstantial evidence . . . as long as the evidence supports a finding that each

element of the crime is proved beyond a reasonable doubt.” State v. Moores,

2009 ME 102, ¶ 10, 982 A.2d 318; see also State v. Cheney, 2012 ME 119, ¶ 42,

55 A.3d 473. Despite the lack of direct evidence of how Coleman’s semen was

deposited on the victim’s genitalia, the jury could have rationally inferred,

beyond a reasonable doubt, that a sexual act (i.e., genital-to-genital contact)

had occurred while the victim was alive based on the circumstantial evidence

24

presented at trial. See 17-A M.R.S. § 251(1)(C); State v. Poblete, 2010 ME 37,

¶ 30, 993 A.2d 1104; State v. Chad B., 1998 ME 150, ¶¶ 7-8, 715 A.2d 144.

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 chain 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 M.R. Evid. 901(a). A chain of custody “need [not] be

ironclad,” and “a minor break goes to the weight of the evidence rather than

its admissibility.” Diana, 2014 ME 45, ¶ 26, 89 A.3d 132 (alteration in

original) (quotation marks omitted) (quoting Field & Murray, Maine Evidence

§ 901.3 at 543). The sexual assault kit samples were sealed and consistently

in the custody of the Maine State Police, the Medical Examiner’s Office, and

then the crime laboratory, before finally returning to the Maine State Police’s

evidence locker. The court did not clearly err or otherwise abuse its

discretion in admitting the sexual assault kit in evidence because the State

25

accounted for the kit’s location and sealed condition at all relevant times. See

id.

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

26

step of the analysis—the determination of the final sentence—for an abuse of

discretion. 17-A M.R.S. §§ 1201(1)(A), 1252-C (2017); Waterman,

2010 ME 45, ¶ 42, 995 A.2d 243; State v. Cookson, 2003 ME 136, ¶ 38,

837 A.2d 101. Here the court found the existence of several aggravating

factors justifying a life sentence: (1) multiple deaths, (2) a murder committed

in the presence of a child, (3) a murder accompanied by sexual assault, and

(4) the domestic violence nature of the murders.9 See Waterman, 2010 ME 45,

¶ 45, 995 A.2d 243; State v. Shortsleeves, 580 A.2d 145, 149-50 (Me. 1990). On

balance, the court determined that the mitigating circumstances10 were

greatly outweighed by those and additional aggravating factors, including

Coleman’s clear mind, free from the influence of any substances, at the time of

the crimes; the impact of the victims’ deaths on their family and community;

Coleman’s prior acts of domestic violence; the victims’ conscious suffering

and fear; and Coleman’s lack of remorse and consciousness of guilt in his

confession. See State v. Hamel, 2013 ME 16, ¶ 6, 60 A.3d 783; Schofield,

9 The court also found that the cause of the deaths by strangulation was an aggravating factor

for sentencing purposes. Although not specifically listed among the Shortsleeves factors,

strangulation has been cited in other life sentence cases. See State v. Dwyer, 2009 ME 127, ¶ 38,

985 A.2d 469; State v. Wilson, 669 A.2d 766, 767-69 (Me. 1996).

10 The sentencing court found the following mitigating factors: Coleman’s age at the time of the

crime, his history of substance abuse and mental health issues, his lack of a significant criminal

record, the absence of premeditation, the evidence that he has family and friends that love him, and

the terrible circumstances of his childhood.

27

2006 ME 101, ¶ 14, 904 A.2d 409; Cookson, 2003 ME 136, ¶¶ 39-41,

837 A.2d 101; Shortsleeves, 580 A.2d at 150-51. Coleman’s challenge to his

final sentence, attacking just two of the several aggravating factors, is

unpersuasive, and the court acted well within its discretion in arriving at a

maximum sentence of life imprisonment on the murder counts.

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, for 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