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State v. Leroy Tomah
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 109
Docket:	And-98-394
Argued: 	April 6, 1999
Decided:	July 12, 1999

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

STATE OF MAINE

v.

LEROY P. TOMAH JR.

CLIFFORD, J.

	[¶1]  Leroy P. Tomah Jr. appeals from the judgments entered in the
Superior Court (Androscoggin County, Delahanty, J.) following a jury trial at
which he was found guilty of murder in violation of
17-A M.R.S.A. § 201(1)(A) (1983){1} and robbery (Class A) in violation of
17-A M.R.S.A. § 651(1)(E) (1983).{2}  Tomah contends that the trial court
erred (1) in excluding as hearsay the written report of an expert regarding
blood spatter patterns; (2) in instructing the jury on manslaughter and
refusing to instruct the jury on duress; and (3) in several of its other
evidentiary rulings.  Finding no error or abuse of discretion, we affirm the
judgments.
	[¶2]  Tomah was tried together with Brad Chesnel for the murder and
robbery of Michael Allen.  Allen was brutally beaten and his vehicle and other
property were taken.{3}  Tomah's version of the murder and the robbery was
very different from the version to which Chesnel testified.  According to
Tomah, he and Chesnel went to a Lewiston motel, where Chesnel arranged
to have his friend, Allen, join them.  Allen, who had been a Maine State
Lottery Megabucks winner, had frequently paid Chesnel for sex, or paid
Chesnel to find other males with whom to perform sexual acts.  In the motel
room, Chesnel appeared to be ingesting cocaine while apparently preparing
to engage in sex with Allen.  Chesnel then suddenly attacked Allen with a
sledgehammer, and continued to beat him.  Tomah said that he was present
in the motel room, but was not involved in the beating.  Following the
beating, Chesnel cleaned up some of the blood, and took Allen's rings, his
keys, and other belongings.  According to Tomah, Chesnel told Tomah that
he had to go with him because the motel room was registered in Tomah's
name and the police would be looking for him.  Tomah explained that he
went with Chesnel because he was afraid Chesnel would kill him too.
	[¶3]  Chesnel drove Allen's truck to Old Orchard Beach, where he
abandoned it.  Chesnel disposed of the weapon and the pillowcase that
contained Allen's belongings, and they rented motel rooms, first in Old
Orchard Beach, and then in Portland, with Chesnel paying for the rooms. 
The next day Tomah and Chesnel left by bus for California.   After a few days
in California, Tomah called authorities in Maine and turned himself in. 
Initially Tomah told authorities that he was not present in the motel room. 
He later admitted to police that he was present and observed the beating.
	[¶4]  Chesnel testified to a much different version of the events in this
case.  According to Chesnel, prior to going to the motel, Chesnel made
arrangements for Allen to have a sexual encounter with Tomah.  Tomah had
asked him "to set him up" with Allen because he needed money to pay his
rent.  Chesnel told Allen he would call him when they were settled in the
motel room.  When Tomah and Chesnel arrived at the motel room, Tomah,
who had been drinking alcohol that afternoon, continued to drink to try to
relax for the sexual encounter.  When Tomah told Chesnel he was ready,
Chesnel walked to a nearby store to call Allen.  Chesnel was expecting to get
paid $50 for arranging the encounter and also was hoping to borrow some
additional money from Allen so he could leave the State.  Upon Allen's
arrival, because Tomah was still not relaxed, Allen gave both Tomah and
Chesnel cocaine.  Tomah took his shirt and pants off and laid them on the
bed.  Chesnel wanted Allen and Tomah to have some time alone together, so
he decided to walk to the store to purchase more beer. 
	[¶5]  Because he forgot his identification, Chesnel had to return to the
motel room.  When he got to the door, he heard screaming.  He opened the
door and saw blood on the bed and saw Tomah "kneeing" Allen in the face. 
Tomah told Chesnel that "he couldn't handle it."  Chesnel got towels from
the bathroom to try to clean the blood.  Tomah continued to strike Allen
because Allen was "making loud noises."  Tomah stepped on Allen's throat
then took a crow bar and struck Allen in the head.  Tomah told Chesnel to
take Allen's rings, keys, and identification and go outside to start Allen's
truck.
	[¶6]  Chesnel and Tomah were tried together in Superior Court on
charges of murder and robbery.  The jury found both men guilty on both
counts.  Chesnel was sentenced to life in prison.  Tomah received a prison
sentence of forty-seven years on the murder charge and a concurrent
sentence of twenty-seven years for robbery.  This appeal by Tomah followed.

I.

	[¶7]  Tomah first contends that the court erred in refusing to admit in
evidence a forensic report of Dr. Marilyn T. Miller, an expert on blood
spatter patterns.  Tomah retained Dr. Miller to corroborate his defense "that
he had nothing to do with the murder, that he sat, mesmerized, in a chair in
the hotel room and watched Brad Chesnel beat Michael Allen to death."  The
report concludes that the fact that there was considerably less blood on the
pants worn by Tomah than on the pants worn by Chesnel is supportive of
Tomah's version of the events, that Chesnel was responsible for the brutal
murder of Allen, and that Tomah was a mere observer.  Before the beginning
of the fourth day of trial, Tomah's attorney informed the trial court that
Dr. Miller, whom Tomah had scheduled to testify, "had a better offer from
an attorney in New York City" and that she decided to appear in a court case
in New York instead of attending Tomah's trial, at least at the time she was
scheduled to testify.  Tomah moved to continue the trial until the following
Friday when Dr. Miller said she could be available.  Tomah also moved for the
admission of Dr. Miller's written report as an exception to the hearsay rule
because of Dr. Miller's unavailability.  The trial court denied both motions:{4}

Even though [Dr. Miller] is unavailable, I don't think the report
falls within the exception to the hearsay rule as it is intended, in
addition to the fact that an expert opinion like this should not be
admitted into evidence without the opportunity of
cross-examination and for any theories to be put to the test.

In denying the motion to continue, the court noted the late date on which
the report was filed.  Tomah contends that Dr. Miller's report should have
been admitted pursuant to the business record exception to the hearsay
rule.  We review a trial court's decision to exclude evidence for an abuse of
discretion or clear error.  See State v. MacDonald, 1998 ME 212, ¶ 7,
718 A.2d 195, 198.
	[¶8]  "'Hearsay' is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted."  M.R. Evid. 801(c).  Either written or oral
statements can fall within the definition of hearsay.  See M.R. Evid. 801(a). 
Because it is a written statement made outside of the courtroom prior to
trial that Tomah sought to offer in evidence to prove the truth of its
contents, and to support its conclusion that the blood spatter patterns
illustrate that Tomah did not participate in the beating,  Dr. Miller's report
falls within the definition of hearsay.  See M.R. Evid. 801(c).
	[¶9]  Evidence that is otherwise hearsay can still qualify for admission
pursuant to an exception to the hearsay rule.  See M.R. Evid. 803.  A record
of regularly conducted business is one of those recognized exceptions. 
See M.R. Evid. 803(6).{5}  Properly authenticated business records are
admissible pursuant to Rule 803(6) as an exception to the hearsay rule
because they are thought to be sufficiently trustworthy if it is demonstrated
that they are kept in the regular course of a business or profession, separate
and distinct from any advocacy needs or pressures that may arise from
litigation and affect accuracy or trustworthiness.{6}  "The reliability of the
records is thought to rest on the systematic businesslike way they are kept." 
Field & Murray, Maine Evidence § 803.6 at 433 (4th ed. 1997).
	[¶10]  Forensic expert reports are the antitheses of the business
records meant to be addressed by Rule 803(6).  They are advocacy reports,
expressly prepared for litigation to support one party to the litigation. 
Although the preparation of such a record is in the course of the expert's
business of advocacy support, the preparation is not routine and the record
is not of the type that is contemplated by the business records exception to
the hearsay rule set out in Rule 803(6).  Indeed, that it is prepared in
anticipation of litigation is a common reason for a finding that a report lacks
trustworthiness.  See State v. Therriault, 485 A.2d 986, 996 (Me. 1984).
	[¶11]  Tomah, however, relies on Therriault, contending that
Therriault stands for the proposition that reports of absent experts are
admissible as business records.  We disagree.  In Therriault, the defendant
was tried twice.{7}  At the first trial, a forensic report, that was prepared by a
State Examiner at the State Police Crime Laboratory and that noted the
physical results of a visual observation, chemical test, and microscopic
examination, was offered by the defense and admitted without the State's
objection.  See id. at 991.  Apparently, neither side thought it important to
question the author about the report at the first trial.  Subsequent to the
first trial, the individual who prepared the report died, and the State
successfully objected to the use of the report at the second trial.  We vacated
the conviction based on the exclusion of the State Crime Lab Report.  See id.
at 997.
	[¶12]  Our reliance on Rule 803(6) in Therriault  was based on the
absence of any dispute about the report's reliability.  It was a State Crime Lab
report that exculpated the defendant and was used, without objection, at the
prior trial.  See id. at 991.  The State appeared to have seized upon the
unavailability of the person who prepared the report to object to the report's
admissibility because the report was not favorable to the State's case. 
Therriault does not come close to creating a business records exception to
the hearsay rule for expert reports.  It is based on unique facts, and we
decline to extend it beyond its facts.{8}
	[¶13]  Moreover, even if Therriault could be construed as Tomah
urges, it would be of no help to him here.  The circumstances in this case
are substantially different from those in Therriault and compel the exclusion
of Dr. Miller's report.  The trustworthiness and reliability of the report is
not free from doubt.  Dr. Miller was an expert hired by Tomah.  She
prepared the report, as an advocate, specifically for the purpose of its use at
Tomah's trial.  She had not viewed the blood spattered pants on which she
based her report, relying instead on photographs and statements made by
Tomah and Chesnel.  Moreover, Dr. Miller, who was the authenticating
witness for the report, refused to appear at Tomah's trial at the appointed
time.  In addition, although Tomah sought to have Dr. Miller's report
admitted as a business record, his co-defendant Chesnel, whom the report
inculpated and who had a constitutional right to cross-examine the preparer
of the report, objected to its admission.  Dr. Miller's report, prepared by an
expert specifically for trial, is not a business record within the meaning of
Rule 803(6) and was properly excluded by the court.

II.

	[¶14]  Tomah also contends that the trial court erred in instructing
the jury on manslaughter because the crime was not generated by the facts
presented during the trial.{9}  A trial court must not instruct a jury to
consider a lesser included offense "unless on the basis of the evidence there
is a rational basis for finding the defendant guilty of that lesser included
offense . . . ."  17-A M.R.S.A. § 13-A(1) (1983).  If a rational basis for finding
the defendant guilty of the lesser included offense exists and a party has
requested the instruction, the trial court is required to include the
instruction.  See id.  Both the State and Chesnel requested the instruction.
	[¶15]  Manslaughter is a lesser included offense of murder.  "A person
is guilty of manslaughter if that person . . . [r]ecklessly, or with criminal
negligence, causes the death of another human being[.]" 
17-A M.R.S.A. § 203(1)(A) (Supp. 1998).  A person is guilty of murder if that
person "intentionally or knowingly causes the death of another human
being[.]"  17-A M.R.S.A. § 201(1)(A).  Thus, the only difference in the
elements of manslaughter and intentional and knowing murder is the state
of mind of the accused.  Evidence that the accused was intoxicated by
alcohol or drugs "may raise a reasonable doubt as to the existence of a
required culpable state of mind" sufficient to convict the accused of
manslaughter rather than murder.  17-A M.R.S.A. § 37 (1983); see State v.
Wood, 662 A.2d 908, 912-13 (Me. 1995).
	[¶16]  Although the evidence in the record is conflicting, the record
does include testimony from several witnesses that Tomah drank a
significant amount of alcohol in the hours preceding Allen's death and had
taken cocaine.  Depending on which witnesses the jury found credible, the
jury could have concluded that Tomah had consumed a sufficient amount of
alcohol or drugs to preclude him from acting with the culpable state of mind
required to find him guilty beyond a reasonable doubt of murder.  
Accordingly, the manslaughter instruction was not clear error.  Moreover,
because the trial court instructed the jury to decide first whether Tomah
was guilty of murder beyond a reasonable doubt before they addressed the
manslaughter charge, and the jury, after deliberating, found Tomah guilty of
murder, any error in instructing the jury on manslaughter is harmless.  See
State v. Bowman, 588 A.2d 728, 731, 732 (Me. 1991) (error in
manslaughter instruction is harmless because sequence of instruction
required jury to first determine whether defendant was guilty of murder and
jury so found).

III.

	[¶17]  Tomah further contends that he was entitled to have the jury
instructed on the defense of duress.  Tomah testified that after the beating
occurred, Chesnel told him that he had to leave with Chesnel because the
motel room was registered in Tomah's name and the police would be
looking for him.  When asked by his attorney what he was thinking at the
time and why he accompanied Chesnel, Tomah responded, "Well, I figured,
well, if I don't go, I could be laying down on the floor too.  He could use that
weapon on me."  The trial court denied Tomah's request for a duress
instruction.
	[¶18]  If a statutory defense is generated by the evidence, viewed in
the light most favorable to the defendant, the failure of a trial court to give a
requested jury instruction on that defense is error.  See State v. Hernandez,
1998 ME 73, ¶ 7, 708 A.2d 1022, 1025; State v. Sullivan, 1997 ME 71, ¶ 6,
695 A.2d 115, 117.  Title 17-A M.R.S.A. § 103-A(1) (1983) provides:

It is a defense that, when a defendant engages in conduct which
would otherwise constitute a crime, he is compelled to do so by
threat of imminent death or serious bodily injury to himself or
another person or because he was compelled to do so by force.

Duress exists only if, viewed objectively, "the force, threat or circumstances
are such as would have prevented a reasonable person in the defendant's
situation from resisting the pressure."  17-A M.R.S.A. § 103-A(2); see State
v. Glidden, 487 A.2d 642, 644-45 (Me. 1985).  
	[¶19]  A threat that serves the basis of a duress defense must be real
and specific, and the specific harm that is feared must be imminent.  See
17-A M.R.S.A. § 103-A(1); State v. Larrivee, 479 A.2d 347, 351 (Me. 1984). 
A "veiled threat of future unspecified harm" is not sufficient to raise the
defense of duress.  See Larrivee, 479 A.2d at 349, 351  (threat from
dangerous and violent friend that defendant would be "very sorry" if he did
not commit robbery is not sufficient to warrant jury instruction on duress
defense).
	[¶20]  In this case, viewing the evidence in a light most favorable to
Tomah, it is insufficient to support a finding that Tomah, if he played a role
in the beating, was compelled to beat and kill Allen out of fear of Chesnel. 
Nor was there a showing that Tomah was objectively compelled to
accompany Chesnel during his getaway because he feared Chesnel's violence. 
There was no evidence that Chesnel specifically threatened to harm Tomah
if he did not help Chesnel in the beating or in the escape.  Cf. State v.
Knights, 482 A.2d 436, 442 (Me. 1984) (evidence that defendant
threatened by nephew with severe beating or death if defendant did not set
fires was sufficient to warrant instruction on duress defense in trial for
arson).  Chesnel suggested that Tomah leave with him after the beating
because the police would find Tomah and think he was responsible for the
death.  Such a statement does not lead to specific fear of imminent harm
and would not lead a reasonable person to feel pressure to commit further
crimes.  The defense of duress was not generated.{10}
	[¶21]  We have reviewed Tomah's other contentions concerning the
trial court's evidentiary rulings and find them to be without merit.
	The entry is:
Judgments affirmed.

SAUFLEY, J., with whom WATHEN, C.J. joins, concurring.

	[¶22]  Although we concur with the result in this case, we would
explicitly overrule Therriault.  Bluntly put, Therriault represents a classic
instance of bad law created in search of good results.  
	[¶23]  The Court's declaration that "Therriault does not create a
business records exception to the hearsay rule for expert reports" mistakes
the import of that decision and results in a lack of clarity in this important
area.  The laboratory report in Therriault consisted of an analysis of tissue
samples taken from the body of the alleged victim and the defendant.  See
485 A.2d at 991.  The report reviewed the evidence presented and
recorded specific findings resulting from the examination of the samples. 
Although the report was admitted without objection at the first trial, the
State's objection to its admission at the second trial placed the defendant in
the position of demonstrating its admissibility.  Because the author of the
report had died in the interim, the defendant was unable to present a
witness to establish that the report met the requirements of the business
records exception to the hearsay rule.  See id. at 993.
	[¶24]  Notwithstanding the nature of the expert's report and the
defendant's inability to bring the report within the strictures of Rule 803(6), 
we concluded in Therriault that "it was error for the presiding justice to
have ruled that the laboratory report was inadmissible under the business
records exception to the hearsay rule."  Id. at 997.
	[¶25]  The Therriault opinion can only be understood as attempting to
address a fundamental lack of fairness that the Court perceived in the
State's belated objection to the report's admission.  In fact, absent the
discussion of the business records exception, the Court's ruling merely
effectuates the purposes of another exception to the hearsay rule related to
testimony given at prior proceedings.  Because the report was, in effect,
offered in lieu of testimony at the first trial, at a time when the author would
have been available to authenticate and explain his findings and for cross-
examination, the report may have been admissible under Rule 804(b)(1).  
	[¶26]  Unfortunately, we relied on the business records exception to
achieve a result more fair to the defendant, and in so doing created
significant confusion about the applicability of that exception.  In declining
to overrule Therriault today, and in addressing only those expert reports it
defines as "advocacy reports," the Court leaves open the possibility that
other expert reports may be admissible under Rule 803(6). 
	[¶27]  We would hold that an expert's report, regardless of when or
for whom it was prepared, and regardless of which party offers the report, is
not admissible under the business records exception.  See M.R. Evid.
803(6).  Such reports often contain extensive compilations of information
which would not otherwise be admissible, just as the expert's opinion will
often be based in part on information that is inadmissible.  Reliance by the
expert on such information does not make that information independently
admissible "at the behest of the proponent of the opinion."  Richard H. Field
& Peter L. Murray, Maine Evidence § 703.2, at 358 (4th ed. 1997) (citing
Warren v. Waterville Urban Renewal Authority, 235 A.2d 295 (Me. 1967)). 
The same is true regarding the opinions of another expert that may have
formed the basis of the authoring expert's opinion.  We have made it clear
that a party may not offer the opinion of one expert by presenting another
expert at trial and asking the testifying expert to articulate the opinion of
the expert who is not present.  See Henriksen v. Cameron, 622 A.2d 1135,
1144 (Me. 1993).  
	[¶28]  Moreover, by definition, an expert's report includes the
opinions of the expert, whose testimony must meet the requirements of
Rules 702 and 705.{11}  The admission of the expert's opinion under the
business records exception would eviscerate the requirements imposed by
these rules.
	[¶29]  While the Court today generally recognizes these principles, the
failure to overrule Therriault leaves open a door that should be firmly closed. 
We would explicitly overrule Therriault's application of the business records
exception.