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State v. Paul Quirion
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 103
Docket:	Ken-99-259
Submitted
on briefs:	March 29, 2000
Decided:	May 26, 2000

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

STATE OF MAINE 

v.

PAUL QUIRION

CLIFFORD, J.

	[¶1]  Paul Quirion appeals from a judgment entered in the Superior
Court (Kennebec County, Mills, J.) following his conviction for unlawful
trafficking in schedule W drugs (Class B).{1}  See 17-A M.R.S.A. § 1103(1),
(2)(A) (Supp. 1999).  Quirion contends that the trial court erred (1) by
admitting out of court statements made by alleged co-conspirators of
Quirion, (2) by failing to adequately cure an improper comment made by the
prosecutor during closing arguments, and (3) in its jury instructions.  We
find no error and affirm the judgment.
	[¶2]  The State's case consisted almost entirely of the testimony of a
single witness, agent James Pease of the Maine Drug Enforcement Agency. 
He testified essentially as follows.
	[¶3]  On February 25, 1997, Pease, working undercover, met with
James Holmes at Holmes's residence in Damariscotta.  Pease asked Holmes
if Holmes could sell him any heroin.  Holmes responded that "he probably
could and that we would have to go to Augusta to get it."
	[¶4]  The two men left the house, entered Pease's car and drove to an
Irving gas station and store, where Holmes said he could make collect
phone calls.  Holmes entered the store and returned five minutes later.  He
informed Pease that he had made three phone calls but "could not
get . . . hold of his guy, Paul."  He assured Pease that if they could not find
Paul, Paul's roommate would "take care of us."  He also assured Pease that
Holmes's friend Ellsworth (Fred) Runion had purchased some of the heroin
the night before for $25 and had said "it was good stuff."
	[¶5]  After leaving the Irving station, the two drove back to Holmes's
residence so Holmes could find out how many bags of heroin Fred Runion
wished to purchase.  Holmes went into his house alone and returned to the
car alone.  He directed Pease to drive to a Shop 'n Save and told Pease that
he needed $1.20 to make a phone call to Augusta.  Pease gave him the
money and observed Holmes make the call at an outdoor pay phone.  Upon
returning to the car, Holmes informed Pease that they were "to go to
Margarita's on Western Ave. in Augusta to meet with Paul to get the heroin." 
Holmes asked Pease if it would be okay if Runion joined them, so they
returned to Holmes's residence yet again to pick up Runion, and the three
then drove to Augusta.
	[¶6]  When they arrived at Margarita's, Holmes and Pease entered the
bar, while Runion remained in the car.  Pease was introduced to Quirion but
did not speak with him at the bar.  He did observe a conversation between
Holmes and Quirion, although he did not hear what was said between the
two.
	[¶7]  Pease was inside Margarita's for only five minutes.  When he
returned to his car, he was accompanied by Holmes and Quirion.  Pease sat
in the driver's seat, with Holmes sitting in the front passenger seat and
Quirion sitting directly behind Pease.  Holmes told Pease that he was to
drive Quirion to Quirion's home in Mount Vernon.  During the drive, Runion
asked Quirion how much the heroin would cost.  Quirion replied that it
would be $25 per bag.  Runion asked Quirion if "he could cut him a deal on
the price."  When Quirion refused, Runion asked to purchase a single bag of
heroin.
	[¶8]  Quirion then asked Holmes how many bags he wanted.  Holmes
looked at Pease and said, "You want four bags?"  Pease answered, "Yes, four
bags."  Holmes then told Quirion that he wanted four bags of heroin.
	[¶9]  Seconds later, Pease observed Quirion extend his right hand
between the two front seats and hand Holmes four plastic bags.  At that
point, Pease gave Holmes $100.  Quirion informed Pease that he needed to
stop at a store to get change for Runion.  Three to five minutes later, just
before pulling into the store, Pease saw Holmes pass the $100 into the back
seat, but he "did not see who grabbed it."
	[¶10]  After Pease parked at the store, Quirion exited the car and
entered the store.  At that point, Holmes handed the four plastic bags to
Pease, and Pease placed them in his pocket.  When Quirion returned to the
car, Pease heard him say to Runion, "Here's your change."  Pease then drove
to Quirion's residence and Quirion exited the car.
	[¶11]  On the drive back to Damariscotta, Pease observed Runion as he
put a plastic bag, similar to the four Pease had received, up to his nose and
inhaled its contents.  Runion then commented, "'This is really good shit,
this is really good stuff.'"
	[¶12]  After dropping Holmes and Runion at Holmes's residence,
Pease met with his supervisor and gave him the plastic bags.  The contents
were later identified as heroin.
	[¶13]  Quirion was indicted on one count of unlawful trafficking in a
schedule W drug.  At trial, the court, over the objection of Quirion, granted
the State's motion in limine seeking the admissibility of the testimony of
Pease concerning the statements made by Holmes and Runion that
incriminated Quirion.  The State contended that Holmes and Runion were
co-conspirators in the transaction and that their statements were admissible
pursuant to M.R. Evid. 801(d)(2)(E).
	[¶14]  During the State's rebuttal closing argument, the prosecutor
commented on the fact that the defendant did not offer any suggestions as
to who might have sold the drugs to Pease if it was not the defendant. 
Quirion objected to these comments and the court sustained the objection. 
At the close of the State's rebuttal argument, Quirion requested a curative
instruction, and the court gave such an instruction to the jury before
sending the jury out to deliberate.
	[¶15]  During the jury's deliberations, the court received a note asking
for a readback of a portion of Pease's testimony.  The court, over objection
from Quirion, directed the court reporter to read back the requested
testimony.  Sometime later, the jury sent another note to the court, this
time asking the court if they must find that Pease actually saw Quirion take
possession of money in order to convict him.  Over Quirion's objection, the
court reinstructed the jury regarding the difference between circumstantial
and direct evidence.
	[¶16]  After the jury returned to its deliberations, Quirion objected to
the content of the additional instructions and asked for a mistrial.  He
argued that because the court did not reiterate that even circumstantial
evidence must be proven beyond a reasonable doubt, the jury could have
mistakenly believed that it could find the defendant guilty if it found that
guilt was a "reasonable inference" to be drawn from the direct evidence. 
Before the court could reinstruct the jury regarding reasonable doubt,
however, the jury reached a verdict.  The court informed Quirion that it was
satisfied with the instructions the jury had received, and it allowed the jury
to announce its verdict without any further instructions.  The jury found
Quirion guilty.  This appeal by Quirion followed.

I.

	[¶17]  Quirion argues that the State failed to meet its burden of
establishing that the statements made by Holmes and Runion were made in
the course of and in furtherance of a conspiracy that involved Quirion, and
therefore, the statements were inadmissible hearsay.
	[¶18]  M.R. Evid. 801(d)(2)(E) provides that "a statement by a
co-conspirator of a party during the course and in furtherance of the
conspiracy" is not hearsay.  We have held that, in order for an out of court
statement of a co-conspirator to be admissible, the trial court must find, by a
preponderance of the evidence, that "(1) the statement was made during
the course of a conspiracy; (2) the statement was made in furtherance of the
conspiracy;" and (3) the defendant participated in the conspiracy.  See State
v. Quimby, 589 A.2d 28, 30 (Me. 1991).  In making those findings, "[t]he
contents of the statement shall be considered, but are not alone sufficient to
establish . . . the existence of the conspiracy and the participation therein of
the declarant" and the defendant.  See M.R. Evid. 801(d)(2); see also
M.R. Evid. 801(d)(2) advisory committee's note to 1998 amend., Me. Rptr.,
699-709 A.2d CXX ("Under the rule as amended, the hearsay statements
could be used to prove the foundation for the vicarious admission, but would
not alone be sufficient proof of such foundation without some independent
evidence."). 
	[¶19]  The trial court's decision to admit statements made by alleged
co-conspirators "will be vacated only if the historical facts on which its
decision is based are clearly erroneous or if it abused its discretion."  See
State v. Quimby, 589 A.2d at 29.

A.

	[¶20]  The evidence adequately supports the court's finding that a
conspiracy existed in this case and included Quirion, Holmes, and Runion.  A
conspiracy is committed when two or more persons agree to commit a
crime and one of the co-conspirators takes a substantial step toward the
commission of that crime.  See 17-A M.R.S.A. § 151(1)-(4) (1983).  Here,
there was independent evidence of a conspiracy to buy and sell illegal drugs. 
Pease met with Holmes at Holmes's residence and told him that he was
looking to buy some heroin.  Pease observed Holmes make several calls and
was present when Runion entered the car.  The three drove to Augusta
where they met Quirion, who then joined them in the car.  Quirion made
statements that he was charging $25 per bag of heroin and that the price
was not negotiable.  Quirion also asked both Holmes and Runion how many
bags they wished to purchase.  Pease then observed Quirion pass bags of
heroin to Holmes.  Pease gave Holmes $100, and Holmes handed the money
to a person in the back seat of the car where Quirion was seated.
	[¶21]  This evidence, standing alone, supports the court's finding that
there was a conspiracy to buy and sell drugs that involved Quirion, Holmes,
and Runion.  The statements of Holmes and Runion testified to by Pease
served only to confirm the existence of the conspiracy and give added detail
as to its scope.{2}

B.

	[¶22]  The trial court also had before it sufficient evidence that the
statements were made during the course of the conspiracy.  A conspiracy is
born when a person, "with the intent that conduct be performed which, in
fact, would constitute a crime or crimes . . . agrees with one or more others
to engage in or cause the performance of such conduct."  See 17-A M.R.S.A.
§ 151(1) (1983).  Pursuant to that definition, the conspiracy in this case
began when Holmes agreed to help Pease purchase drugs.{3}  Accordingly, any
statements made after that initial meeting were made during the conspiracy.
	[¶23]  Quirion contends, however, that only statements made after he
became a member of the conspiracy can be admitted against him.  We have
not addressed whether statements in furtherance of a conspiracy made
before a defendant joins the conspiracy may be used against a defendant who
joins the conspiracy after the statements are made.  The First Circuit, while
recognizing that substantive liability for crimes committed during a
conspiracy only attaches for crimes committed after a party joins the
conspiracy, has held that the nearly identical co-conspirator provision of the
Federal Rules of Evidence allows statements made by conspirators prior to a
party joining the conspiracy to be used against that party at trial. See United
States v. Goldberg, 105 F.3d 770, 775-76 (1st Cir. 1997) (construing Fed. R.
Evid. 801(d)(2)(E) and noting that this approach is "followed in most
circuits").  We adopt the same construction of M.R. Evid. 801(d)(2)(E).{4}

II.

	[¶24]  In his rebuttal argument, the prosecutor made the following
comments:

I was waiting through the trial, in light of the cross-examination,
and waiting throughout the closing by the defense attorney, to
hear who the defense is suggesting was the one who actually did
sell the heroin.

Quirion objected that the prosecutor's comment improperly suggested that
the defendant bore some burden of proof in the case, and he requested a
curative instruction.  The court sustained the objection and instructed the
jury that the State had the burden of proof, and that the defendant had no
burden and need not present any evidence.  Quirion contends that the
curative instruction was inadequate and that a mistrial should have been
declared.
	[¶25]  When a defendant objects to statements made by a prosecutor
during closing argument and the court issues a curative instruction, the
defendant must make a further objection or move for a mistrial to preserve
the issue for appeal.  See State v. Jones, 580 A.2d 161, 163 (Me. 1990). 
Because Quirion did neither, he has failed to preserve this issue for appeal,
and we review the curative instruction given by the court for obvious error. 
See State v. Marques, 2000 ME 43, ¶ 17 n.5, 747 A.2d 186, 191 n.5.  In this
case, the curative instruction was adequate to remedy the error made by the
prosecutor.  See State v. Naoum, 548 A.2d 120, 123 (Me. 1988) (recognizing
the presumption that a jury will follow a curative instruction).
	[¶26]  Quirion also contends that in instructing the jury on the
difference between direct and circumstantial evidence, the court erred by
failing to make clear that the facts found from circumstantial evidence, as
well as direct evidence, have to be found beyond a reasonable doubt. 
Quirion's objection to the instructions, however, was not made until the jury
had been instructed, then reinstructed, and was deliberating.  Indeed, the
jury indicated that a verdict was reached before the court was able to act on
Quirion's objection.  Accordingly, the objection was not timely.  See
M.R. Crim. P. 30(b) (stating that objections to jury instructions must be
made "before the jury retires to consider its verdict").  We review such an
objection for obvious error.  See M.R. Crim. P. 52(b).  Even though Quirion's
challenge is to the instructions given during reinstruction, we view the
charge to the jury in its entirety.  See State v. Huntley, 681 A.2d 10, 14
(Me. 1996).  In doing so, we discern no obvious error.  See State v. Davis,
528 A.2d 1267, 1269 (Me. 1987) (discussing the obvious error standard).
	The entry is:
			Judgment affirmed.
Attorneys for State:

Andrew Ketterer, Attorney General
James M. Cameron, Asst. Attorney General
Leslie G. Clemons, Asst. Attorney General
6 State House Station
Augusta, ME 04333-0006

Attorney for defendant:

Ronald W. Bourget, Esq.
Bourget & Bourget, P.A.
64 State Street
Augusta, ME 04330-5194