State v. Jose Marques, revised 3-31-00

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 43
Docket:	Cum-98-698
Argued:	February 7, 2000
Decided:	March 7, 2000

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

STATE OF MAINE

v.

JOSE P. MARQUES

ALEXANDER, J.

	[¶1]  Jose P. Marques appeals the judgment of conviction entered in
the Superior Court (Cumberland County, Bradford, A.R.J.) on charges of 
manslaughter; operating under the influence; eluding an officer; operating
after suspension; passing a roadblock; reckless conduct with the use of a
dangerous weapon; and criminal speeding.  Marques contends on appeal
that the court erred in excluding certain expert testimony and in polling the
jury.  We affirm.

I.  BACKGROUND

	[¶2]  On the evening of May 17, 1997, the appellant, Jose P. Marques,
met Michelle Theriault and Teresa Liston at a bar located in Portland's Old
Port section.  All three had been drinking throughout the evening.  Liston
testified that she and Theriault had each consumed seven or more mixed
drinks.  Marques testified to having about eight beers and a shot.  According
to Liston, the trio left the bar at approximately 11:30 p.m. and entered a red
Chevrolet Camaro parked in the narrow cobblestone alleyway directly
outside the bar. 
	[¶3]  John O'Malley, a patrolman with the Scarborough Police
Department, testified that at approximately 1:00 a.m. on May 18, he and
Officer Tim Barker were parked in their patrol cars in a parking lot on
Route 1 in Scarborough.  They observed a red Camaro travelling southbound
at between 55 and 59 miles per hour in a 35 mile per hour zone.  The two
policemen pursued the Camaro with their blue lights on and with O'Malley
in the lead.  The Camaro did not stop, but slowed to roughly 35 miles per
hour and turned into the parking lot for Scarborough's municipal offices. 
According to O'Malley, the Camaro slowed to about 10 or 15 miles per hour
as it drove to the end of the access lane for the parking lot, executed a 180
degree turn around a raised island, and accelerated rapidly.  O'Malley
testified that when the Camaro was executing the u-turn, he could see
directly into the driver's side window.  According to O'Malley, he was able to
see a man in the driver's seat with dark hair and a dark complexion, whom
he later described to the dispatcher as a Hispanic male.  On its way through
the parking lot, the Camaro next had to execute a sharp right-hand turn. 
O'Malley, still following close behind, came up almost perpendicular to the
passenger side and was able to see a blond woman in the passenger seat. 
	[¶4]  Officer Barker testified that he entered the municipal lot shortly
after O'Malley and positioned his cruiser in such a way as to block the
Camaro's exit from the parking area.  The exit lane was too wide for Barker's
cruiser to block entirely, and the Camaro managed to edge out around it.  As
it did so, the Camaro's driver's side window passed by the cruiser's driver's
side window.  Officer Barker testified that he could see into the Camaro and
observed a Hispanic male with a dark colored shirt in the driver's seat and a
"peroxide blond" with a white jacket in the passenger seat.  The Camaro
then accelerated toward the parking lot's exit to Route 1.  
	[¶5]  Sergeant Grovo of the Scarborough Police Department arrived on
the scene at the municipal lot as the Camaro was driving around Barker's
cruiser.  Grovo positioned his cruiser at the head of the juncture of the
access road and Route 1 to create a "stationary roadblock" with "just enough
room for one vehicle to exit" between the front of the cruiser and the curb. 
The Camaro drove straight at Grovo's cruiser and, at the last moment,
swerved and drove past the front of the cruiser within inches of its bumper. 
As it did, the cruiser's lights shone directly on the side of the Camaro and
Grovo testified that he saw a "Hispanic-looking male" operating the car and
a bleached blonde in the passenger seat. 
 	[¶6]  The State also called Michael Carleton, who lives across the
street from the municipal lot and had returned home at about the same time
as Marques pulled into the municipal lot.  He testified that his attention had
been drawn to the sound of sirens and that he watched as the officers
attempted to corral a red Camaro in the municipal parking lot.  According to
Carleton, when the Camaro exited the lot he was able to see into the vehicle
and observed a "dark-haired individual driving the car with dark clothes"
and a female "passenger with a light-colored top on and blonde hair or light-
colored hair." 
	[¶7]  The officers testified that they followed the Camaro on Route 1 at
speeds well over 100 miles per hour.  Approximately four miles into the
chase, the Camaro missed a turn, caught an asphalt curb with its right rear
wheel, and, according to O'Malley, "exploded" into a "huge ball of dust." 
Sergeant Grovo described seeing the Camaro strike a utility pole, at which
point the transformer on the pole exploded and wires fell to the ground. 
	[¶8]  O'Malley stopped his cruiser, ran to the crumpled wreckage, and
found the Camaro empty with its windows blown out.  O'Malley walked in
concentric circles around the car until he found Marques on the ground,
some 50 or 60 feet from the vehicle.  All three officers made in-court
identifications of Marques as the man they had seen driving the Camaro. 
The Officers eventually located Theriault's body suspended approximately 40
feet up in a large pine tree.  Marques's blood alcohol content was
determined to be 0.15 percent.  Theriault's blood alcohol content was 0.25
percent.
	[¶9]  Marques testified in his own defense denying that he had been
driving the Camaro during the high speed chase and immediately prior to
the crash.  Marques also called Thomas Bohan, Ph.D., a forensic physicist
and accident reconstructionist, who had conducted an "automobile autopsy"
in an effort to find, among other things, evidence of who had been driving
the Camaro at the time of the crash.  Bohan had found a red stain on the
driver's side airbag that he sent to a Connecticut laboratory for analysis.  The
lab results indicated that the red mark was neither blood nor paint, but was
"consistent with a polymeric substance."  Shortly before trial, Bohan spoke
with the lab technician on the phone and was informed that the polymer
was "consistent with cosmetics."
	[¶10]  The State objected to Bohan testifying about the cosmetic
composition of the red stain.{1}  The court ruled, over Marques's objection,
that Bohan could testify that the substance was neither blood nor paint, but
not that it was a polymer consistent with cosmetics.  Bohan testified
extensively about the nature and extent of the "autopsy" he conducted on
the Camaro wreckage.  At the close of direct examination, Marques's counsel
asked whether Bohan had been able to determine, in his expert opinion,
where the occupants of the vehicle were seated prior to impact.  Bohan
testified that he was not able to make such a determination.     
	[¶11]  The jury convicted Marques on all counts.  After the foreperson
announced the verdict, Marques requested that the court poll the jurors
individually pursuant to M.R. Crim. P. 31(c).  In response, the court polled
the jurors, asking each juror for each count, "Is the verdict as recorded your
true verdict," "Has the clerk recorded your true verdict," or "Has the clerk
correctly recorded your verdict."  Each juror individually responded "yes"
to all counts.  The court then asked Marques's counsel whether there was
"anything further by way of inquiry of this panel as to the verdicts that they
have returned, either as to the form of the inquiry by the Court or any other
inquiry of any nature?"  Counsel responded that there was nothing further to
address.  No objection was stated regarding the poll questions.

II.  M.R. EVID. 703

	[¶12]  Marques contends that it was error for the court to exclude
Bohan's testimony that he had been advised that the red substance found on
the driver's side airbag was consistent with cosmetics.  He asserts that
M.R. Evid. 703 allows an expert to testify regarding the content of hearsay
communications where it is the kind of hearsay that an expert customarily
relies on in his or her field.  	
	[¶13]  Rule 703 of the Maine Rules of Evidence provides:

The facts or data in the particular case upon which an expert
bases an opinion or inference may be those perceived by or
made known to the expert at or before the hearing.  If of a type
reasonably relied upon by experts in the particular field in
forming opinions or inferences upon the subject, the facts or
data need not be admissible in evidence.

	[¶14]  Pursuant to Rule 703, an expert witness may rely upon the
hearsay communications of other experts to establish the foundation for his
or her opinion.  See Henriksen v. Cameron, 622 A.2d 1135, 1144 (Me.
1993) (holding psychiatrist could testify about reliance on another
psychiatrist's report to establish the factual foundation necessary for the
admission of his opinion); State v. Flint H., 544 A.2d 739, 743 (Me. 1988)
(holding physician's reliance on consultations with pharmacist and
gastroenterologist was proper); McLellan v. Morrison, 434 A.2d 28, 30 (Me.
1981) (holding physician's reliance, in part, on facts divulged in phone
conference with neurosurgeon was proper).  Testimony regarding the
substance of hearsay communications is not necessary to establish a factual
foundation for the expert's opinion and remains hearsay under the rules of
evidence.{2}  Thus, in Henriksen we stated that:

Pursuant to Rule 703, [the expert witness] could testify that he
relied on [another expert's] report in order to establish the
factual foundation necessary for the admissibility of his opinion. 
Testimony regarding the substance of [another expert's] report,
however, is not necessary to establish factual foundation under
Rule 703 and remains hearsay not within any exception. . . . Rule
703 does not make the substance of [another expert's] report
admissible and, therefore, admitting [the expert witness's]
testimony about the substance of the report was error.

Henriksen, 622 A.2d at 1144.{3}

	[¶15]  Reviewing the current state of the law, Field & Murray states:

Rule 703, by permitting an expert's opinion and testimony to be
based on inadmissible facts and data, does not ipso facto make
those facts and data admissible at the behest of the proponent of
the opinion. . . .  

	An expert opinion does not become the vehicle to convey
inadmissible hearsay evidence into the trial for direct
consideration and analysis by the jury.  Unless the door is
opened, hearsay facts and data remain inadmissible and should
not be disclosed to the jury.

Field & Murray, Maine Evidence, § 703.2 at 371 (2000 ed.) (citation
omitted).  See also State v. Vining, 645 A.2d 20, 20-21 (Me. 1994) (State
medical examiner should not have been allowed to testify that a death was a
homicide where conclusion was based on hearsay discussions with police
investigators and not a product of her expertise); Patey v. Lainhart,  
977 P.2d 1193, 1200 (Utah 1999) ("Rule 703 cannot be used to introduce evidence
through an expert for purposes other than the expert's conclusions and thus
circumvent other rules of evidence.").   
	[¶16]  We agree with Marques that an accident reconstructionist or
forensic physicist may rely on hearsay communications with a forensic
chemist to form the factual basis of his expert opinion.  However, the court
properly excluded the substantive evidence contained in the lab report and
the analyst's subsequent communication with Bohan.  Rule 703, by
permitting expert testimony based on inadmissable evidence, does not make
the substance of that evidence admissible by the proponent of the expert. 
Further, because Bohan testified that he did not have an opinion about who
was driving the Camaro, admission of the evidence in question would have
served no purpose other than to circumvent the hearsay rule.{4}  

III.  JURY POLL 

	[¶17]  Marques also argues that the court committed obvious error,
M.R. Crim. P. 52(b),{5} by failing to poll the jury in a manner that would elicit a
"guilty" or "not guilty" response from each juror and by using improper
polling questions.  With respect to the form of the questions, Marques
argues that it is nonsensical to ask a juror whether the clerk has correctly
recorded his or her verdict: (a) because the clerk had not yet recorded the
verdict; and (b) because the jurors, in any event, would not know what the
clerk had recorded. 
	[¶18]  Rule 31(c) of the Maine Rules of Criminal Procedure provides: 

When a verdict is returned and before it is recorded the jury
shall be polled at the request of any party or upon the Court's
own motion.  If upon the poll there is not unanimous
concurrence, the jury may be directed to retire for further
deliberations or may be discharged.

M.R. Crim. P. 31(c) (emphasis added).  The purpose of juror polling is "to
enable the court and the parties to ascertain with certainty that a unanimous
verdict has in fact been reached and that no juror has been coerced or
induced to agree to a verdict to which he has not fully assented."  State v.
Neron, 519 A.2d 197, 200 (Me. 1986) (quoting Miranda v. United States,
255 F.2d 9, 17 (1st Cir. 1958)).  
	[¶19]  In State v. White, 473 A.2d 883 (Me. 1984), the clerk began
polling the jurors by asking, "Did you find the defendant guilty?"  Id. at 883. 
The court interrupted and told the clerk to ask whether each juror had
found the defendant guilty or not guilty or whether the foreman had
correctly reported the verdict.  See id.  As a result the clerk asked the
jurors, "Did the foreman correctly report the verdict of the jury?"  Id.  Like
this case, no objection was made at trial and the standard of review was for
obvious error.  See id.  We criticized the method of polling the jury,
however, we refused to vacate the conviction on an obvious error standard.
We emphasized that polls should be conducted to require a juror to respond
with a "guilty" or "not guilty" response.  See id. 
	[¶20]  Marques argues that his case is distinct from White because it
involved nine separate counts and a verdict form with sixteen questions for
the clerk to review with each juror.  Thus, Marques contends that the risk
of juror confusion was great enough in his case that he was deprived of a
substantial right.  The State responds that all nine counts really focus on a
single factual determination:  whether Marques was driving the Camaro.  In
fact, Marques's counsel opened and closed by telling the jury that the only
issue in the case was whether Marques was driving. 
	[¶21]  Although the complexity of a case may be a factor for
determining whether an unclear jury poll deprived a defendant of a
substantial right, the proper standard remains whether the trial court could
justifiably conclude that each juror voluntarily assented to the verdict.  
	[¶22]  On an obvious error standard of review, we will vacate a
conviction only if the obviousness of the error and the seriousness of the
injustice done thereby are so great that we cannot in good conscience let
the conviction stand.  See State v. Tripp, 634 A.2d 1318, 1320 (Me. 1994)
(quoting State v. True 438 A.2d 460, 469 (Me. 1981)).  Marques cannot
meet this standard because the record does not reflect that the jury failed to
appreciate the purpose or meaning of the polling question.  Although the
question asked of the jurors was technically flawed, the record reflects no
confusion on the part of the court, counsel, or the jury.{6}  In these
circumstances counsel must, by objection, call the court's attention to any
improper poll question and afford the court the opportunity to correct the
problem while the jury is present.  The trial court's error in stating the jury
poll questions was not obvious and does not justify vacating the conviction.

IV.  OTHER ISSUES

	[¶23]  Marques also challenges the court's denial of his post-trial
motion to vacate or dismiss the judgment or to grant a new trial.  In addition
to the foregoing issues, Marques claims the existence of both a Brady
violation and newly discovered evidence.  We do not address these
arguments separately because the evidence supporting Marques's motion
falls far short of calling the defendant's guilt into question.  See State v.
Rich, 592 A.2d 1085, 1088-89 (Me. 1991) (holding that pursuant to
M.R. Crim. P. 16(a)(1)(C), automatically discoverable information includes
only information that "'tends to create reasonable doubt of the defendant's
guilt,' not information leading to a witness who might provide exculpatory
testimony"); Strickler v. Greene, 119 S. Ct. 1936, 1948 (1999) ("[T]here is
never a real 'Brady violation' unless the nondisclosure was so serious that
there is a reasonable probability that the suppressed evidence would have
produced a different verdict."); State v. Dechaine, 630 A.2d 234, 236 (Me.
1993) (holding that newly discovered evidence must reveal that "in light of
the overall testimony, new and old, another jury ought to give a different
verdict").  
	The entry is:
			Judgment affirmed.
Attorneys for State:

Stephanie Anderson, District Attorney
Julia A. Sheridan, Asst. Dist. Atty., (orally)
142 Federal Street
Portland, ME 04101

Attorney for defendant:

Thomas F. Hallett, Esq., (orally)
Thomas F. Hallett Law Offices, P.A.
P O Box 7508
Portland, ME 04112

FOOTNOTES******************************** {1} . Marques had previously introduced testimony intending to establish that Theriault was wearing blush on the night in question. {2} . See M.R. Evid. 705(a), which states: (a) Disclosure of Underlying Facts. The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross- examination. {3} . The error in allowing the hearsay was held to be harmless. Id. {4} . Marques suggests Bohan was actually prepared to give an opinion that Theriault was driving the Camaro until the court excluded testimony about the cosmetic substance found on the airbag. Thus, according to Marques, the court's ruling deprived him of his primary defense. We find this suggestion unpersuasive. An expert may state an opinion even if the expert cannot state all the reasons for the opinion. See Henriksen, 622 A.2d at 1144; M.R. Evid. 705(a). {5} . Marques concedes that he failed to preserve this issue with a timely objection. Rule 52(b) states: (b) Obvious Error. Obvious errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court. M.R. Crim. P. 52(b); see also State v. Tripp, 634 A.2d 1318, 1320 (Me. 1994); State v. True, 438 A.2d 460, 467-69 (Me. 1981) (discussing the obvious error standard generally). {6} . The Supreme Court of Utah, for instance, reviews the issue of unanimity as a factual question and on a clearly erroneous standard, "granting some deference to the trial judge, because a 'trial judge, in determining whether a juror has freely assented to the verdict, not only hears the juror's responses, but observes the juror's demeanor and tone of voice during the course of the polling of the jury.'" State v. Heaps, 2000 UT 5, 2000 WL 14998, at *3 (Utah Jan. 11, 2000) (quoting People v. Cabrera, 508 N.E.2d 708, 714 (Ill. 1987)); see also United States v. Luciano, 734 F.2d 68, 70 (1st Cir. 1984) (holding that trial court is granted deference regarding determination of juror's assent to verdict).