MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2023 ME 18

Docket: Pen-21-350

Argued: June	6,	2022

Decided: February	28,	2023

Panel: STANFILL,	C.J.,	and MEAD,	JABAR,	HORTON, CONNORS, and	LAWRENCE JJ.

STATE	OF	MAINE

v.

RAYSHAUN	MOORE

CONNORS,	J.

[¶1]	 Rayshaun	Moore	appeals	from	a	judgment	of	conviction	of murder,	

17-A	 M.R.S.	 §	 201(1)(A)-(B)	 (2022), entered	 by	 the	 trial	 court	

(Penobscot County,	Anderson,	J.)	after	a	jury	trial.		Moore	argues	that the	trial	

court	erred	by	denying	his	request	to	examine	the	grand	jury	transcript and	by	

considering	his decision	to	go	to	trial	as	an	aggravating	factor	at	sentencing.1		

We	affirm	the	judgment	of	conviction	but	vacate	the	sentence.

1 Moore makes two additional arguments on appeal. First, he argues that the trial court erred by stating 

during jury selection that, because of the right to a jury trial, the court must “inconvenience people like 

you.” This argument is without merit, and we do not address it further. See State v. Fleming, 644 A.2d

1034, 1036-37 (Me. 1994). Second, Moore argues that the trial court abused its discretion by allowing the 

lead detective to identify Moore in surveillance videos. See M.R. Evid. 701. Moore’s argument raises the 

issue whether a witness who has substantial familiarity with complex video evidence may offer lay opinion 

testimony to assist the trier of fact in interpreting that evidence. See United States v. Begay, 42 F.3d 486,

502-03 (9th Cir. 1994); United States v. Torralba-Mendia, 784 F.3d 652, 659-60 (9th Cir. 2015); United

States v. Muhammad, 512 F. App’x 154, 160-61 & n.7 (3d Cir. 2013); United States v. Zepeda-Lopez, 478

F.3d 1213, 1221-23 (10th Cir. 2007). Whether the State laid an adequate foundation under that theory or 

under a more traditional approach is debatable. We need not address these questions, however, because 
2

I.		BACKGROUND

[¶2]		Viewing	the	evidence	in	the	light	most	favorable	to	the	jury’s	verdict,	

the	record	supports	the	following facts.		See State	v.	Athayde,	2022	ME	41,	¶ 2,	

277 A.3d	387.

[¶3]		On the	evening	of	January	31,	2020,	Moore,	the	victim, and	several	

others	were	“hanging	out” at	Moore’s	apartment	in	Bangor.		At	approximately	

9:00	p.m.,	one	of	Moore’s	roommates	asked	“everybody” to	leave	because	they	

were	being	too	loud.		The	victim	and	some	of	the	others	left in	a	car.		Moore	and	

one	of	the	others	left	on	foot	shortly	thereafter.		About	an	hour	later,	the	victim

and	 some	 of	 the	 others	 returned	 to	 Moore’s apartment,	 looking	 for	 Moore.		

When	Moore’s	other	roommate	said	that	Moore	was	not	there,	“they” accused	

Moore’s roommate	of	lying and tried	to	force	their way	into	the	apartment.		One	

of	Moore’s	roommates contacted Moore through	Facebook	to	tell	Moore what	

had	happened and	to	tell	Moore	to	“take	care	of	it.”		Moore	sent	that roommate	

an	audio	Facebook	message	in	return	stating,	“I’m	going	to	end [inaudible] this	

shit	in	my	own	[inaudible] way	on	the	streets.”

whether or not the detective’s testimony was properly admitted, we conclude that the testimony was 

harmless because Moore admitted to being involved in the confrontation depicted in the videos; the jury

viewed the videos numerous times during the trial and twice during deliberations, suggesting that the jury 

decided for itself who was depicted in the videos; and the record contains overwhelming evidence in

support of the jury’s verdict. See M.R.U. Crim. P. 52(a);	State v. White, 2002 ME 122, ¶ 16, 804 A.2d

1146.
3

[¶4]		Around 11:00	p.m.,	Moore,	the	victim,	and	several	others	met	in	the	

parking	lot	of	the	Half	Acre	Nightclub.		A	physical	fight	broke	out	among	them,	

during	 which	the	 victim punched	 Moore	 in	 the	 face.	 	After	 the	 fight,	 Moore	

returned	to	his	apartment	where	he	told	one	of	his	roommates	that	he	“might	

catch	a	body”	and	“might	end	up	in	jail.”		Moore	appeared	to	be	angry,	and	his	

roommate	tried	to	stop	him	from	leaving.

[¶5]		Moore	returned	to	the	Half	Acre	Nightclub.		Shortly after	midnight,

on	 February	 1,	 2020,	 the	 victim also	 returned	 to	 the	 night	 club.	 	 Almost	

immediately,	Moore	confronted the	victim,	chased	him around	the	parking lot,	

and	stabbed	him	seven	times.		The	victim later	died.

[¶6]		After the	stabbing,	Moore	went	to	a	friend’s	apartment.		Moore,	who	

had	blood	all	over	his	hands	and	clothes,	stated	that	he	had	stabbed	his	friend	

and	 that	 he	 had	 thrown the	 knife	in	 the	 river.	 	Moore	 removed	 some	 of	 his	

clothes	and	put	them	in	a	trash	bag.

[¶7]	 	 After	 hearing	 about the	 stabbing,	 one	 of	 Moore’s	 roommates

checked	Moore’s	nightstand	to	see	whether Moore’s knife	was	there	and found	

that	it	was	missing.		When	Moore	returned	to	his	own	apartment,	he	told	one	of	

his	 roommates	 that	 he	 “had	 just	 caught	 a	 body”	 and	 that	 “the	 cops	 would	
4

probably	be	there	looking	for	him.”		He	also	told	one	of	his	roommates	not	to	

talk	to	the	police.

[¶8]		Police recovered	Moore’s	wallet	and	keys,	which	he	had	dropped	in	

the	parking	lot	where	the	victim was stabbed.		Moore’s	friend	gave	police	the	

bag	 containing	 Moore’s	 bloody clothes—which,	 at	 some	 point,	 had	 been	

covered	in	bleach—and	told them	that	Moore	had	thrown	the	knife	in	the	river.		

Because	the	knife	had	landed	on	a	frozen	section	of	the	river,	police	were	able	

to	 recover	it.	 	Moore’s	 roommate	identified	 the	 knife	as	belonging	 to	Moore.		

The	victim’s and	Moore’s	DNA	were	found	on	the	knife,	and	the	victim’s DNA	

was	found	in	blood	samples	collected	from	Moore’s	jacket	and	left	shoe.

[¶9]		The State	charged	Moore	by	complaint	with	intentional	or	knowing	

murder,	 17-A	 M.R.S.	 §	 201(1)(A).	 	 Moore	 filed	 a	 motion	 in	 the	 trial	 court

requesting	 that	 the	 grand	 jury	 proceedings	 be	 recorded.	 	The	 court	 granted	

Moore’s	motion	to	record the	proceedings.

[¶10]		A	few	months	later,	the	grand	jury	indicted	Moore	for	intentional	

or	 knowing	 murder and	 depraved	 indifference	 murder. See 17-A M.R.S.	

§ 201(1)(A)-(B).		Moore	filed	a	motion	requesting	that	a	transcript	of	the	grand	

jury	proceedings	be	prepared	and	that	the	transcript be	disclosed	to	the	parties	
5

under	 a	 protective	 order.	 	 Moore	 argued	 that	 he	 needed	 the	 grand	 jury	

transcript	in	order	“to	mount	a	complete	defense.”		The	State	objected.

[¶11]		The court	held	a	hearing	on	Moore’s	motion.		Moore	reiterated	his

need to	prepare	a	complete	defense	and	argued	that	disclosure	of	the	transcript	

would	put	him on	“a	level	playing	field” with	the	State.		Moore	further	argued	

that,	as	a	matter	of	policy,	the	grand	jury	transcript	should	be	provided	to	any	

defendant	who	has	been charged	with	a	serious	offense	and	intends	 to	go	 to	

trial.		To	preserve	the	secrecy	of	the	grand	jury,	Moore	suggested	that	the	court

redact the	 names	 of	 the grand	 jury	 witnesses	 and	 prohibit	 any further

dissemination	 of	 the	 transcript.	 	 Noting	 that	 the	 governing	 rule	 requires	 a	

showing	of	a	“particularized	need,” see M.R.U.	Crim.	P.	6(g), and	that	Moore’s	

argument	applied	to	“most	any	case,”	the	court	ordered the	preparation	of	the	

grand	jury	transcript but	denied Moore’s request	for	its disclosure.		The	court	

posited	that	if	a	witness	were	to	testify	at	trial	in	a	manner	inconsistent	with	

his	 or	 her	 grand	 jury	 testimony,	the	matter	 could	 be	 revisited	 to	 determine	

whether	that	inconsistency	amounted to a	“particularized	need.”

[¶12]		During a	pretrial	conference,	Moore	renewed	his	request	for	the	

disclosure	 of	 the	 grand	 jury	 transcript.	 	 Moore	 listed	 the	 names	 of	 several

potential witnesses	and	argued	that	he	needed	to	know	whether	they	had	made	
6

statements	to	the	grand	jury	that	could	implicate	their	Fifth	Amendment	rights.		

The	 court—and,	 with	 hesitation, the	 State—confirmed	 that	 none	 of	 the	

witnesses	identified	by	Moore	testified	before	the	grand	jury.

[¶13]	 	After a	 seven-day	 trial	 at	 which	 Moore	 did	 not	 testify,	 the jury	

returned	a	verdict	of	guilty.		Several	months	later,	the	court	held	a	sentencing	

hearing.		Applying	the	sentencing	statute,	17-A	M.R.S.	§	1602	(2022),	the	court	

set	the	basic	sentence	at	twenty-five	years’	imprisonment.		In	determining	the	

maximum	 term	 of	 imprisonment,	 the	 court	 identified	 three	 aggravating	

circumstances,	including	Moore’s	“lack	of	remorse,” Moore’s	criminal	record,	

and	the	impact	of	the	murder	on	the	victim’s	family.		Regarding	Moore’s	lack	of	

remorse,	the	court	stated:

[T]here	are	three	potential	aggravating	circumstances	that	deserve	

discussion.		One	is	the	lack	of	remorse.		Well,	I	have	wrestled	with	

this	concept	 for	 years	because	if	 you	decide	 that	 you	will	have	a	

trial	as	the	Constitution	says	you’re	entitled	to,	then	you	sort	of	run	

the	risk,	if	you	don’t	get	found	not	guilty,	of	being—getting	a	greater	

sentence	because	you’re	not	showing	remorse	by	pleading	guilty.		

And	I	think	that’s	kind	of	a	conundrum.

And	 I	 realize	 that	 in,	 probably,	 most	 or	 all	 courts,	 this	 is	

commonly	 done.	 	 If	 you—if	 you	 get	 convicted	 after	 a	 trial,	 then	

you’re	 showing	 no	 remorse,	 and	 that’s	 a—that’s	 a	 proper	

sentencing	consideration.		And	I’m	sure	our	law	court	would	agree.		

I	think	there	could	be	a	different	situation	if	the	defendant	testifies	

to	a	jury	and	is	found	guilty	anyway.		Then,	the—it’s	implicit	that	

the	defendant	is	lying.		And	if	you’re	lying,	you’re	not	really	showing	

much	remorse	for	the	crime	you’ve	been	convicted	of.
7

I	think	it’s	a	little	different	if	you	have	a	trial,	you	don’t	testify,	

you’re	just	exerting	your	Constitutional	rights.		So	it	is	a	factor,	but	

I’m	going	to	be	conservative	in	my	application	of	it.

The	court	 found	 that	 there	were	no	mitigating	circumstances	and	imposed	a	

thirty-two-year	sentence.		Moore	timely	appealed.

II.		DISCUSSION

A. The	trial	 court	 did	 not	 err	 or	 abuse	 its	 discretion	when	 it	 denied	

Moore	access	to the	grand	jury	transcript.

[¶14]		Moore argues	that	the	trial	court	erred	or	abused	its	discretion	by	

denying	 his	 request	 to	provide	 him	with	access	 to the	grand	jury	 transcript,	

relying	on M.R.U.	Crim.	P.	6(g),	the	Maine	Constitution,	and	the	United	States	

Constitution.		We review	the	denial	of	a	request	for	the	release	of	the	grand	jury	

transcript	for	an	abuse	of	discretion.		See	State v. Philbrick, 551 A.2d 847, 851

(Me. 1988).	 	 We review alleged due process violations de novo.	 	 State v.

Williamson, 2017 ME 108, ¶ 21, 163 A.3d 127.

1. Moore failed to establish that he had a particularized need for

the grand jury transcript as required by M.R.U. Crim. P. 6(g).

[¶15]		M.R.U.	Crim.	P. 6(g) provides that a court may furnish a copy of the

grand jury transcript to the defendant or the State upon a showing of

“particularized need.”		We have consistently	affirmed	the	particularized	need

standard	and	rejected attempts	to	deviate	from	the	requirement.		State	v.	Doody,	
8

432	A.2d	 399,	 401-02 &	n.3	 (Me. 1981); see, e.g., Philbrick,	 551	A.2d	at	 851;	

State v.	 Cote,	 444	 A.2d	 34,	 36	 (Me.	 1982); State v. Mahaney, 437 A.2d 613,

619-20 (Me. 1981);	State	v.	Cugliata,	372	A.2d	1019,	1024-26 (Me.	1977).

[¶16]		Moore acknowledged	before	the	trial	court	that	his	request	for	the	

grand	jury	transcript	was based	on	his	position	that	defendants	should	have a	

broad right	to access	transcripts	of	grand	jury	proceedings.		He	makes	no	claim	

on	appeal	that	he satisfied the	particularized	need	requirement	in	the	rule	as	

interpreted	under our	case	law;	instead,	he asks	that	we	reject	our	“rather	old	

decisions”	and	set	a	new	course	of broad	disclosure	of	grand	jury	transcripts.		

We decline	Moore’s invitation	 to	interpret	Rule	6(g) in	a	manner	 that	all	but	

eliminates	the	particularized	need	requirement.

2. Moore’s claim that he was entitled to the grand jury transcript

under the Maine Constitution is unpreserved and

undeveloped.

[¶17]		Moore	invokes	both	the	Maine	and	United	States	Constitutions	in	

his	claim	that	his	right	to	due	process	was	violated	by	the	denial	of	his	request	

to	 examine	 the	 grand	 jury	 transcript.	 	 Ordinarily,	 under	 our	 “primacy	

approach,”	 we address	 the	 state	 claim	 first,	 “independently	 of	 the	 federal	

constitutional	 claim,”	 and	 “proceed	 to	 review	 the	 application	 of	 the	 federal	

Constitution	only	if	the	state	constitution	does	not	settle	the	issue.”	 Athayde,	
9

2022	 ME	 41,	 ¶	 20,	 277	 A.3d	 387.	 	 In	 that	 analysis,	 we give weight	 to	

interpretations of	 federal	 counterparts	 only if they	 are deemed	 to	 be	

persuasive. Id.;	State	v.	Reeves,	2022	ME	10,	¶	41,	268	A.3d	281.

[¶18]		Although we	have	not	previously	identified	the	criteria that	we	will	

review	in our analysis of	 our	 state	 constitution,	 courts	in	 other	jurisdictions	

have	identified	the	criteria	 for	analyzing	their	state	constitutions.

2		Generally	

speaking,	 the	review	includes,	without	limitation,	an	examination	of	 the	 text,	

legislative	 history,	 and	 general	 historical	 context of	 the	 state	 constitutional	

provision; relevant	common	law,	statutes,	and	rules; economic	and	sociological	

considerations; and	precedent	from	jurisdictions	with	similar	provisions	to	the	

extent	that	precedent	is	deemed	persuasive.

[¶19]		Before	the	trial	court,	Moore	made	no	argument	based	on	the	state	

constitution	 but	 merely	 referenced	 it.	 	 Moore	 also	 has	 not	 engaged	 in	 an

adequate analysis	on	appeal.

3		For	example,	he	does	not	explain	why	or	how	his	

2 See, e.g., Sheesley v. State, 437 P.3d 830, 836-37 (Wyo. 2019); People v. Tanner, 853 N.W.2d 653, 666-

79 (Mich. 2014); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 421 (Conn. 2008); Kahn v. Griffin, 

701 N.W.2d 815, 829 (Minn. 2005); Jones v. State, 745 A.2d 856, 864-65 (Del. 1999); Commonwealth v. 

Edmunds, 586 A.2d 887, 895 (Pa. 1991); State v. Gunwall, 720 P.2d 808, 812-13 (Wash. 1986); State v. 

Jewett, 500 A.2d 233, 236-37 (Vt. 1985).

3 In State v. Bradberry, Justice Souter, concurring specially, explained why a party must adequately raise 

state constitutional issues:

It is the need of every appellate court for the participation of the bar in the process of trying 

to think sensibly and comprehensively about the questions that the judicial power has been 

established to answer. Nowhere is the need greater than in the field of State constitutional 
10

position	is	based	 on	 the	 text	 or	legislative	history	 of	the	Maine	Constitution.		

Nor	 has	 he	 presented	 any	 historical	 context	 with	 respect	 to	 grand	 jury	

proceedings	in	Maine	under the	common	law,	statutes, or	rules	to	support	his	

position.4		And,	finally,	Moore	has	not	stated	why	we	should	depart	from	our	

precedent.		See State v. Levesque,	281	A.2d	570,	572 (Me.	1971)(concluding that	

a “[f]ailure to transcribe grand jury proceedings and provide the accused with

a transcript of grand jury testimony is not a denial of due process”).

[¶20]		Given	the	lack	of	preservation	of	Moore’s argument	at	the	trial	level	

and	his cursory	development	of	the	argument	on	appeal,	we	decline to engage	

in	an	analysis	of	article	 I,	sections 6,	6-A,	and	7, of	 the	Maine	Constitution	 to	

depart	from	our	holding in	Levesque.		See United States v. Phillips, 433 F.2d 1364,

law, where we are asked so often to confront questions that have already been decided 

under the National Constitution. If we place too much reliance on federal precedent we 

will render the State rules a mere row of shadows; if we place too little, we will render 

State practice incoherent. If we are going to steer between these extremes, we will have to 

insist on developed advocacy from those who bring the cases before us.

522 A.2d 1380, 1389 (N.H. 1986) (Souter, J., concurring); see also State v. Dellorfano, 517 A.2d 1163, 

1166 (N.H. 1986); Saldana v. State, 846 P.2d 604, 622-24 (Wyo. 1993) (Golden, J., concurring) (surveying 

the case law).

4 For example, an analysis of Maine case law before the ratification of the Fourteenth Amendment of the 

United States Constitution in 1868, prohibiting states from depriving citizens of due process, could be 

instructive. See, e.g., Low’s Case, 4 Me. 439, 439-53 (1827); McLellan v. Richardson, 13 Me. 82, 86

(1836); State v. Burlingham, 15 Me. 104, 107-08 (1838); State v. Bailey, 21 Me. 62, 66-68 (1842); State v.

Knight, 43 Me. 11, 128 (1857). Likewise, an examination of Maine case law before the adoption of the 

Federal Rules of Criminal Procedure in 1944 and the Maine Rules of Criminal Procedure in 1965 could 

also be illuminating. See, e.g., State v. Benner, 64 Me. 267, 282-87 (1874); Hunter v. Randall, 69 Me. 183,

189 (1879); State v. Wilkinson, 76 Me. 317, 319-21 (1884); State v. Bowman, 90 Me. 363, 364-68, 38 A.

331 (1897); State v. Wombolt, 126 Me. 351, 351-53, 138 A. 527 (1927).
11

1366 (8th Cir. 1970) (“Such	naked	castings	into	the	constitutional	sea	are	not	

sufficient	to	command	judicial	consideration	and	discussion.”).

3. Moore was not entitled to the grand jury transcript under the

United States Constitution.

[¶21]		Moving	on	to	Moore’s	federal	claim,	we previously observed that

the United States Supreme Court has not dispensed with the particularized

need requirement and that its views concerning access to grand jury testimony

are based on its supervisory authority over lower federal courts rather than on

the federal constitution.	 	 Cugliata, 372 A.2d at 1025 & n.2 (citing	 Dennis v.

United States, 384 U.S. 855 (1966)). As noted above, Moore does not claim that

he had a particularized need for the grand jury transcript here.		Instead, while

acknowledging	 that	 federal	 case	 law	 does	 not	 support	 his	 position, Moore

broadly argues that his right to a fair trial outweighs any state interest in

maintaining grand jury secrecy and that	disclosure	of	the	transcript	should	be	

the	 default rule.	 We	 decline	 to	 reimagine	 the	 United	 States	 Constitution	 as	

requiring	such	disclosure.
12

B. A	criminal	defendant’s	decision	to	exercise his	constitutional	right	

to	a	jury	trial	may	not	be	considered	at	sentencing.

[¶22]		Moore	argues	that,	by	considering	his	decision	to	stand trial	as	an	

aggravating	factor	at	sentencing, the	sentencing court	violated	his	right	to	a	jury	

trial	under	the	United	States Constitution.5		See U.S.	Const.	amend.	VI.

[¶23]	 	 “Generally, a	 defendant	 is	 not	 entitled	 to	 a	 direct	 review	 of	 a	

sentence	and	must	seek	review	through	the	sentence	review	process.”		State v.

Winslow, 2007 ME 124, ¶ 27, 930 A.2d 1080;	 see 15	 M.R.S.	 §§	 2151-2157	

(2022).		“Nonetheless, when a defendant claims that the sentence is illegal and

when the illegality appears on the face of the record, we will review the

sentence on direct appeal.”	 	 Winslow, 2007 ME 124, ¶ 27, 930 A.2d 1080;

see State v. Discher, 597 A.2d 1336, 1343 (Me. 1991).		A defendant’s claim that

his sentence has been increased because he has exercised his right to a trial

goes to the legality of the sentence.	 	 State v. Farnham, 479 A.2d 887, 889

(Me. 1984).	 	 We review de novo a claim that a constitutional violation has

occurred at sentencing. State v. Cain, 2006 ME 1, ¶ 7, 888 A.2d 276.

5		Moore	also	argues that,	by	punishing	him	based	on	a	perceived lack	of	remorse at	sentencing,	

the	 trial	 court	 violated	 his	 right	 against	 self-incrimination	 under	 the	 United	 States	 Constitution.		

Because	 we	 conclude	 that	 the	 trial	 court	 erred	 on	 other	 grounds,	 we decline	 to	 address	Moore’s	

argument.
13

[¶24]		“It is black-letter law that an accused cannot be punished by a more

severe sentence because he unsuccessfully exercised his constitutional right to

a trial.”		Farnham,	479	A.2d	at	891.		Although	a	court	may	deny leniency to	a

defendant	who	is	convicted	after	a	 trial,	in	so	doing,	it	may	not	consider	 the	

defendant’s	exercise	of	his	right	to	trial.		In Winslow, we observed,

It is to be expected that, on the whole, defendants who plead guilty

to criminal offenses receive more lenient sentences than

defendants who go to trial.	 	 Remorse and acceptance of

responsibility are factors that courts look at in sentencing, and

defendants who plead guilty are more likely to demonstrate

sincere remorse than defendants who do not plead guilty.		The trial

exposes a defendant to a much lengthier scrutiny by the sentencing

court than would take place with a plea of guilty.	 	The	 trial may	

bring	 to	 light	 facts	 about	 the	 defendant	 and	 the	 crime	 that	 are	

unfavorable	 to	 the	 defendant	 and	 that	 may	 not	 come	 to	 the	

attention	 of	 the	 court	 in	 a	 plea	 proceeding.	 	 The length of time

waiting for trial generally gives the State additional opportunity to

research the defendant’s criminal record.		It is permissible for plea

agreements to involve a recommendation of a more lenient

sentence than the prosecutor would recommend after trial.

2007	ME	124,	¶	31,	930	A.2d	1080 (citations omitted).

[¶25]	 	 Thus, “[t]here is a difference between increasing a defendant’s

sentence because the defendant chooses to exercise the right to trial . . . and

considering a defendant’s conduct at trial and information learned at trial,

along with other factors, in determining the genuineness of a defendant’s claim
14

of personal reform and contrition.”6	 	 State v. Grindle, 2008 ME 38, ¶ 19,

942 A.2d 673 (quotation marks omitted).	 	“[A] sentence	 based	in	 part	 on	 an	

impermissible	consideration	is	not	made	proper simply because	the	sentencing	

judge consider[ed] other	permissible	factors as	well,” Commonwealth v. Bethea,

379 A.2d 102, 106 (Pa. 1977), and	“[t]he	quantitative	role	 the	impermissible	

factor	 played	 in	 such	 decision	 does	 not	 detract	 from	 the	 nature	 of	 the	

constitutional	 violation,”	 	 Farnham, 479 A.2d at 895 n.4 (Glassman, J.,

concurring in part and dissenting in part).		It follows that simply exercising the

right to trial can never be cited as an aggravating factor.

[¶26]		When a sentencing court references a defendant’s demand for a

trial, we evaluate	the	reference	in	the	context	of the	entire	sentencing process.		

State v. Hayden, 2014 ME 31, ¶ 24, 86 A.3d 1221.		“[I]t	is	sufficient	to	render	a	

sentence	invalid	if	it	 reasonably	appears	 from	 the	 record	 that	 the	trial court	

relied	in	whole	or	in	part	upon	[the	defendant’s	election	to	stand	trial].”		Bethea,	

379	A.2d	at	107.		We	need	not	conclude that	the	sentencing	court in	fact	relied	

upon	an	improper consideration.		Id. at	106-07. “Any	doubt	as	to	whether	the	

6 Our jurisprudence has not always been precise, however, in articulating this distinction. See, e.g., State

v. Farnham, 479 A.2d 887, 893 (Me. 1984) (“There is a clear-cut distinction between enhancing a sentence 

because the convicted defendant insisted on a trial and considering that fact along with others in assessing 

how real is defendant’s claim of remorse and reform at the time of sentencing.” (emphasis added)); cf. State

v. Grindle, 2008 ME 38, ¶ 26, 942 A.2d 673 (“[T]he court did not base its decision solely on Grindle’s 

exercising his right to testify and its belief that Grindle testified untruthfully. Instead, the court properly 

considered several aggravating factors . . . .” (emphasis added)).
15

defendant	was	 punished	 for	 exercising	 his	 right	 to	 trial	must	 be	 resolved	in	

favor	of	the	defendant.”		Farnham, 479	A.2d	at	894-95	(Glassman, J., concurring

in part and dissenting in part).

[¶27]		Here,	the	court	concluded	that	most	or	all	courts	would	agree	that	

“if	you	get	convicted	after	a	trial,	then	you’re	showing	no	remorse,	and	.	.	.	that’s	

a proper	sentencing	consideration.”		Although the	sentencing	court then	stated

it	was	going	to	be	conservative	in	applying	this	principle, this is	of	no	import	

because	any	increase	in	Moore’s	sentence	for	that	reason	is improper.		Because

a	 fair	 reading	 of	these remarks suggests that	 the	 sentencing	 court	 was—or

might have	been—influenced	by	Moore’s decision to	stand	trial,	we	must	vacate	

Moore’s sentence	and	remand	for	resentencing.7

The	entry	is:

Sentence	vacated.		Remanded	for	resentencing.		

Judgment	affirmed	in	all	other	respects.

Rory	A.	McNamara,	Esq.,	Drake	Law	LLC,	York,	for	appellant	Rayshaun	Moore

Aaron	M.	Frey,	Attorney	General,	and	Donald	W.	Macomber,	Asst.	Atty.	Gen.,	

Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine

7 Because the trial justice retired during the pendency of this appeal, a different justice will necessarily 

have to resentence Moore on remand.
16

Penobscot	Unified	Criminal	Docket	docket	number	CR-2020-480

FOR	CLERK	REFERENCE	ONLY