MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2021 ME	37

Docket: Pen-20-215

Argued: June	3,	2021

Decided: July	8,	2021

Panel: MEAD,	GORMAN,	JABAR,	HUMPHREY,	HORTON,	and	CONNORS,	JJ.

STATE	OF	MAINE

v.

F	DALY

HUMPHREY,	J.

[¶1]	 F	 Daly	 appeals	 from	 a	 judgment	 of	 conviction	 of	 knowing	 or	

intentional	 murder,	 17-A	 M.R.S.	 §	 201(1)(A)	 (2021),	 entered by	 the	 court	

(Penobscot	County,	A.	Murray,	J.)	after	a	five-day	jury	trial,	and	from the	court’s	

imposition	of	a	forty-two-year	sentence and denial	of	his	motion	for	a	new	trial.		

Daly	 argues	 that	 the	 court	 erred or	 abused	 its	 discretion in	 excluding	

alternative-suspect	 evidence,	 failing	 to	 provide	 an	 adequate	 explanation	 in	

setting	the	basic	sentence,	and denying	his	motion	for	a	new	trial,	which	was	

based	 on	 a	 juror’s	 statements	 made	 after	 the	 conviction.

1	 	 We	 affirm	 the	

judgment,	the	sentence,	and	the	denial	of	the	motion	for	a	new	trial.

 1		Daly	also	contends	that	the	court	misstated	the	burden	of	proof	in	its	jury	instruction	regarding	

the	number	of	witnesses	called	by	each	party.		Reviewing	the	jury	instructions	in	their	entirety,	we	

discern	no	error.		See State	v.	Plummer,	2020	ME	106,	¶	15,	238	A.3d	241.
2

I.		BACKGROUND

[¶2]		Based	on	the	evidence	presented	at	trial,	the	jury	rationally	could	

have	 found	beyond	a	 reasonable	doubt,	see	State	v.	Haag,	2012	ME	94,	¶	17,	

48 A.3d	207, that	on	January	7,	2018,	Daly	went	to	the	victim’s	residence	and	

shot	the	victim	in	the	abdomen	and	the	head,	causing	his	death.	After	the	police	

learned	of	Daly’s	confession	to	his	girlfriend	and	discovered	Daly’s	gun	hidden	

in	the	ceiling	of	his	apartment,	Daly	was	charged	by	criminal	complaint	with	the	

victim’s	 murder.	 	 Daly	 was	 indicted	 for murder	 on	 February	 28,	 2018.2	 	He	

entered	a	plea	of	not	guilty.3		

[¶3]		In	September	2019,	two	weeks before	the	start	of	the	jury	trial,	the	

State	moved	to	exclude	evidence	of	alternative	suspects,	asking	that	the	court	

hear	 outside	 the	 presence	 of	 the	 jury	 any	 proposed	 testimony	 regarding	 an	

alternative	suspect before	admitting	it	in	evidence.		The	court	did	not	rule	on	

the	motion	in	advance	of	 trial.		 Instead,	it ruled on	 objections	 to	evidence	 of	

 2		The	indictment	initially	charged	that	he	had	committed	the	murder	“with	the	use	of	a	firearm	

against	a	person,”	but	that	language	and	the	citation	of	the	statute	governing	sentencing	for	Class	A,	

B,	and	C	crimes committed	with	use	of	a	firearm	were	stricken	because	the	use	of	a	firearm	is	not	an	

element	 of	 the	 crime	 of	 knowing	 or	 intentional	 murder	 and	 did	 not	 affect	 murder	 sentencing.		

See 17-A M.R.S.	§ 201(1)(A)	(2021);	see	also	17-A	M.R.S.	§	1252(5)	(2018),	repealed	and	replaced	by

P.L.	 2019,	 ch.	 113,	 §§	 A-1,	 A-2	 (emergency,	 effective	 May	 16,	 2019)	 (codified	 at	 17-A	 M.R.S.	

§ 1604(5)(A)	(2021).		

3		The	completed	judgment-and-commitment	form	incorrectly	indicates	that	Daly	pleaded	guilty.		

Our	mandate orders the correction	of	this	error.
3

alternative	suspects	during	the trial.		Specifically,	the	court	sustained	the	State’s	

objections to	questions asking the	victim’s	girlfriend	about	an	incident in	the	

summer	of	2017	involving	the	victim	and	another	person.		Daly	argued	that	he	

was	offering	evidence	that	the	other	person	had	stabbed	the	victim	during	the	

2017	 incident	 in	 order	 to	 challenge the	 credibility	 of	 the	 testimony	 of	 the	

victim’s	girlfriend that	she	had	never	seen	the	victim	get	into	fights.		He	argued

that	the	person	who	purportedly	stabbed	the	victim was an	alternative	suspect	

who	had	a	motive	to	kill	the	victim	and	was	in	the	area	at	the	time	of	the	victim’s	

death.	 	 The	 court	 ruled	 that the	 evidence	 was	 not	 admissible	 as	

alternative-suspect	evidence	and that	it did	not	undermine	the	credibility	of	the	

victim’s	girlfriend	unless	there	was	evidence	that	she saw	the	fight	that	resulted	

in	the	stabbing.		

[¶4]	 	 Before	 the	 victim’s	 girlfriend	 was	 dismissed	 as	 a	 witness,	 Daly	

renewed	his	objection	to	the	exclusion	of	evidence	of	the	earlier	knife	wound	

the	victim	had	suffered.		He	represented	that	the	person	who	had	purportedly	

stabbed	the	victim had	been	prosecuted	for	the	stabbing,	was	to	begin	serving	

time	for	the	resulting	conviction	near	the	time	of	the	murder,	and	was	in	Bangor	

the	weekend	 of	 the	 victim’s	death	with	individuals	identified	 as	 “Truck”	 and	

“Capitol”	and	 therefore	had	 the	opportunity	 to	murder	the	victim.		The	court	
4

excluded	 the	 evidence,	 concluding that	 even	 if	 Daly	 established	 those	 facts,	

there	 was	 no	 reasonable	 connection	 between	 the	 person	 who	 purportedly	

stabbed	the	victim and	the	crime	at	issue.

[¶5]		On	 the	second	day	of	 trial,	 the	State	indicated	 that	it	had	learned	

that,	 contrary	 to	 Daly’s	 earlier	 representations,	 the	 person who	 purportedly

stabbed	the	victim in	2017 had	not	been	arrested	or	charged	for	that	conduct	

and	had	had	an	upcoming	court	appearance	only	for	an	unrelated	theft	charge.		

The	court	reaffirmed	its	ruling	that	no	alternative-suspect	evidence	regarding	

that	 person would	 be	 admitted	 because	 it	 “did	 not	 meet	 the	 threshold	 for	

relevance	necessary.”		

[¶6]		The	court	also	excluded	a	small	portion of	an	otherwise	admitted	

deposition	of	Daly’s	roommate	regarding	 the sale	of	drugs	by the individuals	

known	 as	 Capitol	 and	 Truck	 because	 there	 was	 no	 reasonable	 connection	

between	 either	 of	 them	 and	 the	 crime.	 	 Daly	 did	 not	 offer	 any	 additional	

foundation for	 the	 involvement	 of	 either	 of	 them	 in	 the	 murder.	 	 Daly’s	

girlfriend	did,	however,	later	testify	that	Daly	told	her	that	he	had	visited	Truck,	

shown	him	the	gun,	and	asked	him	to	call	Capitol	just	before	Daly	went	to	the	

victim’s	apartment	and	killed	the	victim.		
5

[¶7]		The	State	presented	evidence	of	the	following	to	establish	its	case	

against	Daly:

• The	bullets	 found	in	 the	 victim’s	head	and	in	 a	pillow	 on	his	bed	were	

fired	from	the	gun	found	in	the	ceiling	above	the	closet	in	the	apartment	

where	Daly	resided	with	his	girlfriend	and	his	friend.		The	gun	was	in	such	

a	location	that	it	appeared	it	had	been	pushed	through	to	that	area	above	

the	ceiling	from	above	the	suspended	ceiling	in	the	bathroom.		

• On	the	day	of	the	murder,	just	before	7:30	p.m.,	Daly	called	a	friend	who	

knew	the	victim	and	asked for	the	victim’s	address.		

• After	that	phone	call,	Daly	changed	into	his	old	glasses,	put	on	two	pairs	

of	gloves,	and	left	his apartment.		

• When	Daly	returned	a	half hour	later,	he	confessed	to	his	girlfriend	that	

he	had	“clapped”	the	victim	by	shooting	him	in	the	stomach	and	then	the	

head.		He	then	cleaned	the	gun	with	bleach	and	water,	bagged	and	hid	the	

gun,	 and	 later	 told	 his	 girlfriend	 that	 he	 had	 tossed	 his	 sneakers	 in	 a	

dumpster.	 	 He	 bagged	 up	 his	 clothing.	 	 He	 showered	 and	 left	 the	

apartment	after	asking	his	roommate	for	different	clothes.	 Days	later,	he	

had	his	roommate	take	out	the	trash	bag	containing	his	clothing.		

• A	 convenience	 store’s	 surveillance	 video from	 the	 night	 of	 the	murder	

shows	 that	 at	 6:47	 p.m.	 Daly	 was wearing	 one	 set	 of	 clothing, but at	

10:00 p.m.	he	was	wearing a	different	set	of	clothing.		

• A	friend	of	Daly’s	had	previously	seen	him	hide	his	gun	in	the	closet	or	

the	bathroom	when	a	probation	officer	came	to	check	the	apartment.		

• Daly	had	been	aware	of	the	bathroom	ceiling	as	a	hiding	place	for	items.		

• The	 victim	 and	 Daly	 did	 not	 get	 along,	 and	 the	 victim	 had	 hit	 on a	

girlfriend	of Daly’s	in	 the	past.		During	a	disagreement	with	 the	victim,	

Daly	said	to	the	victim,	“I’m	not	worried	about	you.		I’ve	got	something	

for	you.”		
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• After	 the	day	of	 the	murder,	Daly	became	paranoid	and	was	not	acting	

like	himself.		He	repeatedly	washed	and	bleached	his	gun	and	moved	it	

around	the	apartment.		The	gun was	rusted	when	it	was	found.		

[¶8]	 	 After	 the	 State	 presented	its	 case,	Daly	 moved	 for	 a	judgment	 of	

acquittal,	and	 the	court	denied	his	motion.		Daly	called	one	witness and	 then	

rested.		The	jury	found	Daly	guilty.		

[¶9]	 	 After	 obtaining	 a	 presentence	 investigation	 report	 and	 a	

psychological	evaluation	of	Daly,	the	court	held	a	sentencing	hearing	on	July	16,	

2020.		The	court	first	determined	the	basic	sentence	based	on	the	nature	and	

seriousness	of	the	crime	as	committed.		See	State	v.	Carrillo,	2021	ME	18,	¶ 38,	

248	A.3d	193.		The	court	found that	the	nature	and	seriousness	of	the	crime	did	

not	justify	a	life	sentence.		The	court	determined	that	a basic	sentence	of	forty	

to	 fifty	 years	was	appropriate	because	Daly	made	hurried	calls	 to	determine	

where	the	victim	lived	and	then	quickly	went	to	the	victim’s	home,	with	some	

planning,	and	shot	him	for	reasons	unknown,	but	the	facts	were	not	as	heinous

as	in	other	cases,	such	as	when	a	person	was	stabbed	fifty	times	in	the	face,	a	

child	was	sexually	abused	and	killed,	a	child	was	burned	to	death	in	a	hot	oven,	

and	people	were	burned	to	death	in	the	back	of	a	locked	box	truck.4		

 4		See	State	v.	Hutchinson,	2009	ME	44,	¶¶	13,	41,	969	A.2d	923 (affirming	basic	sentence	of	life	

when	the	victim,	in	addition	to	the	fatal	injury,	was	stabbed	fifty	times	in	the	face	and	was	sexually	

assaulted); State	v.	Wilson, 669	A.2d	766,	767-69	(Me.	1996) (affirming	basic	sentence	of	life	when	

the	 defendant	 had	 bound,	 gagged,	 sexually	 assaulted,	 and	 killed	 his	 eleven-year-old	 daughter);	
7

[¶10]		The	court	then	considered	aggravating	and	mitigating	 factors	 to	

determine	 the	 final	sentence.		See	id.		As	aggravating	factors,	the	court	 found	

that the	victim’s	family	was	suffering,	that	Daly lacked	remorse	when	speaking	

of	 the	crime	 to	his	girlfriend,	and	 that	Daly	was “rigid,	highly	controlled,	and	

quite	 adept	 at	 providing	 a	 very	limited	 scope	 of	information	 about	 himself,”	

which	did	 “not	 bode	well	 for	 the	 rehabilitative	 purpose	 of	 sentencing.”	 	 The	

court	found	mitigating	factors that	included	the lack	of	any	significant	criminal	

history	for	Daly	and	his	untreated	 trauma	issues.		The	court	determined	 that	

the	weight	of	the	aggravating	factors	was	“substantially	similar” to	the	weight	

of	the	mitigating	factors.	 The	court sentenced Daly	to	serve	forty-two	years	in	

prison and	pay	$4,650	in	restitution.		

[¶11]	 	 Daly	 timely	 appealed from	 the	 judgment	 of	 conviction.

See 15 M.R.S.	§	2115	(2021);	M.R.	App.	P.	2B(b)(1).	 He	also	applied	for	review	

of	 his	 sentence.	 	 See	 15	 M.R.S.	 § 2151	 (2021).	 	 The	 Sentence	 Review	 Panel	

granted	Daly	leave	to	appeal	his	sentence.		

 

State v.	Lane,	532	A.2d	144,	145-46	(Me.	1987)	(affirming	a	judgment	of	conviction	of	murder	when	

the	defendant	trapped	a	child	in	an	oven	and	set	the	oven	at	a	high	heat	causing	severe	burning	and	

death);	State	v.	De	St.	Croix,	2020	ME	142,	¶¶	1-2,	16,	243	A.3d	880 (affirming	a	sentence	of	life	when	

the	victims	were	locked	in	a	box	truck	that the	defendant	set	on	fire).
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[¶12]	 	 While	 this	 appeal	 and	 the	 sentence	 review	 were	 pending,	 in	

November	2020,	Daly	moved	for	a	new	trial	on	the	ground	of	newly	discovered	

evidence	that	one	of	the	jurors	had	contacted	defense	counsel	to	say	that	three	

of	 the	jurors	had	hesitated	 to	 find	Daly	guilty	because	 they	were	not	initially	

convinced	that	Daly	had	not	gone to	the	apartment	of	Truck	and	Capitol	to	give	

one	or	both	of	them	his	gun	before	the	victim	was	shot.5 See	M.R.U.	Crim.	P.	33.		

The	juror	informed	counsel	that	the	three	jurors	had	ultimately	voted	to	convict	

because	if	Truck	or	Capitol	had	caused	the	victim’s	death	using	Daly’s	gun,	“why	

didn’t	[Daly]’s	attorneys	say	so?”		

[¶13]	 	 Daly	 argued	 that	 this	 information	 justified	 a	 new	 trial	 when	

considered	in	light	of evidence	that	Daly	told	his	girlfriend	that	he	had	gone	to	

Truck’s	apartment	first	and	had	shown	him	the	gun,	asking	him	to	call	Capitol	

before	he	left	for	the	victim’s	apartment.		He	argued	that	the	juror’s	statements	

demonstrated	 that	 the	 exclusion	 of	alternative-suspect	evidence	 affected	 the	

fairness	 of	 his	 trial.	 	 After	 accepting	 an	 opposing	 memorandum	 and	 a	 reply	

memorandum,	the	court	denied	the	motion	for	a	new	trial	based	on	the	lack	of	

any	newly	discovered	evidence	and	the	application	of	M.R.	Evid.	606(b),	which	

provides	 that	a	court	may	not	accept	a	juror’s	affidavit	as	 to	most	aspects	 of	

 5		We	stayed	the	appeal	while	the	motion	for	a	new	trial	was	pending.		
9

juror	 deliberations.	 	 The	 court	 reasoned	 that,	 even	 if	 it	 were	 permissible	 to	

consider	a	juror’s	affidavit	regarding	deliberations,	 the	court	would	deny	 the	

motion	because	a	juror’s	interest	in	inadmissible	evidence	does	not	render	the	

exclusion	 of	 that	evidence	erroneous.		Daly	 timely	appealed	 from	 the	court’s	

ruling	 on	 the	 motion.	 	 Upon	 Daly’s	 motions,	 we	 consolidated	 the	 appeals,	

allowed	 supplemental	 briefing,	 and	 sealed	 the	 supplemental	 appendix	

containing	juror	information.		

II.		DISCUSSION

A. Alternative-Suspect	Evidence

[¶14]	 	 Daly	 challenges	 the	 constitutionality	 of	 our	 test	 for	 the	

admissibility of	alternative-suspect	evidence	and	argues	in	the	alternative	that,

even	under	the	existing	test,	his	proffered	alternative-suspect	evidence	should	

have	been	admitted.		We	address	each	of	his	arguments	separately.

1. Test	for	the	Admission	of	Alternative-Suspect	Evidence

[¶15]		Daly	contends	that	his	trial	was	unfair	and	violated	the	state	and	

federal	 constitutions	 because	 the	 court	 applied	 a	 test	 for	 the	 admission	 of	

alternative-suspect	 evidence	 that	 improperly	 placed	 a	 burden	 of	 production	

and	 proof	 on him,	 deprived	 him	 of	 the	 right	 to	 a	 jury	 trial	 on	 the	

alternative-suspect	issue,	violated	due	process,	and	deprived	him	of	the	right	
10

to	present	a	defense.		See Me.	Const.	art.	I,	§§	6,	6-A;	U.S.	Const.	amend.	VI;	U.S.	

Const.	 amend.	 XIV,	 §	 1.	 	 Because	 Daly did	 not	 raise	 to	 the	 trial	 court	 his	

contention	 that	 our	 test	 for	 the	 admission	 of	 alternative-suspect	 evidence	

violated	 his	 state	 and	 federal	 constitutional	 rights,	 we	 review	 this	 issue	 for	

obvious	error.		See	State	v.	Proctor,	2020	ME	107,	¶	13,	237	A.3d	896.

[¶16]		“A	criminal	defendant	is	entitled	to	present	evidence	in	support	of	

the	 contention	 that	 another	 is	 responsible	 for	 the	 crime	 with	 which	 he	 is	

charged.”		State v. Dechaine,	572	A.2d	130,	134	(Me.	1990).		The	court	should	

consider	 the	 effect	 of the	 proffered alternative-suspect	 evidence	 as	 a	 whole

because,	as	we	have	held,	“[t]he	court	should	allow	the	defendant	wide	latitude	

to	present	all	the	evidence	relevant	to	his	defense,	unhampered	by	piecemeal	

rulings	 on	 admissibility.”	 	 State	 v.	 Conlogue,	 474	 A.2d	 167,	 172	 (Me.	 1984)

(quotation	marks	omitted).

[¶17]	A defendant,	by presenting such	evidence,	is	arguing	“that	the	State	

has	failed	to	meet	its	burden	of	proving	that	the	defendant	was	the	person	who	

committed	the	crime.”		State	v.	Fournier,	2019	ME	28,	¶	18,	203	A.3d	801.	 Thus,	

the	proffer	 of	alternative-suspect	evidence	is	 “neither	 an	 affirmative	 defense	

nor	a	justification	defense.”		State	v.	Jaime,	2015	ME	22,	¶ 31,	111	A.3d	1050.	
11

[¶18]	 The	decision	to	offer	alternative-suspect	evidence “does	not	alter	

or	 shift	 the	 burden	 of	 proof.”	 	 Fournier,	 2019	 ME	 28,	 ¶ 18,	 203	 A.3d	 801

(emphasis	added).		Thus,	“the	burden	does	not	shift	to	the	State	to	prove	that	

the	alternative	suspect	did	not commit	the	crime,”	and	“the	defendant	does	not	

have	any burden	 to	prove,	by	a	preponderance	of	 the	evidence	or	otherwise,	

that	the	alternative	suspect	did commit	the	crime.”		Jaime,	2015	ME	22,	¶	32,	

111	A.3d	1050.		“As	in	all	criminal	cases,	the	State’s	burden	remains	the	same	

throughout	the	trial—to	prove	beyond	a	reasonable	doubt	all	elements	of	the	

crime	charged,	including	that	the	defendant	committed	the	crime.”		Id.

[¶19]		We	have	stated that alternative-suspect	evidence	is	admissible	if	

“(1) the	 proffered	 evidence	 is	 otherwise	 admissible,	 and	 (2)	 the	 admissible	

evidence	is	of	sufficient	probative	value	 to	raise	a	reasonable	doubt	as	to	the	

defendant’s	 culpability	 by	 establishing	 a	 reasonable	 connection	 between	 the	

alternative	suspect	and	the	crime.”		Id. ¶ 34 (quotation	marks	omitted).

[¶20]	 	 The	 first	 part	 of	 the	 test	 calls	 for	 a	 court	 to	 determine	 the	

“preliminary	admissibility	of	the	evidence” before	assessing	relevance	and	the	

balancing	 required	 by	 M.R.	 Evid.	 401	 to	 403. See Jaime,	 2015	 ME	 22,	¶ 34,	

111 A.3d	1050.		Thus,	the	court	need	not	reach	the	next	step	if,	for	example, the	

proffered	 evidence	 is	 inadmissible	 hearsay,	see	 State	 v.	 Reese,	 2005	 ME	 87,	
12

¶¶ 11,	13,	877	A.2d	1090; Dechaine,	572	A.2d	at	133	n.6; State	v.	Caulk,	543	A.2d	

1366,	 1371	 (Me.	 1988),	 or	 evidence	 of	 a	 prior	 bad	 act	 offered	 to	 prove	 a	

person’s	character	for	the	purpose	of	showing	that	“on	a	particular	occasion	the	

person	acted	in	accordance	with	the	character,”	M.R.	Evid.	404(b), see	State	v.	

Bridges,	2003	ME	103,	¶¶ 38, 42,	829	A.2d	247.

6		In	the	absence	of	admissible

evidence	 that	 the	 defendant	 is	 prepared	 to	 offer,	 “a	 defendant	 cannot	 be	

allowed	to	use	his	trial	to	conduct	an	investigation	that	he	hopes	will	convert	

what	amounts	to	speculation	into	a	connection	between	the	other	person	and	

the	 crime.”	 	 Fournier,	 2019 ME	 28,	 ¶ 18,	 203	 A.3d	 801	 (quotation	 marks	

omitted).

[¶21]		The	second	part	of	the	test	amounts	to	a	“specific	application” of	

“well-established	 rules	 of	 evidence	 [that]	 permit	 trial	 judges	 to	 exclude	

evidence	if	its	probative	value	is	outweighed	by	certain	other	 factors	such	as	

unfair	 prejudice,	 confusion	 of	 the	 issues,	 or	 potential	 to	 mislead	 the	 jury.”		

Holmes	v.	South	Carolina,	547	U.S.	319,	326-27	(2006);	see	M.R.	Evid.	401-403;

Fournier,	2019	ME	28,	¶ 18,	203	A.3d	801; State	v.	Boobar,	637	A.2d	1162,	1172	

 6	 	 We	 first	 summarized	 the	 test	 as	 having	 two	 parts,	 with	 the	 requirement	 of	 a	 preliminary	

admissibility	determination,	in State	v.	Mitchell,	2010	ME	73,	¶	25,	4	A.3d	478.		In	support	of	the	test,	

we	cited	State	v.	Bridges,	2003	ME	103,	¶	42,	829	A.2d	247,	in	which	we	held	 that	an	alternative	

suspect’s	prior	bad	acts,	even	if	they	had	some	relevance,	were	inadmissible	evidence	offered	to	show	

the	suspect’s	character	and	establish	 that	 the	suspect	acted	in	conformity	with	 that	character.		Id.	

¶¶ 38-42;	see	M.R.	Evid.	404(b).
13

(Me.	1994); State	v.	Mitchell,	2010	ME	73,	¶	33,	4	A.3d	478;	State v. Kotsimpulos,	

411	 A.2d	 79,	 81 (Me.	 1980).	 The	 test	 for	 admitting	 a	 defendant’s	

alternative-suspect	 evidence	 is	 no	 different	 than	 the	 test	 for	 admitting	 any	

other	evidence	in	a criminal	trial,	whether	presented	by	the	defendant	or	by	the	

State:	in	addition	to	being	admissible	under	all	of	the	other	Rules of	Evidence

and	 other	 sources of	 law,	 the	 evidence	 must	 be	 relevant	 to	 whether	 the	

defendant	is	guilty	beyond	a	reasonable	doubt	of	the	offense	charged, M.R.	Evid.	

401-402,7 and	 even	 if	 the	 evidence	 is	 relevant,	 it	 may	 be	 excluded	 “if	 its	

probative	value	is	substantially	outweighed	by	a danger	of .	.	. unfair	prejudice,	

confusing the	 issues,	 misleading	 the	 jury,	 undue	 delay,	 wasting time,	 or	

needlessly presenting cumulative	evidence,”	M.R.	Evid.	403;see State	v.	Wyman,	

2015	ME	2,	¶¶ 21-23,	107	A.3d	1134	(rejecting	the	defendant’s	argument	that	

State’s	evidence	of	cell	phone	records	should	have	been	excluded	under	M.R.	

Evid.	403).

[¶22]		The	concerns	weighing	against	admissibility	under	Rule	403—the	

danger	that	the	issues	may	be	confused,	the	jury	misled,	the	proceedings	unduly	

 7		“Evidence	is	relevant	if:	(a) It	has	any	tendency	to	make	a	 fact	more	or	less	probable	than	it	

would	be	without	the	evidence;	and	(b)	The	fact	is	of	consequence	in	determining	the	action.”		M.R.	

Evid.	401.		Relevant	evidence	is	admissible	unless	a	federal	or	state	statute,	another	rule	of	evidence,	

or	another	rule	applicable	in	Maine	courts	provides	otherwise.		M.R.	Evid.	402.		“Irrelevant	evidence	

is	not	admissible.”		Id.
14

delayed,	 or	 time	wasted—will	be	considered in	every	criminal	case	in	which	

alternative-suspect	 evidence	 is	 being	 offered.	 	 See	 M.R.	 Evid.	 403;	 Boobar,	

637 A.2d	at 1172 (“The	court	must	 take	into	account	 the	extent	 to	which	 the	

alternative	perpetrator	evidence	is	in	dispute,	the	time	required	to	present	it,	

and	the	extent	of	rebuttal	evidence	that	it	would	generate,	i.e.,	the	extent	that	it	

would	result	in	a	trial	within a	trial.”).		Thus,	the	focus	of	a	trial	court’s	analysis	

will ultimately turn	to the	probative	value	of	the	proffered	alternative-suspect	

evidence as	compared	to	those	concerns.		See	id.;	see	also	Field & Murray,	Maine	

Evidence § 401.3 at	 100 (6th	 ed.	 2007) (stating	 that	 if	 alternative-suspect	

evidence	 “is	 of	 little	 direct	 probative	 force,	 or	 the	 inference	 of	 another	

perpetrator	speculative,	exclusion	is	likely	to	be	upheld	on	grounds	of	lack	of	

relevance	under	Rules	401	and	403	or	as	collateral	under	Rule	403”).		For	these	

reasons, a	trial	 court	 must consider	 whether	 otherwise	 admissible	 evidence	

should	 be	 excluded	 because	 it	 lacks	 “sufficient	 probative	 value	 to	 raise	 a	

reasonable	doubt	as	to	the	defendant’s	culpability	by	establishing	a	reasonable	

connection	between	the	alternative	suspect	and	the	crime.”		Jaime,	2015	ME	22,	

¶	34,	111	A.3d	1050 (quotation	marks	omitted).

[¶23]	 	 As	 we	 have	 held,	 the	 defendant	 need	 not	 “clearly	 link[] the	

alternative	 suspect	 to	 the	 crime,”	 and	 need	 only	 proffer	 evidence	 that	
15

demonstrates	 “a	 reasonable	 connection	 between	 the	 alternative	 suspect	 and	

the	crime.”8		Id.(quotation	marks	omitted).		To	determine	whether	the	evidence	

demonstrates	a	reasonable	connection	between	the	alternative	suspect	and	the	

crime,	a	trial	court	must	consider whether	a	fact	finder could	reasonably	view	

the	evidence	as	creating	a	reasonable	doubt	as	to	the	identity	of	the	person	who	

committed	the	criminal	acts	at	issue.		See	id.	 If	no	fact	finder	could	reasonably	

view	 the	 proposed	 alternative-suspect	 evidence	 as	 sufficient	 to	 raise	

reasonable	 doubt	 about	 guilt,	 the	 evidence	 is	 merely	 an	 invitation	 to	

speculation,	which	would	defeat	the	purposes	of	Rules	401	to	403.		

[¶24]		A	trial	court may	therefore	exclude	evidence	that	another	person	

had	the	motive,	intent,	and	opportunity	to	commit	a	crime	when	the	proffered	

evidence	“is	too	speculative	or	conjectural	or	too	disconnected	from	the	facts	of	

the	case	against	the	defendant”	to	be	reasonably	connected	to	the	crime.		State	

v.	Le	Clair,	425	A.2d	182,	187	(Me.	1981);	see	also State	v.	Ledger,	444	A.2d	404,	

 8		Like	the	Court	of	Appeals	of	New	York,	we	have	rejected	the	ostensibly	heightened	“clear	link”	

standard	 for	 alternative-suspect	 evidence	 because	 it	 “merely	 reinforce[s]	 the	 notion	 that	 remote	

evidence	 of	 a	 third	 party’s	 culpability—though	 relevant—will	 not	 be	 sufficiently	 probative	 to	

outweigh	the	risk	of	trial	delay,	undue	prejudice	or	jury	confusion.”		People	v.	Primo,	753	N.E.2d	164,	

168	 (N.Y.	 2001).	 Because	 that	 standard	“may	 be	 easily	 misread	 as	 suggesting	 that	 evidence	 of	

third-party	culpability	occupies	a	special	or	exotic	category	of	proof,”	id.,	courts	in	Maine	must	apply	

the	Maine	Rules	of	Evidence,	which	require	them	to	consider	the	“probative	value [of	the	evidence]	

to	raise	a	reasonable	doubt	as	to	the	defendant’s	culpability	by	establishing	a	reasonable	connection	

between	 the	alternative	suspect	and	 the	crime.”		State	v.	Cruthirds,	2014	ME	86,	¶ 22,	96	A.3d	80	

(emphasis	added	and	quotation	marks	omitted);	see	M.R.	Evid.	401-403.
16

416	(Me.	1982)	(“[A]	defendant	may	introduce	evidence	tending	to	show	that	

another	person	committed	or	harbored	an	intent,	motive,	and	opportunity	to	

commit	the	crime	of	which	that	defendant	is	charged,	if	such	evidence	is	not	too	

remote	in	time	or	too	weak	in	probative	value	under	M.R.	Evid.	403.”).

[¶25]		Thus,	our	 two-part	 test	is	in	 fact	a	shorthand	articulation	of	 the	

application	of	the	Rules	of	Evidence	that,	in	step	two,	draws	the	attention	of	the	

trial	court	to	the	crux	of	the	decision	that	it	must	make	in	applying	Rules	401	to	

403	to	determine,	in	its	discretion,	whether	alternative-suspect	evidence	will	

be	admitted.		We	have	summarized	how	to	apply	the	Rules	of	Evidence	in	this	

particular	 context	 because,	 unlike	 with	 discrete	 determinations	 of	

admissibility,	the	alternative-suspect	evidence	must	be	considered	as	a	whole	

to	prevent	the	piecemeal	admission	of	evidence	in	a	way	that	could	waste	time,	

improperly	lead	to	the	litigation	of	factual	disputes	that	are	not	material	to	the	

case,	or	invite	improper	speculation	or	conjecture.		See Fournier,	2019	ME	28,	

¶ 18,	203 A.3d	801;	Boobar,	637	A.2d	at	1172; Le Clair,	425	A.2d	at	187.

[¶26]	 	 Daly’s	 argument	 on	 appeal	 that	 our	 test	 imposes	 an	

unconstitutional	 burden	 of	 production	 on	 a	 defendant	 by	 requiring	 that	

alternative-suspect	 evidence	 be	 relevant	 and	 admissible	 under	 the	 Rules	 of	
17

Evidence	is	tantamount	to	an	argument	that	jurors	should	be free	to	engage	in	

speculation	and	conjecture.		We	reject	that	proposition.

[¶27]		The	court	did	not	commit	obvious	error—and	 therefore	did	not	

violate	Daly’s	rights	to	due	process,	to	present	a	defense,	and	to	a	jury	trial—in	

applying	 evidentiary	 rules	 that	place	 no	 burden	 of	 production	 or	 proof	 on a	

defendant	and keep from	a jury	evidence	that	is	“too	speculative	or	conjectural	

or	too	disconnected	from	the	facts	of	the	case	against	the	defendant,”	Le	Clair,	

425 A.2d	at 187,	to	make	its	probative	value	outweigh	the	potential	that	jurors	

would	be	misled	or	confused,	or have their	time	wasted on	what	could	devolve	

into “a	trial	within	a	trial,”	Boobar,	637	A.2d	at	1172.	 See	M.R.	Evid.	401-403.

2. Review	of	the	Court’s	Exclusion	of	Alternative-Suspect	Evidence

[¶28]	 	 Daly	 contends	 that	 the	 court	 should	 have	 admitted	 relevant	

evidence	of	an	alternative	suspect,	who	was	affiliated	with	Capitol	and	Truck	

and	 who	 had	 purportedly stabbed	 the	 victim	 the	 year	 before	 the	 murder,	

because	 the	 offer	 of	 proof	 established	 a	 reasonable	 connection	 between	 the	

suspect	 and	 the	 crime.	 	 He	 also	 contends	 that,	 with	 the	 alternative-suspect	

evidence,	he	could	have	argued	to	the	jury	that	Daly’s	roommate	and	girlfriend	

got	the	gun	and	information	about	the	gunshot	wounds	from Capitol	or	Truck,	

with	whom	they	trafficked	in drugs, and	framed	Daly	using	that	information.		
18

[¶29]		We	 review	the court’s	exclusion	 of alternative-suspect	evidence	

for	 clear	 error	 or	 an	 abuse	 of	 discretion, as	 we	 do	 any	 Rule	 401	 or	 403	

determination.		See State	v.	Waterman,	2010	ME	45,	¶¶ 35,	37,	995 A.2d	243;	

State	v.	Hassan,	2013	ME	98,	¶ 24,	82	A.3d	86. Because	there	is	no	dispute	that	

witnesses	could	have	provided	otherwise	admissible	testimony	about	the	facts	

proffered	 by	 Daly,	 our	 analysis	 is	focused	 on	 the	 second	 part	 of	 the	 test for	

admitting	 alternative-suspect	 evidence—whether	 Daly’s	 proffered	 evidence	

established	“a	reasonable	connection	between	the	alternative	suspect	and	the	

crime.”		Jaime,	2015	ME	22,	¶	34,	111	A.3d	1050 (quotation	marks	omitted).		

That	determination	is	reviewed	for	an	abuse	of	discretion.		See	Fournier,	2019	

ME	28,	¶ 17,	203	A.3d	801.

[¶30]		We	have	provided	some	specific	examples	of	evidence	that	could	

establish	 a	 reasonable	 connection	 between	 an	 alternative	 suspect	 and	 the	

crime: (1)	a	confession by	the	alternative	suspect,	(2) physical	evidence	linking	

the	suspect	to	the	crime,	(3)	evidence	of	mistaken	identity,	(4) the	alternative	

suspect’s	 motive	 or	 opportunity	 to	 commit	 the	 crime,	 (5) evidence	 of	 the	

alternative	 suspect’s	 commission	 of	 a	 similar	 crime	with the	 same signature	

features,	 and	 (6) the	 alternative	 suspect’s	 suspicious	 behavior	 following	 the	

crime.		Mitchell,	2010	ME	73,	¶	29,	4	A.3d	478.
19

[¶31]	 	 When	we	 have	 held	 that	 a court	 erred	 in	 excluding	 alternative	

suspect	 evidence,	 we	 have done	 so	 because	 a	 reasonable	 connection	 was	

evident	on	the	face	of	the	record	without	resort	to	speculation.		For	instance,	in	

State	v.	Jaime,	there	was	evidence	that the	alternative	suspect	showed	up	at	a	

friend’s	house	 “on	 the	 night	 of	 the	murder	with	 fist-sized	bloodstains	 on	his	

shirt,	 seeking	 help	 to	 conceal	 a	 violent,	 bloody,	 fatal	 assault,”	 and	 that the	

alternative	suspect	admitted	that	he	was	at	the	scene	of	the	crime	on	the	night	

of	 the	 murder,	 had	 occasionally	 used	 drugs	 with	 the	 victim,	 and	 had	

accompanied	 the	 defendant	 in	 scattering	 the	 victim’s	 remains	 in	 a	 stream.		

Jaime,	2015	ME	22,	¶	36,	111	A.3d	1050.		

[¶32]		In	contrast,	in	other	cases	such	as	State	v.	Cruthirds,	2014	ME	86,	

96 A.3d	 80,	 and	 State	 v.	 Mitchell,	 2010	 ME	 73,	 4	 A.3d	 478,	 we affirmed	 the	

exclusion	 of	 alternative-suspect	 evidence	 as	 insufficiently	 connected	 to	 the	

crime.		In	Cruthirds,	“the	only	connection	between	[the	alternative	suspect]	and	

the	attack	on	the	victim	was	established	in	the	victim’s	testimony	that	(1)	he	

was	her	baby’s	father;	and	(2)	he	told	her	in	a	Facebook	message	on	the	evening	

of	the	assault	that	he	had	come	to	her	door	earlier,	knocked,	and	left	when	no	

one	answered.”		2014	ME	86,	¶	24,	96	A.3d 80.		We contrasted	that	evidence	

with	the	evidence	linking	the	defendant	 to	the	crime:	“the	victim’s	testimony,	
20

the	 recording	 of	 her	 911	 call,	 and	 the	 recording	 of	 [an	 eyewitness]’s	 police	

interview	 all	 explicitly	 named	 [the	 defendant]	 as	 the	 assailant,	 and	 DNA	

evidence	corroborated	those	statements.”		Id. ¶¶	3,	24;	see	also	Holmes,	547	U.S.	

at 331 (holding	that	a	rule	governing	alternative-suspect	evidence	must	include	

consideration	 of	 the	 strength	 of	 both	 the	 prosecution’s	 evidence	 against	 the	

defendant	 and	 the	 defendant’s	 proffered	 evidence about	 the	 alternative	

suspect).

[¶33]		In	Mitchell,	there	was	more	evidence	than	in	Cruthirds regarding	a	

possible	alternative	suspect,	but	we	still	affirmed	the	trial	court’s	exclusion	of	

that	evidence.		2010	ME	73,	¶	39,	4	A.3d	478.		There,	the	State’s	case	against	

the	defendant included	evidence	that	(1)	the	defendant’s	DNA	was	recovered	

from	the	nails	of	the	victim’s	right	hand;	(2)	a	latent	print	examiner	identified	

a	footprint	at	the	scene	that	“was	of	the	same	size,	had	the	same	outsole	design,	

and	 came	 from	 the	 same	 manufacturing	 mold	 as	 [the	 defendant]’s	 shoe”;	

(3) the	defendant	was	upset	because	he	thought	that	he	should	have	inherited	

the	home	in	which	the	victim	lived;	and	(4)	the	defendant	drove	a	car	that	was	

olive	 green	 with	 a	 tan	 roof	 and	 maroon	 primer	 paint	 on	 the	 driver’s	 side,	

consistent	with	a	mail	carrier’s	 testimony	 that	she	saw	a	car	with	a	maroon	
21

body	and	tan	top	in	the	victim’s	driveway	on	the	day	of	the	murder.		Id. ¶¶	3-5,	

10,	15-17.	

[¶34]	The defendant	proffered	otherwise	admissible	alternative-suspect	

evidence	regarding	a	neighbor	of	the	victim	who	(1)	also	wore	a	size-ten	shoe

and	had	been	seen	in	shoes	 that	looked	similar	 to	 the	defendant’s;	(2)	had	a	

beige	 jacket	 with	 a	 wool	 collar	 and	 sometimes	 wore	 a	 scarf,	 similar	 to	 the	

description	provided	by	 the	mail	carrier	 that	a	man	in	 the	victim’s	driveway	

was	wearing	a	tan	coat	and	gray	wool	scarf;	(3)	had	previously	been	seen	in	a	

suede,	camel-colored	coat	 that	was	not	seen	again	after	 the	murder;	(4)	had	

beaten	another	woman	in	 the	past;	(5)	owned	a	 two-tone	green	automobile;	

(6)	had	met	the	victim	and	referred	to	her	as	a	slut;	(7) provided	a	false	alibi	

and	 seemed	 nervous	 after	 the	 murder; (8)	 had	 features	 similar	 to	 those	

depicted	 in	 a	 composite	 drawing	 produced	 with	 aid	 from	 the	 mail	 carrier;	

(9) had	previously	fought	with	a	girlfriend,	who	was	the	victim’s	best	friend,	

and	the	victim	had	taken	her	friend’s	side;	and	(10)	could	not	be	ruled	out	as	a	

source	of	certain	fingerprints.	 Id. ¶¶ 10,	19;	see	id. ¶¶ 36-37.

[¶35]		We	held	that,	given	the	lack	of	any	physical	evidence	connecting	

the	alternative	suspect with	the	crime,	the	evidence	regarding	the	alternative	

suspect	 “provide[d]	 only	 weak	 proof	 of	 motive	 or	 propensity,	 and	 only	
22

moderately	 probative	 evidence	 of	 opportunity,	 mistaken	 identity,	 or	

suspicious	post-crime	behavior.”		Id. ¶ 38.		We	held	that	the	evidence	“did	not	

rise	 above	 the	 level	 of	 speculation	 and	 did	 not	 establish	 a	 reasonable	

connection	between	the	neighbor	and	the	crime.”		Id. ¶ 38.

[¶36]		We also	affirmed	the	exclusion	of	alternative-suspect	evidence	and	

a	judgment	of	conviction	when	the excluded	evidence	would	have	showed only	

that	an alternative	 suspect	was involved	in	drug	dealing	with	 the	 victim	and	

knew	that	the	victim	had	been	loaned	money	within	two	days	before	the	victim	

was	killed,	Waterman,	2010	ME	45,	¶	39,	995	A.2d	243, and	where	the	evidence	

would	 establish	 only	that	the	 alternative	 suspect had	 a “familiarity	with	 the	

general	vicinity	in	which	the	body	was	found,	and	that	there	had	been	a	fleeting	

contact	between	the	alternative	perpetrator	and	the	victim	on	the	date	of her	

disappearance,”	Boobar,	637	A.2d	at	1172.

[¶37]		Here, Daly	proffered evidence	 that	 (1)	a person associated	with	

Truck	and	Capitol had stabbed	the	victim in	2017 and	(2)	the	person was	about	

to	begin	serving	time	in	jail	or	prison.		Evidence	was	admitted	that,	on	the	day	

of	 the	 murder,	 Truck	 resided	 in	 an	 apartment	 that	 was	 near	 the	 victim’s	

apartment.	 	 Daly’s	 girlfriend	 also	 testified	 that	 Daly	 told	 her	 he	 had	 visited	

Truck	before	going	to	the	victim’s	apartment	and	shooting	the	victim.		Daly	did	
23

not	 proffer	 evidence	 that	 Truck,	 Capitol,	 or	 the	 person who	 purportedly

stabbed	the	victim had	been	in	possession	of	the	murder	weapon,	had	been	in

contact	with	the	victim,	or	had	done	or	said	anything	before	or	after	the	victim’s	

death	that	would	suggest	their	involvement	in	the	killing.

[¶38]	 	 In	 contrast	 to	 this	 attenuated	 connection	 between	 alternative	

suspects	and	the	crime,	there	was	significant	testimonial	and	physical	evidence	

connecting	Daly	with	the	crime, as	set	forth	in	detail above.	 See	supra ¶ 7.	 Daly	

challenged	 the	 State’s	 physical	 evidence	 primarily	 by	 cross-examining	 its	

investigator	about	whether	 the	police	had	 reviewed	all	 video	of	 the	comings	

and	goings	at	his	residence	between	the	time	of	the	murder	and	the	date	when	

the	gun	was	discovered.		Cf.	Holmes,	547	U.S.	at	322-23,	330-31	(holding	that	

evidence	of	another	person’s	confession	could	not	be	excluded	on	the	basis	of	

the	strength	of	 the	State’s	physical	evidence	when	 the	value	of	 that	evidence	

had	 been	 challenged	 based	 on	 theories	 that	 the	 evidence	 had	 been	

contaminated	and	police	were	framing	the	defendant).

[¶39]		Nonetheless,	without	a	proffer	of	any	evidence	suggesting	that	any	

of	 the	 three	 purported	 alternative	 suspects	 had	 ever	 been to	 the	 victim’s	

residence,	or	that	any	of	them	had	visited	Daly’s	residence	following	the	murder

and	therefore	could	have	hidden	the	gun	in	Daly’s	apartment,	any	connection	
24

between	those	individuals	and	the	crime	requires	conjecture	and	speculation.		

Cf.	State	v.	Robinson,	628	A.2d	664,	667	(Me.	1993) (affirming	the	exclusion	of	

alternative-suspect	 evidence when,	 although	 there	 was	 evidence	 that	 the	

alternative	suspect	may	have	conveyed	to	another	person	a	threat	against the	

victim,	no	admissible	evidence	was	proffered	to	place	the	alternative	suspect	in	

the	area	of	the	victim’s	home	at	the	time	of	the	crime).		The	court	did	not	abuse	

its	discretion	in	excluding	the	evidence as	insufficient	to	establish	a	reasonable	

connection	to	the	crime	because	the	proffered	evidence	would	have	been only	

weakly	probative	of	any	other	suspect’s	motive	or	opportunity	to	commit	the	

crime.	 	 See	 Mitchell	 2010	 ME	 73,	 ¶ 38,	 4	 A.3d	 478.	 	A	 fact finder	 could	 not,	

without	 resorting	 to	 speculation,	view	 the	evidence	as	creating	 a	 reasonable	

doubt	regarding	the	identity	of	the	person	who	murdered	the	victim.		See	Jaime,	

2015	ME	22,	¶ 34,	111	A.3d	1050.

B. Sentencing

[¶40]		Daly	argues	that	the	court’s	explanation	of	its	reasons	for	setting	

the	basic	period	of	imprisonment	was	inadequate	and	that	the	matter	should	

be	remanded	for	resentencing.		

[¶41]	 	 A	 person	 who	 has	 committed	 the	 crime	 of	 murder	 “must	 be	

sentenced	to	imprisonment	for	life	or	for	any	term	of	years	that	is	not	less	than	
25

25.”	 	17-A	M.R.S.	 §	 1251(1)	 (2018).

9	 	A	court	 employs	 a	 two-step	 process	in	

sentencing	a	defendant	for	murder:	“First,	the	court	determines	the	basic	term	

of	imprisonment	based	on	an	objective	consideration	of	the	particular	nature	

and	 seriousness	 of	 the	 crime.	 Second,	 the	 court	 determines	 the	 maximum	

period	 of	 incarceration	 based	 on	 all	 other	 relevant	 sentencing	 factors,	 both	

aggravating	and	mitigating,	appropriate	to	that	case,	including	the	character	of	

the	offender	and	the	offender’s	criminal	history,	the	effect	of	the	offense	on	the	

victim	and	 the	protection	of	 the	public	interest.”		Carrillo,	2021	ME	18,	¶	38,

248 A.3d	193 (quotation	marks	omitted).

[¶42]		At	issue	here	is	the	first	step	of	the	court’s	sentencing.		We	review	

the	 basic	 sentence	 set	 by	 the	 court	 “de	 novo	 for	 a	 misapplication	 of	 legal	

principles.”	 	 Id.	 ¶	 41.	 	 In	 setting	 the	 basic	 sentence	 in	 a	 murder	 case,	 the	

information	upon	which	the	sentencing	court	relies	must	be	factually	reliable	

and	relevant	to	satisfy	the	requisites	of	due	process.		See	id.	¶ 44.

[¶43]		“Because	the	extent	of	a	judge’s	discretion	is	so	broad,	and	because	

the	difficulty	 of	 the	 task	makes	it	 one	 that	warrants	 precision	and	 focus,	 the	

process	used	by	the	sentencing	court	to	reach	the	sentence	imposed	must	be	

 9		This	sentencing	statute	has	been	repealed	and	replaced	without	substantive	change.		See	P.L.	

2019,	ch.	113,	§§	A-1,	A-2	(emergency,	effective	May	16,	2019)	(codified	at	17-A	M.R.S.	§	1603(1)	

(2021)).
26

explained	 to	 the	 sentencing	court’s	audience,	including	 the	 reviewing	court.”		

State	v.	Stanislaw,	2011	ME	67,	¶	15,	21	A.3d	91.		“Articulation	of	the	process	is	

.	 .	 .	 the	 only	 method	 that	 allows	 for	 meaningful	 appellate	 review	 of	 the	

sentence.”		Id.

[¶44]		Here, the	court	explained, based	on	facts	that	had	support	in	the	

trial	 record,	 its	 reasons	 for	 setting	 a	 basic	 sentence	 in	 the	 range	 of	 forty	 to	

forty-five	years.		The	court	 found	 that	Daly	had	planned	 the	murder	and	had	

shot	the	victim	twice	for	reasons	that	may	never	be	known,	but	the	facts	were	

not	 so	 severe	 as	 to	 warrant	 a	 term	 of	 years	 beyond	 the	 range	 of	 forty	 to	

forty-five	 years.	 	 The	 court’s	 articulation	 of	 its	 reasoning	 was	 sufficient	 for	

purposes	of	appellate	review.		

[¶45]	 	 The	 court	 did	 not	 misapply	 principle	 in	 establishing	 the	 basic	

sentence.		Cf. State	v.	Gaston,	2021	ME	25,	¶ 35,	250 A.3d	137 (affirming	a	basic	

sentence	of thirty-five	years	when	the	murder	was	“an	act	of	domestic	violence	

that	was	impulsive	rather	than	premeditated”);	Carrillo,	2021	ME	18,	¶¶	41,	44,	

148 A.3d	193 (affirming	a	basic	sentence	of fifty years	when	a	mother	actively	

participated	in	months	of	physical	abuse	that	resulted	in	the	death	of	her	child);	

State	v.	Leng,	2021	ME	3,	¶	13,	244	A.3d	238 (affirming	a	basic	sentence	of	fifty	

to	 fifty-five	 years	 when	 the	 murder	 was	 an	 intentional	 crime	 of	 domestic	
27

violence	involving	multiple	 gunshots	when	 the	 victim’s	 children	 were	in	 the	

home	and	saw	 their	mother’s	body);	State	v.	Nichols,	2013	ME	71,	¶¶	10,	32,	

72 A.3d	503 (affirming	a	basic	sentence	of	thirty-five	to	forty	years	when	the	

defendant	committed	a	premeditated	act	in	shooting	his	wife	while	one	of	the	

couple’s	children	was	in	 the	home);	State	v.	Dwyer,	2009	ME	127,	¶¶	34-36,	

985 A.2d	 469 (affirming	 a	 basic	 sentence	 of sixty-five	 to	 seventy-five	 years	

when	 the	 defendant	lured	 a	 pregnant	woman	 to	 a	location	where	 he	 bound,	

robbed,	and	sexually	assaulted	her	before	killing	her).		Premeditation-in-fact	is

an	aggravating	factor	that can justify even	a	life sentence,	see	State	v.	De	St.	Croix,	

2020	 ME	 142,	 ¶¶	 9-12,	 243	 A.3d	 880 (citing	 cases),	 and	 the	 court	 did	 not	

misapply	sentencing	principles in setting	a	basic	sentence	of	forty	to	forty-five	

years for Daly,	who	had	planned	the	shooting.

C. Motion	for	a	New	Trial

[¶46]		Daly	argues	 that	 the	court	should	have	granted	his	motion	 for	a	

new	 trial	 based	 on	 newly	 discovered	 evidence	 regarding	 the	 jury’s	

deliberations.	 	 He	 argues	 that	 the	 rule	 of	 evidence	 pertaining	 to	 jury	

deliberations	should	not	be	applied	in	the	context	of	his	motion	for	a	new	trial	

and	that	the	court’s	ruling	violated	his	rights	of	due	process	and	was	unjust.		
28

[¶47]		When	 the	 trial	court	has	denied	a	defendant’s	motion	 for	a	new	

trial	based	on	newly	discovered	evidence,	we	“review	the	court’s	findings	of	fact	

for	 clear	 error	 and	 its	 determination	 of	 whether	 the	 defendant	 has	 met	 the	

necessary	elements	for	an	abuse	of	discretion.”		State	v.	Peaslee,	2020	ME	105,	

¶	18,	237	A.3d	861 (quotation	marks	omitted).		Because	of	the	public	interest	

in	maintaining	 the	integrity	and	 finality	 of	judgments,	a	 defendant	 seeking	a	

new	 trial	 based	 on	 newly	 discovered	 evidence	 must	 show,	 by	 clear	 and	

convincing	evidence,	that

(1)	the	evidence	is	such	as	will	probably	change	the	result	if	a	new	

trial	is	granted;

(2)	it	has	been	discovered	since	the	trial;

(3)	 it	 could	 not	 have	 been	 discovered	 before	 the	 trial	 by	 the	

exercise	of	due	diligence;

(4)	it	is	material	to	the	issue;	and

(5)	it	is	not	merely	cumulative	or	impeaching,	unless	it	is	clear	that	

such	impeachment	would	have	resulted	in	a	different	verdict.

Id.	(quotation	 marks	 omitted).	 	Rulings	 on	 the	 admissibility	 of	 evidence	 are	

reviewed	for	clear	error	or	abuse	of	discretion.	 State	v.	Sargent,	656	A.2d	1196,	

1199	(Me.	1995).

[¶48]		The	Maine	Rules	of	Evidence	include	a	provision	pertaining	to	the	

admissibility	of	evidence	regarding	jurors	during	any	“inquiry	into	the	validity	
29

of	a	verdict	or	indictment.”		M.R.	Evid.	606(b).		Specifically,	with	exceptions	that	

do	not	apply	here,	see	M.R.	Evid.	606(b)(2),10 a	juror	may	not,	as	part	of	such	an	

inquiry,	testify	about	“[a]ny	statement	made	or	incident	that	occurred	during	

the	 jury’s	 deliberations,” the	 “effect	 of	 anything	 on	 that	 juror’s	 or	 another	

juror’s	 vote,”	 or	 “[a]ny	 juror’s	 mental	 processes	 concerning	 the	 verdict	 or	

indictment.”		M.R.	Evid.	606(b)(1).		“The	court	may	not	receive	a	juror’s	affidavit	

or	evidence	of	a	juror’s	statement	on	these	matters.”		M.R.	Evid.	606(b)(1).

[¶49]		This	rule	embodies	the	pre-rules	holding	of	Patterson	v.	Rossignol

that	a	“reluctant	juror’s	statement	that	she	agreed	to	the	verdict	through	fear	

and	coercion	and	that	the	announced	unanimous	verdict	was	not	her	free	and	

deliberate	act	cannot	serve	as	proper	basis	for	an	offer	of	proof	in	support	of	a	

motion	 for	 a	 new	 trial.”11 245	 A.2d	 852,	 856	 (Me.	 1968);	see	 State	 v.	 Leon,	

 10		“A	juror	may	 testify	about	whether:	(A) Extraneous	prejudicial	information	was	improperly	

brought	to	the	jury’s	attention;	or	(B) An	outside	influence	was	improperly	brought	to	bear	on	any	

juror.”		M.R.	Evid.	606(b)(2).

11		The	policy	considerations	that	undergird	Rule	606	include

(1)	the	need	for	stability	of	verdicts;	(2)	the	need	to	conclude	litigation	and	desire	to	

prevent	 any	 prolongation	 thereof;	 (3)	 the	 need	 to	 protect	 jurors	 in	 their	

communications	to	fellow	jurors	made	in	the	confidence	of	secrecy	of	the	jury	room;	

(4)	the	need	to	save	jurors	harmless	from	tampering	and	harassment	by	disappointed	

litigants;	 and	 (5)	 the	 need	 to	 foreclose	 jurors	 from	 abetting	 the	 setting	 aside	 of	

verdicts	to	which	they	may	have	agreed	reluctantly	in	the	first	place	or	about	which	

they	may	in	the	light	of	subsequent	developments	have	doubts	or	a	change	of	attitude.

State	v.	Leon,	2018	ME	70,	¶	8,	186	A.3d	129	(alteration	omitted)	(quotation	marks	omitted).		
30

2018 ME	70,	¶¶ 8-9,	186	A.3d	129.		“It	has	been	the	settled	doctrine	in	this	State	

that	 affidavits	 or	 testimony	 of	 jurors	 will	 not	 be	 received	 to	 show	 any	

impropriety	in	the	conduct	of	the	jury	in	the	jury	room,	or	an	improper	mode	

of	arriving	at	their	verdict	.	.	.	.”		Patterson,	245	A.2d	at	856.

[¶50]	 The	 law	 governing	 motions	 for	 a	 new	 trial	 based	 on	 newly	

discovered	evidence	clearly	contemplates	that	evidence	of	jury	deliberations	is	

inadmissible.	 Newly	 discovered	 evidence	 is	 that	 which	 could	 have	 been	

presented	 at	 trial if	 it	 had	 been	 discovered	 in	 time,	 and	 jury deliberations,	

which occur	 after the	 presentation	 of	 evidence, are	 not	 probative	 of	 the	

elements	of	the	charged	crime	or	crimes.		See	Peaslee,	2020	ME	105,	¶	18,	237	

A.3d	861;	State	v.	Gatcomb,	478	A.2d	1129,	1130-31	(Me.	1984).

[¶51]	 	 Here, the	 motion	 for	 a	 new	 trial	 called	 for	 an	 inquiry	 into	 the	

validity	of	 the	verdict,	and	 the	affidavit	 from	counsel	in	 this	case	presents	an	

offer	 of	 proof	 of	 precisely	 the	 type	 of	 juror	 statement that	 Rule	 606(b)(1)	

precludes.	 	 See M.R. Evid.	 606(b)(1).	 	 The	 court	 did	 not	 err	 or	 abuse	 its	

discretion	in	excluding	from	consideration	“information	about	[the	juror’s]	own	

thought	process	and	the	interchange	among	the	jurors	in	the	jury	room	as	they	

considered	the	evidence.”		Leon,	2018	ME	70, ¶	12,	186	A.3d	129.		
31

[¶52]		Moreover,	even	if	the	information	contained	in	counsel’s	affidavit	

were	 admissible,	 that	information	does	 not	undermine	 the	 fairness	 of	Daly’s	

trial.	 	 See	 Peaslee,	 2020	 ME	 105,	 ¶	 18,	 237	 A.3d	 861	 (holding	 that	 newly	

discovered	evidence	requires	a	new	trial	only	when	the	defendant	establishes,	

by	 clear	 and	 convincing	 evidence,	 that,	 among	 other	 things,	 “the	 evidence	is	

such	as	will	probably	change	the	result	if	a	new	trial	is	granted”).		As	the	court	

properly	instructed,	jurors “must	not	speculate	on	what	other	witnesses	might	

have	 been	 called	 or	 what	 other	 evidence	 might	 have	 been	 presented.”		

See Alexander,	 Maine	 Jury	 Instruction	 Manual §	 8-4	 at	 8-8 (2020-2021	 ed.	

2020).		In	ruling	on	the	motion	for	a	new	trial,	the	court	correctly	characterized	

Daly’s	argument	as	suggesting	“that	any	ruling	on	the	admissibility	of	evidence	

which	might	have	interested	a	juror	should	support	a	new	trial”—an	argument	

at	odds	with	the	purposes	of	the	Maine	Rules	of	Evidence.		See	Leon,	2018	ME

70,	¶¶ 8-9,	186	A.3d	129.		Because	the	court	did	not	err	or	abuse	its	discretion	

in	excluding	 the	 alternative-suspect	evidence,	it	also	did	not	err	 or	abuse	its	

discretion	in	denying	the	motion	for	a	new	trial,	which	was	based	on	a	juror’s	

interest	in	that	properly	excluded	evidence.
32

The	entry	is:

Judgment	 affirmed.	 	 Remanded	 for	 the	

correction	 of	 the	 judgment-and-commitment	

form	to	indicate	that	Daly	pleaded	not	guilty.

Rory	A.	McNamara,	Esq. (orally),	Drake	Law,	LLC,	York,	for	appellant	F	Daly

Aaron	 M.	 Frey,	 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-2018-286

FOR	CLERK	REFERENCE	ONLY