MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 2 1 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
set ting	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	evi dence	presented	at	trial,	the	jury	rationally	could have	 found	beyond	a	 reasonable	doubt , s ee State	v.	Haag ,	2012	ME	94,	¶	17,
48 A.3d	207 , that	o n	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,	Da ly	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	evid ence	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) , re pealed	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 order s the correction	of	this	error

.3 alternative	suspects during	the trial.		Specifically,	the	court	sustained	the	State’s objection s to	question s 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 challeng e the	 credibility	 of	 the testimony	 of	 the victim’s girlfriend that	she	had	never	seen	the	victim	get	into	fights. He	arg ued 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	eviden ce	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	prosec uted	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	court4 excluded	 the	 evidence, conclud ing 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	Stat e	indicated	 that	it	had learned that ,	 contrary	 to	 Daly’s	 earlier	 representations,	 the person who purported ly stabbed	the	victim in	2017 had	not	been	arrested	or	charged	for	th at	conduct and	had	had	an	upcoming	court	appearance only for	an	unrelated	theft	c harge. The	court	reaffirmed	its	ruling	that	no	alternative

- suspect	evidence	regarding th at	 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	 a dditional 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	t he	victim.5 [¶ 7 ] T he	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	Dal y	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., Da ly	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	girlfrien d	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	 clot hing

. 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	 c onvenience	 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	probati on	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.”6

• 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	 presentenc e	 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 [¶1 0 ] T he	court then co nsidered 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	significa nt	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. [¶1 1 ]	 	 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	mur der	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).8 [¶1 2 ]	 	 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	cont acted	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?” [¶1 3 ]	 	 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	tha t	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

an y	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	affi davit	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 [¶1 4 ]	 	 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 [¶1 5 ]		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	right10 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.3 d	896. [¶1 6 ] “ 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.	 Conlogu e ,	 474	 A.2d	 167,	 172	 (Me.	 1984) (quotation	marks	omitted). [¶1 7 ] A defendant ,	by present ing 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

. T hus,
t he	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 [¶1 8 ] 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	be yond	a	reasonable	doubt	all	elements	of	the crime	charged,	including	that	the	defendant	committed	the	crime.” Id. [¶1 9 ] We	have	stated that a lternative

- 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	c rime.” 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	i f,	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 ,	20 03	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). [¶ 2 1] 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); s ee 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 R ules of E vidence and	 other	 source s of	 law ,	 the	 evidence	 must	 be	 relevant	 to	 whether	 the defendant	is	guilty	beyond	a	reasonable	dou bt	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, confusi ng the	 issues,	 misleading	 the	 jury,	 undue	 delay, wasting time,	 or needless ly presenti ng cumulative	evidence , ”	M.R.	Evid.	403; see State	v.	Wyman , 2015	ME	2,	¶ ¶ 21

- 2 3 ,	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.	4 03). [¶ 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	evi dence;	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	 eviden ce	 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	R ule	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

conn ection	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	 that15 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 t rial	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	t o	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	 s uggesting	 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	dou bt	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

com mit	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	Evide nce	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	appl y 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	 of17 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

— i n applying	 evidentiary	 rules	 th at 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

. S ee 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	 esta blished	 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	mark s	omitted). That	determination	is	reviewed	for	an	abuse	of	discretion. See	Fournier ,	2019
ME	2 8 , ¶ 17,	203	A.3d	801. [¶ 30 ] We	have	provided	some	specific	e xamples	of	evidence	that c ould 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 [¶ 3 1]	 	 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	s howed	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 t he alternative	suspect	admitted	that	he	was	at	the	scene	of	the	crime	on	the	night of	 th e	 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	victi m	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,	 a nd	 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
t he	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	maroon21 body	and	tan	top	in	the	vict im’s	driveway	on	the	day	of	the	murder. Id. ¶¶	3

- 5, 10,	15

- 17. [¶ 34 ]	T he 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	sim ilar	 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	s een	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	 nervou s	 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	 only22 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 show ed 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	did23 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	significa nt	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 stre ngth	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	th at	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	connection24 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	ha ve 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 a s	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. [¶ 4 1]	 	 A	 person	 who	 has	 committed	 the	 crime	 of	 murder “ must	 be sentenced	to	imprisonment	for	life	or	for	a ny	term	of	years	that	is	not	less	than25 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
vic tim	and	 the	protection	of	 the	public	interest.” Carrillo ,	2021	ME	18,	¶	38,
2 48 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	 misapplica tion	 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	sen tencing	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	co urt’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,	b ut	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	 estab lishing	 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,	4 4,
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	 domestic27 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). P remeditation

- in

- fact is an	aggravating	factor	that can justif y even	a life sentence, see State	v.	D e	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	o f	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	o f	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	 t he	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	incl ude	a	provision	pertaining	to	the admissibility	of	evidence	regarding	jurors	during	any	“ inquiry	into	the	validity29 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	 th e	 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	f or	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	j urors	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	su bsequent	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.2 d	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

. N ewly	 discovered	 evidence	 is	 that	 which	 could	 have	 been presented at	 trial if	 it	 had	 be en	 discovered	 in	 time ,	 and	 jur y 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)

. [¶ 5 1]	 	 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 discovere d	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.”
S ee 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

. S ee	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	tha t 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 F OR C LERK R EFERENCE O NLY