State of Maine v. Rayshaun Moore

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2023 ME 18
Docket: Pen-21-350
Argued: June 6, 2022
Decided: February 28, 2023

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

STATE OF MAINE

v.

RAYSHAUN MOORE

CONNORS, J.

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

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

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

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

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

We affirm the judgment of conviction but vacate the sentence.

1 Moore makes two additional arguments on appeal. First, he argues that the trial court erred by stating
during jury selection that, because of the right to a jury trial, the court must “inconvenience people like
you.” This argument is without merit, and we do not address it further. See State v. Fleming, 644 A.2d
1034, 1036-37 (Me. 1994). Second, Moore argues that the trial court abused its discretion by allowing the
lead detective to identify Moore in surveillance videos. See M.R. Evid. 701. Moore’s argument raises the
issue whether a witness who has substantial familiarity with complex video evidence may offer lay opinion
testimony to assist the trier of fact in interpreting that evidence. See United States v. Begay, 42 F.3d 486,
502-03 (9th Cir. 1994); United States v. Torralba-Mendia, 784 F.3d 652, 659-60 (9th Cir. 2015); United
States v. Muhammad, 512 F. App’x 154, 160-61 & n.7 (3d Cir. 2013); United States v. Zepeda-Lopez, 478
F.3d 1213, 1221-23 (10th Cir. 2007). Whether the State laid an adequate foundation under that theory or
under a more traditional approach is debatable. We need not address these questions, however, because
2

I. BACKGROUND

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

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

277 A.3d 387.

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

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

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

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

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

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

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

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

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

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

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

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

whether or not the detective’s testimony was properly admitted, we conclude that the testimony was
harmless because Moore admitted to being involved in the confrontation depicted in the videos; the jury
viewed the videos numerous times during the trial and twice during deliberations, suggesting that the jury
decided for itself who was depicted in the videos; and the record contains overwhelming evidence in
support of the jury’s verdict. See M.R.U. Crim. P. 52(a); State v. White, 2002 ME 122, ¶ 16, 804 A.2d
1146.
3

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

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

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

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

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

roommate tried to stop him from leaving.

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

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

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

and stabbed him seven times. The victim later died.

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

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

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

clothes and put them in a trash bag.

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

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

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

his roommates that he “had just caught a body” and that “the cops would
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probably be there looking for him.” He also told one of his roommates not to

talk to the police.

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

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

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

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

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

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

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

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

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

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

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

Moore’s motion to record the proceedings.

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

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

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

jury proceedings be prepared and that the transcript be disclosed to the parties
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under a protective order. Moore argued that he needed the grand jury

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

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

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

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

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

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

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

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

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

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

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

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

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

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

whether that inconsistency amounted to a “particularized need.”

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

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

potential witnesses and argued that he needed to know whether they had made
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statements to the grand jury that could implicate their Fifth Amendment rights.

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

witnesses identified by Moore testified before the grand jury.

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

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

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

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

maximum term of imprisonment, the court identified three aggravating

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

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

remorse, the court stated:

[T]here are three potential aggravating circumstances that deserve
discussion. One is the lack of remorse. Well, I have wrestled with
this concept for years because if you decide that you will have a
trial as the Constitution says you’re entitled to, then you sort of run
the risk, if you don’t get found not guilty, of being—getting a greater
sentence because you’re not showing remorse by pleading guilty.
And I think that’s kind of a conundrum.

And I realize that in, probably, most or all courts, this is
commonly done. If you—if you get convicted after a trial, then
you’re showing no remorse, and that’s a—that’s a proper
sentencing consideration. And I’m sure our law court would agree.
I think there could be a different situation if the defendant testifies
to a jury and is found guilty anyway. Then, the—it’s implicit that
the defendant is lying. And if you’re lying, you’re not really showing
much remorse for the crime you’ve been convicted of.
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I think it’s a little different if you have a trial, you don’t testify,
you’re just exerting your Constitutional rights. So it is a factor, but
I’m going to be conservative in my application of it.

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

thirty-two-year sentence. Moore timely appealed.

II. DISCUSSION

A. The trial court did not err or abuse its discretion when it denied
Moore access to the grand jury transcript.

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

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

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

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

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

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

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

1. Moore failed to establish that he had a particularized need for
the grand jury transcript as required by M.R.U. Crim. P. 6(g).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

eliminates the particularized need requirement.

2. Moore’s claim that he was entitled to the grand jury transcript
under the Maine Constitution is unpreserved and
undeveloped.

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

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

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

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

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

Constitution only if the state constitution does not settle the issue.” Athayde,
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2022 ME 41, ¶ 20, 277 A.3d 387. In that analysis, we give weight to

interpretations of federal counterparts only if they are deemed to be

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

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

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

have identified the criteria for analyzing their state constitutions.2 Generally

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

legislative history, and general historical context of the state constitutional

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

considerations; and precedent from jurisdictions with similar provisions to the

extent that precedent is deemed persuasive.

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

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

adequate analysis on appeal.3 For example, he does not explain why or how his

2 See, e.g., Sheesley v. State, 437 P.3d 830, 836-37 (Wyo. 2019); People v. Tanner, 853 N.W.2d 653, 666-
79 (Mich. 2014); Kerrigan v. Comm’r of Pub. Health, 957 A.2d 407, 421 (Conn. 2008); Kahn v. Griffin,
701 N.W.2d 815, 829 (Minn. 2005); Jones v. State, 745 A.2d 856, 864-65 (Del. 1999); Commonwealth v.
Edmunds, 586 A.2d 887, 895 (Pa. 1991); State v. Gunwall, 720 P.2d 808, 812-13 (Wash. 1986); State v.
Jewett, 500 A.2d 233, 236-37 (Vt. 1985).

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

It is the need of every appellate court for the participation of the bar in the process of trying
to think sensibly and comprehensively about the questions that the judicial power has been
established to answer. Nowhere is the need greater than in the field of State constitutional
10

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

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

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

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

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

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

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

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

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

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

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

law, where we are asked so often to confront questions that have already been decided
under the National Constitution. If we place too much reliance on federal precedent we
will render the State rules a mere row of shadows; if we place too little, we will render
State practice incoherent. If we are going to steer between these extremes, we will have to
insist on developed advocacy from those who bring the cases before us.

522 A.2d 1380, 1389 (N.H. 1986) (Souter, J., concurring); see also State v. Dellorfano, 517 A.2d 1163,
1166 (N.H. 1986); Saldana v. State, 846 P.2d 604, 622-24 (Wyo. 1993) (Golden, J., concurring) (surveying
the case law).

4 For example, an analysis of Maine case law before the ratification of the Fourteenth Amendment of the
United States Constitution in 1868, prohibiting states from depriving citizens of due process, could be
instructive. See, e.g., Low’s Case, 4 Me. 439, 439-53 (1827); McLellan v. Richardson, 13 Me. 82, 86
(1836); State v. Burlingham, 15 Me. 104, 107-08 (1838); State v. Bailey, 21 Me. 62, 66-68 (1842); State v.
Knight, 43 Me. 11, 128 (1857). Likewise, an examination of Maine case law before the adoption of the
Federal Rules of Criminal Procedure in 1944 and the Maine Rules of Criminal Procedure in 1965 could
also be illuminating. See, e.g., State v. Benner, 64 Me. 267, 282-87 (1874); Hunter v. Randall, 69 Me. 183,
189 (1879); State v. Wilkinson, 76 Me. 317, 319-21 (1884); State v. Bowman, 90 Me. 363, 364-68, 38 A.
331 (1897); State v. Wombolt, 126 Me. 351, 351-53, 138 A. 527 (1927).
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1366 (8th Cir. 1970) (“Such naked castings into the constitutional sea are not

sufficient to command judicial consideration and discussion.”).

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

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

the United States Supreme Court has not dispensed with the particularized

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

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

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

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

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

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

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

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

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

requiring such disclosure.
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B. A criminal defendant’s decision to exercise his constitutional right
to a jury trial may not be considered at sentencing.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

the trial court violated his right against self-incrimination under the United States Constitution.
Because we conclude that the trial court erred on other grounds, we decline to address Moore’s
argument.
13

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

severe sentence because he unsuccessfully exercised his constitutional right to

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

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

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

It is to be expected that, on the whole, defendants who plead guilty
to criminal offenses receive more lenient sentences than
defendants who go to trial. Remorse and acceptance of
responsibility are factors that courts look at in sentencing, and
defendants who plead guilty are more likely to demonstrate
sincere remorse than defendants who do not plead guilty. The trial
exposes a defendant to a much lengthier scrutiny by the sentencing
court than would take place with a plea of guilty. The trial may
bring to light facts about the defendant and the crime that are
unfavorable to the defendant and that may not come to the
attention of the court in a plea proceeding. The length of time
waiting for trial generally gives the State additional opportunity to
research the defendant’s criminal record. It is permissible for plea
agreements to involve a recommendation of a more lenient
sentence than the prosecutor would recommend after trial.

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

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

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

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

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

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

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

impermissible consideration is not made proper simply because the sentencing

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

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

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

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

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

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

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

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

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

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

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

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

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

6 Our jurisprudence has not always been precise, however, in articulating this distinction. See, e.g., State
v. Farnham, 479 A.2d 887, 893 (Me. 1984) (“There is a clear-cut distinction between enhancing a sentence
because the convicted defendant insisted on a trial and considering that fact along with others in assessing
how real is defendant’s claim of remorse and reform at the time of sentencing.” (emphasis added)); cf. State
v. Grindle, 2008 ME 38, ¶ 26, 942 A.2d 673 (“[T]he court did not base its decision solely on Grindle’s
exercising his right to testify and its belief that Grindle testified untruthfully. Instead, the court properly
considered several aggravating factors . . . .” (emphasis added)).
15

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

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

in part and dissenting in part).

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

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

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

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

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

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

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

Moore’s sentence and remand for resentencing.7

The entry is:

Sentence vacated. Remanded for resentencing.
Judgment affirmed in all other respects.

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

Aaron M. Frey, Attorney General, and Donald W. Macomber, Asst. Atty. Gen.,
Office of the Attorney General, Augusta, for appellee State of Maine

7 Because the trial justice retired during the pendency of this appeal, a different justice will necessarily
have to resentence Moore on remand.
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Penobscot Unified Criminal Docket docket number CR-2020-480
FOR CLERK REFERENCE ONLY