MAINE SUPREME JUDICIAL COURT                                              Reporter of Decisions
Decision: 2019 ME 164
Docket:   Fra-19-140; SRP-19-143
Argued:   November 6, 2019
Decided:  December 10, 2019

Panel:           SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.



                                          STATE OF MAINE

                                                    v.

                                         JAMES E. SWEENEY



GORMAN, J.

           [¶1] James E. Sweeney appeals from a judgment of conviction of murder,

17-A M.R.S. § 201 (2018), entered by the court (Franklin County, Stokes, J.) after

a jury-waived trial. Sweeney argues that the court erred in admitting certain

testimony given by the mother of the woman1 he killed; he also challenges his

sentence. After careful review, we affirm.

                                          I. BACKGROUND

A.         Factual and Procedural History

           [¶2] The court made the following findings of fact, which are supported

by competent record evidence from the trial. See State v. Fournier, 2019 ME 28,


     1   Throughout this opinion, we identify her as “W.D.”
2

¶ 2, 203 A.3d 801. In the summer of 2017, Sweeney and W.D. had been

romantically involved with one another for over a decade. Witnesses who knew

the couple described the relationship as generally “good,” but in the spring of

2017, Sweeney became increasingly jealous and suspicious that W.D. was

involved with other men. Even though W.D. and everyone who knew the couple

assured Sweeney that his suspicions were unfounded, Sweeney was

“unmoved.”

      [¶3] In March of 2017, W.D. woke in the middle of the night to find

Sweeney standing in her bedroom with a gun in his hands. According to the

trial court, the significance of that event was its demonstration that “[Sweeney]

had reached [such] a level of desperation and panic in his relationship with

[W.D.] that he was experiencing suicidal and possibly homicidal ideation.”

      [¶4] Three months later, in June of 2017, W.D. told Sweeney that their

relationship was over but that he could remain living in her house, at least for

a while. Early in the morning of July 11, 2017, while W.D. was asleep, Sweeney

entered her bedroom and violently struck her face and head with a wooden bat.

W.D. died as a result of that blunt force trauma.

      [¶5]   On August 23, 2017, Sweeney was indicted on one count of

intentional or knowing murder, 17-A M.R.S. § 201(1)(A). He entered pleas of
                                                                                  3

not guilty and not criminally responsible by reason of insanity, see M.R.U.

Crim. P. 11(a)(1), and waived his right to a jury trial, see M.R.U. Crim. P. 23(a).

      [¶6] At trial, which was held over the course of six days in January and

February of 2019, the State called W.D.’s mother to testify about the March

2017 incident. The mother stated that early in the morning on that day, W.D.

had arrived at her house “nervous and scared and crying,” telling her that

Sweeney had “woken [W.D.] up with a gun pointing in her face.” The mother

also testified that, although she did not know exactly what time the incident had

occurred, “whenever it happened, [W.D.] came immediately when she got the

gun [away from Sweeney] and brought it to my house.” Over Sweeney’s

objection, the court admitted the mother’s testimony pursuant to the present

sense impression exception to the rule against hearsay. See M.R. Evid. 803(1).

The court also ruled that, contrary to the State’s position, the statement was not

admissible pursuant to the excited utterance exception, M.R. Evid. 803(2).

      [¶7] On February 1, 2019, the court found Sweeney guilty of the murder

and continued the matter for sentencing.

B.    Sentencing

      [¶8] At the sentencing hearing two months later, the court set the basic

sentence at thirty-five years, citing the murder’s “brutal, violent, unprovoked”
4

nature and the “classic signs of [domestic violence]” surrounding the crime,

including Sweeney’s “irrational” and “obsessive” jealousy.                                 See 17-A

M.R.S. § 1252-C(1) (2016).2

          [¶9] The court then assessed “all other relevant sentencing factors, both

aggravating and mitigating,” in order to determine the final sentence. 17-A

M.R.S. § 1252-C(2) (2016). As mitigating factors, the court identified Sweeney’s

age,3 his relatively limited criminal record, reliable employment history, and

difficult childhood, and Sweeney’s acknowledgment that he had killed W.D. In

addition, the court considered as a mitigating factor that Sweeney had been

“experiencing some type of mental health crisis” in the months leading up to

the murder.

          [¶10] As aggravating factors, the court found that the crime’s effect on

W.D.’s mother and daughter would be “excruciating”; that Sweeney’s acts of

domestic violence in the months before the murder had been attempts to

intimidate, control, and threaten W.D.; and that Sweeney did not call 9-1-1 after



   2 Title 17-A M.R.S. § 1252-C (2016) has recently been amended and reallocated, though not in any

way relevant to this appeal, as part of the recodification and revision to Title 17-A’s sentencing
provisions. See P.L. 2019, ch. 113, §§ A-1 to -2, B-9 (emergency, effective May 16, 2019) (to be
codified at 17-A M.R.S. § 1602). All citations to the sentencing provisions in this opinion are to the
statutes in effect at the time of the offense. See State v. Parsons, 626 A.2d 348, 351 (Me. 1993).
    3   Sweeney was fifty-six when he killed W.D. and fifty-nine at the time of the sentencing.
                                                                               5

attacking W.D. After balancing the mitigating and aggravating factors, the court

set the final sentence at thirty-eight years in prison.

      [¶11] Sweeney timely appealed the judgment. See 15 M.R.S. § 2115

(2018); M.R. App. P. 2B(b)(1). Upon his application, the Sentence Review Panel

granted Sweeney leave to appeal his sentence pursuant to 15 M.R.S. § 2151

(2018) and M.R. App. P. 20. State v. Sweeney, No. SRP-19-143 (Me. Sent. Rev.

Panel June 27, 2019). Sweeney’s direct appeal from the judgment of conviction

and his sentence appeal are both before us now. See M.R. App. P. 20(h).

                                 II. DISCUSSION

A.    The Mother’s Testimony

      [¶12]    Sweeney contends that the court erred in admitting W.D.’s

mother’s testimony about statements W.D. made to her soon after the incident

in which Sweeney went into W.D.’s bedroom with a gun.

      [¶13] We review a “court’s decision to admit or exclude alleged hearsay

evidence . . . for an abuse of discretion,” State v. Guyette, 2012 ME 9, ¶ 11, 36

A.3d 916, and if a court’s ruling is proper, we may affirm it “on grounds other

than those stated by the trial court,” State v. Watson, 2016 ME 176, ¶ 10,

152 A.3d 152. We review factual findings underlying a decision to admit or

exclude evidence for clear error. State v. Robinson, 2001 ME 83, ¶ 10, 773 A.2d
6

445; see M.R. Evid. 104(a). Furthermore, when a party does not move for

additional findings of fact pursuant to M.R.U. Crim. P. 23(c), we “infer that the

trial court found all of the facts necessary to support its judgment, to the extent

that those assumed facts are supported by competent record evidence.”

Fournier, 2019 ME 28, ¶ 2, 203 A.3d 801.

      [¶14]   “[S]ubstantial contemporaneity is the essence” of M.R. Evid.

803(1), State v. Ryne G., 509 A.2d 1164, 1168 (Me. 1986), and we agree with the

parties that the court erred in admitting the mother’s testimony pursuant to the

present sense impression exception to the rule against hearsay. As we noted,

however, the court specifically ruled that the statement was not admissible as

an excited utterance. Although the court’s ruling contained no express factual

findings relevant to the excited utterance exception, see M.R. Evid. 104(a),

803(2); State v. Watts, 2007 ME 153, ¶ 5, 938 A.2d 21, the State did not move

for additional findings of fact, see M.R.U. Crim. P. 23(c); State v. Legassie, 2017

ME 202, ¶ 46, 171 A.3d 589. Given this record, the court’s conclusion that the

mother’s testimony was not admissible as an excited utterance was not clearly

erroneous. See Fournier, 2019 ME 28, ¶ 2, 203 A.3d 801; Watts, 2007 ME 153,

¶ 5, 938 A.2d 21. Because the mother’s testimony was neither a present sense

impression nor an excited utterance, and was therefore not admissible
                                                                                 7

pursuant to those exceptions to the rule against hearsay, the court erred in

admitting it.

      [¶15] Although the court erred in admitting the mother’s hearsay

testimony, the error here was harmless. See M.R.U. Crim. P. 52(a). An error is

harmless when “it is highly probable that the error did not affect the factfinder’s

judgment.” State v. White, 2002 ME 122, ¶ 16, 804 A.2d 1146 (quotation marks

omitted). In addressing Sweeney’s objections to the mother’s testimony, the

court stated that the testimony was “instructive on the relationship” between

Sweeney and W.D., and the court also made clear that it was not using the

testimony as propensity evidence. On the issue of the relationship, however,

the court had a great deal of additional and pertinent evidence, including a

letter Sweeney wrote to W.D. after the gun incident, Sweeney’s own description

of that incident to two forensic examiners, and the testimony of other witnesses

who discussed interactions they saw between Sweeney and W.D. and things

they heard Sweeney say about W.D. Given this abundant evidence, it is “highly

probable,” id., that any error in the court’s consideration of the mother’s

testimony did not affect the court’s finding that Sweeney “had reached a level
8

of desperation and panic in his relationship with [W.D.]” in the months before

the murder.4

B.       Sentencing

         [¶16] Sweeney’s challenge to his sentence is based on the assertion that

the court “double-counted” the factor of domestic violence in reaching its

sentence. There is simply no support in the record for that assertion.

         [¶17] Pursuant to 17-A M.R.S. § 1252-C (2016), which codified our

decision in State v. Hewey, 622 A.2d 1151, 1154-55 (Me. 1993), a court imposing

a sentence for murder follows a two-step process.5 First, the court “determines

the basic term of imprisonment based on an objective consideration of the

particular nature and seriousness of the crime.” State v. Koehler, 2012 ME 93,

¶ 33, 46 A.3d 1134.           Second, the court “determines the final period of

incarceration based on the relevant aggravating and mitigating factors.” Id. We

review “a court’s determination of the basic sentence de novo for



    We are also unpersuaded by Sweeney’s unpreserved argument that the court’s decision to admit,
     4

as substantive evidence, statements Sweeney made to the State’s expert witness while admitting
essentially identical statements Sweeney made to his own expert witness only as the basis for
Sweeney’s expert’s opinion violated Sweeney’s constitutional right to “a meaningful opportunity to
present a complete defense.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quotation marks
omitted); see also State v. Mitchell, 2010 ME 73, ¶¶ 31-33, 4 A.3d 478.

    Title 17-A M.R.S. § 1252-C includes a third step—the determination of any period of suspension
     5

and probation—that is inapplicable to a sentence imposed for the crime of murder. See 17-A
M.R.S. § 1201(1)(A) (2016).
                                                                               9

misapplication of legal principles and its determination of the maximum

sentence for abuse of discretion.” State v. Waterman, 2010 ME 45, ¶ 42,

995 A.2d 243.

       [¶18]    Contrary to Sweeney’s suggestions, the court did not

inappropriately consider the element of domestic violence at both step one and

step two. In fact, the sentencing analysis was a model of fidelity to the law. In

explaining the first step required in contemplating a sentence for Sweeney’s

crime, the court properly and correctly considered the objective elements of

domestic violence in the crime itself. Sweeney killed the woman who had

shared his life for over ten years. He killed her by striking her face and head

with a wooden bat while she slept in a place where she should have been safe—

her own home. The court committed no error in noting these objective factors

in setting the basic sentence. See State v. Nichols, 2013 ME 71, ¶ 29, 72 A.3d

503.

       [¶19] At step two, the court examined the history of the relationship

between Sweeney and W.D., including Sweeney’s attempts “to intimidate, to try

to control, to try to threaten [W.D.], implicitly or explicitly.”     The court

addressed this history as an aggravating factor, noting that “the most

dangerous time in a relationship is when it is ending, it was clearly ending and
10

[Sweeney] could not deal with it.” Considering Sweeney’s history of domestic

violence against W.D. as an aggravating factor was not error. See State v. Lord,

2019 ME 82, ¶ 35, 208 A.3d 781; State v. Reese, 2010 ME 30, ¶ 31, 991 A.2d 806.

        [¶20] Finally, the court did not err in its weighing of the aggravating and

mitigating factors at step two.             The court’s accounting of the crime’s

“excruciating” impact on W.D.’s family was firmly within the bounds of its

discretion. See Lord, 2019 ME 82, ¶ 36, 208 A.3d 781; State v. Freeman, 2014

ME 35, ¶ 20, 87 A.3d 719.

        The entry is:

                           Judgment affirmed.



Jeremy Pratt, Esq. (orally), and Ellen Simmons, Esq., Camden, for appellant
James E. Sweeney

Aaron M. Frey, Attorney General, and Leanne Robbin, Asst. Atty. Gen. (orally),
Office of the Attorney General, Augusta, for appellee State of Maine


Franklin County Unified Criminal Docket docket number CR-2017-642
FOR CLERK REFERENCE ONLY
