MAINE SUPREME JUDICIAL COURT                                                   Reporter of Decisions
Decision: 2019 ME 128
Docket:   Ken-18-385
Argued:   May 7, 2019
Decided:  August 6, 2019

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



                                       STATE OF MAINE

                                                 v.

                                 DONALD F. RUTHERFORD


SAUFLEY, C.J.

         [¶1] In this appeal, we clarify the evidentiary foundation required for the

admission of an otherwise hearsay statement as the adoptive admission of a

defendant in a criminal trial. Donald F. Rutherford appeals from a judgment of

conviction of operating under the influence (Class D), 29-A M.R.S.

§ 2411(1-A)(A), (5) (2018), entered by the court (Kennebec County, Marden, J.)

after a jury trial in which the court admitted, as an adoptive admission and over

Rutherford’s objection, the inculpatory statement of Rutherford’s friend, who

did not testify at trial. Because silence alone is not enough, and there was no




   * Although not available at oral argument, Justice Hjelm participated in the development of this
opinion. See M.R. App. P. 12(a)(2) (“A qualified justice may participate in a decision even though not
present at oral argument.”).
2

other evidence that Rutherford adopted his friend’s statement identifying him

as the driver, we vacate the judgment and remand for further proceedings.1

                                     I. BACKGROUND

        [¶2]     At about 11:15 p.m. on December 2, 2017, Gardiner Police

Department officers responded to a call and found Rutherford and a friend

standing near a vehicle that was in a ditch near the entrance to an apartment

complex. Rutherford was arrested at the scene and, after the administration of

a breath test at the police department, was issued a uniform summons and

complaint charging him with operating under the influence. He entered a plea

of not guilty.

        [¶3] During the jury trial held in September 2018, the officer who spoke

with Rutherford at the scene of the accident testified, over Rutherford’s hearsay

objection, that when she asked Rutherford and his friend what had happened,

Rutherford’s friend said that Rutherford was not from the area and had missed

the turn, thus indicating that Rutherford had been driving. The court admitted

the statement of the friend as an admission adopted by Rutherford, ruling that

the statement was admissible as an opposing party’s statement. See M.R.



    Because we vacate the judgment, we do not reach Rutherford’s additional arguments raised on
    1

appeal.
                                                                             3

Evid. 801(d)(2)(B) (providing that a statement is not hearsay if “[t]he

statement is offered against an opposing party and . . . [i]s one the party

manifested that it adopted or believed to be true”). The friend did not testify

and was not present at trial.

      [¶4] The court also admitted—over the same objection—a prearrest

video recording, with audio, from the officer’s body-worn camera that included

the friend’s statement identifying Rutherford as the driver and also

Rutherford’s own response to law enforcement that he was the owner of the

vehicle. Rutherford objected to the admission of the friend’s statement a third

time after consulting additional legal resources. He argued that he had not

manifested adoption of the statement by merely standing next to his friend

when she said he had missed the turn. The court reiterated its earlier rulings,

finding—based on the officer’s testimony and the video—that Rutherford had

been standing two feet away from his friend when they were both being

questioned, he had heard the question and answer, he had not disputed her

representation that he was the driver, and he had cooperated fully in field

sobriety tests thereafter.

      [¶5]   Rutherford did not testify, and when all evidence had been

presented, he moved for a judgment of acquittal. See M.R.U. Crim. P. 29. He
4

argued, among other things, that there was no properly admitted evidence that

could show beyond a reasonable doubt that Rutherford had been the driver.

The court denied the motion for a judgment of acquittal.

      [¶6] The jury found Rutherford guilty. The court sentenced Rutherford

to forty-eight hours in jail and $650 in fines, surcharges, and assessments. His

license was suspended for 150 days. Rutherford timely appealed from the

judgment and moved to stay the execution of his sentence pending appeal—a

motion that the court granted.

                                 II. DISCUSSION

      [¶7] Rutherford contends that the statement of his friend was hearsay

and did not constitute an admission by him that he was driving the car.

Hearsay, which is a “statement that . . . [t]he declarant does not make while

testifying at the current trial” and that is offered by a party “to prove the truth

of the matter asserted in the statement,” is generally inadmissible.          M.R.

Evid. 801(c), 802. A statement is not hearsay, however, if “[t]he statement is

offered against an opposing party and . . . [i]s one the party manifested that it

adopted or believed to be true.” M.R. Evid. 801(d)(2)(B).

      [¶8] When the State offers evidence as an adoptive admission in a

criminal proceeding, the State bears the burden of proof “to show that an
                                                                                5

adoption was intended.” State v. Cookson, 657 A.2d 1154, 1157 (Me. 1995). If

the defendant objects, the court must make a threshold determination whether

“the State has introduced sufficient facts for the jury reasonably to conclude

that the defendant adopted the admission of another.” Id.; see also State v.

Marshall, 491 A.2d 554, 558 (Me.), cert. denied, 474 U.S. 908 (1985). We

examine the record that was presented to the trial court to review whether the

defendant was present when the statement was made, heard and understood

the statement, and manifested his adoption of it. Cookson, 657 A.2d at 1157.

We review the court’s decision on the adequacy of the foundation for an abuse

of discretion, though we review underlying findings of fact for clear error. State

v. Williamson, 2017 ME 108, ¶ 17, 163 A.2d 127.

      [¶9] It is a critical principle in criminal proceedings that, because the

“adoptive admission of a defendant charged with a crime is tantamount to a

confession stripped of constitutional safeguards against self-incrimination,” a

criminal defendant’s “mere presence when a statement is made is insufficient

to support a finding of adoption.” Cookson, 657 A.2d at 1157 (quotation marks

omitted); see U.S. Const. amend. V; Me. Const. art. I, § 6.

      [¶10] For instance, we held that the statement of a defendant’s brother

to a store employee about his plans was not an admission of the defendant
6

merely because she was present when her brother made the statement. State

v. McKenney, 459 A.2d 1093, 1095, 1097 (Me. 1983). Similarly, when a trial

court excluded a witness’s testimony about a statement implicating the

defendant that was made in one room while the defendant was in an adjoining

bathroom, we affirmed the ruling because “the presiding justice could well have

found that [the defendant] did not hear [the] remark” and therefore did not

manifest his adoption of the statement as his own. State v. Johnson, 472 A.2d

1367, 1370-71 (Me. 1984).

      [¶11] Applying these standards, we have held that the evidence offered

to establish that a defendant adopted an admission was insufficient when the

evidence showed that the defendant contemporaneously and vehemently

denied the contents of the statement, State v. Robinson, 403 A.2d 1201, 1203

(Me. 1979); when the evidence showed that the statement was made in one

conversation while the defendant was engaged in another, separate

conversation, Cookson, 657 A.2d at 1157; and when the State lacked evidence

that the defendant was present, heard and understood the statement, and

manifested adoption of it, State v. Marr, 536 A.2d 1108, 1109-10 (Me. 1988).

We also held that a statement was inadmissible when it was not possible to
                                                                              7

identify which person in a conversation made the incriminating statement.

State v. Elwell, 380 A.2d 1016, 1020 (Me. 1977).

      [¶12] When we have upheld the admissibility of an adoptive admission

in criminal proceedings, there has been specific evidence of the defendant’s

affirmative adoption.     For instance, we upheld the admission of two

codefendants’ statements against each of them when they and others met with

a friend at a motel room and had a conversation. Marshall, 491 A.2d at 556-57.

One of the two defendants explained to the friend that a member of their group

had gotten out of control and shot the murder victim; he added that the victim’s

“troubles were over.” Id. at 557. After the friend suggested that the members

of the group might turn themselves in, the other defendant picked up a rifle

and said, “‘[N]o one is going to take us in.’” Id. (alteration in original). The

entire conversation was affirmed as admissible against each defendant

because each defendant’s admission was adopted by the other as part of their

ongoing conversation. Id. at 557-58.

      [¶13] We also affirmed the admissibility of statements as adoptive

admissions when a defendant actively participated in a three-way conversation

in a vehicle, contributing to the conversation and building on what others said,

State v. Kimball, 424 A.2d 684, 687-88 (Me. 1981); when a defendant, in close
8

proximity to the declarant who was planning a robbery, participated in a coin

toss to see who would carry the gun, helped make masks, and left with the

declarant in the declarant’s car with a gun in his possession, State v. Anderson,

409 A.2d 1290, 1298-99 & n.8 (Me. 1979); when a person leaving a building

that had been set on fire said, “that was a dumb . . . thing to do,” and the

defendant replied, “that way they wouldn’t be able to find any fingerprints,”

State v. Blouin, 384 A.2d 702, 704, 705-06 (Me. 1978) (quotation marks

omitted); and when a man with a visible injury told his sister-in-law, referring

to and in the presence of his girlfriend—the defendant—“Look what that [F’n]

fool did to me,” and the girlfriend “laughed and said she would do a better job

next time,” State v. Anaya, 456 A.2d 1255, 1265 (Me. 1983) (quotation marks

omitted).

      [¶14] We also considered a situation in which the adoptive admission

offered by the State was made during questioning by law enforcement. State v.

Parker, 461 A.2d 501, 502-03 (Me. 1983). There, however, the defendant

explicitly stated, “I don’t disagree with that,” after the officer summarized the

events that another person had reported. Id. (quotation marks omitted). We

affirmed the admission of the statement in that case because of the defendant’s
                                                                                                 9

explicit adoption of the version of events that had been related by the officer.

Id. at 503.

       [¶15] The key factor in each of those cases was an affirmative act or

statement by the defendant adopting the speaker’s statement. Even in the one

instance where the statement was not followed by conduct or words

manifesting adoption, the admitted statement, “[N]o one is going to take us in,”

was made during a group conversation after the defendant had already

explained how the murder victim had been shot and had said that the murder

victim’s “troubles were over.” Marshall, 491 A.2d at 557-58 (quotation marks

omitted).

       [¶16] Taken together, these cases stand for the principle that the

defendant must undertake an observable action, either through words or

conduct, by which a reasonable person would understand that the defendant

did, in fact, adopt the statement.             Although in matters not involving the

constitutional right to remain silent, a person’s silence may manifest

acquiescence and adoption if the statement’s context would naturally call for a

reply, see McKenney, 459 A.2d at 1097 (citing the civil case of Gerulis v. Viens,

130 Me. 378, 382, 156 A. 378 (1931)),2 silence in the presence of the declarant


   2  We did not in McKenney conclude that McKenney’s silence when her brother made a statement
to a shop owner manifested her adoption of his statement, and our reference to the standard applied
10

cannot alone create an adoptive admission by a criminal defendant, see

Cookson, 657 A.2d at 1157.

       [¶17]      We now explicitly hold that, although a statement may be

admissible as an admission of a party in a civil case if the statement would, in

context, call for a reply, this standard does not apply in a criminal trial because

of a defendant’s constitutionally protected right to remain silent. We will not

uphold the admission of “a confession stripped of constitutional safeguards

against self-incrimination” based on the defendant’s mere silence when the

third party made the statement in the defendant’s presence. Cookson, 657 A.2d

at 1157 (quotation marks omitted).

       [¶18] When, as here, the statement at issue was made during questioning

by a law enforcement officer, the right to remain silent carries an additional

role in determining the admissibility of a third party’s statement as the adoptive

admission of a criminal defendant. “The right to remain silent, unlike the right

to counsel, attaches before the institution of formal adversary proceedings.”

State v. Diaz, 681 A.2d 466, 468 (Me. 1996) (quotation marks omitted). A

person therefore has the right to remain silent when questioned by police even



in an earlier civil matter was potentially misleading dictum, as we clarify today. State v. McKenney,
459 A.2d 1093, 1097 (Me. 1983).
                                                                                                    11

when the person has not been placed under arrest or read Miranda warnings.

See U.S. Const. amend. V; Me. Const. art. I, § 6; State v. Lovejoy, 2014 ME 48,

¶¶ 22, 23 n.9, 89 A.3d 1066; cf. State v. Figueroa, 2016 ME 133, ¶ 18, 146 A.3d

427 (involving an affirmative waiver of the right to remain silent after the

defendant was read Miranda warnings).

       [¶19] In the matter before us, the State relies exclusively on Rutherford’s

silence as foundational evidence that the declarant’s statements became

Rutherford’s. Cf. Parker, 461 A.2d at 502-03. At trial, the State argued that

Rutherford had adopted the friend’s statement as his own as part of a three-way

conversation with the friend and the officer by stating that he owned the vehicle

and that he had been drinking at his friend’s place of employment. The State

clarified at oral argument, however, that it does not contend that Rutherford

manifested adoption by cooperating in answering questions regarding his

sobriety and participating in field sobriety testing.3 The State did not present

to the trial court evidence of any other statement or conduct by which

Rutherford asserted, suggested, or implied that his friend had correctly

indicated that he had been driving. Accordingly, the State relies on Rutherford’s



   3 Unfortunately, the State did not make that position clear to the trial court at any time before or
after the court’s ruling.
12

mere presence while his friend was speaking to argue that he manifested his

adoption of the friend’s statement.

      [¶20] Rutherford had a right to remain silent when questioned by the

officer. See U.S. Const. amend. V; Me. Const. art. I, § 6; Lovejoy, 2014 ME 48,

¶¶ 22, 23 n.9, 89 A.3d 1066; Diaz, 681 A.2d at 468. At the time of his friend’s

statement, Rutherford had not waived his right to remain silent. Cf. Figueroa,

2016 ME 133, ¶ 18, 146 A.3d 427. Accordingly, Rutherford’s silence, which he

had the right to maintain when his friend spoke, cannot be construed as an

adoption of the friend’s statement. Conduct or words manifesting adoption of

the statement were required, and the State did not offer evidence of such

conduct or words of adoption by Rutherford. The friend’s statement should not

have been admitted as an adoptive admission, see M.R. Evid. 801(d)(2)(B); it

remained inadmissible hearsay, see M.R. Evid. 801(c), 802.

      [¶21] We therefore vacate the judgment of conviction and remand the

matter for further proceedings.

      The entry is:

                  Judgment vacated.      Remanded for further
                  proceedings.
                                                                        13


Jeremy Pratt, Esq. (orally), and Ellen Simmons, Esq., Camden, for appellant
Donald F. Rutherford

Maeghan Maloney, District Attorney, and Frayla Tarpinian, Asst. Dist. Atty.
(orally), Prosecutorial District IV, Augusta, for appellee State of Maine


Kennebec County Unified Criminal Docket docket number CR-2017-2500
FOR CLERK REFERENCE ONLY
