MAINE SUPREME JUDICIAL COURT                                         Reporter of Decisions
Decision: 2019 ME 117
Docket:   Ken-18-306
Argued:   April 10, 2019
Decided:  July 23, 2019

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



                                   STATE OF MAINE

                                            v.

                                AUBREY ARMSTRONG


HJELM, J.

         [¶1] Aubrey Armstrong was charged with murder, felony murder, and

robbery in connection with a drug-related homicide. After a jury-waived trial,

the court (Kennebec County, Billings, J.) acquitted Armstrong of murder but

found him guilty of the other two charges. Armstrong appeals the resulting

judgment, contending that the court abused its discretion by excluding

evidence of hearsay statements made by a witness who was not available to

testify at trial, see M.R. Evid. 804(b)(3), and that his constitutional protection

from double jeopardy precludes a conviction for both felony murder and the

underlying felony of robbery, see U.S. Const. amend. V; Me. Const. art. I, § 8.

Although Armstrong did not raise the double jeopardy issue in the trial court,

the State agrees with Armstrong on that point. We conclude that the court
2

committed no error in its evidentiary ruling at issue here, but we vacate the

judgment and remand for further post-trial proceedings, including

resentencing limited to one count.

                               I. BACKGROUND

      [¶2] The following facts are drawn from the court’s findings, which are

supported by the evidence, and from the trial record viewed in the light

most favorable to the State.     See State v. Fournier, 2019 ME 28, ¶ 2,

203 A.3d 801.

      [¶3]   On the night of November 23, 2015, several police officers

responded to a report of a disturbance in an apartment building in Augusta.

The officers entered the building, and, as they ascended the stairs to an

apartment on the fourth floor, they heard banging from the apartment,

including a sound suggestive of an object being dropped. When the officers

reached the apartment, one of them knocked on the door several times. The

officers heard movement inside, and after several moments the apartment door

was opened by a male later identified as Damik Davis, who was Armstrong’s

constant companion—and enforcer. Davis was breathing heavily, sweating

profusely, and had blood on one of his hands.
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       [¶4] From the doorway, the officers could see that the apartment was in

disarray. It appeared that there was blood on the walls, on the floor, and on a

survey stake; a broken chair was on the floor; and clothing was strewn about.

As the officers spoke with Davis, they observed a person—whom they believed

to be male and who was wearing a hooded sweatshirt covering most of his

head—walk behind Davis and then out of view.

       [¶5] An officer asked Davis about the whereabouts of the apartment’s

residents, Zina Fritze and Michael Sean McQuade, who were long-term partners

and had a child together. Davis called for Fritze and then walked into the

kitchen and out of the officers’ sight. One of the officers went downstairs and

around to the back of the building, where he observed Davis running from the

building.1 The officer also discovered a white cell phone on the ground, which

was later collected as evidence and identified as Armstrong’s. Meanwhile, the

other officer entered the apartment and discovered the body of a man in the

bedroom. The man’s hands were bound behind his back by ligatures, his ankles

were also bound, and his face was bloody and swollen. A forensic pathologist

later determined that the cause of death was multiple blunt force injuries to the



   1Using a discarded sweatshirt recovered from the back staircase and believed to have been worn
by Davis, the officers and a tracking dog eventually found Davis in the area, and he was then arrested.
4

head—including injuries to the victim’s brain, which were so extensive as to be

fatal by themselves—and to his neck, including a fractured hyoid bone.

      [¶6] Fritze and McQuade went into hiding until, two days after the

homicide, they were found and surrendered to the police. After Fritze was

given Miranda warnings, see Miranda v. Arizona, 384 U.S. 436, 478-79 (1966),

she was interviewed about the murder by four detectives. Following the

interview, Fritze accompanied detectives to the scene of the murder and

showed the officers what she claimed had occurred.

      [¶7] In January of 2016, Armstrong was indicted for intentional or

knowing or depraved indifference murder, 17-A M.R.S. § 201(1)(A), (B) (2018);

felony murder (Class A), 17-A M.R.S. § 202(1) (2018); and robbery (Class A),

17-A M.R.S. § 651(1)(C) (2018). Davis, McQuade, and Fritze were charged with

the same crimes. On January 27, 2016, while being held on the charges against

her, Fritze committed suicide.

      [¶8] Armstrong was arrested in New York pursuant to a warrant and,

after being extradited to Maine, pleaded not guilty to each charge. The cases

against Armstrong, Davis, and McQuade were joined for trial, see

M.R.U. Crim. P. 8(b), but McQuade and Davis each subsequently pleaded guilty

to felony murder and robbery, and each agreed to cooperate with the State.
                                                                             5

Armstrong waived his right to a jury trial, and the court held a six-day bench

trial in May of 2018.

        [¶9] The only eyewitness to the crime who testified was McQuade.2 He

told the court that on the night of the murder, while he, Armstrong, Davis, and

Fritze were at a neighbor’s apartment, Armstrong stated that he wanted to rob

the victim of drugs. The four developed a plan to commit the robbery, which

resulted in luring the victim to the apartment where the four conspirators were

present. All of them then traveled in the victim’s van to McQuade and Fritze’s

nearby apartment. Fritze, Davis, and the victim entered the apartment using

the front stairway; McQuade and Armstrong went into the apartment by a rear

staircase and entrance. Once inside, Fritze went into the kitchen and McQuade

went into the bedroom, and the other three remained in the living room. From

the bedroom, McQuade saw Armstrong “smash[]” the victim across the head

with a bottle, and Davis hit the victim on the head with a chair. McQuade

testified that as Armstrong and Davis continued to assault the victim, he—

McQuade—went into the kitchen and told Fritze that they needed to leave.

Armstrong continued to beat the victim with what McQuade described as a

“property stick” as Davis tried to stop Armstrong.


  2   Neither party called Davis as a witness.
6

        [¶10] According to McQuade, when the police knocked on the apartment

door, Fritze and McQuade fled from the apartment through the back door. As

they ran down the back stairs, McQuade saw Armstrong behind them. The

three ran through nearby woods to the neighbor’s apartment where they had

met the victim earlier that night. McQuade testified that Armstrong and the

neighbor made statements that he perceived as threats to him and his child, and

that Armstrong instructed McQuade not to say anything about him.3 Because

of their fear of Armstrong, and knowing the police were looking for them,

McQuade and Fritze hid for two days after the murder before they were

discovered and arrested.

        [¶11] During the trial, Armstrong offered in evidence a transcript of

Fritze’s November 25, 2015, interview conducted by detectives, as well as the

video of Fritze’s reenactment of the incident.                   Armstrong contended that

Fritze’s hearsay statements were admissible pursuant to Maine Rule of

Evidence 804(b)(3) as declarations she had made against her penal interest.

At the court’s suggestion, in order to clarify the record, Armstrong later distilled




    3In addition to McQuade’s testimony about threats he attributed to Armstrong, Armstrong’s
then-girlfriend testified that she felt threatened or tricked into fleeing with him to New York
immediately after the murder, and the girlfriend’s mother testified that Armstrong threatened to “kill
[them] all” if she told police that he had been hiding from police in her apartment.
                                                                              7

the lengthy statements into a more focused proffer that identified the portions

of the statements he sought to enter in evidence.

      [¶12] As described in the proffer, Fritze claimed that the victim had

offered to give her drugs if she allowed him to use her apartment to sell drugs

to Davis. She, Davis, McQuade, and the victim drove to her apartment, and

Fritze, Davis, and the victim went upstairs, leaving McQuade behind. Fritze—

who claimed that she could hear but not see what was happening in the

apartment—told the detectives that Davis and the victim began arguing and

that the argument escalated into violence. She said that Davis threw a rocking

chair at the victim, causing the victim to stumble into a wall, and that “it

sounded like somebody got hit and then it sounded like somebody getting

choked out.” She told the detectives that a folding chair was then thrown at the

victim and that Davis began to assault the victim. Fritze said that after the

incident, Davis was sweaty, and it looked as though his knuckles were injured.

Fritze also stated that while she was in the apartment, she wore a hood over

her head. The offer of proof did not contain any statements by Fritze that

Armstrong was present when the murder was committed or that he was

involved in the crime.
8

      [¶13] After analyzing the trustworthiness of Fritze’s statements under

the four-part test established in State v. Cochran, 2000 ME 78, ¶ 12,

749 A.2d 1274, and State v. Small, 2003 ME 107, ¶ 25, 830 A.2d 423, the court

excluded the statements made by Fritze during both the interview and the

walk-through at the apartment, concluding that Fritze had a “probable motive

to falsify” when she made those statements to investigators.

      [¶14] At the conclusion of the trial, the court found Armstrong guilty of

felony murder and robbery but acquitted him of murder. The court found that

Davis, McQuade, and Fritze were present when the victim was killed. The court

also found that, contrary to Armstrong’s theory of the case, Armstrong was at

the scene of the crime as well. The court based that finding in part on the

discovery of the cell phone—which the court found was Armstrong’s—behind

the apartment building where the murder took place, and on his relationship

with Davis, where the two were often together and Davis served as Armstrong’s

protection. The court further found that Armstrong actively participated in

both planning and committing the robbery and that the victim’s death was a

reasonably foreseeable consequence of the robbery.

      [¶15] After a sentencing hearing held two months later, on the charge of

felony murder, the court imposed a fully unsuspended prison term of
                                                                                                      9

thirty years, and on the robbery charge a concurrent sentence of thirty years

with one year suspended and four years of probation. Armstrong timely

appealed. See 15 M.R.S. § 2115 (2018); M.R. App. P. 2B(b)(1).

                                            II. DISCUSSION

           [¶16] Armstrong argues on appeal that the court abused its discretion

by excluding hearsay evidence of Fritze’s statements to investigators because,

he asserts, those statements were corroborated by circumstances clearly

indicating that the statements are trustworthy as Maine Rule of Evidence

804(b)(3) requires for such evidence to be admissible. Armstrong also argues

that his convictions for both felony murder and robbery violate his double

jeopardy rights. See U.S. Const. amend. V; Me. Const. art. I, § 8. We address these

arguments in turn.

A.         Rule 804(b)(3)

           [¶17]     Maine Rule of Evidence 804(b)(3)4 allows the admission of

hearsay statements made against the declarant’s interest if the following



     4   Maine Rule of Evidence 804(b)(3) states:

           Statement against interest. A statement—except, in a criminal case, for a statement
           or confession made by a defendant or other person implicating both the declarant and
           the accused that is offered against the accused—that:

              (A) A reasonable person in the declarant’s position would have made only if the
           person believed it to be true because, when made, it was so contrary to the declarant’s
           pecuniary or proprietary interest, or so far tended to subject the declarant to civil or
10

foundational elements are satisfied: (1) the declarant is not available to testify

within the meaning of Rule 804(a); (2) the statement tends to subject the

declarant to criminal liability to a degree that a reasonable person in the

declarant’s position would not have made the statement unless the declarant

believed it to be true; and (3) the statement is corroborated by circumstances

that “clearly” indicate its trustworthiness.                 Cochran, 2000 ME 78, ¶ 11,

749 A.2d 1274; see M.R. Evid. 804(b)(3). Here, the parties do not dispute that

the first two conditions for admissibility were met—Fritze was unavailable to

testify because she died before Armstrong’s trial was held, and her statements

about her involvement in the crimes were sufficiently self-inculpatory to

constitute a statement against her penal interest. The issue presented here

centers on whether her statements to investigators were supported by




       criminal liability or to render invalid a claim by the declarant against another, or to
       make the declarant an object of hatred, ridicule, or disgrace; and

          (B) Is supported by corroborating circumstances that clearly indicate its
       trustworthiness, if it is offered in a criminal case as one that tends to expose the
       declarant to criminal liability.

   The restyling of the Maine Rules of Evidence to mirror the Federal Rules of Evidence did not
change their substance. See M.R. Evid. Advisory Committee’s Note to 2015 amend. (“The purpose of
the restyling is to make the rules clearer and easier of application by adoption of simple and
consistent language, style, and format conventions and elimination of ambiguous or obsolete
terminology. The recommendations for restyling are intended to preserve the substance of the
respective rules without change, but present the respective Maine rules in the language and format
consistent with their restyled counterparts in the Federal Rules of Evidence.”).
                                                                           11

corroborating circumstances that clearly indicate the trustworthiness of the

statements.

      [¶18] We have stated that in order to make that assessment of whether

the hearsay statement bears clear indicia of trustworthiness,

      courts should consider the following four additional factors:

              1. the time of the declaration and the party to whom it
                 was made;

              2. the existence of corroborating evidence in the case;

              3. whether the declaration is inherently inconsistent
                 with the accused’s guilt; and

              4. whether at the time of the incriminating statement
                 the declarant had any probable motive to falsify.

Small, 2003 ME 107, ¶ 25, 830 A.2d 423.

      [¶19]     Here, the court concluded that the first and third of the

trustworthiness factors weighed in favor of admissibility—Fritze made

statements to investigators close in time to the events she described, and her

statements were inconsistent with Armstrong’s guilt because she did not place

him at the scene of the homicide. As to the second factor, the court observed

that there was evidence that both corroborated and conflicted with certain
12

aspects of her account.5 Neither party contests these parts of the court’s

analysis.

         [¶20] The court went on, however, to place significant weight on the

fourth of the trustworthiness factors, namely, whether Fritze had a motive to

lie to investigators when she made the statements to them. Based on the trial

evidence, including McQuade’s testimony, the court found that during the two

days between the murder and her arrest, Fritze and McQuade were in hiding.

She knew she was being sought by the police, and because of serious threats

that they attributed to Armstrong, she and McQuade were unwilling to

inculpate Armstrong. With support in McQuade’s testimony, the court found

that they had concocted a story that would minimize their involvement in the

murder and—important to the question of the admissibility of the evidence—

keep Armstrong out of the narrative.                   The court concluded that Fritze’s

statements, which, by omission, were purportedly exculpatory as to Armstrong,




     Evidence that supports Fritze’s version of events included the presence of the victim’s DNA on
     5

Davis’s sweatshirt, a folding chair, and the wooden stake. Evidence that might have contradicted her
account included the presence of the victim’s DNA on McQuade’s coat and Fritze’s DNA in the rear
pocket of the victim’s pants, as well as Armstrong’s cell phone behind the apartment building. When
Armstrong sought to introduce Fritze’s hearsay statements, the State had already presented evidence
that the cell phone found near the crime scene was Armstrong’s, thereby creating a significant
contradiction with Fritze’s statement to the police that failed to mention Armstrong’s presence at the
murder scene.
                                                                               13

were not supported by circumstances that clearly showed the statements to be

trustworthy.

      [¶21] “The question of admissibility pursuant to Rule 804(b)(3) . . . is

committed to the discretion of the trial court.” State v. Boucher, 652 A.2d 76, 79

(Me. 1994); see also Field & Murray, Maine Evidence § 804.4 at 521

(6th ed. 2007) (“The determination of whether the necessary corroborating

evidence is present involves the exercise of a sound discretion by the trial

court.”). Armstrong, as the proponent of the evidence, had the burden to

develop the foundation that would allow the court to admit the evidence. See

KeyBank Nat’l Ass’n v. Estate of Quint, 2017 ME 237, ¶ 13, 176 A.3d 717. Here,

the court’s analysis correctly invoked the legal framework established by the

rule and applicable caselaw. Then, although concluding that several of the

trustworthiness factors favored admissibility, the court appropriately placed

significant weight on what was, in the circumstances of this case, the most

important consideration—whether Fritze was motivated to falsify the

information she provided to investigators, and in particular any statements

about whether Armstrong was involved in the homicide.

      [¶22] In criminal proceedings, the purpose of requiring the proponent of

hearsay evidence to make a foundational showing of a clear indication that the
14

hearsay is trustworthy is to protect against the use of the declaration—made

by a witness who is not available to testify—to falsely exonerate an accused.

See State v. Dobbins, 2019 ME 116, ¶ 22, --- A.3d ---. Here, the court was

presented with evidence that Fritze and McQuade had witnessed a brutal

murder and that they both reasonably believed that Armstrong—who was still

at large when Fritze spoke with investigators—posed a threat to her, McQuade,

and their child. The evidence also indicated that, under these circumstances,

Fritze and McQuade planned to provide the police with a story that pointedly

did not implicate Armstrong. On this record, the court did not err in its ultimate

determination that Armstrong failed to present foundational evidence of

corroborating circumstances clearly indicating the trustworthiness of the

hearsay statements, offered to show that Armstrong was not involved in the

crimes.

         [¶23] Given the court’s supported determination that Fritze’s statements

were not clearly supported by indicia of trustworthiness, admission of Fritze’s

hearsay statements would have run contrary to the truth-seeking function of

Rule 804(b)(3).         The court therefore did not err, while exercising its

gatekeeping function, by excluding that evidence.6


    Armstrong also summarily argues that his constitutional right to present a defense should have
     6

been “specifically considered” by the court when it determined whether Fritze’s statements were
                                                                                                     15

B.     Double Jeopardy

       [¶24] Armstrong also asserts that the convictions for both robbery and

felony murder violate the double jeopardy clauses of the federal and state

constitutions, see U.S. Const. amend. V; Me. Const. art. I, § 8, because robbery is

“the same” offense as felony murder pursuant to the same-elements test

established in the seminal case of Blockburger v. United States, 284 U.S. 299, 304

(1932). See also State v. Martinelli, 2017 ME 217, ¶ 7, 175 A.3d 636. As a

corollary to this argument on appeal, he asserts that the sentences were

illegally excessive because they were predicated on two crimes instead of one.

       [¶25] Neither party raised this issue in the trial court. Nonetheless, the

State acknowledges that Armstrong is correct on these points and confesses

what must be seen as obvious error. See M.R.U. Crim. P. 52(b); State v. Lyon,

2016 ME 22, ¶ 6, 131 A.3d 918; see also State v. Robinson, 1999 ME 86, ¶ 14,

730 A.2d 684 (stating that “the right to be free from double jeopardy . . . is a


admissible. See Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (“Few rights are more fundamental
than that of an accused to present witnesses in his own defense.”). Armstrong has failed to present
a developed argument on this point, and he has therefore failed to preserve it for our review.
See State v. Jandreau, 2017 ME 44, ¶ 14, 157 A.3d 239. Nonetheless, on the merits, exclusion of
Fritze’s statements did not violate Armstrong’s constitutional rights because that evidentiary ruling
was neither arbitrary nor disproportionate, and it served legitimate interests in the criminal trial
process. See Holmes v. South Carolina, 547 U.S. 319, 326 (2006) (“[T]he Constitution thus prohibits
the exclusion of defense evidence under rules that serve no legitimate purpose or that are
disproportionate to the ends that they are asserted to promote.”); United States v. Scheffer, 523 U.S.
303, 308 (1998) (stating that the right to present a defense “is not unlimited, but rather is subject to
reasonable restrictions”).
16

fundamental right of all citizens, and the law on the issue is clear and well

established.”); Whalen v. United States, 445 U.S. 684, 686, 693-94 (1980) (in a

prosecution for felony murder and an underlying felony, applying double

jeopardy protections based on the Blockburger same-elements test where the

felony murder may be proved—as with 17-A M.R.S. § 202(1)—based on either

the commission of the underlying felony or on an attempt to commit the

underlying felony).

      [¶26] Consequently, we remand for further post-trial proceedings where

the court may take appropriate action to eliminate the double jeopardy effect

arising from the two charges by merging the two counts into a single defined

count, which has the same effect as dismissing one count, see State v. Murphy,

2015 ME 62, ¶ 28, 124 A.3d 647, and then imposing sentence on the merged

count.

      The entry is:

                  Judgment vacated.     Remanded for further
                  post-trial proceedings consistent with this
                  opinion.
                                                                             17

Scott F. Hess, Esq. (orally), the Law Office of Scott F. Hess, LLC, Augusta, for
appellant Aubrey Armstrong

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


Kennebec County Unified Criminal Docket docket number CR-2016-172
FOR CLERK REFERENCE ONLY
