MAINE	SUPREME	JUDICIAL	COURT	 	          	     	    	      	      Reporter	of	Decisions	
Decision:	 2017	ME	65	
Docket:	   Pen-15-389	
Argued:	   October	26,	2016	
Decided:	  April	6,	2017	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                       STATE	OF	MAINE	
                                              	
                                             v.	
                                              	
                                      NICHOLAS	SEXTON	
	
	
HUMPHREY,	J.	

        [¶1]	 	 Nicholas	 Sexton	 appeals	 from	 a	 judgment	 of	 conviction	 of	 one	

count	 of	 murder,	 17-A	 M.R.S.	 §	 201(1)(A)	 (2016),	 and	 one	 count	 of	 arson	

(Class	A),	 17-A	 M.R.S.	 §	 802(1)(A)	 (2016),	 following	 a	 jury	 trial.	 	 A	 jury	 also	

found	Randall	Daluz,	Sexton’s	co-defendant,	guilty	of	three	counts	of	murder	

and	one	count	of	arson.1	

        [¶2]	 	 Sexton	 contends	 that	 the	 trial	 court	 (Penobscot	 County,	

Anderson,	J.)	 erred	 when	 it	 instructed	 the	 jury	 on	 the	 defense	 of	 duress	 only	

for	the	arson	charge	and	not	for	the	murder	charges;	erred	when	it	denied	his	

motion	for	relief	from	prejudicial	joinder	with	Daluz;	abused	its	discretion	and	

violated	 his	 right	 to	 due	 process	 when	 it	 allowed	 a	 witness	 to	 testify	 about	

    1		After	the	conviction,	Daluz	moved	for	a	new	trial,	the	court	denied	the	motion,	Daluz	appealed,	

and	we	affirmed.		See	State	v.	Daluz,	2016	ME	102,	143	A.3d	800.
2	

guns	she	observed	in	a	motel	room	during	a	meeting	with	Sexton	and	Daluz;	

erred	when	it	denied	his	motion	to	suppress	cell	phone	records	used	to	locate	

Sexton;	and	erred	when	it	allowed	testimony	that	insinuated	Sexton	“harmed	

people	over	drug	debts.”	

         [¶3]		We	disagree	and	affirm	the	judgment.		

                                          I.		BACKGROUND	

         [¶4]		Viewing	the	evidence	in	the	light	most	favorable	to	the	verdict,	a	

fact-finder	could	have	rationally	found	the	following	facts.2		See	State	v.	Reed,	

2013	ME	5,	¶	9,	58	A.3d	1130.				

	        [¶5]	 	 On	 August	 11,	 2012,	 Sexton	 renewed	 a	 rental	 agreement	 for	 a	

white	2001	Pontiac	Grand	Prix.		At	around	3:30	a.m.	on	August	13,	2012,	that	

same	vehicle	was	discovered	burning	in	a	Bangor	industrial	park.		Inside	the	

vehicle	 were	 the	 bodies	 of	 three	 murdered	 individuals,	 later	 identified	 as	

Daniel	Borders,	Nicolle	Lugdon,	and	Lucas	Tuscano,	who	were	last	seen	on	the	

night	 of	 August	 12,	 2012,	 leaving	 an	 apartment	 on	 Bolling	 Drive	 in	 Bangor	

with	Sexton.			

	        [¶6]	 	 On	 August	 14,	 2012,	 the	 day	 after	 the	 Pontiac	 was	 discovered,	

police	 requested	 and	 obtained,	 pursuant	 to	 the	 Stored	 Communications	 Act	

     2		Because	we	detailed	the	facts	developed	at	the	joint	trial	of	Sexton	and	Daluz	at	length	in	our	

decision	 in	 Daluz,	 2016	 ME	 102,	 143	 A.3d	 800,	 we	 repeat	 here	 only	 the	 background	 necessary	 to	
address	the	issues	raised	in	this	appeal.	
                                                                                                             3	

(SCA),	18	U.S.C.S.	§	2702(c)(4)	(LEXIS	through	Pub.	L.	No.	115-9),3	cell	phone	

location	information	in	order	to	determine	Sexton’s	whereabouts.		That	same	

day,	 police	 investigators	 used	 the	 location	 information	 obtained	 from	 a	 cell	

phone	belonging	to	Sexton’s	girlfriend	to	locate	Sexton	at	a	hotel	in	Danvers,	

Massachusetts,	 where	 Sexton	 and	 his	 girlfriend	 stayed	 after	 they	 left	 Bangor	

together	 on	 August	 13,	 2012.	 	 Sexton	 declined	 to	 be	 interviewed	 by	 police	

investigators	at	that	time.		

        [¶7]	 	 On	 September	 26,	 2012,	 Sexton	 was	 charged	 by	 indictment	 with	

three	 counts	 of	 murder,	 17-A	 M.R.S.	 §	201(1)(A),	 and	 one	 count	 of	 arson	

(Class	A),	17-A	M.R.S.	§	802(1)(A).		Sexton	pleaded	not	guilty	to	all	counts.		

        [¶8]	 	 On	 September	 27,	 2012,	 the	 State	 filed	 a	 notice	 of	 joinder	

indicating	 that	 Sexton	 and	 Daluz	 would	 be	 tried	 together.	 	 U.C.D.R.P.–Bangor	

8(b);	M.R.	Crim.	P.	8(b)	(Tower	2014).4		Sexton	moved	for	relief	from	joinder	

in	 July	 2013	 because	 Daluz	 gave	 statements	 to	 the	 police	 that	 implicated	

   3		 The	 Stored	 Communications	 Act	 (SCA),	 18	 U.S.C.S.	 §	 2702(c)(4)	 (LEXIS	 through	 Pub.	 L.	
No.	115-9)	 permits	 wireless	 providers	 to	 disclose	 location	 data	 “to	 a	 governmental	 entity,	 if	 the	
provider,	 in	 good	 faith,	 believes	 that	 an	 emergency	 involving	 danger	 of	 death	 or	 serious	 physical	
injury	 to	 any	 person	 requires	 disclosure	 without	 delay	 of	 information	 relating	 to	 the	 emergency.”		
Law	 enforcement	 officers	 made	 the	 SCA	 request,	 but	 did	 not	 obtain	 a	 warrant	 or	 seek	 judicial	
approval.		Neither	is	required	for	requests	pursuant	to	section	2702(c)(4).			
   	
   The	 SCA	 request	 occurred	 prior	 to	 the	 Legislature’s	 enactment,	 in	 2013,	 of	 16	 M.R.S.	 §	 648	
(2016),	which	prohibits	a	government	entity	from	obtaining	“location	information	of	an	electronic	
device”	without	a	warrant.		

   4	 	 Those	 proceedings	 occurred	 before	 the	 adoption	 and	 implementation	 of	 the	 Maine	 Rules	 of	

Unified	Criminal	Procedure	(effective	Jan.	1,	2015)	in	Penobscot	County.		M.R.U.	Crim.	P.	1(e)(1).	
4	

Sexton.	 	 The	 court	 (Anderson,	 J.)	 initially	 granted	 the	 motion	 because	 a	 joint	

trial	 would	 present	 a	 “Bruton	 problem,”	 see	 Bruton	 v.	 United	 States,	 391	 U.S.	

123	 (1968),	 but	 indicated	 that	 it	 was	 “still	 considering	 whether	 to	 have	 two	

simultaneous	 trials	 with	 two	 juries.”	 	 See	 M.R.	 Evid.	 105;	 see	 also	 State	 v.	

Boucher,	 1998	 ME	 209,	 ¶	 12,	 718	 A.2d	 1092.	 	 Sexton	 then	 moved	 again	 for	

relief	from	prejudicial	joinder,	arguing	against	simultaneous	trials.		After	the	

State	 moved	 to	 reconsider	 the	 court’s	 decision	 to	 sever	 the	 trials	 and	

represented	 that	 Daluz’s	 statements	 would	 not	 be	 introduced	 at	 trial,	 the	

court	 denied	 Sexton’s	 motion	 for	 relief	 from	 prejudicial	 joinder,	 concluding	

that	 there	 was	 no	 longer	 a	 Bruton	 problem,	 and	 that	 Sexton	 did	 not	

demonstrate	 that	 joinder	 was	 sufficiently	 prejudicial	 to	 warrant	 severance.		

The	court	denied	Sexton’s	motion	to	reconsider.		

      [¶9]	 	 Sexton	 filed	 a	 motion	 to	 suppress	 the	 cell	 phone	 location	

information	 that	 led	 police	 to	 locate	 and	 attempt	 to	 interview	 him	 on	

August	14,	2012.		On	April	1,	2014,	the	court	denied	the	motion	to	suppress,	

concluding	 that	 the	 SCA	 request	 did	 not	 constitute	 a	 “search”	 implicating	

constitutional	protections;	that	probable	cause	existed	and	there	were	exigent	

circumstances;	that	officers	acted	in	good	faith	in	making	the	SCA	request;	and	
                                                                                                      5	

that	 police	 located	 Sexton	 using	 Sexton’s	 girlfriend’s	 cell	 phone	 location	

information	and	Sexton	had	no	expectation	of	privacy	in	her	records.			

	       [¶10]	 	 The	 joint	 trial	 commenced	 on	 May	 1,	 2014.	 	 Katelyn	 Lugdon,	

sister	of	victim	Nicolle	Lugdon,	testified	that	she	and	Borders	met	with	Sexton	

and	 Daluz	 in	 a	 motel	 room	 on	 the	 night	 of	 August	 11,	 2012.	 	 During	 the	

meeting,	 Katelyn	 saw	 two	 firearms	 on	 the	 bed,	 one	 silver	 with	 a	 rounded	

barrel	and	the	other	darker	and	smaller	with	two	holes.		She	observed	Sexton	

place	 the	 silver	 gun	 under	 his	 shirt,	 while	 Daluz	 played	 with	 the	 other	 gun.		

Katelyn	 testified	 that	 during	 a	 prior	 interview	 with	 police,	 she	 described	 the	

guns	 and	 then	 was	 shown	 photographs	 of	 a	 derringer	 and	 a	 Jimenez	 .380	

caliber	 handgun	 that	 had	 been	 recovered	 from	 the	 Penobscot	 River.	 	 She	

testified	 about	 the	 interview	 and	 photos,	 but	 was	 not	 shown	 the	 guns	 or	

photos	of	the	guns	at	trial.5		

        [¶11]		Sexton	attempted	to	ask	Katelyn	questions	that	would	potentially	

lead	 to	 the	 admission	 of	 Daluz’s	 statements	 to	 a	 fellow	 inmate	 at	 the	

Penobscot	 County	 Jail	 that	 Daluz	 shot	 Nicolle	 Lugdon	 to	 gain	 Sexton’s	 trust.		

The	court	ruled	that	the	question	was	improper	and	stated	that	an	objection	

would	be	sustained,	prompting	Sexton	to	move	to	sever	the	cases	in	order	to	


    5		Both	State’s	Exhibit	73,	the	photo	of	the	derringer,	and	Exhibit	74,	the	photo	of	a	Jimenez	.380	

caliber	handgun,	were	marked	but	not	admitted.		The	jury	was	shown	the	guns	at	trial.			
6	

use	the	statement	to	establish	who	possessed	the	guns.		The	court	denied	the	

motion	to	sever.		A	second	attempt	was	made	to	introduce	Daluz’s	statement	

to	the	inmate	during	Sexton’s	testimony;	the	court	reiterated	that	an	objection	

to	such	a	question	would	be	sustained.		

      [¶12]	 	 The	 State	 rested	 on	 May	 16,	 2014.	 	 Sexton	 took	 the	 stand	 on	

May	19	and	called	no	other	witnesses.		

      [¶13]		Sexton	testified	that	after	leaving	the	Bolling	Drive	apartment	on	

the	night	of	August	12,	2012,	he,	Daluz,	Borders,	Tuscano,	and	Lugdon	rode	in	

the	white	Pontiac	Grand	Prix	to	smoke	marijuana.		Sexton	drove	and	Borders	

sat	in	the	front	passenger	seat.		The	others	sat	in	the	rear	with	Daluz	on	the	

passenger	 side,	 Lugdon	 in	 the	 middle,	 and	 Tuscano	 on	 the	 driver	 side.		

Borders	made	a	comment,	prompting	Daluz	to	“smack[]	him	in	the	head”	with	

the	 Jimenez	 .380	 caliber	 handgun	 several	 times.	 	 “Then	 all	 of	 a	 sudden	 the	

gun”	 fired,	 shooting	 Borders	 in	 the	 head	 and	 “everybody	 just	 start[ed]	

panicking.”		Tuscano	“was	flipping	out	on	Daluz”	and	then	Daluz	shot	Tuscano.		

While	 Lugdon	 was	 screaming,	 yelling,	 and	 crying,	 Daluz	 collected	 their	 cell	

phones	and	instructed	Sexton	to	keep	driving.		

      [¶14]		Sexton	testified	that	because	the	car	was	running	out	of	gas	and	

Daluz	wanted	to	avoid	gas	stations,	they	drove	to	a	friend’s	house	in	Dedham	
                                                                                                             7	

and	took	a	gas	can	of	fuel.		Daluz	instructed	Sexton	to	put	some	in	the	car	and	

save	 some	 to	 burn	 the	 car.	 	 They	 drove	 to	 a	 remote	 area	 in	 Hermon,	 where	

Daluz	forced	Lugdon	to	eat	pills.		Daluz	then	shot	Lugdon.		Sexton	testified	that	

Daluz	then	told	him	not	to	say	anything,	or	else	Daluz	would	shoot	him	and	his	

family.6	 	 When	 Sexton	 dropped	 Daluz	 off	 at	 the	 hotel,	 Daluz	 ordered	 him	 at	

gunpoint	to	burn	the	car	and	threatened	to	shoot	him	and	burn	him	in	the	car	

if	he	did	not.		Sexton	agreed,	drove	to	the	industrial	park,	and	set	the	car	on	

fire.		

          [¶15]	 	 Daluz	 called	 three	 witnesses	 and	 elected	 not	 to	 testify.	 	 The	

parties	 made	 closing	 arguments	 on	 May	 20,	 2014.	 	 The	 court	 submitted	 the	

case	to	the	jury	and	deliberations	began	on	May	21.		

          [¶16]	 	 During	 deliberations,	 the	 jury	 asked	 for	 clarification	 of	 the	

instructions	several	times,	particularly	focusing	on	the	defense	of	duress.		The	

first	duress-related	question	asked:	“Are	we	being	asked	to	consider	that	Nick	

Sexton	 was	 under	 duress	 during	 the	 murders?	 	 We	 have	 been	 asked	 to	

consider	duress	for	arson.”		Sexton	did	not	ask	the	court	to	instruct	the	jury	to	

consider	duress	for	the	murder	charges,	electing	instead	to	remain	consistent	

with	 his	 closing	 argument	 and	 his	 original	 request	 to	 instruct	 the	 jury	 on	

   6	 	 The	 sequence	 of	 Daluz	 shooting	 Lugdon	 and	 Daluz	 threatening	 Sexton	 and	 his	 family	 was	

described	 differently	 in	 our	 decision	 in	 Daluz,	 2016	 ME	 102,	 ¶	 25,	 143	 A.3d	 800.	 	 Although	 the	
events	were	germane	to	our	decision	in	Daluz,	the	sequence	of	the	events	was	not.					
8	

duress	 only	 as	 to	 the	 arson	 charge.	 	 The	 court	 answered:	 “No,	 [duress]	 does	

not	 play	 a	 part	 in—it	 is	 not	 being	 posed	 as	 a	 defense	 in	 that	 situation.”	 	 The	

second	juror	note	asked:	“[D]id	you	say	we	cannot	use	duress	as	a	defense	for	

murder[?]		Question	two,	if	yes,	why	is	this	missing	in	the	instructions[?]		And	

three,	 can	 duress	 be	 used	 to	 find	 a	 defendant	 not	 guilty	 of	 murder	 if	 the	

defense	has	not	requested	it	[?]”		The	court	answered	that	duress	could	not	be	

considered	as	a	defense	to	murder.		

       [¶17]	 	 On	 May	 28,	 2014,	 the	 jury	 reported	 that	 it	 was	 deadlocked	 and	

unable	to	reach	a	unanimous	verdict	on	the	counts	charging	Sexton	with	the	

murders	 of	 Borders	 and	 Tuscano.	 	 With	 the	 parties’	 agreement,	 the	 court	

declared	a	mistrial	as	to	those	counts.		The	jury	returned	a	verdict	of	guilty	on	

the	count	charging	Sexton	with	Lugdon’s	murder	and	the	arson	count.	

	      [¶18]		On	July	28,	2015,	the	court	sentenced	Sexton	to	seventy	years	of	

imprisonment	for	the	single	murder	conviction	and	twenty	years	for	the	arson	

conviction,	 to	 be	 served	 consecutively	 to	 the	 sentence	 for	 the	 murder	

conviction.		Sexton	filed	a	timely	notice	of	appeal	and	also	filed	an	application	

for	 leave	 to	 appeal	 his	 sentence,	 which	 was	 denied.	 	 See	 State	 v.	 Sexton,	 No.	

SRP-15-390	 (Me.	 Sent.	 Rev.	 Panel	 Sept.	 29,	 2015);	 15	 M.R.S.	 §	 2151	 (2016);	

M.R.	App.	P.	20.		This	appeal	followed.	
                                                                                                                 9	

                                              II.		DISCUSSION	

A.	      The	Duress	Jury	Instruction	

	        [¶19]		Sexton	first	argues	that	the	court	erred	in	failing	to	instruct	the	

jury	to	consider	duress	as	a	defense	to	the	murder	counts.7		We	interpret	the	

applicable	statutes	de	novo.		See	State	v.	Gantnier,	2012	ME	123,	¶	9,	55	A.3d	

404.	

     It	is	a	defense	that,	when	a	person	engages	in	conduct	that	would	
     otherwise	constitute	a	crime,	the	person	is	compelled	to	do	so	by	
     threat	 of	 imminent	 death	 or	 serious	 bodily	 injury	 to	 that	 person	
     or	another	person	or	because	that	person	was	compelled	to	do	so	
     by	force.	
     	
17-A	M.R.S.	§	103-A(1)	(2016).8		A	duress	instruction	is	warranted	only	if	the	

evidence	generates	the	defense.		State	v.	Gagnier,	2015	ME	115,	¶	13,	123	A.3d	

207.		To	determine	whether	the	defense	is	generated,	we	review	the	record	in	

the	 light	 most	 favorable	 to	 the	 defendant	 “to	 determine	 if	 it	 would	 have	




    7	 	 Sexton	 also	 argues	 that	 the	 court’s	 instruction	 on	 the	 definition	 of	 “imminent”	 constituted	

error.	 	 We	 disagree	 and	 do	 not	 discuss	 this	 further.	 	 See	 State	 v.	 Larrivee,	 479	 A.2d	 347,	 350-51	
(Me.	1984).	
   	
   8		Although	Sexton	was	charged	with	intentional	and	knowing	murder,	17-A	M.R.S.	§	201	(2016),	

and	duress	is	not	an	available	defense	“[t]o	a	person	who	intentionally	or	knowingly	committed	the	
homicide	 for	 which	 the	 person	 is	 being	 tried,”	 17-A	 M.R.S.	 §	 103-A(3)(A)	 (2016),	 the	 court	
instructed	the	jury	on	accomplice	liability.		See	17-A	M.R.S.	§	57	(2016).		Because	we	conclude	that	
the	evidence	was	insufficient	to	generate	the	defense,	and	therefore	the	court	did	not	err	in	refusing	
to	give	the	instruction,	we	need	not	reach	the	question	of	whether	duress	is	an	available	defense	to	
accomplice	liability	murder.		
   	
10	

allowed	 the	 jury	 to	 find	 facts	 to	 make	 duress	 a	 ‘reasonable	 hypothesis.’”	 	 Id.	

(quoting	State	v.	Doyon,	1999	ME	185,	¶	7,	745	A.2d	365).	

        [¶20]	 	 According	 to	 Sexton’s	 testimony,	 Daluz	 threatened	 him	 after	

Borders,	 Tuscano,	 and	 Lugdon	 had	 already	 been	 shot.	 	 Even	 viewed	 in	 the	

light	 most	 favorable	 to	 Sexton,	 without	 a	 threat	 of	 imminent	 harm	 that	

preceded	the	murders,	there	was	no	evidence	from	which	the	jury	could	form	

a	 “reasonable	 hypothesis”	 that	 Sexton	 was	 under	 duress	 when	 the	 murders	

occurred.	 	 Gagnier,	 2015	 ME	 115,	 ¶	 13,	 123	 A.3d	 207	 (quotation	 marks	

omitted);	see	also	State	v.	Tomah,	1999	ME	109,	¶	20,	736	A.2d	1047	(absence	

of	 evidence	 defendant	 was	 compelled	 to	 commit	 criminal	 act	 failed	 to	

generate	duress	defense).			

        [¶21]	 	 We	 conclude	 that	 the	 evidence	 was	 insufficient	 to	 generate	 the	

defense	 of	 duress	 as	 to	 the	 murder	 charges	 and	 that	 the	 court	 therefore	 did	

not	err	in	refusing	to	give	the	instruction.9	

B.	     Motion	for	Relief	from	Prejudicial	Joinder	

        [¶22]		Sexton	argues	that	the	court	erred	in	denying	his	motion	for	relief	

from	 prejudicial	 joinder.	 	 See	 U.C.D.R.P.–Bangor	 8(d);	 M.R.	 Crim.	 P.	 8(d)	

(Tower	 2014)	 (authorizing	 the	 court	 to	 “grant	 a	 severance	 of	 defendants	 or	

   9	 	 Because	 we	 conclude	 the	 evidence	 was	 insufficient	 to	 generate	 the	 instruction,	 we	 do	 not	

address	the	parties’	other	arguments,	including	that	Sexton	waived	the	instruction	by	affirmatively	
requesting	that	the	court	not	give	it.	
                                                                                      11	

provide	 whatever	 other	 relief	 justice	 requires,	 including	 ordering	 multiple	

simultaneous	 trials”	 if	 the	 defendant	 appears	 prejudiced	 by	 joinder	 with	 a	

co-defendant).	 	 The	 denial	 of	 a	 motion	 to	 sever	 joinder	 of	 two	 defendants	 is	

reviewed	 for	 an	 abuse	 of	 discretion.	 	 State	 v.	 Chesnel,	 1999	 ME	 120,	 ¶	 13,	

734	A.2d	1131.	

      [¶23]	 	 Sexton	 argues	 that	 joinder	 with	 Daluz	 prejudiced	 him	 in	 three	

ways:	 first,	 he	 was	 unable	 to	 introduce	 Daluz’s	 out-of-court	 statements	 in	

which	Daluz	purportedly	confessed	to	Lugdon’s	murder;	second,	Sexton’s	trial	

strategy	 was	 compromised,	 particularly	 in	 electing	 whether	 to	 present	

alternative	suspects	because	he	did	not	know	if	Daluz	would	testify;	and	lastly,	

he	 and	 Daluz	 had	 mutually	 antagonistic	 defenses	 such	 that	 they	 risked	

accusing	 each	 other	 of	 the	 offenses,	 acting	 as	 a	 second	 prosecutor,	 and	

increasing	the	prospects	of	a	conviction	of	one	or	both	of	them.		

      [¶24]		While	incarcerated	in	the	county	jail,	Daluz	allegedly	told	a	fellow	

inmate	that	he	shot	Lugdon	to	gain	Sexton’s	trust.		Sexton’s	contention	that	his	

inability	 to	 introduce	 Daluz’s	 confession	 prejudiced	 him	 lacks	 merit	 because	

the	 statements	 were,	 at	 least	 as	 presented,	 inadmissible:	 both	 witnesses	

through	whom	Sexton	attempted	to	introduce	the	statements	lacked	personal	

knowledge.	 	 See	 M.R.	 Evid.	 602,	 801,	 802.	 	 The	 individual	 who	 could	 have	
12	

testified	from	personal	knowledge—the	cellmate—was	never	called.		Because	

Sexton	 makes	 no	 argument	 as	 to	 why	 the	 statements	 would	 have	 been	

admissible	in	a	separate	trial,	there	was	no	prejudice.	

      [¶25]	 	 Sexton’s	 remaining	 arguments	 that	 joinder	 hampered	 his	 trial	

strategy	 and	 he	 was	 prejudiced	 by	 mutually	 antagonistic	 defenses	 are	

unavailing.		 “[I]t	 is	 well	settled	that	defendants	are	not	entitled	to	severance	

merely	because	they	may	have	a	better	chance	of	acquittal	in	separate	trials.”		

Zafiro	 v.	 United	 States,	 506	 U.S.	 534,	 540	 (1993)	 (noting	 that	 the	 joined	

defendants	failed	to	allege	any	specific	instances	of	prejudice	and	concluding	

that	such	a	general	challenge	was	insufficient	to	warrant	separate	trials).		We	

have	 repeatedly	 rejected	 contentions	 that	 mutually	 antagonistic	 defenses	

necessarily	require	separate	trials.		See,	e.g.,	State	v.	George,	2012	ME	64,	¶	25,	

52	 A.3d	 903	 (“Mutually	 antagonistic	 defenses	 are	 not	 prejudicial	 	per	 se.”	

(quotation	marks	omitted));		State	v.	Lakin,	2006	ME	64,	¶¶	12-13,	899	A.2d	

777	 (affirming	 the	 denial	 of	 a	 motion	 to	 sever	 where	 co-defendants	 accused	

one	another	and	the	court	gave	a	proper	jury	instruction);	Chesnel,	1999	ME	

120,	¶	12,	734	A.2d	1131	(concluding	that	the	trial	court	properly	instructed	

the	jury	to	independently	weigh	evidence	and	did	not	abuse	its	discretion	in	

denying	a	motion	to	sever	where	the	co-defendants	implicated	each	other).			
                                                                                                                13	

           [¶26]	 	 Sexton	 essentially	 argues	 that	 joinder	 was	 prejudicial	 per	 se	

because	 of	 his	 and	 Daluz’s	 incompatible	 and	 irreconcilable	 defenses—a	

contention	 that,	 without	 more,	 is	 not	 persuasive.	 	 See,	 e.g.,	 George,	 2012	 ME	

64,	 ¶	 25,	 52	 A.3d	 903.	 	 The	 trial	 court	 carefully	 instructed	 the	 jury	 to	

independently	weigh	the	evidence	against	each	defendant,	Zafiro,	506	U.S.	at	

541,	 and	 did	 not	 abuse	 its	 discretion	 in	 denying	 the	 motion	 for	 relief	 from	

prejudicial	joinder.			

C.	        Witness	Testimony	About	Guns	

           [¶27]	 	 Sexton	 argues	 that	 Katelyn	 Lugdon’s	 testimony	 about	 the	 guns	

amounted	 to	 an	 identification	 and	 that	 the	 police	 interview	 was	 improperly	

suggestive.	 	 He	 argues	 that	 admitting	 the	 evidence	 contravened	 due	 process	

and	was	an	abuse	of	discretion	pursuant	to	Maine	Rules	of	Evidence	401	and	

403.		

           [¶28]		Assuming	the	testimony	did	constitute	an	identification,10	we	join	

the	 overwhelming	 majority	 of	 courts	 that	 have	 concluded	 due	 process	

identification	 procedures	 do	 not	 apply	 to	 inanimate	 objects.	 	 See,	 e.g.,	 Inge	 v.	


      10	 	 Sexton	 does	 not	 point	 to	 Katelyn	 Lugdon’s	 “identification”	 of	 the	 guns	 recovered	 along	 the	

Penobscot	as	the	guns	she	saw	during	the	meeting	at	the	motel	on	August	11	because	she	did	not	
make	such	an	identification	at	trial.		Rather,	Sexton	appears	to	argue	Katelyn’s	description,	which	
arguably	describes	similar	guns,	“amounts	to	an	identification	of	the	guns”	and	that	description	was	
tainted	by	the	police	questioning	because	she	never	mentioned	guns	in	her	earlier	interviews.		As	
we	 discuss	 below,	 this	 was	 a	 proper	 subject	 for	 impeachment	 on	 cross	 examination	 and	 did	 not	
render	the	descriptions	inadmissible.		
14	

Procunier,	758	F.2d	1010,	1015	(4th	Cir.	1985);	State	v.	Roscoe,	700	P.2d	1312,	

1324	(Ariz.	1984);	Dee	v.	State,	545	S.E.2d	902,	903	(Ga.	2001)	(“By	the	great	

weight	 of	 authority,	 the	 right	 to	 pretrial	identification	 procedures	 is	

inapplicable	 to	 items	 of	 physical	 evidence.”	 (quotation	 marks	 omitted));	

Brooks	 v.	 State,	 560	 N.E.2d	 49,	 57	 (Ind.	 1990)	 (“The	 viewing	 of	 items	 of	

physical	evidence	is	not	subject	to	the	same	due	process	considerations	which	

attend	 a	 corporeal	 lineup.”);	 People	 v.	 Miller,	 535	 N.W.2d	 518,	 523	 (Mich.	Ct.	

App.	1995)	 (“The	 risks	 inherent	 in	 a	 misidentification	 of	 inanimate	 objects	

produced	in	the	thousands	are	not	the	same	as	the	risks	of	misidentification	of	

unique	human	beings.”);		Hughes	v.	State,	735	So.	2d	238,	260-61	(Miss.	1999)	

(truck	identification);		State	v.	Cyr,	453	A.2d	1315,	1317	(N.H.	1982)	(declining	

to	 require	 lineup	 for	 identification	 of	 a	 car);	 State	 v.	 Delgado,	 902	 A.2d	 888,	

898-99	 (N.J.	 2006)	 (refusing	 to	 extend	 due	 process	 protection	 to	 minivan	

identification).	 	 A	 minority	 of	 jurisdictions,	 including	 Massachusetts,	 have,	

however,	 entertained	 due	 process	 challenges	 to	 such	 identifications.	 	 See	

Commonwealth	 v.	 Simmons,	 417	 N.E.2d	 1193,	 1196	 (Mass.	1981)	 (“[I]n	 an	

extreme	 case,	 the	 degree	 of	 suggestiveness	 of	 an	 identification	 procedure	

concerning	 an	 inanimate	 object	 might	 rise	 to	 the	 level	 of	 a	 denial	 of	 due	
                                                                                       15	

process.”);	 see	 also	 Commonwealth	 v.	 Bresilla,	 23	N.E.3d	 75,	 82	 (Mass.	 2015)	

(concluding	jacket	identification	procedure	did	not	contravene	due	process).		

      [¶29]		Even	if	we	were	to	apply	due	process	principles	to	identification	

of	 inanimate	 objects,	 Sexton’s	 argument	 would	 still	 fail	 because	 the	

identification	 here	 was	 not	 unduly	 suggestive.	 	 Katelyn	 described	 the	 guns	

before	she	was	shown	the	photographs	by	police	and	her	later	description	was	

not	 inconsistent.	 	 Sexton	 points	 to	 no	 inconsistency	 between	 the	 description	

that	she	provided	in	the	interview	and	the	description	at	trial,	but	appears	to	

argue	 that	 because	 police	 showed	 her	 only	 two	 photographs	 during	 the	

interview,	 this	 procedure	 violated	 due	 process.	 	 We	 discern	 no	 due	 process	

violation.		See	Bresilla,	23	N.E.3d	at	83	(holding	that	police	were	not	required	

to	create	lineup	of	jackets;	using	a	single	photograph	of	a	jacket	did	not	violate	

due	process).	

	     [¶30]		Sexton	next	argues	that	the	court	should	have	excluded	Katelyn’s	

testimony	pursuant	to	Maine	Rules	of	Evidence	401	and	403,	citing	Katelyn’s	

lack	 of	 familiarity	 with	 guns,	 vague	 description,	 the	 passage	 of	 time,	 and	 her	

relationship	to	the	parties.		We	review	the	admissibility	of	the	testimony	and	

the	 trial	 court’s	 weighing	 of	 probative	 value	 against	 prejudicial	 effect	 for	 an	

abuse	of	discretion.		See	State	v.	Crocker,	435	A.2d	58,	73	(Me.	1981).	
16	

	     [¶31]	 	 Katelyn’s	 description	 of	 the	 guns	 was	 clearly	 relevant	 as	 a	 fact	

probative	 of	 whether	 Sexton	 possessed	 a	 gun	 and	 had	 an	 opportunity	 to	

commit	 the	 murders.	 	 See	 M.R.	 Evid.	 401.	 	 The	 question	 is	 whether	 the	

“probative	 value	 is	 substantially	 outweighed	 by	 a	 danger	 of	 .	 .	 .	 unfair	

prejudice.”		M.R.	Evid.	403.		Although	weapon	evidence	can	have	a	prejudicial	

effect,	this	does	not	necessarily	rise	to	unfair	prejudice,	particularly	when	the	

evidence	is	highly	probative.		See	State	v.	Forbes,	445	A.2d	8,	12-13	(Me.	1982)	

(characterizing	“unfair	prejudice”	as	having	a	“tendency	to	move	the	tribunal	

to	 decide	 on	 an	 improper	 basis,	 commonly,	 though	 not	 always,	 an	 emotional	

one”	(quotation	marks	omitted)).		There	was	a	two-year	gap	between	the	time	

when	Katelyn	saw	the	guns	at	the	motel	and	the	time	police	interviewed	her,	

but	this	was	not	so	remote	as	to	render	the	description	inadmissible.		See	State	

v.	 Warren,	 312	 A.2d	 535,	 544	 (Me.	 1973)	 (characterizing	 remoteness	 as	 an	

element	 that	 “bears	 primarily	 on	 weight	 and	 not	 on	 basic	 admissibility”).		

Sexton’s	 other	 objections	 to	 Katelyn’s	 knowledge	 and	 reliability	 go	 to	 the	

weight	 of	 her	 testimony	 rather	 than	 admissibility	 and	 were	 a	 proper	 subject	

for	 cross-examination.	 	 In	 fact,	 the	 defense	 explored	 the	 subject	 numerous	

times.		
                                                                                      17	

      [¶32]	 	 The	 court	 did	 not	 abuse	 its	 discretion	 in	 permitting	 Katelyn	

Lugdon	to	testify	about	the	guns.			

D.	   Motion	to	Suppress	Cell	Phone	Records	

      [¶33]		Sexton	next	argues	that	the	court	erred	in	denying	his	motion	to	

suppress	cell	phone	records	that	he	claims	were	obtained	by	the	investigators	

and	used	to	establish	his	location	on	August	14,	2012.		On	appeal,	we	review	

factual	 findings	 for	 clear	 error	 and	 legal	 conclusions	 de	 novo	 and	 “[w]e	 will	

uphold	the	court’s	denial	of	a	motion	to	suppress	if	any	reasonable	view	of	the	

evidence	supports	the	trial	court’s	decision.”		State	v.	Babb,	2014	ME	129,	¶	9,	

104	A.3d	878	(quotation	marks	omitted).			

      [¶34]	 	 The	 motion	 was	 limited	 to	 suppressing	 the	 cell	 phone	 location	

information	that	enabled	police	to	locate	and	attempt	to	interview	Sexton	on	

August	 14,	 2012.	 	 Assuming,	 without	 deciding,	 that	 the	 SCA	 request	

constituted	a	“search”	for	constitutional	purposes,	Sexton	does	not	challenge	

the	factual	finding	that	law	enforcement	relied	solely	on	Sexton’s	girlfriend’s	

records,	not	Sexton’s	records,	to	locate	him	and	that	he	had	no	expectation	of	

privacy	 in	 her	 records.	 	 The	 court	 therefore	 correctly	 concluded	 that	 Sexton	

lacked	standing.		See	State	v.	Lovett,	2015	ME	7,	¶	8,	109	A.3d	1135	(holding	
18	

that	 a	 defendant	 must	 establish	 a	 reasonable	 expectation	 of	 privacy	 to	 have	

standing	to	assert	a	Fourth	Amendment	violation).			

       [¶35]		The	trial	court	did	not	err	in	denying	the	motion	to	suppress.		

E.	    Prior	Bad	Acts	Testimony	

       [¶36]		Finally,	Sexton	argues	that	the	court	erred	in	allowing	testimony	

that	insinuated	he	“harm[ed]	people	over	drug	debts”—an	inadmissible	prior	

bad	 act.	 	 See	 M.R.	 Evid.	 404(b).	 	 Sexton	 failed	 to	 object	 at	 trial	 and	 therefore	

the	issue	is	reviewed	for	obvious	error.		See	State	v.	Pabon,	2011	ME	100,	¶	18,	

28	A.3d	1147.	“To	demonstrate	obvious	error,	the	defendant	must	show	that	

there	is	(1)	an	error,	(2)	that	is	plain,	and	(3)	that	affects	substantial	rights.”		

State	v.	Dolloff,	2012	ME	130,	¶	35,	58	A.3d	1032	(quotation	marks	omitted).		

“Even	if	these	three	conditions	are	met,	we	will	set	aside	a	jury’s	verdict	only	if	

we	 conclude	 that	 (4)	 the	 error	 seriously	 affects	 the	 fairness	 and	 integrity	 or	

public	reputation	of	judicial	proceedings.”	Id.	(quotation	marks	omitted).		

	      [¶37]	 	 On	 cross-examination,	 Sexton	 asked	 a	 witness	 who	 associated	

with	Sexton	and	Daluz	and	sold	drugs,	“In	your	line	of	work	back	then	[drug	

trafficking],	 what	 were	 the	 occupational	 hazards?”	 	 The	 witness	 responded	

“getting	arrested.”		The	State	on	redirect	revisited	the	subject	of	“occupational	

hazards”:	
                                                                                        19	

     Q:	 	 What	 are	 some	 of	 the	 occupational	 hazards	 that	 you	 have	
     observed	with	some	of	the	people	you	know	to	sell	drugs?	
     A:		I	mean,	some	people	if	you	don’t	pay	them	or	whatever,	they’ll	
     get	 rough	 with	 you,	 but	 didn’t	 really—that	 never	 was	 the	 case	
     really.	
     Q:	 	 Well,	 you	 have	 had	 friends	 that	 that’s	 happened	 to,	 haven’t	
     you?	
     A:		Yeah.	
     Q:		And	you	are	aware	that	some	of	those	people	are	connected	to	
     Mr.	Sexton?	
     A:		Yeah	I	was	told	about	the	events,	yeah.	
     	
During	a	bench	conference,	the	court	observed:		

       Concerning	 the	 liabilities	 of	 dealing	 in	 drugs	 question	 .	 .	 .	 then	
       there	was	a	question	about	Mr.	Sexton.		I’m	not	sure	I	understood	
       everything,	but	it	almost	appeared	that	there	was	a	comment	that	
       Mr.	Sexton	had	harmed	somebody	in	the	past.			
       	
       [¶38]	 	 Taken	 in	 isolation,	 the	 questioning	 could	 generate	 an	 inference	

that	Sexton	had	been	“rough”	with	customers,	which	could	be	inadmissible	as	

a	 prior	 bad	 act	 to	 suggest	 Sexton	 acted	 in	 conformity	 and	 committed	 the	

charged	 offenses.	 	 Yet	 when	 highlighted	 by	 the	 court	 at	 sidebar,	 the	 State,	

Sexton,	 and	 Daluz	 all	 agreed	 that	 they	 did	 not	 interpret	 the	 questioning	 to	

suggest	that	Sexton	had	in	fact	hurt	someone	in	the	past	over	drug	debts.		The	

court	 raised	 the	 issue,	 but	 Sexton	 declined	 to	 request	 that	 the	 court	 give	 a	

curative	 instruction	 or	 strike	 the	 testimony.	 	 Cf.	 Dolloff,	 2012	 ME	 130,	 ¶	 36,	

58	A.3d	 1032	 (stating	 that	 a	 defendant	 establishes	 error	 where	 the	 matter	

went	“unaddressed	by	the	court”).		
20	

         [¶39]	 	 Even	 if	 construed	 as	 evidence	 of	 a	 prior	 bad	 act,	 the	 testimony	

was	probative	of	motive	and	therefore	admissible	for	that	purpose:	the	State’s	

line	of	questioning	explored	Sexton’s	behavior	on	the	night	of	August	12	and	

his	 relationship	 with	 Borders.	 	 See	 State	 v.	 Heald,	 393	 A.2d	 537,	 542	

(Me.	1978)	 (holding	 prior	 bad	 act	 admissible	 to	 prove	 motive).	 	 Viewing	 the	

questioning	within	the	context	of	the	testimony	and	the	trial	as	a	whole,	there	

was	no	obvious	error.		See	Dolloff,	2012	ME	130,	¶	44,	58	A.3d	1032.	

         The	entry	is:	

                            Judgment	affirmed.		
	
	      	       	      	      	    	
	
Jeremy	 Pratt,	 Esq.	 (orally),	 and	 Ellen	 Simmons,	 Esq.,	 Camden,	 for	 appellant	
Nicholas	Sexton	
	
Janet	 T.	 Mills,	 Attorney	 General,	 and	 Leanne	 Robbin,	 Asst.	 Atty.	 Gen.	 (orally),	
Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine	
	
	
Penobscot	County	Unified	Criminal	Docket	docket	number	CR-2012-3777	
FOR	CLERK	REFERENCE	ONLY	
