MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision: 2014 ME 45
Docket:   Kno-12-541
Argued:   February 11, 2014
Decided:  March 20, 2014

Panel:       SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and
             JABAR, JJ.


                                STATE OF MAINE

                                         v.

                               ARNOLD A. DIANA

MEAD, J.

         [¶1] Arnold A. Diana appeals from a judgment of conviction entered by the

trial court (Hjelm, J.), and from the sentence it imposed, following a jury verdict

finding him guilty of murder, 17-A M.R.S. § 201(1)(A) (2013). Diana contends

that the court erred in (1) denying his motion to suppress the evidence resulting

from three searches of his residence by law enforcement officers, (2) allowing a

prospective juror who was once a victim of domestic violence to serve on the jury,

(3) denying his motion to exclude certain physical evidence and failing to exclude

expert and nonexpert testimony concerning the significance of that evidence, and

(4) setting his basic sentence at forty years before arriving at a final sentence of

forty-five years. Discerning no error, we affirm the judgment and the sentence.
2

                                I. BACKGROUND

       [¶2] When “[v]iewed in the light most favorable to the jury’s verdict, the

record supports the following facts.” See State v. Ormsby, 2013 ME 88, ¶ 2,

81 A.3d 336. In November 2010, John Savage began dating Katrina Windred.

They    planned   to   have   dinner   at     Windred’s   home   the   evening   of

November 20, 2010, so that they could meet each other’s children. That day,

Windred took several phone calls from Arnold Diana, a former boyfriend whom

she had recently stopped seeing. She left her home in the afternoon to pick up her

son from his father’s house and to drop off groceries for Diana, telling Savage that

she would see him in an hour. When she did not return that night and could not be

reached by phone, Savage called the police.

       [¶3] Tiffany Walker, Windred’s close friend, knew Diana. When Walker

awoke on the morning of November 21, she had phone messages from Diana

saying that Windred’s son was with him but Windred was not there. Walker later

spoke to Diana; he told her that Windred’s car was at his apartment with her dog

locked inside. Diana said that Windred had gone out to meet a boyfriend the

previous night, leaving her son with him, and never returned.          Fearing that

something had happened to Windred, Walker also called the police.

       [¶4] Windred’s son, age twelve at the time of the trial, testified that Diana

had once been his mother’s boyfriend. On the last day he saw his mother, she
                                                                                 3

picked him up and they went to the grocery store, planning to drop groceries off at

Diana’s residence and then go home to have dinner with Savage. They drove to

Diana’s apartment and he came out to meet them. Windred went inside with Diana

but the boy stayed in the car reading comic books. After a long time, Diana came

out and told him that his mother was upstairs sleeping, which the boy thought was

unusual because she had not slept at Diana’s apartment before. The boy went up to

Diana’s apartment, leaving the dog in the car, which was also unusual.

      [¶5] Once in the apartment, Windred’s son saw that the bedroom door was

closed. Diana told him that Windred was sleeping and he should be careful not to

wake her. As the boy watched a movie, Diana went in and out of the bedroom

frequently. That evening Diana took him to the bank where Diana withdrew cash.

When they returned to the apartment, the bedroom door was still closed. The boy

resumed watching movies.

      [¶6] When it became quite late, Windred’s son and Diana went into the dark

bedroom to go to sleep. The boy saw what he described as “[t]he form of what

looked like my mother on the bed” with a blanket pulled completely over her head.

Both of those observations struck him as very unusual because his mother was a

cancer patient who had to fall asleep in a sitting position with her arm propped up

on pillows to prevent swelling, and she never had covers over her face. Windred’s

ex-husband confirmed Windred’s sleeping habits when he testified. The boy tried
4

to sleep beside Diana on the floor next to the bed. When the boy could not get to

sleep, Diana sent him out of the room and closed the door. When Diana let the boy

back in, he told him to sleep on the bed; the “form” that the boy believed was his

mother was then on the floor. When the boy awoke the next morning, Diana was

already up and the form was gone; Diana told him that his mother had gone out

with friends.

      [¶7] A deputy and a detective from the Knox County Sheriff’s Office were

assigned to try to locate Windred on the morning of November 21. They found her

car locked in the parking lot outside Diana’s apartment building with her dog

inside. Eventually they made contact with Diana and conducted a twenty-minute

search of his apartment at the request of Diana’s probation officer. The officers

saw, but did not seize, a pillow with a red-brown stain on a closet shelf. That

evening, Diana was interviewed by a Maine State Police detective and his

apartment was searched again after he signed a consent form. Diana agreed to give

the detective the pillow that had been seen earlier, and another detective located a

second stained pillow. The stains on both pillows proved to be blood that a

forensic DNA analyst at the State Police crime laboratory matched to Windred.

      [¶8] On November 23, a State Police detective located, in a dumpster area

outside Diana’s building, a bag of trash that contained a purple towel, a note with

the word “Arnold” written on it, cigarette butts containing Diana’s DNA, and a
                                                                                       5

jacket containing hair and blood that were later DNA-matched to Windred. That

day, a man walking his dog about two miles from Diana’s apartment discovered

Windred’s body wrapped in a quilt in the woods near a quiet road. An expert

testified at trial that, in his opinion, two strips of purple towel that were tied around

the quilt came from the purple towel found in the trash bag outside Diana’s

building. The Chief Medical Examiner testified that Windred died from asphyxia

due to strangulation, most likely a manual strangulation. The degree of rigor

mortis she observed was consistent with a time of death three days before the body

was discovered.

      [¶9] On November 24, a search warrant was executed at Diana’s apartment.

Inside a seat cushion found in a kitchen trash can, detectives discovered Windred’s

eyeglasses, cell phone, driver’s license, social security card, medical and debit

cards, and a wallet containing one of her checks. Diana was interviewed for a third

time on November 27. He was charged with Windred’s murder following the

interview.

      [¶10] After he was indicted by the grand jury, Diana filed motions to

suppress statements he made to police and any evidence derived from the searches

of his apartment. Following a hearing the court suppressed some of Diana’s

statements, but it declined to suppress evidence resulting from the searches. The

case went to trial in July 2012 and the jury returned a verdict of guilty. At a later
6

sentencing hearing the court entered judgment, imposing a sentence of forty-five

years’ imprisonment and $2747.46 in restitution. Diana appealed and filed an

application to allow an appeal of his sentence, which the Sentence Review Panel

granted.

                                 II. DISCUSSION

A.    Motion to Suppress

      [¶11] “We review the denial of a motion to suppress for clear error as to

factual issues and de novo as to issues of law, and will uphold the court’s denial of

a motion to suppress if any reasonable view of the evidence supports the trial

court’s decision.” Ormsby, 2013 ME 88, ¶ 9, 81 A.3d 336 (quotation marks

omitted).   Diana challenged three searches of his residence in his motion to

suppress: (1) a warrantless search conducted by a deputy and a detective from the

Knox County Sheriff’s Office on the afternoon of November 21, 2010, which the

court found was authorized by Diana’s probation conditions; (2) a warrantless

search conducted by Maine State Police detectives on the evening of November 21,

which the court found was justified by Diana’s consent; and (3) a search conducted

on November 24 pursuant to a search warrant, which Diana unsuccessfully
                                                                                                          7

challenged as a violation of the rule announced in Franks v. Delaware,

438 U.S. 154 (1978).1

         [¶12] On appeal, Diana primarily challenges the first search and then asserts

that subsequent searches were tainted by its illegality. We conclude that the trial

court correctly found that all three searches at issue were lawful and discuss only

the first search here.

         [¶13]     The court’s factual findings concerning that search, summarized

below, are supported by competent evidence in the record and are therefore not

clearly erroneous. See Pelletier v. Pelletier, 2012 ME 15, ¶ 13, 36 A.3d 903. On

November 21, 2010, Knox County Deputy Donald Murray spoke to three people

who were concerned as to the whereabouts of Katrina Windred: John Savage, who


   1
       In Franks, the Supreme Court held that

         where [a criminal] defendant makes a substantial preliminary showing that a false
         statement knowingly and intentionally, or with reckless disregard for the truth, was
         included by the affiant in [a search] warrant affidavit, and if the allegedly false statement
         is necessary to the finding of probable cause, the Fourth Amendment requires that a
         hearing be held at the defendant's request. In the event that at that hearing the allegation
         of perjury or reckless disregard is established by the defendant by a preponderance of the
         evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining
         content is insufficient to establish probable cause, the search warrant must be voided and
         the fruits of the search excluded to the same extent as if probable cause was lacking on
         the face of the affidavit.

Franks v. Delaware, 438 U.S. 154, 155-56 (1978).

    The Franks rule also applies “if the overall falsity of the affidavit arises out of the [intentional or
reckless] omission of facts negatory of probable cause.” State v. Dickinson, 2005 ME 100, ¶ 8,
881 A.2d 651 (quotation marks omitted). The trial court denied Diana’s request for a full evidentiary
hearing after finding that probable cause existed to issue the challenged search warrant even if the warrant
affidavit had included information that Diana contended was improperly omitted.
8

reported that Windred went to Rockland the previous day to pick up her son and to

drop off some groceries, but never returned that evening for a planned dinner;

Tiffany Walker, who expressed concern as to Windred’s welfare and reported that

Windred had been at Diana’s residence in Rockland the previous day; and

Windred’s ex-husband.

      [¶14] Murray contacted Detective Dwight Burtis for assistance, and, after

learning that Diana was on probation, he spoke with George Mele, Diana’s

probation officer. Mele asked Detective Murray to conduct a probation check if he

had contact with Diana. The conditions of Diana’s probation included a provision

requiring him to “submit to random search and testing for alcohol, drugs, firearms,

[and] dangerous weapons at the direction of a probation or law enforcement

officer.” Murray called Diana and reached him at the Salvation Army in Rockland.

      [¶15] Detective Burtis went to the Salvation Army and found Diana, who

agreed to return to his apartment to discuss where Windred might be. When they

arrived at Diana’s residence at the Thorndike Apartments, Diana pointed out

Windred’s vehicle, which was still in the parking lot. After talking to Diana about

Windred’s whereabouts, the officers either asked if they could do a probation

search or advised him that they were going to do so; Diana responded “sure.” The

court found that Diana’s response was not a consent to the search, but rather a

recognition of the officers’ authority to conduct it.
                                                                                                        9

        [¶16] Murray and Burtis then conducted a search lasting less than twenty

minutes that consisted of looking in closets, under beds, and in some containers.

Although they found a pillow that appeared to be bloodstained, they did not take

the pillow with them when they left. Burtis acknowledged at the suppression

hearing that when he and Murray undertook the search they did not have any

reason to believe that alcohol, drugs, or firearms would be found, but he did know

that Windred had last been seen at Diana’s apartment.

        [¶17]     In United States v. Knights, the United States Supreme Court

explained that a probationer has a “significantly diminished” expectation of

privacy in comparison to an ordinary citizen, and partly for that reason a search

conducted pursuant to a probation condition requires a lower standard of

justification than the usual Fourth Amendment standard of probable cause.

534 U.S. 112, 119-21 (2001).               The Court articulated the test for assessing a

warrantless probation search when a suspicion of wrongdoing exists: “When an

officer has reasonable suspicion that a probationer subject to a search condition is

engaged in criminal activity, there is enough likelihood that criminal conduct is

occurring that an intrusion on the probationer’s significantly diminished privacy

interests is reasonable.”2 Id. at 121; see State v. Hutchinson, 2009 ME 44, ¶ 24,


   2
      As the trial court noted, the Knights Court did not decide whether a completely suspicionless search
of a probationer would be constitutional, United States v. Knights, 534 U.S. 112, 120 n.6 (2001), although
10

969 A.2d 923 (citing Knights in noting that convicted felons have a substantially

reduced expectation of privacy concerning “governmental intrusions closely

associated with [their] conviction”).

       [¶18] Here, the record supports the court’s finding that the probation search

of Diana’s apartment was justified by a reasonable suspicion that Diana had

engaged in criminal activity connected to Windred’s disappearance. In addition to

the reports from Savage, Walker, and Windred’s ex-husband, Diana told Detective

Burtis that (1) he was with Windred the previous day; (2) at about 5:00 p.m.

Windred took a call and then laid down to rest; (3) an unknown friend called her at

about 10:45 p.m. and she left fifteen minutes later, leaving her car behind with the

dog inside and her son in Diana’s care; and (4) she did not say how long she would

be gone, only that she would be back before her son woke up. Diana said that he

too was concerned about Windred’s welfare because she did not drink or go to

bars, and he had called her cell phone at 3:00 a.m. and then called her house

without reaching her.

       [¶19] The court found that Murray’s and Burtis’s reasonable suspicion of

criminal activity sufficient to justify a warrantless search

       [was] revealed by the effort [they] initiated to conduct the search. It is
       evident that they wanted to explore the defendant’s potential


the Court later held that a suspicionless search of a parolee does not violate the Fourth Amendment,
Samson v. California, 547 U.S. 843, 846, 857 (2006). We need not decide that question here.
                                                                                    11

      involvement in Windred’s disappearance beyond simply asking him
      . . . . Rather, they secured authority from the defendant’s probation
      officer to conduct the search, and they then carried out their plan.

      [¶20] We agree. The information known to Murray and Burtis made their

suspicion that Diana might be involved in Windred’s disappearance objectively

reasonable, and justified the probation search of Diana’s apartment. See Knights,

534 U.S. at 121. Because the Fourth Amendment test is a purely objective one, the

fact that at the time of the search the officers did not have a subjective belief that

they would find alcohol, drugs, or firearms in the apartment in violation of Diana’s

probation conditions is irrelevant.    See Spencer v. Roche, 659 F.3d 142, 149

(1st Cir. 2011) (“A police officer’s subjective motive, even if improper, cannot

sour an objectively reasonable search.”).

B.    Jury Selection

      [¶21] Diana contends that the court clearly erred in allowing a prospective

juror to serve on the jury after she disclosed during individual voir dire that she had

been a victim of domestic violence during a marriage that ended in 1972. The

juror told the court that she had not been involved in any instances of assault or

domestic violence since then, and she answered the court’s questions by saying

several times that she could be fair and impartial because she realized that each

case is different and must be decided on its own merits. After the juror’s voir dire

ended, Diana challenged her for cause. The court denied the challenge, saying that
12

         [s]he strikes me as being reflective and very thoughtful. I think a
         really good juror, to be honest. And she does have that background
         which was 40 years ago, but she got herself out of that situation. She
         said she’s come to terms with it. She’s a social worker now. I don’t
         see a basis for a challenge for cause.

         [¶22] The court’s finding of juror impartiality is reviewed for clear error,

and “will stand unless . . . no competent evidence supports that decision.” State v.

Holland, 2009 ME 72, ¶¶ 49, 52, 976 A.2d 227 (quotation marks omitted). Here,

by interviewing the prospective juror individually, the trial court used the

procedure that we have said should be employed when a juror’s impartiality is

questioned. See id. ¶ 53. Her assurance that she could be impartial “is significant

to the court’s determination as to whether [she could] in fact remain impartial.” Id.

¶ 54.

         [¶23] The court’s finding that the challenged juror could be impartial is

supported by competent record evidence and is therefore not clearly erroneous.

That a prospective juror was once the victim of a crime, even if the crime is related

to the charge brought against the defendant, does not ipso facto disqualify him or

her from service on the panel. As the trial court recognized in its exemplary

inquiry, the determination of a juror’s fitness must be made on a case-by-case

basis.
                                                                                  13

C.    Evidence Found in the Trash Area

      [¶24] Diana asserts that evidence found in a trash area at his apartment

building should have been excluded at trial because of a defective chain of

custody. Alternatively, he contends that lay and expert testimony concerning the

significance of a purple towel found in the trash area should have been excluded

pursuant to M.R. Evid. 702.

      1.      Chain of Custody

      [¶25] Asserting a defective chain of custody, Diana moved in limine to

exclude evidence found by police in a white trash bag in a trash area outside his

apartment building, which included a purple towel, a note with the word “Arnold”

written on it, cigarette butts containing Diana’s DNA, and a jacket from which hair

and blood were recovered that was DNA-matched to Windred. The motion was

denied at a hearing.

      [¶26]    Concerning any item of physical evidence, M.R. Evid. 901(a)

provides that “[t]he requirement of authentication or identification as a condition

precedent to admissibility is satisfied by evidence sufficient to support a finding

that the matter in question is what its proponent claims.” We have said that

      [t]he central point of the chain of custody requirement is to assure that
      the evidence is what it purports to be—that is, related to the crime—
      and that it has not been contaminated or tampered with such that
      testing of it will yield unreliable (and therefore irrelevant) results.
14

      ....

      [T]he temporal scope of the chain of custody depends on the context
      of the particular crime and the events surrounding the discovery and
      retention of the evidence in question.

Cookson v. State, 2011 ME 53, ¶ 17, 17 A.3d 1208.

      [¶27] We have also explained that “[a] break in the chain of custody of real

evidence is relevant in assessing the weight of that evidence, but it does not

inexorably affect admissibility.” State v. Poirier, 1997 ME 86, ¶ 4, 694 A.2d 448;

see Field & Murray, Maine Evidence § 901.3 at 543 (6th ed. 2007) (stating that

“the chain need [not] be ironclad in order to support admission of the evidence”;

also stating that “a ‘minor break’ goes to the weight of the evidence rather than its

admissibility”). The trial court’s ruling that the chain of custody was sufficient is

reviewed for clear error. Poirier, 1997 ME 86, ¶ 4, 694 A.2d 448.

      [¶28] Here, the court found that the trash area was not locked, but it was

enclosed by a privacy fence and marked with a “no trespassing” sign. Sergeant

Christopher Young of the Rockland Police Department assigned an officer to

secure the trash area on the evening of November 21, and a cursory search to look

for a body was performed while State Police detectives were interviewing Diana

inside his apartment. When the officers ended their search in the early morning

hours of November 22, the privacy fence was left closed, but the area was

unlocked and unguarded.
                                                                                   15

      [¶29] State Police Detective Jeffrey Love began a search of the trash area at

1:41 p.m. on the afternoon of November 22. A Rockland police officer was

watching the general area at the time. Love randomly selected a white garbage

bag, opened it, and saw a stained purple towel and a brown coat. At that point he

was called away to process other potential evidence. No one was posted at the

trash area when he left, and it was “pouring rain.” When Love returned the next

day at 10:33 a.m. there were other detectives already searching the trash area; Love

saw the bag that he had opened where he had left it. State Police Detective Mark

Holmquist was examining the coat, and Love saw the purple towel next to the bag.

Holmquist testified that when he came upon the bag within a few feet of the trash

area gate, it was open and a purple towel was lying on top as Love said he had left

it. He described the search of the trash bag as “very methodical.”

      [¶30] Given this record, although the chain of custody was not airtight, our

standard that “by the fair preponderance of the evidence . . . it is more probable

than not that the [challenged] object is the one connected with the case” was

satisfied. Id. ¶ 5 (quotation marks omitted). Accordingly, it was not clear error for

the trial court to find that the evidence found in the trash bag was admissible.

      2.     Lay and Expert Testimony Concerning the Purple Towel

      [¶31] Maine State Police Sergeant William Ross testified at trial that on

November 23, 2010, he was the evidence technician who collected and processed
16

the purple towel. Ross was later sent to where Windred’s body had been found

and saw that it was wrapped in a quilt secured by two strips of purple towel. Ross

testified that the strips were “similar to the purple towel that we saw in the trash

area behind [Diana’s apartment] building.”

      [¶32] Diana did not object to Ross’s testimony. Accordingly, our review is

limited to obvious error. See State v. Hassan, 2013 ME 98, ¶ 25, 82 A.3d 86.

None is demonstrated on this record because Ross did not opine that the strips

actually came from the towel, but rather testified that as a police evidence

technician the strips securing Windred’s body had obvious significance to him

because they were “similar to” the towel found at Diana’s apartment building. The

mere similarity of the strips to the towel was a factual observation that a lay

witness could make. It was for the jury to determine the weight to give Ross’s

observation.

      [¶33]    Robert Burns, a State Police forensic specialist with ten years’

experience, was prepared to testify as an expert that it was his opinion that the two

strips wrapped around Windred’s body came from the towel found in the trash

area. Diana moved in limine to exclude Burns’s opinion on the ground that no

scientific or other reliable evidence linked the towel with the strips. The court held

a hearing at which Burns described his training as a forensic specialist and his

duties in the specific discipline of physical matching, which he described as
                                                                                                           17

“looking at two or more . . . pieces of evidence to examine them for their

characteristics to determine if at one time they were one item.” Burns said that all

of his casework is peer reviewed, and that he had testified as an expert concerning

physical matching in two previous homicide cases. He explained the process of

physical matching and why particular expertise is required to perform it.

Specifically concerning the towel and strips, Burns said that he had conducted a

visual examination lasting several hours, but pursuant to lab protocol he did not

conduct any microscopic or chemical analysis.

        [¶34] The court ruled that Burns’s opinion was admissible pursuant to M.R.

Evid. 7023 because he possessed specialized knowledge, experience, and training

that would assist the jury in assessing the towel evidence. Burns subsequently

testified at trial that unique features in the torn edges of the towel and strips

suggested that they were once one item, stating that “some jagged edges . . . could

be matched back together. They fit into each other almost like a jigsaw puzzle.”

        [¶35] We review the court’s ruling that Burns’s opinion was admissible for

an abuse of discretion. See State v. Ericson, 2011 ME 28, ¶ 12, 13 A.3d 777. In

order for proffered evidence to qualify for admission pursuant to Rule 702, a court


   3
      Maine Rule of Evidence 702 provides: “If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an
opinion or otherwise.”
18

must find that it “meet[s] a threshold level of reliability,” and that it “(1) is relevant

in accordance with M.R. Evid. 401, and (2) will assist the trier of fact in

understanding the evidence or determining a fact in issue.” Id. ¶ 11 (quotation

marks omitted). Indicia for determining reliability include “whether the hypothesis

of the testimony has been subject to peer review,” and “the nature of the expert’s

qualifications.” Id. ¶ 12 (citation omitted).

      [¶36] Here, if the jury determined that the towel located in the trash bag

outside Diana’s building belonged to him, then the question of whether the strips

found tied around Windred’s body came from that towel was directly relevant to

the ultimate fact in issue—whether Diana had killed Windred. Burns’s testimony

at the hearing on the motion in limine supported the court’s finding that he

possessed specialized training and experience that could assist the jury in resolving

that question. The weight to give Burns’s opinion in light of his methodology was

for the jury to decide; the court did not abuse its discretion in finding that the

opinion met the threshold requirements for admission.

D.    Sentencing

      [¶37] Diana asserts several errors in his appeal from the sentence imposed

by the court. We address two, namely his contentions that the court (1) improperly

considered Windred’s son’s proximity to her murder as an objective factor in

determining a basic sentence, and then also considered the impact of her death on
                                                                                                        19

her son as an aggravating subjective factor in arriving at a maximum sentence; and

(2) imposed a basic sentence ten years too high when comparable cases are

considered.4 A criminal sentence is reviewed on appeal “for disregard of the

relevant sentencing factors or abuse of the court’s sentencing power.                                  The

sentencing power referred to is exercised through the application of the three-step

process set out in 17–A M.R.S. § 1252–C [(2013)], except in the case of murder,

when only the first two steps apply.”5 Ormsby, 2013 ME 88, ¶ 35, 81 A.3d 336

(footnote and quotation marks omitted).

         [¶38] Considering the first of Diana’s challenges, we have held that

         [p]lacing children close to a scene of violence or murder obviously
         exposes them to risk of physical harm. In addition, children who
         witness such horrific violence also face adverse neurological,
         psychological, and developmental consequences. Creating such a


   4
      Diana also contends that the court erred in finding that his hands were used as a deadly weapon in
killing Windred because she was manually strangled, and in failing to place sufficient weight on
mitigating factors. We have fully considered his arguments on those issues, discern no error, and do not
discuss them further.
   5
       Title 17-A M.R.S. § 1252-C (2013) provides, in part:

         In imposing a sentencing alternative pursuant to section 1152 that includes a term of
         imprisonment relative to murder, a Class A, Class B or Class C crime, in setting the
         appropriate length of that term . . . , the court shall employ the following . . . process:

         1. The court shall first determine a basic term of imprisonment by considering the
         particular nature and seriousness of the offense as committed by the offender.

         2. The court shall next determine the maximum period of imprisonment to be imposed
         by considering all other relevant sentencing factors, both aggravating and mitigating,
         appropriate to that case. These sentencing factors include, but are not limited to, the
         character of the offender and the offender’s criminal history, the effect of the offense on
         the victim and the protection of the public interest.
20

      severe collateral impact on children is an aggravating circumstance
      that could raise a defendant’s homicidal conduct to “most serious.”

State v. Waterman, 2010 ME 45, ¶ 46, 995 A.2d 243; see State v. Nichols,

2013 ME 71, ¶ 28, 72 A.3d 503 (noting that an appropriate factor in step one of the

court’s sentencing analysis was the fact that a murder “occurred near the couple’s

son” and partly for that reason “the seriousness of the murder was greater in

comparison to other ways it could have been committed”).

      [¶39] In determining a basic sentence here, the court properly considered

the objective fact of Windred’s son’s proximity to the crime because it was

relevant to its assessment of the manner in which the crime was committed. When

Diana killed Windred he knew that her young son was downstairs waiting for her

in the car. It was only through good fortune, not Diana’s actions, that the boy did

not enter the apartment and witness his mother’s murder and suffer whatever

response his appearance might have provoked on the part of Diana. Diana then

involved Windred’s son in the crime scene for hours after her murder, including

having him sleep in the same room near her corpse. It is probable that the boy’s

knowledge of what occurred, even after the fact, will in the future have the same

“severe collateral impact” that we condemned in Waterman. 2010 ME 45, ¶ 46,

995 A.2d 243.
                                                                                                      21

        [¶40] Contrary to Diana’s contention, after setting the basic sentence at

forty years, the court did not double-count the impact of Windred’s murder on her

son in arriving at a maximum sentence of forty-five years. The court clearly and

carefully separated the objective fact that Diana involved the boy in the crime,

properly considered in step one in assessing the manner in which the crime was

committed, from the crime’s subjective impact, which the court found to be “the

ongoing trauma that will be with [Windred’s son] forever” as a result of his

knowledge that he was nearby when his mother was murdered, and in the same

room with her corpse for an extended period after her death. The subjective impact

of Diana’s conduct on Windred’s son was an aggravating factor properly

considered in step two of the sentencing analysis.6

        [¶41] Finally, Diana contends that the court’s basic sentence of forty years

was ten years too high when the facts of this case are considered alongside

comparable cases.          Although Diana offered four cases for comparison in his

sentencing memorandum to the trial court, the court did not expressly consider

comparable cases. However, as we have said before, Diana’s argument

   6
      It would have been error for the court to consider the subjective impact of Windred’s death on her
son in setting a basic sentence. See State v. Nichols, 2013 ME 71, ¶ 14, 72 A.3d 503 (“The first step of
the statutory sentencing process requires that the court review the facts and nature of the crime and the
conduct in committing the crime in as objective a manner as possible . . . .”). Therefore, in order to
accept Diana’s argument that the boy’s proximity to the murder could not be considered in step one
because the traumatic impact it actually had on him was considered in step two, we would have to
conclude that in objectively analyzing the manner in which the murder was committed it made no
difference whether the boy was present when his mother was killed or not. We reject that argument.
22

        reflect[s] a popular, but mistaken, belief that the statute requires the
        court to consider comparable sentences as part of the first step of the
        statutory sentencing process established in 17-A M.R.S. § 1252-C(1).
        It does not. While it is permissible for the sentencing court to
        consider comparable sentences at the first step if appropriate, neither
        the statute nor our case law mandate it.

Nichols, 2013 ME 71, ¶ 20, 72 A.3d 503.

        The entry is:

                           Judgment and sentence affirmed.



On the briefs:

        Jeremy Pratt, Esq., Camden, for appellant Arnold Diana

        Janet T. Mills, Attorney General, and Donald W. Macomber,
        Asst. Atty. Gen., Office of Attorney General, Augusta, for
        appellee State of Maine


At oral argument:

        Jeremy Pratt, Esq., for appellant Arnold Diana

        Donald W. Macomber, Asst. Atty. Gen., for appellee State of
        Maine



Knox County Superior Court Docket number CR-2010-345
FOR CLERK REFERENCE ONLY
