Personal Injury

E.K. v. M.B.

In April 2004, E.K. was riding a friend’s motorcycle through an intersection on Stillwater Avenue in Old Town at about 25 m.p.h. when she was struck by M.B., who had failed to yield the right of way to E.K. Upon impact, E.K. was catapulted over the hood of M.B.’s car before she landed on the ground underneath the front bumper of M.B.’s car. E.K was rushed to the hospital for emergency surgery on her leg and spent several days in the hospital recovering from injuries sustained in the accident. Her leg injury left her debilitated for many months and eventually caused her to lose her job as an R.N. M.B.'s insurance company initially refused to offer a reasonable figure for E.K.'s injuries but quickly changed their mind after we filed papers to take the case to trial.

RECENT VICTORIES

• Personal Injury
• Criminal Defense

In order to protect client privacy we are not able to disclose any settlement information.

L.B. and J.B. v. X Trucking Co.

My clients, an elderly couple, were traveling on the Interstate when they were rear-ended by an 18 wheeler. Their car spun out of control and L.B. was seriously injured. He was on various medications which caused his head injury to continue to bleed to the point where it destabilized his heart condition. He was hospitalized for many days. J.B. also suffered less serious injuries.

In order to protect client privacy we are not able to disclose any settlement information.

W.W. v. P.D.

My client was touring Downeast on his motorcycle with a relative when an elderly driver came through a “T” intersection and struck him broadside. My client, a construction worker, lost significant amounts of work. His leg injuries did not heal well.

In order to protect client privacy we are not able to disclose any settlement information.

R.F. v. J.C.

R.F. was touring Maine from out of state. While driving her motorcycle through a parking lot she was struck by J.C. We had to overcome significant insurance issues in the case as J.C. was uninsured. Despite the insurance issues and also despite allegations that R.F. had been drinking, the case ultimately settled for a confidential amount.

Lesson: We recommend at least $200,000 in uninsured motorist coverage on your automobile policy!

Criminal Defense

State v. D.G.

This case involved an appeal of a judgment entered against the Defendant on her conditional guilty plea by the Superior Court (Penobscot County, Hjelm, J.) convicting her of operating in violation of the habitual offender law (Class C), 29-A M.R.S.A. § 2557(1) (Supp. 2002) and theft (Class E), 17-A M.R.S.A. § 353(1) (1983). Griffin argued that the Superior Court (Mead, J.) erred in denying her motion to suppress her statement admitting to operation of her motor vehicle because Griffin’s statement was the product of a custodial interrogation without the requisite Miranda warnings.

Verdict: Judgment of conviction for violation of the habitual offender law vacated. Remanded for further proceedings with this opinion. Judgment of conviction for theft affirmed.

State v. D.M.

This Hancock County case involved an eighteen-year-old man with no prior criminal record and who led an exemplary civic life volunteering with a local youth activity league and working 50-60 hours per week at his job. He and a friend made the unfortunate decision to take the key to a local restaurant from its hiding place and steal $80 worth of liquor.

The client’s friend was caught with the goods a few days later leading ultimately to our client’s confession. He was charged with Burglary (C) and Theft (E).

Thinking this was a sentencing case, I put together a plea offer seeking to have him plead to the misdemeanor for any reasonable time. Amazingly the Hancock County District Attorney’s office declined the offer and made a counter offer much more appropriate to a career criminal.

Rather than pleading open, I took it to trial. During direct examination of the client, I caused him to confess and apologize and further brought out that he had returned the liquor and apologized to the storeowner. During deliberations, the jury asked through a note if they could recommend leniency. The answer, of course, was no. Ten minutes later the jury returned a verdict of Not Guilty on the Burglary and Guilty on the Theft.

My argument was light on facts, heavy on the biblical imagery suggesting the power of redemption. I explicitly invited the jury to convict on the misdemeanor Theft and baldly said that the State had not proved the element of intent on the Burglary.

Verdict: Not Guilty on the Burglary (despite an on the stand confession and overwhelming evidence!)

State v. P.K.

Defendant intervened in a domestic dispute that his friend was having with a girlfriend and was subsequently arrested for assaulting and threatening to kill the girlfriend. He was also charged with leaving the scene of an accident and failing to report that accident after allegedly hitting a car while attempting to leave the property where the dispute took place. The defendant was charged with a total of four Class D crimes as a result of the incident.

Through negotiations, the state offered an attractive plea package for the Assault, Terrorizing and Leaving the Scene charges, only fining the defendant $600 plus restitution and no jail time. Despite the offer, the client wanted a jury trial to absolve him of these crimes.

During the trial, I was able to get the charge for failing to report the accident dismissed after the police officer was caught "mis-remembering" a detail on his report. Then the client took the stand and gave a very sympathetic presentation, which I was able to use during closing arguments to show that the alleged victims overreacted.

Verdict: Not guilty on all three counts after 90 minutes of deliberation

State v. R.X.

Defendant was charged with Gross Sexual Assault (Class A). The defendant was accused of forcing his mistress to give him oral sex beside the road. His mistress was cheating on her husband. It appeared that the Defendant had actually done what he was accused of.

What the State didn’t know, however, was that the parties were in a “master/slave” sadomasochistic relationship. Unbeknownst to the State my client had many damning photographs of the consensual nature of their relationship but most importantly the alleged victim had signed a very detailed “contract” with my client outlining in exquisite detail her obligation to do everything he asked. She forgot to mention the contract to the police. When we came to a preliminary hearing and whipped out the “contract” the State dropped the charge (except for a bail violation my client had committed while awaiting trial).

State v. G.X.

Defendant was accused of “grooming” a young boy with pornography and showing him various body parts. The client was insistent he did not do anything physical but admitted that the child had access to pornography in his apartment which he rented from the boy’s parents.

We obtained DHS records during the pretrial investigation which showed that the boy had memory problems and had consistently denied contact between he and the client. The police interviewed him and reported otherwise.

On the stand, the boy admitted that the only reason he remembered any of the very damaging facts that he had just testified to was because a district attorney had “refreshed” his memory a short time before. Charges relating to the ph ysical contact were dropped at mid trial and we settled on the admitted conduct with the pornography.

State v. J.B.

Defendant, a convicted sex offender, was on probation out of Massachusetts. If he was found to have violated his parole, he faced life in prison.

Defendant was accused of approaching two boys and offering $20 for oral sex. Defendant was arrested on a charge of disorderly conduct (a very minor charge) and had a probation hold placed on him.

The charge came to light from a badly photocopied photograph of the Defendant being passed around the school system.

The boys “recognized” the face in the photocopy as J.B. and he was incarcerated awaiting trial.

After investigation it was determined that the boys:

(1) Could not identify J.B. from an actual color photograph;

(2) Had seen the person who propositioned them only a week before at a certain address for identical conduct and whose bail sheet indicated he lived at the exact address the boys had seen him at while J.B. was in custody.

While the state should have dismissed much earlier, they ultimately did dismiss on the eve of trial.

State v. E.W.

Defendant was accused of forcing his girlfriend to perform oral sex in a pickup truck. The accuser subsequently reported that the Defendant violated his bail by having contact with her. He was charged with Gross Sexual Assault (Class A) related charges and Violation of Condition of Release.

Subsequent investigation revealed that the complaining witness was, in fact, lying. The District Attorney’s Office dismissed all of the sexual assault charges and the Defendant pled guilty to the admitted bail violation.

State v. J.W.

In July of 2003, the Defendant left a party with two women. He drove his car and the women drove separately in another car. All three wound up in a local cornfield. There was a car change and the Defendant and the alleged victim wound up in the cornfield alone. The Defendant was accused of ripping the alleged victim's shirt down the middle, fondling her breasts and attempting to force himself upon her. The Defendant contended that after a few "no's" he gave up.

When the alleged victim emerged from the cornfield to meet people coming to find them, her shirt was completely torn in two, her hair was matted with burdocks and she was screaming that the Defendant had raped her. The alleged victim was taken to a hospital where a doctor observed brusing and contusions consistent with her story. The Defendant gave a taped confession to the police.

Verdict: Not Guilty on all counts.

Factors which may have helped the Defendant's case include direct conflict between the alleged victim and a neutral witness on how the change of cars occurred. Both the Defendant and alleged victim had been drinking and drugging (there was an intoxication instruction). Earlier serious inconsistencies were explainable because the Defendant's statement had been dictated by him to his wife in police presence. The confession was explained away as consistent with the Defendant's later version of events. The final winning theme was that something had happened between the Defendant and alleged victim that was both consensual and rough and that while the Defendant may have "stepped over the line," the "line" was gray enough to be excusable.

State v. H.E.

Defendant was a young man in his twenties who was accused of having sex with an underage girl and was charged with, Gross Sexual Assault (Class A). The plea offer was 60 days to serve and probation on a plea to the lesser charge of Unlawful Sexual Contact (Class C). The Defendant had confessed to knowing that the alleged victim was "roughly 13."

At trial, under cross examination, the alleged victim admitted to telling different police officers different versions of the offense. She told the first officer it happened one time only in a graveyard. She told the second officer it happened one time only in the Defendant’s house. She told the District Attorney during trial preparation that both events had occurred. Furthermore, the Defendant appeared utterly clueless as to the date the event(s) occurred. She testified that they could have happened as early as 2001 but as late as two weeks beyond her 14th birthday.

Verdict: Not Guilty, after 2 hours of deliberation.

State v. C.S.

This Washington County case involved a twenty-one-year-old man who was accused of raping his half sister over the course of five months. He was also accused of raping a family friend at his house. Both girls claimed it was forcible and both were thirteen years old at the time of the alleged incident. The State alleged statutory rape on the sister and forcible rape on the friend.

The Defendant had recently returned to the Indian Township and had started living with his mother again after several years in an adoptive family. His half sister claimed that he started having sex with her sometime in July or August 2001 and ending sometime around Thanksgiving 2001. The family friend testified that she had been raped sometime during the first two weeks of November 2001. The girls alleged that a baby monitor was used as an early warning device in these relatively busy homes. Both girls tested positive for the same viral venereal disease for which the Defendant had been treated.

The girls were as vague on direct examination as they had been in their reports. Direct was very brief. On cross-examination I was able to pin down the sister on the first and last rapes to two very specific dates and times. It turns out that his work records indicated that he was working on both occasions. Both occasions were memorable enough for other reasons (they were near the girl’s birthday and Thanksgiving) that the state couldn’t explain it away as failure of memory.

The second girl’s story was simpler and more internally consistent but there was testimony from a neutral witness that the Defendant and the alleged victim were only alone for 5-10 minutes and that when he returned she was listening to music and did not appear to be distressed in any way.

The Viral Venereal Disease (Genital Warts) had been last treated on the Defendant in May of 2000. He had not been treated since. He and his girlfriend testified that they had been having sex 7-10 times a week since approximately May 2000 when they first got together. She tested negative for the disease two weeks prior to the trial and she had a child by the Defendant. The State’s expert testified that the more times one had sex with an infected individual the more chances one had to catch it. The only criminal act in this charade was that of the Indian Township Police Department whose investigating officer spent a grand total of 45 minutes investigating this incident. One half of his investigation consisted of having both girls sit around a kitchen table with their families while telling their story. The second half of the investigation consisted of him collecting 1 page written statements. I was told that it wasn’t his job to put holes in the State’s case by conducting a thorough investigation! (I paraphrase -- but that was the thrust). Needless to say this was great ammunition in the closing.

Verdict: Not Guilty on all counts.

State v. B.M.

This Hancock County case involved a fifty-three-year-old man accused of Sexual Abuse of a Minor (Class C), three counts of Assault (Class D), Endangering the Welfare of a Child (Class D), Gross Sexual Assault (Class A), and Unlawful Sexual Contact (Class C). After much pretrial discovery and exhaustive investigation the State’s case was considerably weakened and although we were confident of winning at trial, the State made us an offer we couldn’t refuse!

Verdict: Defendant pled guilty to one count of Assault (Class D) which carried a sentence of 30 days in jail.

Smith Law Offices, P.A. is located in Bangor, Maine and represents people throughout Downeast Maine, including the cities of Milford, Orono, Ellsworth, Hampden, Machias, Winterport, Veazie and Howland.