State of Maine v. Bobby L. Nightingale

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2023 ME 71
Docket: Aro-22-415
Argued: September 14, 2023
Decided: November 9, 2023

Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.

STATE OF MAINE

v.

BOBBY L. NIGHTINGALE

HORTON, J.

[¶1] Bobby L. Nightingale appeals from a judgment of conviction of two

counts of murder, 17-A M.R.S. § 201(1)(A) (2023); a count of criminal

threatening with a dangerous weapon (Class C), 17-A M.R.S. §§ 209(1),

1604(5)(A) (2023); and two counts of possession of a firearm by a prohibited

person (Class C), 15 M.R.S. § 393 (1)(A-1) (2018),1 entered by the trial court

(Aroostook County, Nelson, J.) after a jury trial on the murder charges and a

bench trial on the other charges. Nightingale contends that the court erred by

denying his request to present evidence to the jury that a State investigator had

monitored telephone calls between Nightingale and his attorney while

1 Title 15 M.R.S. § 393 has since been amended, though the amendments are not relevant in the
present case. See P.L. 2021, ch. 608, §§ B-1, B-2, B-3 (effective Aug. 8, 2022) (codified at 15 M.R.S.
§ 393(1)(A-1) (2023)).
2

Nightingale was in pretrial detention, by not granting a mistrial based on a

prosecutor’s improper comments made during the State’s closing arguments,

and by giving a jury instruction on accomplice liability when it was not

generated by the evidence. Nightingale also appeals from his life sentences on

the murder charges on the ground that the court failed to consider comparable

sentences in its sentencing analysis. We affirm the judgment in all respects.

I. BACKGROUND

A. Facts

[¶2] “[T]he jury could rationally have found the following facts beyond a

reasonable doubt.” State v. Athayde, 2022 ME 41, ¶ 2, 277 A.3d 387.

[¶3] In the early morning of August 13, 2019, the Aroostook County

Sheriff’s Department received a 9-1-1 call from a resident of Castle Hill who

reported hearing gunshots after seeing that a pickup truck had stopped along

the road in front of his house. When officers responded to the 9-1-1 call, they

found Roger Ellis and Allen Curtis dead inside Ellis’s red pickup truck. An

all-terrain vehicle (ATV), later identified as belonging to Nightingale, was

wedged under the truck’s front bumper.

[¶4] Ellis and Curtis had died of gunshot wounds, having been shot

multiple times. All of the shots had been fired through the passenger side
3

window. Spent cartridge cases of two different calibers—.45 and .380—were

found at the scene. Six bullets were recovered from the interior of the truck.

The person who made the 9-1-1 call saw something pass in front of the truck’s

headlights and then saw something pass the other way and heard multiple

gunshots. Another person in the area heard the noise of a loud ATV traveling

fast and then heard multiple gunshots and someone shouting an expletive.

[¶5] Earlier in the night that they were killed, Ellis and Curtis had

attended a party at a friend’s home to celebrate Curtis’s birthday. A few days

before, Ellis and the friend had helped Nightingale’s girlfriend move out of the

home she and Nightingale had shared. While Ellis and the friend were helping

the girlfriend move her belongings to Ellis’s truck, Nightingale remained inside

the home, extremely upset and “screaming.” The girlfriend camped out in the

woods behind the friend’s home after leaving the home that she had shared

with Nightingale. The next day, Nightingale went to the friend’s home and

threatened the girlfriend. The friend’s husband responded by brandishing an

axe handle, and Nightingale drew a firearm. After the friend threatened to call

9-1-1, Nightingale left.

[¶6] Initially, the law enforcement officers investigating the murders

were unable to find Nightingale. Nightingale left a voicemail for one of the
4

officers indicating that he was “running” from the people who had committed

the murders. When officers located Nightingale, on August 17, 2019, he tried

to flee but was apprehended and placed under arrest. When he was

apprehended, Nightingale was carrying a backpack containing a .380 Jimenez

handgun. The gun was later subjected to ballistics testing and determined to

have left the markings found on the fired .380 cartridge cases recovered from

the scene of the murders. Also in the backpack was a letter Nightingale had

written to his attorney that accused others of killing Ellis and Curtis. After his

arrest, Nightingale told an investigator that “two Mexicans” had kidnapped him

and implied that they murdered Ellis and Curtis. Nightingale had also sent text

messages to acquaintances stating that another person had stolen his ATV and

committed the murders. On the day after the murders, Nightingale’s girlfriend

texted him: “[I do not know] why you wanted to do this.” He responded, “I

didn’t want to. I lost control of myself.”

[¶7] In a search of Nightingale’s residence, officers discovered a spent

.45 cartridge casing that further testing indicated had been fired from the same

gun that fired the .45 casings found at the murder scene. However, no

.45-caliber weapon was ever found. Data from Nightingale’s cell phone account

revealed that around the time of the murders his phone traveled from the
5

vicinity of Nightingale’s home in Mapleton to the vicinity of where Ellis and

Curtis were found dead inside Ellis’s truck.

B. Procedure

[¶8] On October 10, 2019, an Aroostook County grand jury issued an

eight-count indictment against Nightingale.2 At his arraignment, Nightingale

pleaded not guilty.

[¶9] On July 6, 2022, Nightingale filed a motion for discovery or dismissal

of the State’s case pursuant to Maine Rule of Unified Criminal Procedure 16(a).

He asserted that while he was in jail awaiting trial, law enforcement officers had

listened “to one or more phone calls between [him] and his attorneys.” He

sought discovery on which calls had been monitored and disclosure of any

notes or memoranda made in the course of listening to them, or dismissal of the

charges against him. The State opposed the motion, asserting that it had fully

“complied with its discovery obligations.” The State’s opposition included

2The first three counts charging burglary (Class A), 17-A M.R.S. § 401(1)(B)(1) (2023); robbery
(Class A), 17-A M.R.S. § 651(1)(D) (2023); and possession of a firearm by a prohibited person (Class
C), 15 M.R.S. § 393 (1)(A-1) (2018); pertained to an unrelated incident in Presque Isle; they were
later severed from the remaining counts and remain pending.

Nightingale waived his right to a jury trial as to Counts 4, 5, and 6. Count 4 (criminal threatening
with a dangerous weapon) and Count 5 (possession of a firearm by a prohibited person) were based
on Nightingale’s threatening display of a firearm at his girlfriend’s friend’s home on August 10, 2019.
Count 6 (another charge of possession of a firearm by a prohibited person) was related to the two
murders (Counts 7 and 8). Nightingale’s appeal challenges only his convictions on Counts 6, 7, and
8.
6

affidavits from the prosecutor and the Maine State Police investigator assigned

to monitor Nightingale’s telephone calls. After holding a nontestimonial

hearing on the motion, the court denied it, concluding that “[p]rudent steps

were promptly taken by the prosecutors to address the inadvertent disclosure”

and that there was no evidence that there were notes or other documentation

of any calls between Nightingale and his attorney.

[¶10] In mid-August 2022, the court held a jury trial on the murder

charges. The court admitted in evidence several photos of the scene of the

murders, objects found at the scene of the murders, photos of messages that

Nightingale sent to acquaintances regarding the night of the murders, and the

letter from Nightingale to his attorney found in Nightingale’s backpack. The

State introduced testimony from a DNA expert, a detective who obtained cell

phone record information to track the location of Nightingale’s phone on the

night of the murders, officers involved in Nightingale’s arrest and detention,

and acquaintances of Nightingale. The State presented evidence that

Nightingale had stated in text messages and other communications to others

that his ATV had been stolen and used in connection with the murders and that
7

he had told an investigator he had been kidnapped by “two Mexicans” who

committed the murders.3

[¶11] Nightingale did not present evidence or testify at trial. However,

he sought to question, in the presence of the jury, the Maine State Police

investigator who had listened to Nightingale’s jail telephone calls, specifically

on whether the investigator had kept any notes of the calls. The court denied

the request, pointing out that it had already determined that the State had not

acted improperly and had complied with its discovery obligations regarding the

calls. Relying on Maine Rule of Evidence 403, the court indicated that “it’s my

concern it’s only going to cause the jury to divert its attention from the focus of

this case. And so on a 403 ruling, . . . I find that the probative value [is]

substantially outweighed by the waste of time, undue delay, and confusion of

what their focus needs to be.”

[¶12] During its initial closing argument, the State summarized the

evidence and said that after evaluating the evidence the jury would “have a

conscientious belief based on the evidence that the charges are almost certainly

3 Before trial, the State filed a motion in limine to “exclud[e] evidence relating to the detention of

two Mexican nationals by the United States Department of Homeland Security at a border checkpoint
on August 13, 2019”; the court denied that motion. The parties stipulated that “[o]n August 13, 2019,
at 6:30 a.m., the United States Department of Homeland Security detained and took into custody two
Mexican nationals at a border checkpoint on Interstate 95 in Sherman, Maine. On August 16[], 2019,
the Bangor Daily News published an article containing these facts.”
8

true. And knowing that, you must find the defendant guilty.” Nightingale

objected and orally moved for a mistrial based on prosecutorial error. The

court denied the motion. Later, in its rebuttal argument, the State encouraged

the jury to focus on “the good evidence, not the trash evidence or the

speculation evidence,” and commented on the jury’s civic responsibility before

urging the jury to find Nightingale guilty.

[¶13] The State asked the court to instruct the jury on accomplice

liability, pointing out that two guns were used in the murder, that the one found

in Nightingale’s backpack might not have been the one that fired the fatal shots,

and that Nightingale had repeatedly stated that others had committed the

murders. Nightingale objected to the instruction. The court overruled the

objection, citing the evidence that the murders were committed with two

different weapons and the witness testimony about two shapes passing in front

of the truck headlights, and included an accomplice liability instruction in its

instructions to the jury.

[¶14] The jury found Nightingale guilty of both counts of murder. In a

separate bench trial, the court found Nightingale guilty of Count 4, criminal

threatening with a dangerous weapon, and Counts 5 and 6, possession of a

firearm by a prohibited person.
9

[¶15] The court held a sentencing hearing on December 8, 2022.

Members of Ellis’s and Curtis’s families and some of their friends appeared at

the hearing, and a few spoke. Nightingale also spoke at the hearing. The State

asked the court to impose concurrent sentences of life imprisonment on the

murder convictions and lesser concurrent sentences on the other charges.

Nightingale asked for a sentence of forty-five years’ imprisonment on the

murder convictions. The court imposed a life sentence on each murder

conviction (concurrent with one another); a five-year sentence on Count 6,

concurrent with the sentence for the murder convictions; and a five-year

sentence on each of Counts 4 and 5, concurrent with one another but

consecutive to the sentence for the murder convictions. 17-A M.R.S.

§§ 1602(1)(A)-(B), (2), 1603(1) (2023).

[¶16] Nightingale timely appealed from the resulting judgment of

conviction and filed an application for leave to appeal from his life sentences,

which the Sentence Review Panel granted. See 15 M.R.S. §§ 2115, 2151-2152

(2023); M.R. App. P. 2B(b)(1), 20(b).

II. DISCUSSION

[¶17] On appeal, Nightingale makes four arguments:

• He asserts that the court erred and abused its discretion in refusing
to allow him to question, in the presence of the jury, the State’s
10

primary investigator about the investigator’s listening to
recordings of telephone conversations Nightingale had with his
attorney while in jail.

• He contends that the court erred in giving an accomplice liability
instruction because the evidence did not generate any accomplice
liability issue.

• He contends that the court erred in denying his motion for a
mistrial because of the prosecutor’s statements during closing
argument.

• He contends that the court erred by failing to consider sentences
imposed on other defendants for comparable crimes when it set a
life sentence as the basic sentence on each of the murder
convictions.

A. Denial of Opportunity to Cross-Examine State’s Lead Investigator on
Nightingale’s Phone Conversations with his Attorney

[¶18] In considering Nightingale’s request to question the State’s lead

investigator in front of the jury about the investigator’s monitoring of

Nightingale’s phone conversations, the court commented that the problem of

law enforcement officers listening to conversations between incarcerated

defendants and their attorneys is, “from a systematic . . . standpoint, . . . of great

interest obviously to the Court, to the bar. But it’s my concern it’s only going to

cause the jury to divert its attention from the focus of this case.”

[¶19] Nightingale contends that “the issue presented is whether the

[c]ourt abused its discretion in not providing any sanction to the State for its
11

willful violation of the Maine Rules of Unified Criminal Procedure regarding

discovery” and that Nightingale should have been able to question the

investigator to impeach his testimony. However, after a hearing on

Nightingale’s motion for discovery or dismissal, the court issued a detailed

order concluding that the State had not heard any privileged communication

and there had been no discovery violation. That conclusion did not necessarily

preclude the court from granting Nightingale’s request to cross-examine the

investigator in front of the jury, but it did mean that the requested

cross-examination could not be justified as a discovery sanction. Moreover, if

the court had granted Nightingale’s request, the State would likely have sought

to inform the jury that the court had found no discovery violation. The result

would be to involve the jury in issues of little, if any, relevance to its task of

determining whether the State had met its burden of persuasion. Here, the

court appropriately evaluated Nightingale’s request under Rule 403 of the

Maine Rules of Evidence and decided that the potential for jury confusion and

distraction substantially outweighed the minimal probative value of the

proposed cross-examination. We see no abuse of discretion in this outcome.

See State v. Poulin, 2016 ME 110, ¶ 28, 144 A.3d 574.
12

B. The Court’s Accomplice Liability Instruction

[¶20] Nightingale argues that the court erred in providing the jury with

an accomplice liability instruction over his objection because there was

insufficient evidence to generate the instruction. The State contends that there

was sufficient evidence to generate an instruction because there was evidence

that (1) two guns were used in the murders and (2) Nightingale stated that

other people committed the murders.

[¶21] When a defendant raises on appeal a preserved challenge to jury

instructions, “[w]e review [the] jury instructions as a whole for prejudicial

error, and to ensure that they informed the jury correctly and fairly in all

necessary respects of the governing law.” State v. Tucker, 2015 ME 68, ¶ 11,

117 A.3d 595 (quotation marks omitted); see State v. Abdullahi, 2023 ME 41,

¶ 36, 298 A.3d 815. “The proper inquiry here is whether the State provided or

generated evidence sufficient to justify” the delivery of an accomplice liability

instruction. Abdullahi, 2023 ME 41, ¶ 37, 298 A.3d 815; State v. Caouette, 462

A.2d 1171, 1175 (Me. 1983) (“The accomplice liability instruction should not

be given as a matter of course in every criminal case; it is proper only if the

evidence generates an accomplice issue.”).
13

[¶22] Under accomplice liability principles, a person is guilty of a crime

“committed by the conduct of another person” if “[t]he person is an accomplice

of such other person in the commission of the crime.” 17-A M.R.S. § 57(1),

(2)(C) (2023). “The State must prove something more than the [accomplice’s]

mere presence, but need not prove an overt act of physical assistance.” State v.

Anderson, 2016 ME 183, ¶ 20, 152 A.2d 623. Accomplice liability attaches in

two ways: (1) “if [a person] intends to promote or facilitate the commission of

a crime, and she aids or agrees to aid or attempts to aid another person in

planning or committing the crime, and the crime is committed,” or (2) if the

“crime [that] was committed . . . was a reasonably foreseeable consequence of

a person’s conduct.” Alexander, Maine Jury Instruction Manual § 6-31 at 6-65

(2023 ed.). Only the first enumerated basis applies here because the State has

not asserted that the murders were a “reasonably foreseeable consequence” of

prior conduct by Nightingale. Id.; see State v. Linscott, 520 A.2d 1067, 1068-70

(Me. 1987).

[¶23] “[T]o generate the accomplice liability issue, the evidence of the

involvement of a second person need only raise the possibility that a member

of the jury will entertain a reasonable doubt as to whether the defendant

committed the crime alone.” Caouette, 462 A.2d at 1175. Here, a reasonable
14

factfinder could interpret the admitted evidence as indicating that Nightingale

did not commit the murders alone:

• The eyewitness who notified law enforcement reported seeing two
shapes pass in front of the headlights of Ellis’s truck. Two shooters
could have arrived on Nightingale’s ATV, the only vehicle other
than Ellis’s truck that was found at the scene.

• There were two guns used in the murders, but only one was ever
found—the .380 handgun found inside Nightingale’s backpack
when he was arrested. A reasonable juror might decide that, if
Nightingale alone had used both guns to commit the murders,
either both guns would have been found or both would have
disappeared. A reasonable explanation for why only one gun was
found is that someone else had possession of the other one.

• Nightingale repeatedly stated that others had committed the crime.
Although the State urged the jury to reject any such view of the
evidence, it could not assume that the jury would do so.

[¶24] Still, the evidence of accomplice liability was thin; the evidence that

Nightingale acted alone was overwhelming. Even if the evidence was

insufficient to generate an accomplice liability issue, however, the inclusion of

the instruction was not a structural error and was in fact harmless if it was

error at all. State v. Benson, 155 Me. 115, 124, 151 A.2d 266, 271 (1959).

(“There are numerous cases in which it has been held a new trial will not be

granted even if instructions are erroneous unless it appears also that they

might have been prejudicial to the excepting party.” (quotation marks

omitted)). Moreover, Nightingale’s brief does not point to any prejudice
15

associated with the accomplice liability instruction. Instead, he asks us to

presume prejudice. We decline to do so.

C. Claims of Prosecutorial Error During Closing Argument

[¶25] Nightingale labels as prosecutorial error three statements made

by the prosecutor who delivered the State’s closing argument. Nightingale

objected only to one of the three, so we review his contention regarding that

statement for harmless error. See State v. Cheney, 2012 ME 119, ¶¶ 33-34,

55 A.3d 473.

[¶26] During the State’s initial closing argument, the prosecutor

summarized the State’s evidence of Nightingale’s guilt and then said:

[T]o add insult to jury, [Nightingale] concocts a series of
ever-changing, increasingly implausible stories trying to cover all
the bases of the damning evidence of his commission of the crime.
When you consider all the evidence in this case, when you consider
and test that evidence by applying your common sense and life
experience, when you discard the evidence that is unworthy of
your belief or merely unhelpful, and you focus on the evidence that
is worthy, . . . you will have no reasonable doubt about who
murdered . . . Curtis and . . . Ellis. You will have a conscientious
belief based on the evidence that the charges are almost certainly
true. And knowing that, you must find the defendant guilty.

(Emphasis added.)

[¶27] Nightingale objected and moved for a mistrial. The court denied

the motion. “If the defendant objected at trial, we review the comments for
16

harmless error and affirm the conviction if it is highly probable that the jury’s

determination of guilt was unaffected by the prosecutor’s comments.” Cheney,

2012 ME 119, ¶ 34, 55 A.3d 473 (quotation marks omitted); M.R.U. Crim. P.

52(a). “We determine the effect of error by looking to the totality of the

circumstances, including the severity of the misconduct, the prosecutor’s

purpose in making the statement (i.e., whether the statement was willful or

inadvertent), the weight of the evidence supporting the verdict, jury

instructions, and curative instructions.” State v. Dolloff, 2012 ME 130, ¶ 33, 58

A.3d 1032 (quotation marks omitted). “[T]he State has the burden of

persuasion on appeal in a harmless error analysis.” Id. ¶ 39.

[¶28] Nightingale challenges two portions of these comments. First, he

asserts that the prosecutor erred in labeling his statements to others about the

crime as being “concoct[ed],” “ever-changing,” and “increasingly implausible.”

However, a prosecutor may criticize a defendant’s characterization of the

evidence as implausible and unsupported. State v. Wai Chan, 2020 ME 91, ¶ 25,

236 A.3d 471 (“A prosecutor is . . . permitted to comment on the plausibility of

the defendant’s theory” (quotation marks omitted)); Cheney, 2012 ME 119,

¶ 35, 55 A.3d 473 (“The State is free, however, to forcefully argue to the jury

that the evidence does not support or is not consistent with the defendant’s
17

theory of the case.”). It was not inappropriate for the prosecutor to suggest that

Nightingale had given various implausible versions of how others had

committed the crime. Second, Nightingale contends that the prosecutor’s

statement that “you must find the defendant guilty” was tantamount to saying

that the jury has a duty to convict. See State v. White, 2022 ME 54, ¶¶ 9, 12,

24-26, 285 A.3d 262 (concluding that the prosecutor’s use of the word

“accountable” improperly suggested to the jury that it had a civic duty to convict

the defendant). That is indeed what the statement, standing alone, would

suggest, but it did not stand alone. It came immediately after the prosecutor

told the jury that after weighing the credible evidence, “[y]ou will have a

conscientious belief based on the evidence that the charges are almost certainly

true.” The latter sentence is an accurate statement of the State’s burden of

persuasion and it paraphrases the court’s instruction on the State’s burden.

The “you must find the defendant guilty” statement, considered in context,

followed from the State’s characterization of the evidence. Even if we deemed

it prosecutorial error, any error was rendered harmless by the court’s

instruction that any statements in closing arguments were not evidence.

See, e.g., Wai Chan, 2020 ME 91, ¶ 29, 236 A.3d 471; Dolloff, 2012 ME 130, ¶ 75,

58 A.3d 1032.
18

[¶29] Because Nightingale did not object at trial to two other statements

by the prosecutor, made during the State’s rebuttal, our review of his

contentions on appeal regarding them is for obvious error. Wai Chan, 2020 ME

91, ¶ 23, 236 A.3d 471; State v. Lockhart, 2003 ME 108, ¶ 47, 830 A.2d 433;

M.R.U. Crim. P. 52(b). “To show obvious error, there must be (1) an error, (2)

that is plain, and (3) that affects substantial rights. If these three conditions are

met, we will set aside the jury’s verdict only if we conclude that (4) the error

seriously affects the fairness and integrity or public reputation of judicial

proceedings.” Wai Chan, 2020 ME 91, ¶ 23, 236 A.3d 471 (footnote, citation,

and quotation marks omitted). The defendant has the burden of persuasion on

appeal in an obvious error analysis. Dolloff, 2012 ME 130, ¶¶ 36, 39, 58 A.3d

1032.

[¶30] “If the defendant, having failed to preserve the objection at trial,

demonstrates on appeal that there was prosecutorial misconduct that went

unaddressed by the court, the defendant has met the burden of demonstrating

error.” Id. ¶ 36. “[A]n error affects a criminal defendant’s substantial rights if

the error was sufficiently prejudicial to have affected the outcome of the

proceeding.” State v. Pabon, 2011 ME 100, ¶ 34, 28 A.3d 1147. A “statement

will rarely be found to have created a reasonable probability that it affected the
19

outcome of the proceeding” when the statement was not sufficient to elicit an

objection, “particularly when viewed in the overall context of the trial.” Id. ¶ 38;

see State v. Sholes, 2020 ME 35, ¶ 23, 227 A.3d 1129.

[¶31] The prosecutor’s two statements that Nightingale argues

constitute obvious error are recorded in the trial transcript as follows:

When you put together the good evidence, not the trash
evidence or the speculation evidence or the inadequate DNA
samples, when you put your faith in quality evidence and test that
quality evidence against the law as the [c]ourt will give you, that’s
what leads you to a verdict.

....

You are asked to do a hard thing. You are asked to leave your
lives. You are asked to take a financial hit when you leave your lives
to come here and do this. But being a juror in a criminal case is one
of the greatest obligations and highest callings of being a citizen. If
you follow the law . . . and you apply it to the evidence, that will
direct you to your verdict. That will get you to where you need to
be. That will bring you to the truth of what happened. And you will
know from the truth of the evidence as you reveal it that the
murderer in this case is . . . Nightingale.

(Emphasis added.)

[¶32] The reference to “trash evidence” was not explicitly linked to

Nightingale although the linkage is implicit, and the reference plainly was

meant to apply to what the prosecutor had previously called Nightingale’s

“ever-changing, increasingly implausible stories.” We do not endorse the use
20

of the word “trash” to characterize evidence. See Dolloff, 2012 ME 130,

¶¶ 41-42, 58 A.3d 1032. However, the State’s view of Nightingale’s arguments

was already apparent and the use of an inappropriate adjective to describe

them does not meet the obvious error standard.

[¶33] The State’s reference to jury service as “one of the greatest

obligations and highest callings of being a citizen” was not at all objectionable.

Judges frequently emphasize the importance of jury service and the essential

constitutional role of juries, and there is no bar to attorneys doing likewise,

provided that there is no implication that jury service involves any duty to do

anything other than reach a fair and impartial verdict, such as hold a defendant

“accountable” or “send a message.” State v. White, 2022 ME 54, ¶ 24, 285 A.3d

262; State v. Woodard, 2013 ME 36, ¶ 36, 68 A.3d 1250; see cf. United States v.

De La Paz-Rentas, 613 F.3d 18, 26 (1st Cir. 2010) (“The ‘do your duty’ rhetoric,

depending on wording and context, can be used to convey the idea to the jury

that their job is to convict.”).

D. The Absence of Reference to Sentences Imposed for Comparable
Crimes in the Court’s Sentencing Analysis

[¶34] Nightingale argues that the court erred in setting his basic

sentence at life in prison without referring to sentences imposed for

comparable crimes. He does not dispute, however, that because his crime
21

involved multiple deaths, it was accompanied by one of the circumstances that

we have identified as justifying the imposition of a life sentence rather than a

sentence for a term of years. See State v. Shortsleeves, 580 A.2d 145, 149-50

(Me. 1990). “We review the determination of the basic sentence de novo for

misapplication of legal principles and for an abuse of the court’s sentencing

power.” Athayde, 2022 ME 41, ¶ 51, 277 A.3d 387.

[¶35] “In a murder case, the sentencing court employs a two-step

process,” State v. Bentley, 2021 ME 39, ¶ 10, 254 A.3d 1171: (1) “the court shall

determine a basic term of imprisonment by considering the particular nature

and seriousness of the offense as committed by the individual,” and (2) “the

court shall determine the maximum term of imprisonment to be imposed by

considering all other relevant sentencing factors, both aggravating and

mitigating, appropriate to the case,” 17-A M.R.S. § 1602(1)(A)-(B), (2).

[¶36] Nightingale’s argument is contrary to a well-settled principle in

our case law. “[I]t is permissible for the sentencing court to consider

comparable sentences at the first step if appropriate, [but] neither the statute

nor our case law mandate it.” State v. Nichols, 2013 ME 71, ¶ 20, 72 A.3d 503;

see Bentley, 2021 ME 39, ¶ 13, 254 A.3d 1171 (explaining that courts have

discretion when “determining the sources and types of information to consider
22

when imposing a sentence” (quotation marks omitted)); see, e.g., State v. Leng,

2021 ME 3, ¶ 19, 244 A.3d 238 (“The court was not required, however, to

conduct a comparison of Leng’s case to similar cases at all—let alone provide

an exhaustive enumeration of analogous cases—before setting the basic

sentence.”).

[¶37] Nightingale relies on State v. Cookson and State v. Waterman and

in arguing that the consideration of comparable cases is required in the first

step of the analysis. 2003 ME 136, ¶ 38, 837 A.2d 101; 2010 ME 45, ¶¶ 42-44,

995 A.2d 243. In both cases, we said, “The first step determines the basic period

of incarceration by examining the crime [and] the defendant’s conduct in

committing it, and by looking at other sentences for similar offenses.” Cookson,

2003 ME 136, ¶ 38, 837 A.2d 101; see Waterman, 2010 ME 45, ¶ 43, 995 A.2d

243. We cited the appropriate statutes laying out the two-step analysis, but the

language in the statutes does not, as Nightingale suggests, require consideration

of comparable cases.4 See Waterman, 2010 ME 45, ¶¶ 42-44, 995 A.2d 243

(citing 17-A M.R.S. §§ 1201(1)(A), 1252-C (2009)); Cookson, 2003 ME 136, ¶ 38,

837 A.2d 101 (citing 17-A M.R.S.A. §§ 1201(1)(A), 1252-C (2003)). Further, in

17-A M.R.S. 1201 and 1252-C were repealed and replaced in 2019, though the changes are not
4

relevant in this case. See P.L. 2019, ch. 113, §§ A-1, A-2 (effective May 16, 2019) (codified at 17-A
M.R.S. §§ 1602(1)(A)-(B), (2), 1603(1) (2023)).
23

2013, after the decisions in Waterman and Cookson, we clarified that such

consideration is not required. See Nichols, 2013 ME 71, ¶ 20, 72 A.3d 503

(citing 17-A M.R.S. § 1252-C(1) (2012)) (“Nichols’s arguments reflect 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 . . . .”).

Here, the court did not err or abuse its discretion in setting the basic sentence.

The entry is:

Judgment affirmed.

Verne E. Paradie, Jr., Esq. (orally), Lewiston, for appellant Bobby L. Nightingale

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

Aroostook County Unified Criminal Docket docket number CR-2019-40973
FOR CLERK REFERENCE ONLY