State of Maine v. Michael Martinelli — 2017 ME 217

MAINE SUPREME JUDICIAL COURT 	Reporter of Decisions
Decision: 	2017 ME 217
Docket: 	Pen-17-49
Argued: 	October 25, 2017
Decided: 	November 28, 2017
Panel: 	SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
STATE OF MAINE
v.
MICHAEL MARTINELLI
MEAD, J.
[¶1] Michael Martinelli appeals from an order entered by the trial court
(Penobscot County, Lucy, J.) denying his motion to dismiss a complaint charging
him 	with 	operating 	under 	the 	influence 	(OUI) 	(Class 	D), 	29-A 	M.R.S.
§ 2411(1-A)(C)(1) (2016). 	He contends that, because he had already been
convicted after a jury trial on a complaint containing the identical charging
language, forcing him to stand trial on the complaint at bar would violate his
constitutional rights to be free from double jeopardy. 	U.S. Const. amend. V;
Me. Const. art. I, § 8. We conclude that Martinelli’s double jeopardy protections
are not implicated on these facts and affirm the order.

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I. BACKGROUND
[¶2] The procedural facts are not disputed. On September 18, 2015, the
State 	charged 	Martinelli 	with 	OUI 	(Class 	D), 	alleging 	a 	violation 	of
29-A 	M.R.S. 	§ 	2411(1-A)(C)(1), 	in 	a 	complaint 	assigned 	docket 	number
PENCD-CR-2015-03461 (hereinafter 3461). The complaint alleged:
On or about May 6, 2015, in Bangor, Penobscot County, Maine,
MICHAEL MARTINELLI, did operate a motor vehicle while under
the influence of intoxicants. 	MICHAEL MARTINELLI failed to
submit to a test at the request of a law enforcement officer.
At the hearing on Martinelli’s motion to dismiss, the parties agreed that the
incident giving rise to the complaint in 3461 occurred shortly after midnight on
May 6, 2015. 	Martinelli was convicted of the charge after a jury trial held
November 	16-17, 	2016; 	the 	court 	(Mallonee, 	J.) 	entered 	judgment 	and
sentenced Martinelli to four days’ incarceration in the Penobscot County Jail,
a $600 fine, and a 150-day license suspension. Martinelli did not appeal.
[¶3] On June 3, 2015, about three months before the complaint in 3461
was filed, the State had charged Martinelli with OUI (Class D), also alleging a
violation of 29-A M.R.S. § 2411(1-A)(C)(1), in a complaint assigned docket
number 	PENCD-CR-2015-01568 	(hereinafter 	1568).1 	At the hearing, the
1 It is unclear why the two complaints proceeded separately, or with such different timelines.

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parties agreed that the incident giving rise to this complaint occurred at about
11:30 p.m. on May 6, 2015, just under twenty-four hours after the incident
charged in 3461. 	As 	later 	amended, the charging language of the 	two
complaints is identical.
[¶4] On November 29, 2016, Martinelli moved to dismiss the complaint
in 1568 with prejudice on the ground that forcing him to defend against the
charge violated his rights under the federal and state constitutions to be free
from double jeopardy. 	The court held a hearing and denied the motion by
written order, concluding that “the State has met its burden of demonstrating
that this case does not involve the same conduct for which Defendant has
already been convicted.” 	Martinelli filed this interlocutory appeal, which we
entertain 	as 	an 	exception 	to 	the 	final 	judgment 	rule. 	State 	v. 	Hoover,
2015 ME 109, ¶ 10 n.1, 121 A.3d 1281.
II. DISCUSSION
[¶5] 	Martinelli is protected from being “twice put in jeopardy of life or
limb” by the United States and Maine Constitutions, which afford coextensive
protections. 	U.S. Const. amend. V; Me. Const. art. I, § 8; Ayotte v. State,
2015 ME 158, ¶ 12, 129 A.3d 285. Pertinent to this case, “[t]he constitutional
prohibitions against double jeopardy prohibit . . . a second prosecution for the

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same offense after conviction[] and . . . multiple punishments for the same
offense.” Ayotte, 2015 ME 158, ¶ 13, 129 A.3d 285 (quotation marks omitted).
We review the trial court’s double jeopardy determination de novo. Id. ¶ 12.
[¶6] 	Martinelli contends that, for the purpose of invoking his double
jeopardy protections, “[b]ecause the allegations in [3461] are not more specific
than alleging OUI on May 6, 2015, in Bangor, Penobscot County, these
allegations are broad enough to include an OUI anytime on May 6, 2015, and
anywhere within Bangor.” In his view, that problem cannot be cured by simply
amending 	the 	complaint 	in 	1568 	to 	include 	additional, 	potentially
distinguishing details, because those facts “would necessarily be included
within the non-specific allegations of [3461].”
[¶7] Relevant to Martinelli’s argument, in assessing whether successive
complaints violate the Double Jeopardy Clause, we have said that
[b]ecause 	a 	person, 	by 	one 	act 	or 	transaction, 	may 	violate
multiple 	criminal 	laws, 	courts 	apply 	the 	Blockburger 	test 	to
determine whether the crimes enumerated by 	those multiple
statutes are the same offense for purposes of double jeopardy
protections. 	See Blockburger v. United States, 284 U.S. 299, 304
(1932). 	The test asks whether each statutory provision requires
proof of a fact that the other does not. If each statutory provision
requires a unique proof of fact, the Blockburger test is satisfied and
there is no double jeopardy violation by subsequent prosecutions
or multiple punishments.
Id. ¶ 14 (citations and quotation marks omitted).

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[¶8] 	The parties’ arguments may be summarized this way. 	Martinelli
contends that because the State chose to draft the two complaints to recite
identical elements, he was charged twice with the same offense, and, applying
the Blockburger test, the Double Jeopardy Clause requires the dismissal of
1568.2 	In Martinelli’s view, his concession that the complaints arose from
different factual circumstances is irrelevant. 	The State counters that because
the factual circumstances giving rise to the two complaints are different,
Martinelli committed two separate offenses, and so neither the Blockburger test
nor the Double Jeopardy Clause is implicated.
[¶9] The State’s position is persuasive. In Blockburger, the United States
Supreme Court said that
[t]he applicable rule is that where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test
to be applied to determine whether there are two offenses or only
one, is whether each provision requires proof of an additional fact
which the other does not.
284 U.S. at 304 (emphasis added); see Ayotte, 2015 ME 158, ¶ 14, 129 A.3d 285
(referring to the Blockburger test as applying to “one act or transaction”). Here,
the parties agree that the two complaints did not arise from “the same act or
2 At oral argument, Martinelli agreed that the State could have avoided the issue he raises simply
by drafting the complaints so as to include a differentiating feature in each, presumably the time of
the offense, for example.

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transaction,” Blockburger, 284 U.S. at 304—they charge conduct separated by
almost twenty-four hours. Applying the plain language of Blockburger, its test
and double jeopardy analysis generally are inapplicable. 	Other courts are in
accord with our analysis.3
[¶10] 	In sum, for the purpose of double jeopardy analysis, Martinelli
committed 	(allegedly, 	in 	the 	case 	of 	1568) 	two 	unrelated 	crimes 	on
May 6, 2015. The answer to the trial court’s question at the hearing—“So does
the . . . Constitution . . . give [Martinelli] the right to . . . commit the same crime
over and over again on the same day if the State is not precise enough to start
putting times in their complaints?”—is no.4 	See Hoover, 2015 ME 109, ¶ 11,
3 	See United States v. Trabelsi, 845 F.3d 1181, 1198 (D.C. Cir. 2017) (Pillard, J., concurring)
(“Blockburger permits a subsequent prosecution under an indictment listing identical legal elements
so long as it charges a different set of facts. That much is obvious.”); Smith v. Montgomery Police Dep’t,
No. 2:16-CV-156-WKW, 2016 U.S. Dist. LEXIS 177867, at *2 (M.D. Ala. Dec. 23, 2016) (“Charges arising
out of different transactions or occurrences are not charges for the ‘same offense’ and do not
implicate the Double Jeopardy Clause.”); United States v. Kee, No. S1 98 CR 778 (DLC),
2000 U.S. Dist. LEXIS 8784, at *11 (S.D.N.Y. June 27, 2000) (stating, in discussing Blockburger,
“Neither the principle of multiplicity nor the Double Jeopardy Clause prevents a defendant’s being
charged with more than one violation of the same statute where different acts underlie each
violation.”); State v. Lola Mae C., 408 S.E.2d 31, 36 n.9 (W. Va. 1991) (“Since we conclude that factually
two separate criminal acts have occurred, we find that the application of the [Blockburger] test . . . is
inapplicable . . . .”); State ex rel. G.E., 94 So. 3d 863, 867 (La. Ct. App. 2012) (“The [defendant’s]
argument that [the two charges] contain the same elements and therefore constitute double jeopardy
is without merit. In the instant case, the charges . . . stem from different acts or transactions.”);
State v. Jordan, No. 14AP-978, 14AP-979, 2015 Ohio App. LEXIS 4353, at ¶ 16 (Ohio Ct. App.
Oct. 27, 2015) (“If the offenses charged are separate and distinct because they arise from different
transactions, and different evidence is required to prove each, then double jeopardy is not
applicable.” (quotation marks omitted)).
4 	In his brief, Martinelli argues that his position is supported by the “same conduct” test
announced by the Supreme Court in Grady v. Corbin, 495 U.S. 508, 521 (1990), which we applied in

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121 A.3d 1281 (“The double jeopardy clause bars multiple punishments for the
same offense.” (emphasis added) (quotation marks omitted)).
The entry is:
Order denying motion to dismiss affirmed.
Jeffrey M. Silverstein, Esq. (orally), Silverstein-Law, PA, Bangor, for appellant
Michael Martinelli
R. Christopher Almy, District Attorney, and Mark A. Rucci, Asst. Dist. Atty.
(orally), Prosecutorial District V, Bangor, for appellee State of Maine
Penobscot County Unified Criminal Docket docket number CR-2015-1568
FOR CLERK REFERENCE ONLY
State v. Ricci, 611 A.2d 572, 573-75 (Me. 1992). After Ricci was decided, Grady was overruled by
United States v. Dixon, 509 U.S. 688, 704, 711-12 (1993).