MAINE SUPREME JUDICIAL COURT                                          Reporter of Decisions
Decision:    2020 ME 83
Docket:      Aro-19-329
Submitted
  On Briefs: April 14, 2020
Decided:     June 4, 2020

Panel:          MEAD, GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.



                                     STATE OF MAINE

                                             v.

                                   JONATHAN LIMARY


HORTON, J.

         [¶1]     Jonathan Limary appeals from a judgment of conviction of

manslaughter (Class A), 17-A M.R.S. § 203(1)(A) (2020), and aggravated assault

(Class B), 17-A M.R.S. § 208(1)(A) (2020), entered by the court (Aroostook

County, Stewart, J.) after a jury trial. Limary argues that the court deprived him

of a fair trial by denying his request during jury voir dire to pose certain

questions in the jury questionnaire, and that the evidence was insufficient to

support a finding that Limary’s actions—rather than subsequent medical

treatment—caused the victim’s death. We affirm the judgment.

                                     I. BACKGROUND

         [¶2] Viewing the evidence in the light most favorable to the State, the

jury could rationally have found the following facts beyond a reasonable doubt.
2

See State v. Asaad, 2020 ME 11, ¶ 8, 224 A.3d 596. Late on the night of

October 29, 2017, Limary and some friends had a dispute, via text-based and

voice-based social media, with the victim—a man whom none of them had met.

As a result, Limary and a friend of his—with three others in the vehicle—drove

from Presque Isle to Caribou to meet up with the victim and his friend in a

parking lot to fight. While Limary and the victim’s friend fought, Limary’s friend

fought with the victim. Limary’s friend and the victim ended up on the ground,

and Limary’s friend eventually got up and backed away from the victim. By

then, another friend of the victim had arrived with his teenage son and had gone

over to help the victim up off the ground. Before the victim could rise from his

knees, Limary approached and forcefully kicked the victim in the face, resulting

in numerous fractures to the victim’s nose, eye orbits, upper jaw, and cheek

bones.

      [¶3] The victim received medical care in the early morning hours of

October 30 and was released, but he returned to the hospital later that day and

was admitted. He was released on November 2. He then had two surgeries on

November 9 and was released on November 17. For purposes of the surgeries,

a tracheostomy tube was inserted; that tube was removed two days before the
                                                                                                   3

victim’s release from the hospital, leaving the victim with a healing hole in his

throat at the incision site where the tracheostomy tube had been.

       [¶4] On the day that the victim was released, his friend and the friend’s

son brought him to their house. That evening, the victim began bleeding from

the opening in his neck, and his friend called 9-1-1. Under the guidance of the

dispatcher, the victim’s friend performed CPR until the ambulance arrived. The

victim bled profusely, and, despite the paramedics’ resuscitation efforts, he

died. An autopsy revealed that, although at least some blood exited the victim

through the tracheostomy site,1 more extensive hemorrhaging occurred in the

victim’s sinuses.2

       [¶5]      In January 2018, Limary was charged by indictment with

manslaughter (Class A), 17-A M.R.S. § 203(1)(A), and aggravated assault

(Class B), id. § 208(1)(A). He pleaded not guilty, and the matter proceeded to a

jury trial.




   1There was also evidence of bleeding from the nose and of blood having entered the stomach and
lungs.
   2 From these facts, the jury could rationally have found beyond a reasonable doubt that Limary

committed the aggravated assault by “intentionally, knowingly or recklessly caus[ing] . . . [b]odily
injury to another that create[d] a substantial risk of death or extended convalescence necessary for
recovery of physical health.” 17-A M.R.S. § 208(1)(A) (2020); see 17-A M.R.S. § 35(1)-(3) (2020). The
sufficiency of the evidence of manslaughter is discussed below.
4

       [¶6] Jury selection was held on May 13, 2019. The court refused to

include on the jury questionnaire three of the questions that Limary proposed

relating to self-defense and defense of another:

    • “[I]f during the trial Mr. Limary generates evidence that he acted in
      self-defense or in the defense of another in using physical force against
      [the victim], the State must prove beyond a reasonable doubt that
      Mr. Limary did not act in self-defense or defense of another. Would you
      have any difficulty applying this burden on the State to disprove
      self-defense or defense of another beyond a reasonable doubt?”

    • “[W]ould you be willing to find Mr. Limary not guilty if he acted in
      self-defense or in defense of another in using physical force against [the
      victim]?”

    • “[D]o you have any personal, religious, philosophical or other beliefs that
      a person is never justified in using physical force against another human
      being even if it is done in self-defense or defense of another?”

The court reasoned that it was not evident that a self-defense or

defense-of-another instruction would be generated by the evidence. The court

indicated that it would ask “whether or not jurors would have . . . any difficulty

in being a fair and impartial juror when fighting has occurred.”              The

questionnaire presented to the potential jurors included such a question and

also asked the jurors if they would be able to “base their verdict upon the

evidence and according to the law” without allowing “any feelings of bias,

prejudice, pity, anger, sympathy or other emotion [to] influence their verdict in
                                                                                5

any way” and if they would be able to follow the law as instructed by the court

“even if [they] d[id] not agree with the law.”

      [¶7] After the potential jurors completed the questionnaire, the court

conducted individual voir dire. Both the State and Limary agreed that the jury

that was ultimately selected was satisfactory.

      [¶8] The jury trial was held over the course of the next four days. The

State offered testimony from eyewitnesses, a paramedic who treated the victim

on the day of his death, a police officer, and the State’s Chief Medical Examiner.

The State offered no evidence that would suggest that Limary had acted in

self-defense or defense of another. The medical examiner testified that, before

performing an autopsy of the victim, he reviewed hospital records summarizing

the multiple, serious fractures to the victim’s face. He also considered a

post-surgery x-ray showing the surgeons’ use of braces and other materials to

reconstruct the victim’s face. The autopsy revealed no hemorrhaging in the

area of the tracheostomy but extensive hemorrhaging in the sinuses, where the

victim had sustained the injuries and undergone surgery.            The medical

examiner concluded that the victim died of blood loss—specifically,

“hemorrhagic complications following multiple fractures of facial bones due to

the blunt force trauma of his head.”
6

        [¶9] Limary moved for a judgment of acquittal on the manslaughter

charge, arguing that the victim’s surgery, which he claims was elective, broke

the chain of causation between his actions and the victim’s death such that the

jury could not find him guilty of manslaughter. See M.R.U. Crim. P. 29. The court

denied the motion.

        [¶10]     Limary then offered an expert witness—the Chief Medical

Examiner for the State of Maryland—whose testimony differed from the State’s

Chief Medical Examiner’s mainly in identifying the source of the victim’s

bleeding as one or more veins at the site of the tracheostomy, not the site of

Limary’s injuries and surgery.3 Limary also offered his own testimony that he

had kicked the victim in the mouth to protect his friend because he thought the

victim was getting up to continue fighting and he wanted to get away from the

victim and his friends.

        [¶11] In its instructions to the jury, the court provided instructions on

self-defense and defense of another. The jury found Limary guilty of both the

manslaughter and aggravated assault charges. After a sentencing hearing, the

court sentenced Limary to sixteen years in prison for manslaughter, with all but



    3Through cross-examination, it became clear that, when the expert prepared his report, he had
mistakenly believed that the tracheostomy tube had still been in the victim’s throat when he died.
                                                                                7

forty-five months suspended and four years of probation. For the conviction of

aggravated assault, the court sentenced Limary to forty-five months in prison,

to be served concurrently with the manslaughter sentence. The court also

ordered Limary to pay $70 plus restitution of $2,519 to the Victims’

Compensation Fund. Execution of the sentence was stayed pending appeal. See

M.R.U. Crim. P. 38(a). Limary timely appealed. 15 M.R.S. § 2115 (2020);

M.R. App. P. 2B(b)(1).

                                II. DISCUSSION

      [¶12] Limary challenges (A) the court’s denial of his request to pose

questions regarding self-defense and defense of another in the juror

questionnaire and (B) the sufficiency of the evidence that he caused the victim’s

death. We address each issue in turn.

A.    Juror Questionnaire

      [¶13] Limary argues that he was deprived of a fair and impartial jury

because the questionnaire did not specifically inquire of the jurors whether

they were able to be fair and impartial regarding issues of self-defense and

defense of another. He contends that, unlike in State v. Burton, 2018 ME 162,

¶ 17 & n.2, 198 A.3d 195, the court did not include other questions regarding

self-defense or defense of another that would satisfy the concerns he raised.
8

      [¶14] We review challenges to the conduct of voir dire for abuse of

discretion. State v. Roby, 2017 ME 207, ¶ 11, 171 A.3d 1157. “[T]he purpose of

the voir dire process is to detect bias and prejudice in prospective jurors, thus

ensuring that a defendant will be tried by as fair and impartial a jury as

possible.” Burton, 2018 ME 162, ¶ 15, 198 A.3d 195 (quotation marks omitted).

Thus, a trial court has considerable discretion over the scope of voir dire

provided that it is adequate to disclose facts that would reveal juror bias. Id.

      [¶15] A court need not voir dire potential jurors in the exact manner

requested by a party as long as the process is sufficient to reveal bias. Roby,

2017 ME 207, ¶ 13, 171 A.3d 1157. Nor does a court abuse its discretion in

excluding questions “that have no relationship to a prospective juror’s

knowledge, bias, or predisposition, or that are intended to advocate a party’s

position regarding the facts or issues in dispute.” Roby, 2017 ME 207, ¶ 11, 171

A.3d 1157 (quotation marks omitted).

      [¶16]    For purposes of the United States Constitution, “[t]o be

constitutionally compelled, . . . it is not enough that [voir dire] questions might

be helpful. Rather, the trial court’s failure to ask these questions must render

the defendant's trial fundamentally unfair.” Mu’Min v. Virginia, 500 U.S. 415,

425-26 (1991). For instance, the United States Supreme Court has determined
                                                                                   9

that voir dire questions about racial bias may be constitutionally required,

particularly in death penalty cases. See Turner v. Murray, 476 U.S. 28, 35-36

(1986); Rosales-Lopez v. United States, 451 U.S. 182, 190 (1981) (holding that,

although there is no presumption of racial bias, a court may be required to ask

voir dire questions about race if there are “substantial indications of the

likelihood of racial or ethnic prejudice affecting the jurors in a particular case”);

Aldridge v. United States, 283 U.S. 308, 314-15 (1931) (vacating a judgment of

conviction of murder, for which the defendant had been sentenced to death,

because the court failed to inquire of the jurors regarding racial bias).

      [¶17] Consistent with this jurisprudence, the Maine Jury Instruction

Manual, widely used in civil and criminal jury trials in Maine, recommends that

the trial court consider specific voir dire in cases that “may involve particularly

sensitive issues such as race, religion, sexual preferences, interpersonal or

sexual violence, or child abuse.” Alexander, Maine Jury Instruction Manual § 2-4

at 2-6 (2019-2020 ed. 2019). The same resource recommends that during jury

voir dire the trial court “describe the basic law applicable to the case—in

criminal cases, the presumption of innocence, the State’s beyond a reasonable

doubt standard of proof, the defendant’s right to remain silent and not present

any evidence—and then ask the jurors if they were willing and able to accept
10

and apply the law to the case if they were selected as jurors, regardless of any

personal view they may have as to what the law should be.” Id. § 2-4E at 2-20.

In this case, all of these principles were addressed in the written jury

questionnaire.

      [¶18] On the other hand, the Manual recommends against “[q]uestions

that ask about jurors’ knowledge or beliefs about the law and whether the

jurors agree with the law as stated by counsel.” Id. § 2-4F at 2-24 (“Voir dire is

not a mini bar exam for citizen jurors untrained in the law.”).

      [¶19] The principles set forth in the Manual are consistent with, and

derive from, our own jurisprudence. “A voir dire of jurors becomes essential

when the potential for bias and prejudice is manifest.” State v. Barczak,

562 A.2d 140, 142 (Me. 1989). “Whether prejudice is manifest is a question of

fact for the trial court's determination and the scope of an examination is a

matter of discretion for the court.” Id. Based on the evidence anticipated in a

case, therefore, special inquiry of jurors during voir dire may be required with

respect to potential bias regarding matters such as race and sexual orientation,

pretrial publicity, and law enforcement connections. See State v. Bethea, 2019

ME 169, ¶¶ 15-19, 221 A.3d 563; State v. Turner, 495 A.2d 1211, 1212-13

(Me. 1985); State v. Lovely, 451 A.2d 900, 901-02 (Me. 1982); see also
                                                                                 11

Alexander, Maine Jury Instruction Manual § 2-4I at 2-31 to 2-32 (including

sample jury questions about pretrial publicity); cf. State v. Saucier, 2001 ME

107, ¶ 21, 776 A.2d 621 (affirming the denial of a motion to change venue in

part because voir dire questions about pretrial publicity had been posed to the

jury). Applying these principles, we held that jury voir dire was inadequate

when trial courts precluded inquiry into the nature of jurors’ associations with

prospective law enforcement witnesses, State v. O'Hara, 627 A.2d 1001, 1003

(Me. 1993), and jurors’ past experiences with violent crime, State v. Lowry,

2003 ME 38, ¶¶ 10-11, 819 A.2d 331.

      [¶20] In many circumstances, it will be necessary for a defendant to

provide evidence of potential bias for voir dire to be required. See, e.g., State v.

Lowe, 2015 ME 124, ¶ 17, 124 A.3d 156 (holding that there was insufficient

evidence that pretrial publicity generated a potential for bias); see also United

States v. Robinson, 475 F.2d 376, 381 (D.C. Cir. 1973) (holding that, when no

recognized class of societal bias is involved, “it is incumbent upon the

proponent to lay a foundation for his question by showing that it is reasonably

calculated to discover an actual and likely source of prejudice, rather than

pursue a speculative will-o-the-wisp”).
12

      [¶21] In a case in which the defendant was a patron of a gay bar,

however, we in effect took judicial notice of societal prejudice that compelled

inquiry on the subject of anti-gay bias.     See Lovely, 451 A.2d at 901-02

(acknowledging the undeniable “stigmatization of homosexuals in our society”

and concluding that the trial court was required to inquire about anti-gay bias

during jury voir dire when the evidence suggested that the defendant had been

a patron of a gay bar). The common theme in our jury voir dire jurisprudence

has been to require inquiry into jurors’ attitudes and experiences involving the

parties and witnesses or involving specific areas of evidence when there is a

more than speculative potential for juror bias.

      [¶22] As to legal defenses and justifications—as opposed to questions

regarding potential evidence-based and status-based biases against parties or

expected witnesses—some courts in other states have decided that several

possible defenses and justifications, including self-defense, are sufficiently

“controversial” that they must be specifically explored during voir dire if

requested by a party. See Griffin v. State, 389 S.W.2d 900, 902 (Ark. 1965)

(self-defense); People v. Gregg, 732 N.E.2d 1152, 1163 (Ill. App. Ct. 2000)

(“Although the insanity defense upon which the defendant relied is a

well-recognized legal defense, it remains a subject of intense controversy and
                                                                                 13

has been described as ‘a defense which is known to be subject to bias or

prejudice.’” (quoting People v. Bowel, 488 N.E.2d 995, 999 (Ill. 1986))); People

v. Taylor, 489 N.W.2d 99, 101 (Mich. Ct. App. 1992) (per curiam) (self-defense

and the use of deadly force); cf. People v. Keenan, 758 P.2d 1081, 1123

(Cal. 1988) (holding that sequestered voir dire may be required in a death

penalty case as to “potentially controversial defenses” such as self-defense).

      [¶23] The majority of the other courts that have considered whether a

requested self-defense question must be posed to potential jurors during

voir dire, however, hold that the determination is in the discretion of the trial

court based on the circumstances before it. See State v. Ebron, 975 A.2d 17,

26 & n.14 (Conn. 2009), overruled in part on other grounds by State v. Kitchens,

10 A.3d 942, 959 (Conn. 2011); see, e.g., Robinson, 475 F.2d at 380-81 (holding

that, although it may have been preferable for the trial court to inquire about

juror attitudes toward self-defense, the refusal to do so did not prejudice the

defendant’s substantial rights); Simpson v. State, 276 So. 3d 955, 958 (Fla. Dist.

Ct. App. 2019) (“This Court has recognized that no bright line rule can be

fashioned to determine the limits a trial court may impose on voir dire because

the complexities in each case are different.”); State v. Bedford, 529 N.E.2d 913,

920 (Ohio 1988) (“The scope of voir dire is within the trial court’s discretion
14

and varies depending on the circumstances of each case.”); see also Savo v. State,

382 P.3d 1179, 1182 (Alaska Ct. App. 2016) (vacating a conviction when the

court refused to allow requested voir dire when “the evidence already known

to the State provided support for th[e] claim of self-defense”).

      [¶24] We have not identified any particular defense or justification as

being sufficiently “controversial” to warrant special inquiry during jury

voir dire whenever raised and cannot now conclude that the law regarding

defense of self or others is sufficiently controversial to justify elevating its

significance above the many other potential forms of bias that could, in theory,

be the subject of specific inquiry during jury voir dire. We are not persuaded

that there exists societal bias against the law of defense of self or others to the

extent that the constitutional right to a fair trial compels specific voir dire

inquiry during jury selection. See Commonwealth v. Fisher, 290 A.2d 262, 264

(Pa. 1972) (holding that there was no evidence of widespread bias against the

self-defense justification); Commonwealth v. Morales, 800 N.E.2d 683, 694

(Mass. 2003) (“There is no reason to suspect juror prejudice against claims of

self-defense and the defendant has not shown a substantial risk of juror bias

against such a defense.”).
                                                                                                    15

       [¶25] To the extent that we have addressed voir dire about self-defense,

we affirmed a trial court’s decision not to ask the following question regarding

self-defense in a murder case:

       The law allows a person to use deadly force against another person
       in self-defense. Do you have any beliefs or opinions that would
       prevent you from applying the law of self-defense if the Court
       provided such an instruction in this case?

Burton, 2018 ME 162, ¶ 7, 198 A.3d 195 (quotation marks omitted). We held

that the proposed question was not required to ensure impartiality and that the

question about self-defense that the court did ask—which stated that the law

allowed the use of deadly force in self-defense “in certain circumstances”—was

sufficient to reveal juror bias. Id. ¶17 & n.2 (emphasis omitted) (quotation

marks omitted). We affirmed the judgment based on the adequacy of the

questions asked to determine bias and the availability of individual voir dire of

the potential jurors. Id. ¶¶ 17 & n.2, 19.

       [¶26] Unlike the jury question propounded by the court in Burton, the

three questions that Limary proposed regarding self-defense and defense of

another did not indicate that a person’s rights of self-defense and defense of

others are limited, see 17-A M.R.S. § 108(1)-(2) (2020),4 and, in that respect,


   4 At the time of the crime at issue here, subsection 3 of 17-A M.R.S. § 108 (2020) had not yet taken
effect. See P.L. 2019, ch. 462, § 2 (effective Sept. 19, 2019).
16

they failed to provide accurate statements of the law. See Burton, 2018 ME 162,

¶ 17 n.2, 198 A.3d 195. The court was justified in declining to adopt them as

phrased. See Roby, 2017 ME 207, ¶ 14, 171 A.3d 1157.

         [¶27] Although the court could well have included an appropriate

question regarding self-defense and defense of another based on Limary’s

contention that those issues would likely be generated at trial, the court did not

abuse its discretion in declining to include such a question. Limary did not

supply an evidentiary basis to establish societal bias against the law of

self-defense or defense of another, cf. Lowe, 2015 ME 124, ¶ 17, 124 A.3d 156;

it was not clear whether the evidence would generate either justification, which

increased the risk that the question would amount to improper pretrial

advocacy, see Roby, 2017 ME 207, ¶ 11, 171 A.3d 1157; and Limary’s concerns

regarding bias against the law of self-defense and defense of another were

addressed by the court’s questions about whether the jurors could follow all of

the court’s instructions, even if they disagreed with the law, including when

there had been fighting.5 Ultimately, Limary agreed that the jury that was

selected was acceptable, and there is no evidence of bias in any particular juror



    The written jury questionnaire asked jurors whether they could follow the law in five different
     5

questions.
                                                                               17

or in the jury as a whole as a result of the court’s exclusion of the requested

instructions. Because the questions asked in the questionnaire were adequate

to reveal facts that would identify any bias against applying the existing law and

there is no evidence that Limary was deprived of an impartial jury, we will not

vacate the judgment on this basis. See Burton, 2018 ME 162, ¶ 15, 198 A.3d 195.

B.    Sufficiency of the Evidence of Causation

      [¶28] Limary argues that, because the victim did not die until eighteen

days and two surgeries after the fight, the evidence cannot support a finding

that, but for Limary’s conduct, the death would not have occurred or that his

conduct was the legal cause of the victim’s death. He contends that the kick was

a “non-dispositive event” that did not, beyond a reasonable doubt, cause the

victim’s death because the victim had elective surgery and was released in

stable condition. He contends that there was no evidence that the kick caused

the bleeding that occurred on November 17, 2017.

      [¶29] When a defendant challenges the sufficiency of the evidence to

support a conviction, we view the evidence in the light most favorable to the

State to determine whether a trier of fact rationally could find beyond a

reasonable doubt each element of the offense charged. Asaad, 2020 ME 11, ¶ 8,

224 A.3d 596. “The fact-finder may draw all reasonable inferences from the
18

evidence, and decide the weight to be given to the evidence and the credibility

to be afforded to the witnesses.” Id. (quotation marks omitted).

         [¶30] “A person is guilty of manslaughter if that person . . . [r]ecklessly,

or with criminal negligence, causes the death of another human being.”

17-A M.R.S. § 203(1)(A).            Limary does not contest the sufficiency of the

evidence       that    he     acted     recklessly       or    with      criminal      negligence.

See 17-A M.R.S. § 35(3)(A), (C), (4)(A), (C) (2020) (defining “recklessly” and

“criminal negligence”). He argues only that the evidence did not permit the jury

to find beyond a reasonable doubt that his conduct caused the victim’s death.

         [¶31] At the time of the fight, the statute governing causation stated,

“Unless otherwise provided, when causing a result is an element of a crime,

causation may be found where the result would not have occurred but for the

conduct of the defendant operating either alone or concurrently with another

cause, unless the concurrent cause was clearly sufficient to produce the result

and the conduct of the defendant was clearly insufficient.” 17-A M.R.S. § 33

(2017).6




     The language regarding concurrent causation was amended, effective after the events at issue
     6

here, to state the concurrent causation standard in the affirmative and in a separate paragraph, using
simplified language:
                                                                                                   19

       [¶32]        “Section 33 expressly imposes limitations on causative

responsibility and imposes standards similar to the common law standards of

proximate cause.” State v. Snow, 464 A.2d 958, 962 (Me. 1983). Thus, the

foreseeability of events or conditions contributing to the victim’s death

becomes relevant. See State v. Shanahan, 404 A.2d 975, 983 (Me. 1979); see also

United States v. Kilmartin, 944 F.3d 315, 331 (1st Cir. 2019) (“Proximate cause

is commonly understood as a function of the foreseeability of the harm.”). In

applying section 33, “the State must prove beyond a reasonable doubt not only

that the result would not have occurred but for the conduct of the defendant,

but also that the concurrent cause was not alone clearly sufficient to produce

the result and that the conduct of the defendant was not clearly insufficient to

produce the result.” Snow, 464 A.2d at 962; see also State v. Crocker, 431 A.2d

1323, 1325 (Me. 1981).


       § 33. Result as an element; causation

           1. Unless otherwise provided, when causing a result is an element of a crime,
       causation may be found when the result would not have occurred but for the conduct
       of the defendant, operating either alone or concurrently with another cause.

          2. In cases in which concurrent causation is generated as an issue, the defendant’s
       conduct must also have been sufficient by itself to produce the result.

17-A M.R.S. § 33 (2020) (codifying P.L. 2017, ch. 432, § C-1 (emergency, effective July 4, 2018)); see
L.D. 1091, Summary (128th Legis. 2017) (“Subsection 2 contains a simplified test to be applied in the
event concurrent causation is generated as an issue. It provides that, when a defendant’s conduct
may have operated concurrently with another cause, in addition to satisfying the ‘but for’ test the
defendant’s conduct must have been sufficient by itself to produce the result . . . .”).
20

         [¶33] The evidence plainly supported a jury finding that the victim

underwent surgeries to repair injuries caused by Limary’s kick and that those

surgeries would not have occurred but for Limary’s actions. The question is

whether the evidence was sufficient for the jury to find, beyond a reasonable

doubt, that the surgeries were not the sole cause of death and that Limary’s

actions were not “clearly insufficient” to cause the death. 17-A M.R.S. § 33. In

other words, we must decide whether the medical treatment undertaken

before the victim’s death was, as a matter of law, an intervening—rather than

merely a concurrent—cause of the victim’s death, negating criminal liability.

         [¶34] We have not explicitly announced a rule regarding concurrent

versus intervening causes of death in the context of medical treatment of an

injured victim. In State v. Hachey, 278 A.2d 397, 400-01 (Me. 1971), however,

we affirmed a murder conviction when, although the victim received medical

care, including a tracheostomy, after the defendant shot him, the victim

ultimately died of infection: “Certainly [the jury] could find that the cause of the

septicemia was the entry of the bullet into the body of the decedent.” Id.7


     We reached this holding at common law because no statute equivalent to section 33 was in force
     7

until the adoption of the Maine Criminal Code in the mid-1970s. See P.L. 1975, ch. 499, § 1 (effective
Mar. 1, 1976) (codified at 17-A M.R.S.A. § 56 (1979)). As the bill’s comment reveals, the new statutory
language was taken from a proposed Massachusetts Code and based on the proposed Federal
Criminal Code. L.D. 314, § 1, cmt. to 17-A M.R.S.A. § 56 (107th Legis. 1975). The federal drafters
specifically noted that “[t]he major problem in enunciating such rules is presented by situations in
which two or more factors ‘cause’ the result.” Nat’l Comm’n on Reform of Fed. Criminal Laws, Final
                                                                                                      21

        [¶35] In other concurrent causation contexts, we similarly held that a

jury could find causation, despite other events or circumstances that may have

contributed to the victim’s death. For instance, we concluded that the evidence

was sufficient to support a manslaughter conviction when the medical

examiner testified that a wound inflicted by the defendant, which was

accompanied by other injuries not inflicted by the defendant, would eventually

have caused death if untreated.                  State v. Morelli, 493 A.2d 336, 338-40

(Me. 1985); see also State v. Cumming, 634 A.2d 953, 954, 956-57 (Me. 1993)

(affirming a murder conviction when, although the pathologist could not

distinguish which injuries resulted from the victim leaping or being pushed

from the defendant’s car and which injuries resulted from him then driving

over her, the evidence could support a jury finding that the victim was alive

when she was run over); State v. Peaslee, 571 A.2d 825, 826-27 (Me. 1990)

(affirming a vehicular manslaughter conviction when the defendant’s

passenger was thrown from the vehicle and then run over by another car

because the victim would not have been in the road if not for the defendant’s




Report 32 (1971). The section was proposed as “a modified ‘but for’ test with a proviso that excludes
those situations in which the concurrent cause was clearly sufficient to produce the result and the
accused’s conduct clearly insufficient. . . . ‘But for’ is a minimal requirement for guilt; and resolving
that question permits focusing on the more important issue of culpability as to the result caused.” Id.
22

conduct); State v. Reardon, 486 A.2d 112, 116-18 (Me. 1984) (affirming a trial

court’s finding of causation in a felony murder case because it was reasonably

foreseeable that a sixty-seven-year-old robbery victim would have a heart

attack due to the stress of the robbery, his foreseeable attempt to chase the

perpetrator, and his agitated explanation of the robbery to police); Shanahan,

404 A.2d at 983 (holding that the victim’s foreseeable conduct in attempting to

wrest the gun away from the defendant was not, “as a matter of law, an

intervening cause relieving defendant of criminal responsibility for her death”).

      [¶36] Other jurisdictions have more specifically held that when medical

treatment is provided to an injured victim, negligent treatment cannot be an

intervening cause “unless the doctor’s treatment is so bad as to constitute gross

negligence or intentional malpractice.”      1 Wayne R. LaFave, Substantive

Criminal Law § 6.4(f)(5) at 658-59 (3d ed. 2018). These courts have held that

gross negligence, which is not reasonably foreseeable, can be an intervening

cause if the fact-finder determines that the victim would have survived without

that gross negligence. See People v. Calvaresi, 534 P.2d 316, 319 (Colo. 1975)

(“[M]ere medical negligence can reasonably be foreseen. We hold, however,

that gross negligence is abnormal human behavior, would not be reasonably

foreseeable, and would constitute a defense, if, but for that gross negligence,
                                                                                               23

death would not have resulted.”); State v. Soucy, 653 A.2d 561, 565 (N.H. 1995)

(“The majority of jurisdictions . . . have adopted what has been termed a ‘sole’

cause test, under which malpractice constitutes a supervening cause only if it

was the ‘sole’ cause of the death.”); cf. State v. Jackson, 223 N.W.2d 229, 233-34

(Iowa 1974) (holding, with respect to ordinary negligence, that “[a]n injury is

the proximate cause of resulting death although the deceased would have

recovered had he been treated by the most approved surgical methods or by

more skillful methods, or with more prudent care”).

       [¶37]      Applying these generally accepted standards, courts have

concluded that a jury could find causation despite interceding medical

treatment when there was no evidence that the medical care was grossly

negligent, see People v. Saavedra-Rodriguez, 971 P.2d 223, 228-29 (Colo. 1998);

when the wound was so dangerous on its own that the medical treatment could

not have been the sole cause of death, see State v. Shabazz, 719 A.2d 440, 444-45

(Conn. 1998); Wright v. State, 374 A.2d 824, 827, 828-29 (Del. 1977); State v.

Surbaugh, 786 S.E.2d 601, 607-08, 616 (W. Va. 2016); and when nonnegligent

emergency treatment caused some bleeding but not enough to cause the

victim’s death, Neal v. State, 722 S.E.2d 765, 768 (Ga. 2012).8


   8 In contrast, a court found that the evidence was insufficient to establish causation beyond a
reasonable doubt when the victim was stabbed in the stomach and during surgery, the surgeons
24

       [¶38] Here, there is no evidence of medical negligence—much less gross

medical negligence—nor any evidence that the surgery was for any purpose

other than to treat the injuries inflicted on the victim by Limary. Cf. id. Although

there was evidence that the victim could have deferred the surgery, the surgery

was entirely foreseeable and was not cosmetic; the medical examiner opined

that the stability of the victim’s face was at risk and that, without surgery, he

would be in danger of bleeding or of the bones in his face healing badly and

impeding his breathing. The medical examiner also testified that a bone shard

could have severed multiple blood vessels and caused the type of excessive

sinus bleeding that he concluded had occurred here. Given this evidence, and

the medical examiner’s specific determination that the victim died of

“hemorrhagic complications following multiple fractures of facial bones due to

the blunt force trauma of his head,” the jury could rationally find that the

surgery was not the sole cause of the bleeding and that the damage inflicted




discovered an incarcerated hernia, which they proceeded to correct after the initial surgery. People
v. Stewart, 358 N.E.2d 487, 489-90 (N.Y. 1976). During that second surgical procedure, the victim
went into cardiac arrest. Id. at 490. The medical examiner testified that the cardiac arrest could have
been caused by the shock of the stab wound or by the physical strain of either operation; he also
testified that the anesthesiologist’s report and surgeons’ report were contradictory about whether
the anesthesiologist had failed to deliver oxygen to the victim, which alone could have caused the
victim’s death. Id. at 490-91. The court concluded that it could not be ruled out as a possibility that
the hernia operation had caused the victim’s death, “certainly not beyond a reasonable doubt.” Id.
at 492.
                                                                                25

through the kick was not “clearly insufficient” to cause death. See 17-A M.R.S.

§ 33.

        [¶39] Based on the evidence in the record, the jury could rationally find

beyond a reasonable doubt that (1) the victim’s death “would not have occurred

but for the conduct of the defendant, operating either alone or concurrently

with another cause”; and (2) the medical care was not “clearly sufficient,” and

the kick to the victim’s face was not “clearly insufficient,” to cause the victim’s

death. 17-A M.R.S. § 33; see Calvaresi, 534 P.2d at 319; Soucy, 653 A.2d at 565.

We therefore affirm the judgment of conviction.

        The entry is:

                           Judgment affirmed.



Hunter J. Tzovarras, Esq., Bangor, for appellant Jonathan Limary

Aaron M. Frey, Attorney General, and Katie Sibley, Asst. Atty. Gen., Office of the
Attorney General, Augusta, for appellee State of Maine


Aroostook County Unified Criminal Docket docket number CR-2018-12
FOR CLERK REFERENCE ONLY
