MAINE	SUPREME	JUDICIAL	COURT	                                          Reporter	of	Decisions	
Decision:	    2017	ME	180	
Docket:	      Yor-16-548	
Submitted	
  On	Briefs:	 July	19,	2017	
Decided:	     August	15,	2017	
	
Panel:	       SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HJELM,	JJ.	
	
	
                                   STATE	OF	MAINE	
                                            	
                                          v.	
                                            	
                                    JOHN	T.	SIMONS	
	
	
MEAD,	J.	

       [¶1]		John	T.	Simons	appeals	from	a	judgment	of	conviction	of	operating	

under	the	influence	(Class	B),	29-A	M.R.S.	§	2411(1-A)(D)(2)	(2016),	entered	

by	the	trial	court	(York	County,	Driscoll,	J.)	following	a	jury	trial.		Simons	asserts	

that	(1)	the	court	erred	when	it	denied	his	motion	to	suppress	evidence	from	

the	 traffic	 stop,	 (2)	 the	 court	 improperly	 allowed	 testimony	 regarding	 his	

performance	 on	 the	 horizontal	 gaze	 nystagmus	 (HGN)	 test,	 (3)	 there	 was	

insufficient	evidence	to	support	his	conviction,	and	(4)	the	court	erred	when	it	

determined	that	prospective	jurors	were	impartial.		We	affirm	the	judgment.	

                                    I.		BACKGROUND	

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

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

Hinkel,	 2017	 ME	 76,	 ¶	 2,	 159	 A.3d	 854.	 	 On	 November	 17,	 2015,	 around	

9:45	p.m.,	Officer	Gregory	Caldwell	of	the	Kittery	Police	Department	observed	

a	vehicle	leave	the	parking	lot	of	a	bar	and	enter	a	traffic	rotary.		He	followed	

the	vehicle	and	observed	it	accelerate	quickly	to	forty-two	miles	per	hour	in	a	

twenty-five-miles-per-hour	zone.		After	following	the	vehicle	for	approximately	

100	yards,	Caldwell	turned	on	his	emergency	lights	to	effectuate	a	traffic	stop;	

the	vehicle	pulled	over	after	travelling	about	another	quarter	mile.	

	     [¶3]	 	 Caldwell	 approached	 the	 car	 and	 requested	 insurance	 and	

registration	documents;	he	identified	the	driver	as	John	Simons	using	Simons’s	

driver’s	license.		He	observed	Simons’s	hands	to	be	“very	shaky”	when	Simons	

was	searching	for	his	registration	and	insurance	documents.		Caldwell	detected	

a	strong	odor	of	mint	coming	from	Simons’s	car	and	breath,	and	he	noticed	a	

can	of	mints	in	the	car.		From	his	training,	Caldwell	knew	that	drivers	who	have	

been	 drinking	 may	 use	 mints	 to	 attempt	 to	 disguise	 the	 odor	 of	 intoxicants.		

Simons	told	the	officer	that	he	was	coming	from	a	nearby	bar	where	he	was	a	

“door	 guy.”	 	 Caldwell	 took	 the	 paperwork	 to	 his	 police	 cruiser	 where	 he	

reviewed	it.		Upon	returning	to	Simons’s	vehicle,	he	smelled	the	odor	of	alcohol	

emanating	from	Simons’s	breath	and	inside	the	car.		Simons	told	Caldwell	that	

he	had	been	drinking	but	had	stopped	at	5:00	p.m.		Caldwell	asked	Simons	if	he	
                                                                                                   3	

was	 willing	 to	 perform	 field	 sobriety	 tests	 to	 make	 sure	 that	 he	 was	 safe	 to	

drive.		Simons	agreed,	and	he	“stumbled	quickly	but	caught	his	balance”	when	

getting	out	of	the	car.		Outside	the	car,	Caldwell	could	smell	alcohol	on	Simons’s	

breath	from	three	to	four	feet	away.	

	       [¶4]		Caldwell	first	led	Simons	through	the	HGN	test.		Simons	swayed	in	

small	circular	motions	throughout	the	test,	and	Caldwell	could	smell	the	odor	

of	intoxicants	on	Simons’s	breath	and	observed	clues	of	impairment	on	the	test.		

He	 next	 had	 Simons	 perform	 the	 walk-and-turn	 test,	 during	 which	 Simons	

“stepped	out	of	the	instructional	phase	position	on	multiple	occasions”	despite	

being	told	to	remain	in	that	position,	lost	his	balance	and	broke	the	heel-to-toe	

position,	lifted	his	arms	up	more	than	six	inches	to	keep	his	balance,	took	a	step	

off	the	line,	did	not	touch	his	heel	to	his	toe	on	several	steps,	and	failed	to	turn	

properly.	 	 Caldwell	 then	 had	 Simons	 complete	 the	 one-leg-stand	 test.	 	 He	

observed	Simons	sway	and	raise	his	arms	higher	than	six	inches	from	his	sides	

to	 keep	 his	 balance	 during	 the	 test.	 	 Caldwell	 arrested	 Simons	 for	 operating	

under	the	influence.1	




    1		Caldwell	subsequently	administered	a	breath	test	to	Simons,	but	the	court	ruled	that	the	test	

results	were	inadmissible	due	to	an	improper	observation	period	that	compromised	the	reliability	of	
the	test.	
4	

	     [¶5]		On	June	9,	2016,	Simons	filed	a	motion	to	suppress	evidence	from	

the	traffic	stop.		Following	a	hearing,	the	court	(Driscoll,	J.)	denied	the	motion.		

The	court	found	the	following	facts.		Caldwell	observed	Simons	enter	a	traffic	

rotary	and	accelerate	to	seventeen	miles	per	hour	over	the	speed	limit,	and	that	

Simons	drove	for	a	quarter	mile	after	Caldwell	activated	his	emergency	lights.		

Caldwell	 did	 not,	 however,	 observe	 Simons	 operate	 his	 vehicle	 “in	 a	 manner	

that	 would	 [imply]	 or	 raise	 the	 issue	 of	 impaired	 driving.”	 	 Simons	 “fumbled	

somewhat”	 when	 producing	 his	 paperwork,	 and	 Caldwell	 initially	 smelled	 a	

strong	odor	of	mint	and	saw	a	container	of	mints	in	the	car	but	“did	not	smell	

alcohol,	observe	bloodshot	eyes	or	any	other	indicia	of	impairment	or	alcohol	

consumption.”	 	 However,	 when	 Caldwell	 returned	 to	 Simons’s	 vehicle,	 he	

“smelled	 the	 odor	 of	 alcohol	 from	 the	 vehicle.”	 	 He	 asked	 Simons	 if	 he	 had	

anything	 to	 drink	 that	 night;	 Simons	 responded	 that	 he	 last	 had	 a	 drink	 at	

5:00	p.m.	and	was	a	door	person	at	a	nearby	bar.		To	isolate	the	source	of	the	

smell	of	alcohol,	Caldwell	asked	Simons	if	he	would	step	out	of	the	car.		Simons	

complied,	and	Caldwell	administered	field	sobriety	tests.		The	court	found	that	

Caldwell	 was	 credible	 and	 concluded	 that	 he	 had	 a	 reasonable	 articulable	

suspicion	of	facts	sufficient	to	support	both	the	traffic	stop	for	speeding,	and,	as	
                                                                                                5	

the	 situation	 evolved,	 asking	 Simons	 to	 get	 out	 of	 the	 car	 and	 perform	 field	

sobriety	tests.	

	       [¶6]		Jury	selection	was	held	on	October	25,	2016.		As	part	of	voir	dire,	

prospective	jurors	were	directed	to	complete	a	questionnaire2	that	included	the	

following	question:		

        14.		A	person	accused	of	a	crime	should	be	required	to	present	at	
        least	some	evidence	to	prove	their	innocence.		(Please	circle	one.)	
        	
              Agree	_______		   	     Disagree	_______	
	

Eighteen	 prospective	 jurors	 answered	 “Agree.”	 	 The	 court	 (Fritzsche,	 J.)	

individually	 interviewed	 each	 prospective	 juror	 who	 answered	 in	 the	

affirmative	to	inquire	further	as	to	their	beliefs	and	ability	to	follow	the	court’s	

instructions.		Simons	objected	to	this	process,	expressing	his	concern	that	those	

jurors	could	not	be	rehabilitated.	

	       [¶7]	 	 When	 questioned	 by	 both	 the	 court	 and	 counsel,	 several	 jurors	

indicated	 that	 they	 were	 confused	 by	 the	 question	 and	 had	 answered	

incorrectly	and	confirmed	during	the	colloquy	that	they	could	follow	the	court’s	

instructions	on	the	law.		The	court	excused	several	jurors	for	cause	after	they	

confirmed	the	belief	that	a	defendant	should	present	evidence	of	innocence	or	


    2		The	record	indicates	that	the	questionnaire	was	prepared	by	both	Simons	and	the	State,	who	

“were	able	to	negotiate	and	work	through	and	produce	th[e]	questionnaire	by	agreement.”	
6	

seemed	 hesitant	 about	 whether	 they	 could	 follow	 the	 court’s	 instructions.		

Simons	 objected	 to	 only	 one	 additional	 prospective	 juror	 on	 the	 basis	 of	 her	

response	to	Question	14,	and	that	juror	was	also	excused	for	cause	by	the	court.		

Seven	 jurors	 who	 had	 answered	 Question	 14	 affirmatively	 were	 eliminated	

during	 the	 exercise	 of	 Simons’s	 and	 the	 State’s	 peremptory	 challenges.	 	 See	

M.R.U.	Crim.	P.	24(c).		Of	the	jurors	who	were	ultimately	impaneled,	four	had	

initially	 answered	 “Agree”	 to	 Question	 14;	 two	 of	 those	 jurors	 later	 told	 the	

court	 that	 they	 misread	 the	 question	 and	 intended	 to	 “Disagree,”	 and	 two	

indicated	that	they	were	confused	by	the	question	and	could	follow	the	court’s	

instructions	on	the	law.		Simons	did	not	object	to	those	jurors	being	seated.	

	     [¶8]	 	 Immediately	 prior	 to	 the	 commencement	 of	 the	 trial,	 the	 court	

(Driscoll,	J.)	and	counsel	discussed	various	pretrial	matters	including	Simons’s	

objection,	based	upon	lack	of	foundation,	to	Caldwell	testifying	about	Simons’s	

performance	on	the	HGN	test	because	Caldwell	was	not	certified	as	“proficient”	

at	that	test.		The	court	ruled	that	the	testimony	would	be	admissible,	concluding	

that	the	issue	of	whether	or	not	Caldwell	was	certified	as	proficient	went	to	the	

weight—not	the	admissibility—of	the	evidence.	

	     [¶9]		At	the	trial,	the	jury	heard	testimony	from	Caldwell.		In	addition	to	

testifying	to	the	facts	set	forth	herein,	Caldwell	testified	that	he	had	been	with	
                                                                                                        7	

the	 Kittery	 Police	 Department	 since	 January	 2015	 and	 had	 completed	 an	

eighteen-week	program	at	the	Maine	Criminal	Justice	Academy.		An	entire	week	

of	 his	 training	 focused	 on	 operating	 under	 the	 influence	 and	 included	 both	

classroom	 and	 first-hand,	 hands-on	 training.	 	 Caldwell	 was	 taught	 the	

procedures	 for	 the	 HGN,	 walk-and-turn,	 and	 one-leg-stand	 tests;	 a	 manual	

concerning	 detecting	 OUI	 was	 part	 of	 his	 curriculum.	 	 At	 the	 time	 of	 his	

interaction	 with	 Simons,	 Caldwell	 was	 in	 the	 process	 of	 being	 deemed	

“proficient”	at	the	HGN	test	by	the	Academy.	

	       [¶10]		Following	two	days	of	deliberations,	the	jury	returned	a	verdict	of	

guilty.		The	court	entered	a	judgment	of	conviction	on	the	verdict,	from	which	

Simons	now	appeals.3		See	M.R.	App.	P.	2.	

                                          II.		DISCUSSION	

A.	     Motion	to	Suppress	

	       [¶11]		Simons	asserts	that	the	court	erred	in	determining	that	Caldwell	

had	a	reasonable	articulable	suspicion	supporting	his	request	that	Simons	exit	




    3		Simons	was	convicted	pursuant	to	29-A	M.R.S.	§	2411(1-A)(D)(2)	(2016)	because	he	had	a	prior	

Class	C	conviction	for	operating	under	the	influence.		The	court	sentenced	Simons	to	eight	years	of	
imprisonment,	with	all	but	eighteen	months	suspended;	three	years	of	probation;	a	ten-year	license	
suspension;	 and	 a	 $2,100	 fine.	 	 The	 Sentence	 Review	 Panel	 denied	 Simons	 leave	 to	 appeal	 his	
sentence.		State	v.	Simons,	No.	SRP-16-549	(Me.	Sent.	Rev.	Panel	Jan.	26,	2017).	
   	
8	

his	 vehicle	 and	 perform	 field	 sobriety	 tests,	 and	 thus	 erred	 in	 denying	 his	

motion	to	suppress.4	

	        [¶12]		“[A]	field	sobriety	test,	like	any	other	investigatory	stop,	must	be	

based	 on	 specific	 and	 articulable	 facts	 which,	 taken	 together	 with	 rational	

inferences	from	those	facts,	reasonably	warrant	that	intrusion.”		State	v.	Wood,	

662	A.2d	919,	920	(Me.	1995)	(quotation	marks	omitted).		At	the	time	of	making	

an	 investigatory	 stop,	 a	 police	 officer	 must	 have	 “an	 articulable	 suspicion,	

objectively	reasonable	in	light	of	all	the	circumstances,	that	the	object	of	the	

search	has	committed	or	is	about	to	commit	a	crime.”		Id.		Whether	an	officer	

had	an	articulable	“subjective	suspicion	of	operating	under	the	influence	and	

the	facts	upon	which	that	suspicion	is	based	are	factual	findings	reviewed	for	

clear	error,”	State	v.	King,	2009	ME	14,	¶	6,	965	A.2d	52,	and	we	will	affirm	the	

court’s	 finding	 if	 it	 is	 supported	 by	 “any	 competent	 evidence	 in	 the	 record,”	

State	v.	McPartland,	2012	ME	12,	¶	13,	36	A.3d	881.		“[T]he	determination	of	

whether	the	suspicion	was	objectively	reasonable	is	a	legal	conclusion	that	we	

review	de	novo.”		King,	2009	ME	14,	¶	6,	965	A.2d	52.		“The	only	requirement	

we	have	imposed	on	the	reasonable	articulable	suspicion	standard	is	that	an	




     4		Simons	does	not	challenge	the	initial	stop	of	his	vehicle	for	speeding.	
                                                                                      9	

officer’s	 suspicion	 be	 more	 than	 mere	 speculation	 or	 an	 unsubstantiated	

hunch.”		State	v.	Porter,	2008	ME	175,	¶	11,	960	A.2d	321.	

	     [¶13]	 	 Here,	 the	 suppression	 court	 found	 that	 Simons	 admitted	 to	

Caldwell	that	he	had	been	drinking	that	evening;	that	Caldwell	had	observed	

Simons	fumble	with	his	documents	and	smelled	alcohol	coming	from	Simons’s	

vehicle;	and	that	Caldwell	observed	Simons	driving	seventeen	miles	per	hour	

over	the	speed	limit.		Caldwell	also	testified	that	he	asked	Simons	to	exit	the	car	

and	perform	field	sobriety	tests	in	order	to	“make	sure	that	[Simons]	was	safe	

to	drive,”	supporting	the	trial	court’s	implicit	conclusion	that	Caldwell	harbored	

a	subjective	belief	that	Simons	was	impaired.		The	motion	court	did	not	err	in	

finding	 that	 Caldwell	 entertained	 a	 reasonable	 articulable	 suspicion	 that	

Simons	 was	 impaired,	 thus	 justifying	 the	 administration	 of	 the	 field	 sobriety	

tests.		See	State	v.	Sylvain,	2003	ME	5,	¶	18,	814	A.2d	984	(concluding	that	it	was	

“objectively	reasonable	for	[an]	officer	to	entertain	a	suspicion	that	[a]	driver	

may	 be	 impaired	 by	 .	 .	 .	 alcohol”	 when	 the	 officer	 observed	 the	 driver’s	

bloodshot	eyes	and	the	driver	admitted	to	consuming	two	beers);	cf.	State	v.	

Nelson,	 638	 A.2d	 720,	 722	 (Me.	 1994)	 (determining	 that	 there	 was	 “a	 clear	

deficiency	 in	 the	 evidence	 supporting	 the	 reasonableness	 of	 [an	 officer’s]	

suspicion”	that	a	defendant	was	operating	under	the	influence	when	“the	officer	
10	

observed	 nothing	 to	 support	 his	 suspicion”	 other	 than	 the	 defendant’s	

“consumption	of	a	single	can	of	beer	over	the	course	of	nearly	one	hour”).		The	

court	did	not	err	by	denying	Simons’s	motion	to	suppress	evidence	from	the	

traffic	stop.	

B.	    HGN	Test	

	      [¶14]		Simons	contends	that	the	court	erred	by	allowing	the	jury	to	hear	

evidence	 regarding	 his	 performance	 on	 the	 HGN	 test	 because	 the	 proper	

foundation	 for	 its	 admission	 was	 not	 established,	 compromising	 the	 test’s	

reliability.	 	 We	 review	 an	 evidentiary	 ruling	 “for	 clear	 error	 and	 an	 abuse	 of	

discretion.”		Hinkel,	2017	ME	76,	¶	7,	159	A.3d	854.	

	      [¶15]		We	have	taken	judicial	notice	of	the	reliability	of	the	HGN	test	“for	

purposes	of	establishing	criminal	guilt	in	cases	involving	operating	under	the	

influence,”	 and	 concluded	 that	 “the	 results	 of	 [an]	 HGN	 test	 should	 be	

admissible	 if	 a	 proper	 foundation	 is	 laid	 for	 their	 introduction	 in	 evidence.”		

State	 v.	 Taylor,	 1997	 ME	 81,	 ¶¶	 10,	 12,	 694	 A.2d	 907.	 	 A	 proper	 foundation	

consists	of	two	elements:	evidence	that	the	officer	who	administered	the	test	

“is	 trained	 in	 the	 procedure,”	 and	 evidence	 that	 “the	 test	 was	 properly	

administered.”	 	 Id.	 ¶	 12.	 	 In	 Taylor,	 we	 determined	 that	 an	 officer	 who	 “was	

trained	at	a	three-day	course	taught	by	instructors	and	has	tested	numerous	
                                                                                   11	

subjects	both	in	the	field	and	in	controlled	situations”	was	qualified	to	testify	as	

an	expert	on	the	HGN	test.		Id.	¶	12	n.9.		More	recently,	in	State	v.	Hinkel,	we	held	

that	the	State	laid	a	proper	foundation	pursuant	to	Taylor	when	the	officers	who	

administered	 the	 HGN	 test	 “testified	 that	 they	 graduated	 from	 the	

Maine	 Criminal	 Justice	 Academy,	 where	 they	 received	 training	 on	 the	

administration	of	field	sobriety	tests,	including	the	HGN	test.”		2017	ME	76,	¶	8,	

159	A.3d	854.	

	     [¶16]	 	 Here,	 Caldwell	 testified	 that	 he	 completed	 a	 program	 at	 the	

Maine	 Criminal	 Justice	 Academy	 where	 he	 received	 both	 classroom	 and	

hands-on	training	on	field	sobriety	tests,	including	the	HGN	test.		Accordingly,	

we	 conclude	 that	 the	 court	 did	 not	 err	 in	 determining	 that	 Caldwell	 was	

qualified	to	testify	as	an	expert	on	the	test.		Regarding	the	second	element	of	

the	 necessary	 foundation,	 Caldwell	 testified	 in	 detail	 concerning	 how	 he	

administered	the	HGN	test	to	Simons,	and	Simons	points	to	no	record	evidence	

demonstrating	 how	 the	 HGN	 test	 administered	 by	 Caldwell	 deviated	 from	

standards	 prescribed	 in	 the	 National	 Highway	 Traffic	 Safety	 Administration	

manual.		See	id.	¶	9.		Even	if	he	had,	an	officer’s	“failure	to	strictly	adhere	to	the	

specific	 procedures	 promulgated	 by	 NHTSA	 does	 not	 render	 evidence	

regarding	 those	 field	 sobriety	 tests	 inadmissible,”	 and	 Simons	 was	 free	 to	
12	

cross-examine	Caldwell	about	any	failures	to	adhere	to	protocol.		Id.	(quotation	

marks	 omitted).	 	 Therefore,	 the	 court	 did	 not	 err	 or	 abuse	 its	 discretion	 in	

admitting	evidence	regarding	the	HGN	testing.	

C.	   Sufficiency	of	the	Evidence	

	     [¶17]		Simons	asserts	that	there	was	insufficient	evidence	to	support	his	

conviction	for	operating	under	the	influence.		“When	determining	whether	the	

record	 contained	 enough	 evidence	 to	 support	 a	 criminal	 defendant’s	

conviction,	 we	 view	 the	 evidence	 in	 the	 light	 most	 favorable	 to	 the	 State	 to	

determine	 whether	 the	 fact-finder	 could	 rationally	 find	 every	 element	 of	 the	

offense	 beyond	 a	 reasonable	 doubt.”	 	 State	 v.	 Atkins,	 2015	 ME	 162,	 ¶	 20,	

129	A.3d	952	(quotation	marks	omitted).		The	fact-finder	is	permitted	to	“draw	

all	reasonable	inferences	from	the	evidence.”		State	v.	Soucy,	2012	ME	16,	¶	10,	

36	A.3d	910	(quotation	marks	omitted).		Testimony	that	the	defendant	showed	

indications	 of	 intoxication	 “can	 be	 sufficient	 to	 support	 a	 finding	 that	 the	

defendant	 was	 under	 the	 influence.”	 	 State	 v.	 McCurdy,	 2002	 ME	 66,	 ¶	 10,	

795	A.2d	84.		The	jury	may	also	consider	a	defendant’s	performance	on	field	

sobriety	 tests	 as	 evidence	 of	 intoxication,	 though	 such	 performance	 is	 not	

dispositive	of	guilt.		See	State	v.	Fay,	2015	ME	160,	¶	7,	130	A.3d	364;	Taylor,	
                                                                                                13	

1997	 ME	 81,	 ¶	 13,	 694	 A.2d	 907	 (stating	 that	 results	 of	 an	 HGN	 test	 are	

admissible	as	circumstantial	evidence	of	a	defendant’s	intoxication).	

	       [¶18]	 	 Here,	 the	 jury	 heard	 testimony	 that	 Simons	 was	 speeding,	 had	

admitted	 to	 drinking	 earlier	 in	 the	 evening,	 had	 the	 smell	 of	 alcohol	 on	 his	

breath,	fumbled	when	handling	documents,	stumbled	when	exiting	his	vehicle,	

and	 performed	 poorly	 on	 three	 field	 sobriety	 tests.	 	 There	 was	 sufficient	

evidence	in	the	record	for	the	jury	to	rationally	find,	beyond	a	reasonable	doubt,	

that	 Simons	 operated	 a	 vehicle	 while	 impaired,	 “however	 slightly	 or	 to	 any	

extent,”	by	alcohol.5		See	Atkins,	2015	ME	162,	¶	1,	129	A.3d	952;	29-A	M.R.S.	

§	2411(1-A)(D)(2);	see	also	Hinkel,	2017	ME	76,	¶¶	2-5,	13,	159	A.3d	854;	State	

v.	Just,	2007	ME	91,	¶¶	4,	9-10,	18,	926	A.2d	1173;	McCurdy,	2002	ME	66,	¶	11,	

795	A.2d	84.	

D.	     Juror	Impartiality	

	       [¶19]		Simons	asserts	that	the	court	erred	in	concluding,	after	conducting	

a	more	extensive	colloquy	with	the	jurors,	that	jurors	who	initially	answered	

“Agree”	 to	 Question	 14	 on	 the	 juror	 questionnaire	 were	 impartial.		

We	 ordinarily	 review	 “the	 trial	 court’s	 finding	 of	 juror	 impartiality	 for	 clear	



    5		At	trial,	Simons	stipulated	to	his	prior	OUI	conviction,	and	the	judgment	and	commitment	for	

that	conviction	was	admitted	in	evidence	by	agreement,	although	the	document	was	not	presented	
to	the	jury.		See	State	v.	Atkins,	2015	ME	162,	¶	21	n.5,	129	A.3d	952.	
14	

error”	and	“the	conduct	of	voir	dire	for	an	abuse	of	discretion.”		State	v.	Holland,	

2009	ME	72,	¶	49,	976	A.2d	227.		However,	because	Simons	did	not	object	to	

any	of	the	jurors	who	were	impaneled,	our	review	of	the	jurors’	impartiality	is	

for	obvious	error.		See	State	v.	Logan,	2014	ME	92,	¶	16,	97	A.3d	121;	State	v.	

Lovejoy,	2014	ME	48,	¶	19,	89	A.3d	1066.		The	court’s	determination	of	juror	

impartiality	“is	accorded	substantial	deference	because	of	the	[court]’s	ability	

to	observe	the	juror	and	assess	credibility.”		State	v.	DePhilippo,	628	A.2d	1057,	

1059	(Me.	1993)	(quotation	marks	omitted).	

	      [¶20]	 	 “When	 a	 juror’s	 impartiality	 is	 questioned,	 the	 court	 should	

interview	 the	 juror	 to	 determine	 whether	 it	 is	 satisfied	 with	 the	 juror’s	

ability	.	.	.	to	 participate	 in	 reaching	 a	 verdict	 based	 on	 the	 evidence	 and	 the	

law.”	 	 State	 v.	 Rollins,	 2008	 ME	 189,	 ¶	 12,	 961	 A.2d	 546	 (quotation	 marks	

omitted).		A	juror’s	assurance	to	the	court	that	he	or	she	could	be	impartial	is	

significant	 in	 this	 determination.	 	 See	 State	 v.	 Dyer,	 2007	 ME	 118,	 ¶	 15,	

930	A.2d	1040;	see	also	Rollins,	2008	ME	189,	¶	12,	961	A.2d	546.	

	      [¶21]		Here,	the	court	individually	interviewed	each	potential	juror	who	

had	 answered	 “Agree”	 to	 Question	 14,	 and	 counsel	 for	 both	 Simons	 and	 the	

State	also	had	the	opportunity	to	question	each	prospective	juror	about	his	or	

her	response.		Of	the	four	jurors	who	answered	Question	14	affirmatively	and	
                                                                                                     15	

were	ultimately	impaneled,	when	questioned,	two	said	that	they	had	misread	

the	question	and	intended	to	“Disagree”	with	the	statement	in	Question	14,	and	

the	other	two	expressed	confusion	about	the	question	and	expressly	indicated	

that	 they	 could	 follow	 the	 court’s	 instructions	 on	 the	 law.6	 	 Therefore,	

considering	 both	 the	 record	 evidence	 and	 our	 deference	 to	 the	 court’s	

determination	 of	 juror	 impartiality,	 we	 conclude	 that	 there	 was	 neither	 an	

abuse	of	discretion	in	the	way	the	court	conducted	voir	dire	nor	obvious	error	

in	the	court’s	conclusion	that	the	jurors	were	impartial.	

	       [¶22]	 	 Nonetheless,	 we	 note	 with	 disapproval	 the	 use	 of	 a	 voir	 dire	

question	that	presents	an	utterly	incorrect	statement	of	law	and	asks	jurors	to	

agree	 or	 disagree	 with	 the	 policy	 pronouncement	 contained	 therein.		

Regardless	of	whether	an	individual	juror	may	disagree	with	an	aspect	of	law,	

the	 true	 objective	 of	 voir	 dire	 is	 to	 determine	 whether	 jurors	 are	 able	 to	 be	

impartial	and	follow	the	court’s	instructions	on	the	law,	even	if	the	juror	may	



    6		At	trial,	Simons	was	apparently	persuaded	that	the	impaneled	jurors	were	impartial,	as	he	stated	

in	his	opening	argument:		
   	
        [O]ne	of	the	reasons	why	we	chose	all	thirteen	of	you	is	because	you	all	universally	
        rejected	two	hypotheticals.		The	first	one	was:	if	someone	is	charged	with	a	crime,	
        they’re	probably	guilty.		You	all	universally	said	you	disagreed	with	that.	.	.	.	And	you	
        all	universally	rejected	the	notion	that	if	someone	is	charged	with	a	crime,	they	should	
        show	some	evidence	of	their	innocence.		You	universally	rejected	that.		That’s	one	of	
        the	reasons	why	the	thirteen	of	you	are	on	this	jury.		And	that’s	important	because,	
        without	realizing	it,	you	all	actually	embraced	a	foundational	bedrock	principle	of	our	
        legal	system	and	that	is	a	person	charged	with	a	crime	is	presumed	to	be	innocent.	
16	

disagree	with	the	particular	law.		See	Alexander,	Maine	Jury	Instruction	Manual	

§	2-3	at	2-5	(2017	ed.)	(“The	predominant	purpose	of	questions	asked	of	jurors,	

whether	oral	or	written,	must	be	development	of	information	supporting	the	

objective	of	impaneling	a	qualified	and	impartial	jury.”).		“Questions	that	are	

unrelated	 to	 a	 prospective	 juror’s	 knowledge,	 bias,	 or	 predisposition	 .	 .	 .	 are	

improper.”		Id.		Specifically,	questions	that	“cause[]	the	prospective	jurors	to	

adopt	a	position	on	the	law	without	the	benefit	of	the	court’s	instructions,	and	

without	reference	to	the	jurors’	duty	to	apply	the	law	as	instructed	and	not	as	

each	juror	saw	fit,”	are	not	appropriate	questions.		Grover	v.	Boise	Cascade	Corp.,	

2004	 ME	 119,	 ¶	 20,	 860	 A.2d	 851.	 	 The	 introduction	 of	 an	 erroneous	 legal	

concept	 presents	 the	 danger	 that	 jurors	 may	 continue	 to	 consider	 and	

ultimately	embrace	the	erroneous	notion.		We	note	finally	that	asking	a	juror	to	

agree	 or	 disagree	 with	 a	 legal	 tenet	 injects	 unnecessary	 confusion	 into	 an	

already	intrusive	process.	

	      The	entry	is:	

	      	      	      Judgment	affirmed.	
	
	      	      	      	      	      	
	
	                           	
                                                                                17	

Tina	 Heather	 Nadeau,	 Esq.,	 The	 Law	 Office	 of	 Tina	 Heather	 Nadeau,	 PLLC,	
Portland,	for	appellant	John	T.	Simons	
	
Kathryn	Loftus	Slattery,	District	Attorney,	and	Nicholas	Heimbach,	Asst.	Dist.	
Atty.,	Prosecutorial	District	#1,	Alfred,	for	appellee	State	of	Maine	
	
	
York	County	Unified	Criminal	Docket	docket	number	CR-2015-544	
FOR	CLERK	REFERENCE	ONLY	
	
