MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2019	ME	46	
Docket:	   Pen-18-195	
Argued:	   February	5,	2019	
Decided:	  March	28,	2019	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                  STATE	OF	MAINE	
                                          	
                                         v.	
                                          	
                                  KEVIN	ROBINSON	
	
	
SAUFLEY,	C.J.	

      [¶1]		Kevin	Robinson	appeals	from	a	judgment	of	conviction	entered	by	

the	trial	court	(Penobscot	County,	Jordan,	J.)	after	a	jury	found	him	guilty	of	two	

counts	 of	 aggravated	 trafficking	 of	 scheduled	 drugs	 (Class	 A),	 17-A	 M.R.S.	

§	1105-A(1)(B)(1)	(2018).		Robinson	challenges	the	court’s	initial	instructions	

to	the	jury	and	the	process	employed	in	the	polling	of	the	jurors.		We	affirm	the	

judgment.	

	     [¶2]		Robinson	was	charged	with	two	counts	of	aggravated	trafficking	of	

scheduled	 drugs	 based	 on	 allegations	 that	 he	 twice	 sold	 cocaine	 to	 a	

confidential	informant	and	had	one	or	more	prior	convictions	of	drug	crimes.		

See	id.		As	is	a	common	practice,	Robinson,	with	the	advice	of	counsel,	initially	

stipulated	to	the	existence	of	a	prior	conviction	in	another	state	“for	engaging	
2	

in	substantially	similar	conduct	to”	a	Maine	Class	A,	 B,	or	C	drug	offense.		Id.	

§	1105-A(1)(B).	 	 On	 the	 second	 day	 of	 trial,	 however,	 Robinson	 determined	

that,	rather	than	stipulating	to	a	prior	conviction	or	waiving	the	right	to	a	jury	

trial	on	that	question	and	having	the	court	serve	as	fact-finder,	he	wanted	to	

have	the	allegation	of	a	prior	conviction	tried	to	the	jury.		

	        [¶3]		Consistent	with	Maine	Rule	of	Unified	Criminal	Procedure	26(e),	the	

court	 bifurcated	 the	 jury	 trial	 so	 that	 the	 jury	 would	 not	 receive	 evidence	

regarding	 the	 prior	 conviction	 unless	 and	 until	 the	 jury	 found	 him	 guilty	 of	

either	of	the	new	charges.1		At	the	end	of	the	first	segment	of	the	trial—the	trial	

on	whether	Robinson	unlawfully	trafficked	in	scheduled	drugs—the	jury	found	

Robinson	guilty	of	both	counts.		With	the	same	jury,	the	court	then	held	a	trial	

on	the	allegation	of	a	prior	conviction,	and	the	jury	determined	that	Robinson	

had	been	convicted	of	the	prior	crime.		See	M.R.U.	Crim.	P.	26(e);	State	v.	Hastey,	

2018	ME	147,	¶	29	&	n.19,	196	A.3d	432.		The	process	employed	by	the	court,	

notwithstanding	 Robinson’s	 mid-trial	 change	 of	 mind,	 was	 consistent	 with	


     1		“In	a	trial	to	a	jury	in	which	the	prior	conviction	is	for	a	crime	that	is	identical	to	the	current	

principal	 crime	 or	 is	 sufficiently	 similar	 that	 knowledge	 of	 the	 fact	 that	 the	 defendant	 has	 been	
convicted	of	the	prior	crime	may,	in	the	determination	of	the	presiding	justice,	unduly	influence	the	
ability	of	the	jury	to	determine	guilt	fairly,	that	portion	of	the	charge	alleging	the	prior	conviction	
shall	not	be	read	to	a	jury	until	after	conviction	of	the	principal	crime,	nor	shall	the	defendant	be	tried	
on	 the	 issue	 of	 whether	 he	 or	 she	 was	previously	convicted	 until	 after	 conviction	 of	the	 principal	
crime,	 unless	 the	 prior	 conviction	 has	 been	 admitted	 into	 evidence	 for	 another	 reason.”	 	 M.R.U.	
Crim.	P.	26(e).	
                                                                                        3	

court	rules	and	effective	jury	management,	and	is	not	challenged	by	Robinson	

on	appeal.	

	     [¶4]	 	 Robinson	 does,	 however,	 challenge	 the	 court’s	 use	 of	 the	 term	

“aggravated”	 in	 informing	 the	 jury	 of	 each	 charge	 at	 the	 beginning	 of	 trial.		

Robinson	neither	asked	the	court	not	to	use	that	term	nor	objected	when	the	

court	 referred	 to	 the	 charges	 as	 aggravated	 trafficking.	 	 Thus,	 we	 review	 for	

obvious	error.		See	State	v.	Fox,	2014	ME	136,	¶	22,	105	A.3d	1029.	

	     [¶5]	 	 Reviewing	 the	 court’s	 introductory	 remarks	 to	 the	 jury	 in	 their	

entirety,	 the	 court’s	 use	 of	 the	 term	 “aggravated”	 in	 one	 sentence	 did	 not	

constitute	 obvious	 error	 affecting	 Robinson’s	 substantial	 rights.	 	 See	 id.		

Trafficking	may	be	“aggravated”	by	many	factors	other	than	the	existence	of	a	

prior	 conviction;	 during	 the	 first	 phase	 of	 the	 trial,	 the	 jury	 received	 no	

explanation	about	what	“aggravated”	meant	in	this	case;	and	Robinson	himself	
4	

insisted	 that	 other	 evidence	 revealing	 his	 prior	 incarceration	 be	 admitted	 at	

trial.2		See	17-A	M.R.S.	§	1105-A(1)(A),	(C-1)	to	(L)	(2017).3			

	         [¶6]		Robinson	next	contends	that	the	court	committed	obvious	error	in	

polling	the	jury	only	after	the	jury	had	reached	its	verdicts	in	both	segments	of	

the	 trial.	 	 Contrary	 to	 his	 contention,	 the	 timing	 of	 the	 polling	 was	 not	

inappropriate	 given	 that	 Robinson	 did	 not	 request	 polling	 immediately	 after	

the	jury	found	him	guilty	of	the	principal	crimes	of	unlawful	trafficking	and	that	

the	 court	 polled	 the	 jury	 before	 the	 verdicts	 were	 recorded,	 as	 required	 by	

M.R.U.	Crim.	P.	31(c).			

          [¶7]	 	 To	 the	 extent	 that	 Robinson	 also	 challenges	 the	 manner	 of	 the	

court’s	polling,	the	questions	posed	to	the	jurors	were	clear;	each	juror	had	the	

individual	opportunity	to	be	heard	if	the	juror	disagreed	with	either	verdict	on	

the	principal	crimes	or	the	verdict	finding	a	prior	conviction;	and	there	was	no	

suggestion,	either	before	or	during	the	polling	process,	of	juror	disagreement.		




     2	
     	 When	 the	 State	 offered	 in	 evidence	 a	 brief	 portion	 of	 Robinson’s	 interview	 with	 a	 law	
enforcement	 official,	 Robinson	 personally,	 after	 receiving	 the	 advice	 of	 counsel,	 insisted	 that	 the	
entire	interview	be	provided	to	the	jury.		See	M.R.	Evid.	106.		In	that	interview,	Robinson	stated	that	
he	could	not	“do	more	time,”	that	he	could	not	“go	back,”	and	that	he	“did	time	in	Connecticut	from	
2011	to	now.”			
     3	
    	 This	 statute	 has	 since	 been	 amended	 to	 expand	 the	 circumstances	 that	 may	 result	 in	 an	
aggravated	trafficking	charge.		See	P.L.	2017,	ch.	460,	§§	F-2,	F-3	(effective	July	9,	2018)	(codified	at	
17-A	M.R.S.	§	1105-A(1)(K)-(M)	(2018)).	
                                                                                                                  5	

See	State	v.	Marques,	2000	ME	43,	¶¶	17-22,	747	A.2d	186.		Finally,	the	court	

was	 not	 authorized	 or	 required	 to	 inquire	 separately	 into	 the	 jurors’	

deliberations	by	asking	the	jurors	whether	they	felt	“coerced”	by	other	jurors.4		

See	 id.	 ¶¶	21-22;	 State	 v.	 Neron,	 519	 A.2d	 197,	 200	 (Me.	 1986);	 cf.	 M.R.	

Evid.	606(b)	(addressing	post-verdict	actions	and	prohibiting	most	inquiry	into	

the	validity	of	a	verdict).		

        The	entry	is:	

                          Judgment	affirmed.		
	
	       	        	        	        	        	
	




    4		Even	if	Robinson	had	asked	for	such	an	inquiry,	it	would	not	have	been	justified	here.		Only	in	

the	 most	 extraordinary	 circumstances	 would	 a	 court	 inquire	 of	 a	 juror	 regarding	 deliberations.		
Specifically,	during	an	inquiry	into	the	validity	of	a	verdict	or	indictment,		

        [a]	juror	may	testify	about	whether:		

           (A)	 Extraneous	 prejudicial	 information	 was	 improperly	 brought	 to	 the	 jury’s	
        attention;	or	

            (B)	An	outside	influence	was	improperly	brought	to	bear	on	any	juror.	

M.R.	 Evid.	 606(b)(2);	 see	 State	 v.	 Leon,	 2018	 ME	 70,	 ¶	 10,	 186	 A.3d	129;	 see	 also	 United	 States	 v.	
Birchette,	 908	 F.3d	 50,	 55-58	 (4th	 Cir.	 2018)	 (discussing	 the	 reasons	 for	 the	 strict	 limitations	 on	
inquiring	 into	 jury	 deliberations	 and	 holding	 that	 juror	 testimony	 about	 a	 juror’s	 race-based	
prejudice	could	be	considered	only	if	it	was	a	“significant	motivating	factor”	in	the	decision	to	convict	
(quotation	marks	omitted));	United	States	v.	Herndon,	156	F.3d	629,	635	(6th	Cir.	1998)	(holding	that	
“extraneous	influences”	on	a	jury	include	“a	bribe	attempt	on	a	juror”	and	“newspaper	articles	and	
media	attention”);	State	v.	Northcutt,	358	P.3d	179,	181,	183	(Mont.	2015)	(holding	that	jurors	could	
submit	affidavits	averring,	as	an	outside	influence,	that	the	trial	judge	had	approached	the	jury	room	
and	asked	whether	a	verdict	would	be	reached	that	night).	
6	

Jeffrey C. Toothaker, Esq. (orally), Ellsworth, for appellant Kevin Robinson

Janet T. Mills, Attorney General, John P. Risler, Asst. Atty. Gen., and Katie Sibley,
Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State
of Maine
	
	
Penobscot	County	Unified	Criminal	Docket	docket	number	CR-2017-342	
FOR	CLERK	REFERENCE	ONLY	
