MAINE SUPREME JUDICIAL COURT                                          Reporter of Decisions
Decision: 2016 ME 83
Docket:   Was-15-56
Argued:   March 1, 2016
Decided:  June 7, 2016

Panel:       SAUFLEY, C.J., and MEAD, GORMAN, JABAR, and HJELM, JJ.



                                 STATE OF MAINE

                                          v.

                                KENNETH FRISBEE

SAUFLEY, C.J.

         [¶1] A jury found Kenneth Frisbee guilty of three crimes involving sexual

misconduct.     During jury selection and the trial, a frequent and occasionally

disruptive visitor to the Washington County Courthouse caused a brief distraction.

Frisbee argues that the court (Washington County, Stokes, J.) should have granted

his motion for a mistrial because the presence and conduct of that spectator

distracted one or more jurors. We address the competing interests that the court

must balance in such a situation, as well as the precautions taken by the court, to

ensure that Frisbee received a fair and impartial trial. We discern no abuse of

discretion, and we conclude that Frisbee received a fair trial. We affirm the

judgment.
2

                                        I. BACKGROUND

        [¶2] On March 21, 2013, the State filed a two-count complaint in the

Superior Court charging Frisbee with unlawful sexual contact (Class B), 17-A

M.R.S. § 255-A(1)(E-1) (2015) (other person under age twelve), and unlawful

sexual contact (Class C), 17-A M.R.S. § 255-A(1)(E) (2015) (other person under

age fourteen). On September 9, 2013, Frisbee was indicted on the two unlawful

sexual contact charges and two additional charges—gross sexual assault (Class A),

17-A M.R.S. § 253(1)(C) (2015) (other person under age twelve), and gross sexual

assault (Class A), 17-A M.R.S. § 253(1)(B) (2015) (other person under age

fourteen). Frisbee pleaded not guilty to all of the charges, which were based on

allegations that he had sexual contact with and committed sexual assaults on a

minor.

        [¶3] During jury selection, Frisbee’s attorney noticed that one of his former

clients, who had no connection to this matter, was in the courtroom. The spectator

had been convicted of, and had spent eleven months in prison for, threats against

Frisbee’s attorney and his family.1

        [¶4] Frisbee’s attorney was not the only one in the courtroom who had a

history with this man.           Before becoming a judge, the trial judge had been a


    1
     Specifically, the spectator had threatened to drown Frisbee’s attorney’s children in the brook behind
Frisbee’s attorney’s home.
                                                                                   3

prosecutor, and he had prosecuted the spectator some twenty years prior, resulting

in the spectator being sentenced to jail. The State’s attorney had also prosecuted

the spectator for the threats against Frisbee’s attorney and his family. Finally, the

spectator had just been released from prison for charges of criminal threatening

involving one of the potential jurors—juror 116—who would later be empaneled

on the case.

      [¶5] Initially, the court asked the judicial marshals to move the spectator so

he would not be directly behind Frisbee’s attorney during voir dire of potential

jurors, but Frisbee’s attorney continued to be distracted because the spectator was

glaring at him, smiling, making gestures, and smirking. The court, noting that

Frisbee’s attorney’s fears and concerns regarding the spectator were not “fanciful

and not an exaggeration,” then instructed the judicial marshals to remove the

spectator should he reappear in the courtroom during the remainder of jury

selection in order to protect Frisbee’s rights to effective assistance of counsel and

prevent compromising Frisbee’s attorney’s professional responsibilities to his

client. Jury selection continued without incident.

      [¶6] Approximately half-way through the first day of the trial, a marshal

informed the court that the spectator was in the courtroom again and had moved

closer to juror 116. The court immediately ordered a brief recess. The court, the

State, and Frisbee’s attorney discussed the spectator’s arrival. Frisbee’s attorney,
4

who had heard reports that the spectator had recently been seen in the community

with a weapon, told the judge that he would not reenter the courtroom until the

spectator had been screened by security.2 The court, considering the spectator’s

significant history with juror 116 and with the defense attorney, directed security to

take the spectator through security screening. The court also interviewed juror

116, who provided her history with the spectator.3 She stated that she was “very

distracted” by the spectator’s presence in the courtroom, but that she would not

continue to be distracted as long as he was removed from the courtroom.

        [¶7] The court concluded that the spectator’s presence “is disruptive and

distracting . . . he cannot be allowed to distract both the defense attorney and the

jury or a juror from paying full attention to this case.” The court then indicated

that it would not close the courtroom or the courthouse, but it would exclude that

spectator from the trial.

        [¶8] On the second day of trial, the court was informed that the spectator

had been in the building, had made a transcript request, and had been approaching

jurors inside and outside the courthouse that morning and asking them to take a


    2
      It is unclear why, in these circumstances, entry screening or individual screening for weapons had
not previously been undertaken.
    3
      Upon interviewing juror 116, the court learned that the spectator had threatened to kill her husband
and had stalked her teenage daughter. The juror had obtained a protection order against the spectator, but
it had expired by the time of this action. The prior year the spectator had pleaded guilty to six counts of
violating the protection order.
                                                                                    5

copy of a book that he had written. Frisbee’s attorney requested that the jury be

sequestered for the remainder of trial. The court undertook a voir dire of each

juror individually to ask whether the spectator had been a distraction or would

influence each juror’s ability to remain fair and impartial in deciding the case.

Several of the jurors had seen the spectator, and several had heard that the

spectator had stalked one of the jurors and her family. One juror stated that “some

of the ladies on the jury are upset, disturbed.” However, all of the jurors except for

juror 116 stated that they had not been distracted by the spectator’s presence, and

all of the jurors stated that the spectator in no way would affect their ability to be

fair and impartial.    The court did not grant Frisbee’s attorney’s request for

sequestration.

      [¶9] Later that same morning, a judicial marshal alerted the court and the

parties that the spectator had left his notebook at the courthouse. In the back of the

notebook, there was a note that read, “I wish you were all dead, but since you’re

not I hope you all die as soon as possible. And with as much agony as possible.”

      [¶10] After the notebook was found, Frisbee moved for a mistrial on the

ground that the spectator’s distraction of the jury on the previous day had

interfered with the jurors’ ability to devote their full attention to the evidence on

that day. In considering the motion, the court found that the jurors had been

forthright during voir dire earlier in affirming that they were not distracted by the
6

spectator and could devote their full attention to the case. In addition, the court

noted that it had ordered a recess as soon as the spectator’s presence had been

noted the previous day. It thus concluded that “the likelihood that there was in fact

distraction is low,” and it denied Frisbee’s motion for a mistrial.

         [¶11] At the conclusion of the trial, the jury found Frisbee guilty of Counts

1, 2, and 4—both counts of unlawful sexual contact and one count of gross sexual

assault.4 See 17-A M.R.S. §§ 253(1)(B), 255-A(E)-(E-1). Frisbee was sentenced

to twelve years’ imprisonment, all but five years suspended, with four years of

probation on Count 4. The court imposed a three-year concurrent sentence on

Count 1 and a two-year concurrent sentence on Count 2. Frisbee timely appealed

to us.5 See 15 M.R.S. § 2115 (2015); M.R. App. P. 2.

                                         II. DISCUSSION

A.       Standard of Review

         [¶12] We review a denial of a motion for a mistrial for abuse of discretion,

Seabury-Peterson v. Jhamb, 2011 ME 35, ¶ 14, 15 A.3d 746, and we will overrule

a denial “only in the event of prosecutorial bad faith or in exceptionally prejudicial


     4
     The court granted Frisbee’s motion for a judgment of acquittal as to Count 3, gross sexual assault
(Class A), 17-A M.R.S. § 253(1)(C) (2015); thus, that count was not presented to the jury.
     5
      Neither party challenges the sufficiency of the evidence to support the convictions. Reviewing the
evidence, and all reasonable inferences that may be drawn from that evidence, in the light most favorable
to the jury’s verdict, the jury here could have rationally found each element of the crimes proved beyond
a reasonable doubt.
                                                                                                        7

circumstances,” State v. Bridges, 2004 ME 102, ¶ 10, 854 A.2d 855 (quotation

marks omitted). There is no allegation of prosecutorial bad faith or misconduct

here.

         [¶13] Factual findings incident to a ruling on a motion for a mistrial are

reviewed for clear error. See State v. Ardolino, 1997 ME 141, ¶ 18, 697 A.2d 73.

“A motion for a mistrial should be denied except in the rare circumstance that the

trial is unable to continue with a fair result and only a new trial will satisfy the

interests of justice.” Bridges, 2004 ME 102, ¶ 11, 854 A.2d 855. Thus, we review

the record to determine whether exceptionally prejudicial circumstances—

circumstances that denied Frisbee a fair trial—required the grant of the motion for

a mistrial.6

B.       Constitutional Considerations

         [¶14] We first address the various rights, protected by the United States

Constitution, that the court sought to balance under the unusual circumstances of

this case. Because the rights discussed in this opinion conferred by the Maine

Constitution and the United States Constitution are generally coextensive, we focus

on the language of the United States Constitution. See U.S. Const. amends. I, VI;


     6
      Frisbee also argues that the court abused its discretion when it denied Frisbee’s request to play an
audio recording to the jury and instead had the testimony read back by the court reporter when the jury
requested to re-hear the testimony of the alleged victim. We discern no abuse of discretion in the court’s
decision to have testimony read back to the jury by the court reporter.
8

Me. Const. art I, §§ 4, 6; State v. Kennedy, 2016 ME 53, ¶ 8 n.5, --- A.3d --- (right

to counsel); In re Me. Today Media, Inc., 2013 ME 12, ¶ 3, 59 A.3d 499

(defendant’s right to a public trial and an impartial jury; public’s right to observe

criminal trials); cf. State v. Cain, 2006 ME 1, ¶ 5 n.1, 888 A.2d 276 (referencing

consistency in application of portions of the Sixth Amendment of the United States

Constitution and article one, section six of the Maine Constitution). Although

Frisbee primarily argues that his right to a fair and impartial jury was negatively

affected by the spectator’s presence, we address the other rights at issue because

the court has the responsibility and the authority to balance those rights when they

are in conflict. In addition, for clarity, we take this opportunity to distinguish

between a full closure of a courtroom and a partial closure or less significant

restriction.

       1.      Defendant’s Right to a Public Trial

       [¶15] “In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial . . . .” U.S. Const. amend. VI (emphasis added). The

guarantee of a public trial in criminal proceedings is “for the benefit of the

accused; that the public may see he is fairly dealt with and not unjustly

condemned, and that the presence of interested spectators may keep his triers

keenly alive to a sense of their responsibility and to the importance of their

functions.” Roberts v. State, 2014 ME 125, ¶ 19, 103 A.3d 1031 (quotation marks
                                                                                                       9

omitted); see U.S. Const. amends. VI, XIV. The defendant’s right to the public’s

presence during trial may be demonstrated through a significant number of

observers, or it may include only a few spectators, but the right exists regardless of

the extent of public interest in a trial.

        2.      The Public’s Right to Observe Criminal Trials

        [¶16] Similarly, the public, sometimes represented by the media, has its

own right to observe criminal trials. See In re Me. Today Media, Inc., 2013 ME

12, ¶ 6, 59 A.3d 499. Unlike the defendant’s right to a public trial, this right is not

founded in the Sixth Amendment of the United States Constitution; instead, the

First Amendment of the United States Constitution protects the public’s right,

which is also derived from the longstanding tradition of opening criminal

proceedings to the public.7 Press-Enter. Co. v. Superior Court of Cal., 464 U.S.

501, 508 (1984); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575-76

(1980).

        [¶17] When the court is called upon to balance these disparate rights, the

purpose of the rights at issue must be considered. The primary reasons for the

right of the public and the press to observe criminal trials are twofold: first, the

watchful eye of the public is understood to ensure a fair trial for the defendant; and


   7
       It is primarily for this reason that courtrooms and courthouses must be open throughout a criminal
trial, except in unusual circumstances not applicable here.
10

second, the public’s right to observe criminal trials is expected to enhance public

confidence in the courts and criminal justice system. Press-Enter. Co., 464 U.S. at

508. Noting that the defendant’s right to a public trial is not always coextensive

with the public’s right to be present during criminal proceedings, the United States

Supreme Court has addressed the balance of these interests:

      For present purposes, how we allocate the ‘right’ to openness as
      between the accused and the public, or whether we view it as a
      component inherent in the system benefiting both, is not crucial. No
      right ranks higher than the right of the accused to a fair trial. But the
      primacy of the accused’s right is difficult to separate from the right of
      everyone in the community to attend the voir dire which promotes
      fairness.

Id. (emphasis added).

      3.      Defendant’s Right to Effective Assistance of Counsel

      [¶18]    An accused is entitled to be assisted by an attorney who can

adequately ensure that the accused receives a fair trial. Laferriere v. State, 1997

ME 169, ¶ 5, 697 A.2d 1301; see U.S. Const. amends. VI, XIV. An accused’s

right to assistance of counsel is not satisfied by virtue of the fact that “a person

who happens to be a lawyer is present at trial alongside the accused.” Strickland v.

Washington, 466 U.S. 668, 685 (1984). Pertinent to the matter before us, the

accused has a right to be represented by counsel who is able to focus on the

proceedings and is not unduly distracted by extraneous matters.
                                                                                      11

      4.     The Parties’ Right to an Attentive Jury

      [¶19] The accused and the State have a right to an attentive, nondistracted

jury. See U.S. Const. amends. VI, XIV; Roberts, 2014 ME 125, ¶ 33 n.5, 103 A.3d

1031. The ability of the jury to attend to the presentation of evidence, to the

arguments of counsel, and to the instructions of the court is critical to ensuring a

fair trial. Given that the defendant’s right to a fair trial is paramount, protecting the

jury from distraction is a fundamental responsibility of the court. See Press-Enter.

Co., 464 U.S. at 508; Roberts, 2014 ME 125, ¶ 33, 103 A.3d 1031; see also Walls

v. Konteh, 490 F.3d 432, 439 (6th Cir. 2007) (noting that “concern about the jury’s

ability to focus on the evidence before it” is a “legitimate consideration” in the

calculation of whether to grant a mistrial); cf. State v. Hoffstadt, 652 A.2d 93, 96

(Me. 1995) (noting that, when addressing evidentiary challenges, “[i]t is the court’s

duty to see that the jury is not distracted by collateral matters”).

      5.     Balancing the Rights

             a.     Generally

      [¶20] In the matter before us, the various rights described above were in

potential conflict with each other. The spectator’s presence and conduct during

Frisbee’s trial threatened Frisbee’s right to effective counsel and placed at risk

Frisbee’s and the State’s right to an attentive and nondistracted jury.               In
12

counterbalance, as the court recognized, excluding the individual implicated the

public’s right to an open trial.

         [¶21] The rights of the public and the defendant to an open trial are not

absolute, however, and they may be overridden by other rights or interests.

Roberts, 2014 ME 125, ¶ 24, 103 A.3d 1031.8 “[T]he right to an open trial may

give way in certain cases to other rights or interests, such as the defendant’s right

to a fair trial or the government’s interest in inhibiting disclosure of sensitive

information.       Such circumstances will be rare, however, and the balance of

interests must be struck with special care.” Waller v. Georgia, 467 U.S. 39, 45

(1984); see also Roberts, 2014 ME 125, ¶ 24, 103 A.3d 1031.                               When such

circumstances arise, it is within the authority of the trial judge to fashion remedies

that strike a reasonable balance in ensuring that a defendant receives a fair trial.

See Roberts, 2014 ME 125, ¶ 33, 103 A.3d 1031; Alexander, Maine Jury

Instruction Manual § 1-3 at 1-10 (2016 ed.).




     8
      See, e.g., United States v. Laureano-Pérez, 797 F.3d 45, 76-78 (1st Cir. 2015) (upholding a trial
court’s exclusion of a defendant’s wife from criminal trial proceedings because a witness had seen her
“moving her lips at the witness with great distaste” (quotation marks omitted)); Bell v. Jarvis, 236 F.3d
149, 154, 167-75 (4th Cir. 2000) (finding no Sixth Amendment violation when a trial court closed the
courtroom while the minor victim testified during a criminal trial based on over fifty-eight counts of
sexual misconduct committed by the defendant against that minor victim, who was also his
step-granddaughter); Ayala v. Speckard, 131 F.3d 62, 72-73 (2d Cir. 1997) (holding that multiple
defendants’ rights were not violated when the courtrooms were closed to protect various undercover
officers who testified regarding undercover activities that were expected to continue in the future).
                                                                                   13

                   (i)    Complete Closure

       [¶22] Because of the presumption that criminal proceedings are to be open

to the public, the decision to fully close a courtroom during criminal proceedings

must involve an “overriding interest,” and the court must narrowly tailor the

closure, both temporally and specifically. Waller, 467 U.S. at 45 (quotation marks

omitted). Thus, before a trial court may fully close a courtroom during a criminal

proceeding, the court must assure the following:

       (1)   the party seeking to close the hearing has advanced an overriding
             interest that is likely to be prejudiced,

       (2)   the closure is no broader than necessary to protect that interest,

       (3)   reasonable alternatives to closing the proceeding have been
             considered, and

       (4)   adequate findings have been made to support the closure.

Id. at 48.

                   (ii)   Partial Closure

       [¶23] When a party is seeking a partial closure of the courtroom only, or

when the trial court determines that a limited restriction is necessary, we will apply

a less stringent standard “provided the essential purposes of the ‘public trial’

guarantee are served and the constitutional rights of defendants are adequately
14

protected.”9 United States v. DeLuca, 137 F.3d 24, 33 (1st Cir. 1998). Thus, when

the closure or restriction of the public is only partial, “a ‘substantial reason,’ rather

than an ‘overriding interest,’ may warrant a closure.” Id. (citations omitted).

          [¶24] The ejection of a single spectator from a courtroom, or the brief

exclusion of a small group of disruptive spectators, is, at most, a partial closure.

Cf. United States v. Smith, 426 F.3d 567, 569 (2d Cir. 2005) (holding that the

requirement that court visitors show photo identification constituted “at most a

partial closure”); Massachusetts v. Ray, 4 N.E.3d 221, 229-31 (Mass. 2014)

(holding that requiring attendees to provide identification and sign in with the court

officers before entering the courtroom did not constitute a partial closure). To

assure a fair trial, the trial court is authorized to restrict the presence of a nonparty

spectator when a substantial reason is presented, such as the potential for the

distraction of a witness, the attorneys, or the jury.                       See United States v.

Laureano-Pérez, 797 F.3d 45, 76-78 (1st Cir. 2015).10 In such circumstances,

     9
      Although the United States Supreme Court has not yet opined on the standard to be used in
evaluating a partial closure of the courtroom, most federal circuit courts have applied a less stringent
standard to partial closures than the standard for complete closures announced by the United States
Supreme Court in Waller v. Georgia, 467 U.S. 39, 48 (1984). See, e.g., United States v. Simmons, 797
F.3d 409, 414 (6th Cir. 2015); United States v. DeLuca, 137 F.3d 24, 33 (1st Cir. 1998); United States v.
Osborne, 68 F.3d 94, 99 (5th Cir. 1995); United States v. Farmer, 32 F.3d 369, 371-72 (8th Cir. 1994);
Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir. 1992); Nieto v. Sullivan, 879 F.2d 743, 753 (10th Cir.
1989); United States v. Sherlock, 865 F.2d 1069, 1077 (9th Cir. 1989); Douglas v. Wainwright, 739 F.2d
531, 533 (11th Cir. 1984).

     10
       See also Osborne, 68 F.3d at 96-99 (upholding a trial court’s partial closure of the courtroom
during a trial on the defendants’ kidnapping charges while the twelve-year-old victim testified); Woods,
977 F.2d at 76-78 (upholding a trial court’s decision to exclude a defendant’s family members during an
                                                                                                      15

which may arise without warning and will require prompt judicial action to

preserve the defendant’s right to a fair trial, the court’s announcement of the

necessity for the limited exclusion is sufficient to create a record for review. See

id. at 78.

                b.      Balancing The Rights During Frisbee’s Trial

        [¶25] In the matter before us, the court made specific findings regarding the

nature and extent of the distraction presented by the spectator, and the potential for

significant     distraction      should     the    spectator      remain      in    the    courtroom.

Acknowledging the different interests at stake, the court made an effort to balance

those interests and engaged in an escalating series of responses to the distraction.

The court considered alternatives to exclusion of the spectator, such as moving the

spectator to a different spot in the courtroom and having him go through security

screening before entering the courtroom.                    After learning more information

regarding the seriousness of the potential distraction for defense counsel and juror

116, however, the court concluded that those alternatives would not be sufficient to

protect the right to effective assistance of counsel and to trial before a




adversary witness’s testimony because the court believed that the family members were intimidating the
witness); Boyd v. United States, No. 00-612-ML, 2009 U.S. Dist. LEXIS 16690, at *5-6 (D.R.I. 2009)
(reaffirming the validity of a trial court’s restrictions on courtroom ingress and egress by spectators
during a criminal trial based on security considerations and efforts to “limit interruptions and minimize
distraction”); New York v. Jones, 750 N.E.2d 524, 530 (N.Y. 2001).
16

nondistracted jury, and the court appropriately excluded the individual.                               Cf.

DeLuca, 137 F.3d at 35.

          [¶26] Because the trial court is in the best position to evaluate the nature

and effect of a distraction in the courtroom, the court has broad discretion to

fashion a remedy when the court has determined that a spectator is disruptive or

distracting during any aspect of a trial. The process employed here, including the

entry of specific findings regarding the nature and significance of the distraction,

the attempts at less restrictive alternatives to exclusion, the consultation with

counsel, the voir dire of the jurors, and the additional security screening,

demonstrates that substantial interests were at stake and that the court used “special

care” in balancing those interests. The court acted well within its authority when it

ultimately excluded the spectator from any further proceedings and did not violate

the United States or Maine Constitutions in selecting this remedy.

C.        Denial of Motion for a Mistrial

          [¶27] Focusing on his right to a nondistracted jury,11 Frisbee argues that the

actions taken by the court, even if individually constituting no error, were not

sufficient to protect his right to a fair and impartial jury. It is possible that, even

when the court has taken every available step to protect the defendant’s right to an

     11
      Although Frisbee’s brief references his counsel’s distraction during jury selection, the motion for a
mistrial was based entirely on jury distraction during trial. Therefore, we do not address Frisbee’s
argument related to his counsel’s distraction here.
                                                                                                             17

impartial jury, a distraction may be so significant that a fair trial is no longer

possible and the defendant would be entitled to a mistrial.

        [¶28] Thus we shift our focus from the process employed by the court in

addressing the spectator to the ultimate question presented by the motion for a

mistrial: did Frisbee receive a fair trial? In doing so, we review the trial court’s

decision on whether or not to grant a mistrial under the familiar standard of abuse

of discretion. See State v. Linscott, 416 A.2d 255, 260 (Me. 1980).

        [¶29]      Although the trial court has considerable discretion in deciding

whether to declare a mistrial and discharge a jury, once the jury has been

empaneled and jeopardy has attached, the power to declare a “mistrial ought to be

used with the greatest caution under urgent circumstances, and for very plain and

obvious causes.”12 State v. Derby, 581 A.2d 815, 817 (Me. 1990) (quotation marks

omitted). If there are alternatives available to the court that will ensure a fair trial,

those alternatives must be considered before an empaneled jury is discharged. See,

e.g., State v. Begin, 2015 ME 86, ¶ 28, 120 A.3d 97. Ultimately, the decision on

whether to grant a defendant’s motion for a mistrial comes back to the core


   12
       Pursuant to the double jeopardy clauses of the United States and Maine Constitutions, “once the
jury is sworn and jeopardy attaches, a defendant will not be required to stand trial a second time unless he
consents to a mistrial . . . or unless under all the circumstances, the mistrial was mandated by manifest
necessity.” State v. Johnson, 2014 ME 68, ¶ 10, 92 A.3d 351 (quotation marks omitted); see U.S. Const.
amend. V (“[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or
limb . . . .”); Me. Const. art. I, § 8 (“No person, for the same offense, shall be twice put in jeopardy of life
or limb.”).
18

principles of fairness and justice; the relevant question for the trial court is whether

the trial court is confident that the trial can proceed to a fair and just verdict in the

context of the proceedings before it.

          [¶30] We have not previously reviewed the denial of a mistrial based on

allegations of juror distraction arising from third party conduct.13 Other courts

have opined on whether a mistrial should be granted when “the jury might not be

able to devote its full attention to the evidence,” particularly in the wake of the

September 11 attacks.14 Walls, 490 F.3d at 439. In that context, appellate courts

upheld both a trial court’s grant of a motion for a mistrial in anticipation of juror

distraction after the attacks, see, e.g., id., and a trial court’s denial of a motion for a

mistrial after the attacks, see United States v. Capelton, 350 F.3d 231, 237 (1st Cir.

2003). In Capelton, the United States Court of Appeals for the First Circuit lauded

the trial court for “proceed[ing] with an abundance of caution” when the trial court

conducted individual voir dire of each juror, excused the one juror who indicated

that “the September 11 attacks might alter his attitude toward the case,” and issued


     13
      In Cook, we analyzed the denial of a motion for a mistrial due to juror distraction resulting from
weather conditions, but we did so under an obvious error analysis because the issue had not been
preserved for appeal. State v. Cook, 2009 ME 119, ¶¶ 2, 5, 984 A.2d 1272.
     14
      On September 11, 2001, an extremist Islamic group, known as al-Qaeda, hijacked four airliners and
carried out suicide attacks in the United States. The first attack was reported just before 9:00 a.m. on a
Tuesday. The hijacked planes were flown into both towers of the World Trade Center, located in New
York, New York; the Pentagon, located in Washington, D.C.; and a field near Shanksville, Pennsylvania.
The attacks caused extensive loss of life and injuries.
                                                                                    19

a lengthy curative instruction to the jury. Id. The court concluded on appeal that

because of the trial court’s actions, a mistrial was not necessary. Id.; see also

Goehring v. Chapman Univ., 17 Cal. Rptr. 3d 39, 55 (Cal. Ct. App. 2004)

(affirming the denial of a motion for a new trial when the jurors all answered in the

negative when asked if they would be distracted after the September 11 attacks).

      [¶31] As the above cases demonstrate, whether a trial court should grant a

motion for a mistrial due to allegations of juror distraction is a highly fact-specific

question. When the trial judge succeeds in removing or curing the distraction, a

mistrial may not be necessary. Cf. Begin, 2015 ME 86, ¶ 28, 120 A.3d 97.

      [¶32] Here, the court’s prompt actions limited the exposure of the jurors to

the distracting spectator to a very brief amount of time. The court ordered a recess

as soon as it was notified of the spectator’s presence in the courtroom on the first

day of trial. It then voir dired juror 116, who reported that she was distracted only

for the brief period of time when the spectator was in the courtroom and that her

distraction ended when the spectator was removed. On the morning of the second

day, after the spectator had been in the presence of some of the jurors before the

trial resumed, the court interviewed all of the jurors individually and found that

only one juror had been distracted and all jurors could remain impartial.

      [¶33] The trial court is in the best position to gauge the jury’s response to a

possible distraction. Cf. Johnson v. Carleton, 2001 ME 12, ¶ 10, 765 A.2d 571.
20

Nothing in the record indicates that the court’s assessment of the spectator’s effect

on the jury was inaccurate. To the extent that a juror may have been briefly

distracted by the spectator or his activities in the courthouse, the court’s voir dire

confirmed that the spectator in no way affected the ability of that juror to be fair

and impartial. The brief distraction of a single juror does not rise to the level of

extremely prejudicial circumstances that would require us to vacate the trial court’s

discretionary denial of a motion for a mistrial. Cf. State v. Krieger, 2002 ME 139,

¶¶ 13-16, 803 A.2d 1026; Ardolino, 1997 ME 141, ¶ 18, 697 A.2d 73. We are not

persuaded that Frisbee was deprived of a fair trial, and the trial court did not abuse

its discretion in denying the motion for a mistrial.

      The entry is:

                      Judgment affirmed.



On the briefs:

      Arnold S. Clark, Esq., Fletcher Mahar & Clark, Calais, for
      appellant Kenneth Frisbee

      Mathew Foster, District Attorney, and Ethan Plaut, Asst. Dist.
      Atty., Prosecutorial District VII, Ellsworth, for appellee State of
      Maine
                                                                      21


At oral argument:

        Arnold S. Clark, Esq., for appellant Kenneth Frisbee

        Ethan Plaut, Asst. Dist. Atty., for appellee State of Maine



Washington County Superior Court docket number CR-2013-44
FOR CLERK REFERENCE ONLY
