MAINE SUPREME JUDICIAL COURT                                                   Reporter of Decisions
Decision: 2019 ME 131
Docket:   Cum-18-434
Argued:   June 12, 2019
Decided:  August 8, 2019

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



                                       STATE OF MAINE

                                                 v.

                                         KEVIN CAREY


SAUFLEY, C.J.

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

court (Cumberland County, L. Walker, J.) after a jury found him guilty of

multiple sex crimes.1 He argues that the court (Cashman, J.) erred in the jury

selection process when it denied his motion to strike one of the jurors for cause

and denied his motion to strike the entire venire after one prospective juror left

the courtroom in an agitated state. We affirm the judgment.




   1 Specifically, Carey was convicted of seven counts of gross sexual assault (Class A), 17-A M.R.S.
§ 253(1)(C) (2018); two counts of gross sexual assault (Class A), 17-A M.R.S. § 253(1)(B) (2018);
three counts of gross sexual assault (Class A), 17-A M.R.S. § 253(1)(A) (2018); one count of unlawful
sexual contact (Class A), 17-A M.R.S. § 255-A(1)(F-1) (2018); one count of unlawful sexual contact
(Class B), 17-A M.R.S. § 255-A(1)(F) (2018); and one count of visual sexual aggression against a child
(Class C), 17-A M.R.S. § 256(1)(B) (2018).
2

                               I. BACKGROUND

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

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

See State v. Ayotte, 2019 ME 61, ¶ 2, 207 A.3d 614. When Carey was more than

thirty-five years old, he began to sexually assault a seven-year-old female

relative who lived with him and other members of their family. After his first

assault, his conduct became more frequent and he would enter the child’s

bedroom every night, touch her genitals with his fingers, put his mouth on her

genitals and make her put her mouth on his, and place objects in her vagina and

anus. He told her not to tell anyone because they would both be in trouble.

      [¶3]   After the child moved to a different home with other family

members to avoid him, Carey would visit that home to babysit one night each

week. During those visits, he would sexually assault the child. He threatened

to hurt her or other, younger children in her family if she told anyone. When

the child was about twelve years old, Carey moved into the house where the

child was living. Every day, he sexually assaulted the child. He did not listen

when she told him to stop. Even after the child moved a second time to avoid

Carey, Carey continued his sexual assaults against her on each of the three days

each week that she would return to his residence to visit others in her family.
                                                                                                     3

At age sixteen, the child told a friend and a family member what had been

happening.2

       [¶4] In March 2017, Carey was initially charged by complaint with seven

counts of gross sexual assault, one count of unlawful sexual contact, one count

of visual sexual aggression against a child, and one count of sexual misconduct

with a child (Class C), 17-A M.R.S. § 258(1-A) (2018). He was later charged by

indictment with fifteen counts of gross sexual assault, two counts of unlawful

sexual contact, one count of visual sexual aggression against a child, and one

count of sexual misconduct with a child.

       [¶5] Jury selection was held in September 2018. At the beginning of jury

selection, in front of the full pool of jurors, one prospective juror abruptly left

the room when the charges against Carey were being described. Although not

everyone could hear it, the prospective juror said, as captured on the record,



   2  The evidence was sufficient to support the jury’s findings that Carey engaged in the charged acts
of physical contact between his mouth, or an instrument or device manipulated by him, and the
genitals of the child, and between her mouth and his genitals, before the age of twelve, before the age
of fourteen, and, regardless of age, through threats of physical force. See 17-A M.R.S. §§ 251(1)(C),
(E), 253(1) (2018) (gross sexual assault). The evidence was also sufficient to demonstrate that, on
all charged occasions, Carey, with the conscious object to do so, touched the child’s genitals or anus
for the purpose of arousing or gratifying sexual desire before she turned twelve and before she
turned fourteen when he was not her spouse and was at least three years older than she was, see
17-A M.R.S. §§ 35(1)(A), 251(1)(D), 255-A(1)(F), (F-1) (2018) (unlawful sexual contact), and that he
exposed his genitals to her and caused her to expose hers to him for the purpose of arousing or
gratifying sexual desire when she was under the age of twelve and he was an adult, see 17-A M.R.S.
§ 256(1)(B) (visual sexual aggression against a child).
4

“No, I’m not staying for this.” Defense counsel also heard the prospective juror

say something like, “This is ridiculous.” The court directed the judicial marshal

to go after that prospective juror and ask him to stop.

      [¶6] The court then took a short break, met with counsel, and upon

return, asked the remaining pool of jurors, “Based on what just happened with

the individual who left the courtroom, is there anyone, who, based on that act

alone, would have any difficulty being fair and impartial going forward here

today or through this case?” Thirty-four potential jurors answered in the

affirmative. Based on the number of people who rose in response to the

question, Carey moved at sidebar to strike the entire jury venire for this case.

The court denied the motion to strike the entire venire but struck all members

of the jury pool who had indicated that they would have difficulty being fair and

impartial after witnessing the potential juror leave the courtroom.

      [¶7] The court read the remaining charges and asked the remaining

potential jurors if they knew any of the attorneys or listed witnesses, had heard

of the matter in the media, had an inability to be fair and impartial as to law

enforcement witnesses, believed that anyone charged with a crime must have

done something wrong, had philosophical or religious beliefs that would make
                                                                                  5

it difficult to sit in judgment, or had any other reason that they could not be fair

and impartial.

      [¶8] After receiving responses, the court held a conference with counsel

during which Carey again moved for the entire pool to be stricken. In support

of that motion, he argued that the potential juror who left the courtroom had

been sputtering negative words, that there were audible sighs and groans from

other potential jurors when the charges were read, and that there seemed to be

a pervasively negative view of Carey within the pool of jurors. The court stated

that it intended to “continue on and do the individual voir dire,” but that it

would also ask those jurors who would be questioned in individualized voir

dire whether the events in court would affect their ability to be impartial.

      [¶9] The court then proceeded with individual voir dire of particular

jurors, separate from the rest of the jury pool. Relevant here, the court inquired

why Juror 183 had answered “yes” to the question on the written sex

questionnaire “involving knowledge of either [him]self, or a friend, or family

member.” The juror indicated that a friend had been a victim of sexual abuse

by a priest when he was a child.         Asked if there had been any type of

prosecution, the juror stated, “I don’t know the final outcome. . . . So I don’t

know. I know he was . . . defrocked. And then I don’t honestly know what
6

happened.” The court inquired further about those circumstances and about

the effect of the in-court outburst on the potential juror:

            THE COURT: All right. And was there anything—is there
      anything about that incident and friend—did you and your friend
      talk about it?

            PROSPECTIVE JUROR: No, no. I kind of knew. We knew, we
      had heard things were happening, et cetera, but never spoke
      directly about it. I spoke with him after everything kind of came
      out. But he never talked about the situation.

             THE COURT: All right. Would anything about that—the
      knowledge of that event or what you believe happened, would that
      affect your ability to be fair and impartial in this case?

            PROSPECTIVE JUROR: I don’t believe so.

            THE COURT: And is there anything that happened in the
      courtroom this afternoon, having had a little bit of time to reflect,
      has that had any effect on your ability to be fair and impartial?

            PROSPECTIVE JUROR: I don’t believe so.

            THE COURT: Is there any question? You said, “I don’t think
      so.” Do you have any pause about that?

             PROSPECTIVE JUROR: No, it’s—no. I would say “no.” My
      answer would be “no.” It’s just, I guess, you’re hard until you’re in
      that situation to know for sure. But I would say most likely not.

Carey moved to strike the juror on the ground that he had been equivocal about

his ability to remain fair and impartial. See M.R.U. Crim. P. 24(b) (“Challenges

for cause of individual prospective jurors shall be made at the bench, at the
                                                                                                     7

conclusion of the examination.”). The court stated, “The fact patterns are very

different. And he didn’t have any direct conversations, he said, with that

individual. It was more stuff that he had heard about or suspected. So I will

deny [the motion].”

       [¶10] After the court struck nine other jurors for cause, Carey renewed

his motion to strike the entire venire. The court denied that motion finding

that, after having spoken to the potential jurors in individual voir dire, it was

confident that they had been candid in their responses to questions and could

be fair and impartial. The State and Carey then exercised their peremptory

strikes; Carey used all of his peremptory strikes but did not remove Juror 183.3

       [¶11] The court (L. Walker, J.) held a jury trial beginning the next day.

After the State presented its case, Carey moved for a judgment of acquittal on

Counts 7, 9, 13, and 17—the charge of sexual misconduct with a child and three

charges of gross sexual assault. The court granted that motion.

       [¶12] The jury found Carey guilty of the remaining fifteen charges. After

holding a sentencing hearing, the court sentenced Carey to concurrent

forty-year sentences on seven of the gross sexual assault counts and imposed


   3 “As long as a defendant exercised all of his peremptory strikes . . . the fact that he did not use
them to strike a juror that he challenged for cause does not defeat his right to complain on appeal as
to the impaneling of those jurors.” State v. Holland, 2009 ME 72, ¶ 55 n.15, 976 A.2d 227.
8

concurrent sentences on the other counts.4                      Carey timely appealed.             See

15 M.R.S. § 2115 (2018); M.R. App. P. 2A, 2B(b)(1).

                                         II. DISCUSSION

       [¶13] The United States Constitution guarantees the right of an accused

“to a speedy and public trial, by an impartial jury.” U.S. Const. amend. VI

(emphasis added); see also Me. Const. art. I, § 6 (guaranteeing the right to a

“speedy, public and impartial trial” (emphasis added)). The Due Process Clause

also guarantees this right. See U.S. Const. amend. XIV, § 1; Morgan v. Illinois, 504

U.S. 719, 727 (1992); see also Me. Const. art. I, § 6-A.

A.     Appellate Review of Determinations of Juror Impartiality

       [¶14] We “review the trial court’s finding of juror impartiality for clear

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

2017 ME 180, ¶ 19, 169 A.3d 399 (quotation marks omitted). A finding of




   4 Specifically, the court sentenced Carey to concurrent sentences of forty years for the gross sexual

assaults charged in Counts 1, 2, 3, 4, 8, 10, and 11; thirty years for the gross sexual assaults charged
in Counts 14, 15, 16, 18, and 19; thirty years for the unlawful sexual contact charged in Count 5; ten
years for the unlawful sexual contact charged in Count 12; and five years for visual sexual aggression
against a child, charged in Count 6.
                                                                                                   9

impartiality will stand unless there is no competent evidence to support that

decision. State v. Diana, 2014 ME 45, ¶ 22, 89 A.3d 132.

       [¶15] We “accord substantial deference” to the trial court’s ultimate

finding about whether a juror can be fair and impartial “because of its unique

ability to observe and assess the juror’s credibility.” State v. Durant, 2004 ME

136, ¶ 15, 861 A.2d 637; see also Skilling v. United States, 561 U.S. 358, 397-98

(2010) (stating that the trial court is in the best position to observe a potential

juror’s comprehension of the questions asked and the certainty of the juror’s

responses). The trial court’s “predominant function in determining juror bias

involves credibility findings whose basis cannot be easily discerned from an

appellate record.” Wainwright v. Witt, 469 U.S. 412, 429 (1985).5

       [¶16] Because of the constitutional rights at stake, however, if we do

discern an error that affects the right to an impartial adjudicator, that error

cannot be regarded as harmless. See Gray v. Mississippi, 481 U.S. 648, 668

(1987); United States v. French, 904 F.3d 111, 119 (1st Cir. 2018)




   5 See also Skilling v. United States, 561 U.S. 358, 386 (2010) (“Reviewing courts are properly

resistant to second-guessing the trial judge’s estimation of a juror’s impartiality, for that judge’s
appraisal is ordinarily influenced by a host of factors impossible to capture fully in the record—
among them, the prospective juror’s inflection, sincerity, demeanor, candor, body language, and
apprehension of duty.”).
10

(characterizing such error as “structural error—that is, per se prejudicial and

not susceptible to harmlessness analysis”).

B.    Trial Court Process—Ensuring the Impartiality of Individual Jurors

      [¶17] As a procedural matter, Maine’s statute governing jury selection in

criminal cases authorizes those accused of crimes to challenge jurors for cause

“as in civil cases.” 15 M.R.S. § 1259 (2018). Thus, “[t]he court, on motion of

either party in an action, may examine, on oath, any person called as a juror

therein, whether he . . . has given or formed an opinion or is sensible of any bias,

prejudice or particular interest in the cause.” 14 M.R.S. § 1301 (2018). “If it

appears from his answers or from any competent evidence that he does not

stand indifferent in the cause, another juror shall be called and placed in his

stead.” Id.

      [¶18] Criminal charges alleging sexual assaults on children present

particular challenges in jury selection.      Judges, prosecutors, and defense

counsel must help jurors distinguish between the natural and unavoidable

abhorrence of those types of assaults and the very different issue of each juror’s

capacity to determine whether the defendant committed the crimes charged.

Although the court must be alert to the sort of animus that would undermine a

juror’s ability to presume the particular defendant’s innocence, a juror’s
                                                                               11

consideration of sexual assault on a child to be repulsive does not alone require

the court to strike the juror for cause. Sexual assaults are designated as crimes

for the very reason that society condemns such behavior.

      [¶19] If the impartiality of a potential juror has been brought into

question, a trial court should interview the prospective juror “to determine

whether he or she can remain impartial.” Durant, 2004 ME 136, ¶ 15, 861 A.2d

637. The questions that a court chooses to ask during voir dire must be

sufficient to elicit any facts that would reveal juror bias so that the court can

make an informed decision. State v. Lowry, 2003 ME 38, ¶ 11, 819 A.2d 331.

There is, however, no “hard-and-fast formula” that dictates exactly what

questions the individual voir dire must include. Skilling, 561 U.S. at 386. The

trial court has “[c]onsiderable discretion over the conduct and scope of juror

voir dire” and must balance “the competing considerations of fairness to the

defendant, judicial economy, and avoidance of embarrassment to potential

jurors.” State v. Woodburn, 559 A.2d 343, 344 (Me. 1989).

      [¶20] Because jurors, in responding to voir dire questions, “cannot be

expected invariably to express themselves carefully or even consistently,”

Skilling, 561 U.S. at 397 (quotation marks omitted), the observations of the trial

court and input from counsel at the point of the individual voir dire are of great
12

importance. Colloquial uses of phrases such as “I think” or “I hope” must be

understood by the trial court in context. For instance, a court may determine

that there is no actual bias when a juror, in the course of the voir dire, says, “I

think I could be fair”; the court is not required to find that statement, taken

alone, to represent equivocation. Miller v. Webb, 385 F.3d 666, 675 (6th Cir.

2004) (quotation marks omitted). The trial court may also weigh most heavily

“those statements that were the most fully articulated” by the juror during voir

dire. Patton v. Yount, 467 U.S. 1025, 1039 (1984).

      [¶21] If a potential juror overhears the improper comments of a fellow

prospective juror, “the test for juror impartiality is whether a juror can lay aside

any impressions from the improper comment and render a verdict based only

on the evidence presented during the trial.” Alexander, Maine Jury Instruction

Manual § 2-7 at 2-34 (2018-2019 ed. 2018) (citing United States v. Lacey, 86

F.3d 956, 969 (10th Cir. 1996)). If a juror is exposed to information that could

affect the juror’s impartiality, the court may still seat the juror if the juror, upon

court inquiry, credibly states that the information would not affect the juror’s

ability to be impartial. Durant, 2004 ME 136, ¶¶ 16-17, 861 A.2d 637. Similarly,

a court may find it appropriate to seat a juror who, when asked if the juror could

set aside an opinion regarding guilt before entering the jury box, says, “I think
                                                                                 13

I could enter it [the jury box] with a very open mind. I think I could . . . very

easily.” Patton, 467 U.S. at 1039-40 (alterations in original) (quotation marks

omitted). And when a juror indicates that she “believe[s]” she can be impartial,

the trial court may find that the juror can be impartial. United States v.

Alexander, 48 F.3d 1477, 1484 (9th Cir. 1995) (quotation marks omitted).

      [¶22] It is against this backdrop that we review the jury selection

process, and the ultimate seating of the jury, in the matter before us.

C.    Review of Jury Selection in Carey’s Case

      1.    Individual Voir Dire, Juror 183

      [¶23] In speaking with Juror 183, the court here (Cashman, J.) did exactly

what a trial court should do when a juror’s impartiality has been questioned; it

posed questions to the potential juror individually that were designed to aid

the court in evaluating whether the juror could be fair and impartial

notwithstanding the sexual abuse of his childhood friend and his observation

of the potential juror’s conduct in leaving the courtroom. See Durant, 2004 ME

136, ¶¶ 15-17, 861 A.2d 637. When asked if either his friend’s experience of

sexual abuse or the events he witnessed in the courtroom would affect his

ability to be impartial, the juror stated, “I don’t believe so.” The court carefully

followed up by questioning whether he had any pause. The juror then made his
14

response clear: “No, it’s—no. I would say ‘no.’ My answer would be ‘no.’” The

juror added, “It’s just, I guess, you’re hard until you’re in that situation to know

for sure. But I would say most likely not.” The court concluded that those final

ruminations did not undermine its determination of the juror’s impartiality.

      [¶24] The court acted in its proper role when it interpreted the juror’s

repeated “no” answers as genuinely communicating a belief that neither his life

experiences nor the events he observed in court would affect his ability to be

fair and impartial.    Based on its observation of the potential juror and

consideration of his words and the way in which he delivered them, the court’s

reliance on the juror’s “most fully articulated” statements provided a solid

foundation for its determination that Juror 183 could be impartial. Patton, 467

U.S. at 1039. We defer to the court’s finding following its individualized inquiry,

see Durant, 2004 ME 136, ¶ 15, 861 A.2d 637, and we discern no error in the

court’s decision.

      2.    Denial of Motion to Strike the Entire Jury Pool

      [¶25] Carey also contends that the entire jury pool should have been

stricken because the pool was impliedly biased against him after the outburst

that the potential jurors witnessed in court. “Whether a juror’s partiality may

be presumed from the circumstances is a question of law” that calls for a
                                                                              15

determination of whether the circumstances at hand are “extraordinary” such

that bias or prejudice will be implied or presumed. Hunley v. Godinez, 975 F.2d

316, 318-19 (7th Cir. 1992). The inquiry is an objective one that asks whether

“it is highly unlikely that the average person could remain impartial in . . .

deliberations under the circumstances.” United States v. Kechedzian, 902 F.3d

1023, 1027-28 (9th Cir. 2018) (quotation marks omitted).

      [¶26] Although we have not had occasion to address the issue, federal

jurisprudence has made clear that bias can be implied or prejudice presumed

only in extreme or extraordinary circumstances. See Hunley, 975 F.2d at 318

(“Use of the ‘implied bias’ doctrine is certainly the rare exception.”). For

instance, bias was implied when jurors’ hotel rooms were burglarized

overnight while the jurors were sequestered for a trial involving a burglary and

murder, and there was some indication that jurors who had been victimized

changed their votes to guilty. Id. at 317, 320. In another case, bias was implied

when jurors listened to sixty-five percent of the potential jurors indicate that

they thought the defendant was guilty of murder and state that they could not

be fair and impartial. Seals v. State, 44 So. 2d 61, 67-68 (Miss. 1950).

      [¶27] The circumstances of this case do not in any way present an

extraordinary situation in which prejudice may be presumed or bias implied.
16

The departing potential juror did not speak about the defendant or the

defendant’s guilt; he said only, “No, I’m not staying for this,” and, “This is

ridiculous.” We cannot conclude, as a matter of law, that it would be highly

unlikely that members of the jury pool could be fair and impartial after

observing one juror’s reaction to charges of child sexual assault.6                            See

Kechedzian, 902 F.3d at 1027-28.

         The entry is:

                           Judgment affirmed.



Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant Kevin
Carey

Jonathan Sahrbeck, District Attorney, and Nicole M. Albert, Asst. Dist. Atty.
(orally), Prosecutorial District No. Two, Portland, for appellee State of Maine


Cumberland County Unified Criminal Docket docket number CR-2017-1609
FOR CLERK REFERENCE ONLY




     Although it was possible that some potential jurors had identified, in the court’s question, an
     6

expedited method for avoiding jury service, the court here made no such finding, and we do not
discuss that issue. See, e.g., Gray v. Mississippi, 481 U.S. 648, 652-53, 656 (1987).
