State of Maine v. Kenneth A. Fay

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2015 ME 160Docket: Wal-15-33
Submitted
On Briefs: September 28, 2015
Decided: December 8, 2015
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.
STATE OF MAINE
v.
KENNETH A. FAY
MEAD, J.
[¶1] Kenneth A. Fay appeals from a judgment of conviction of operating
under the influence (Class D), 29-A M.R.S. § 2411(1-A)(C)(1) (2012),1 entered by
the trial court (Waldo County, R. Murray, J.) after a jury trial. On appeal, Fay
contends that (1) the evidence was insufficient to support the jury’s guilty verdict;
(2) the court abused its discretion in refusing to grant a mistrial; and (3) the court
committed prejudicial error by using a jury verdict form. We affirm the judgment.
I. BACKGROUND
[¶2] When viewed in the light most favorable to the State, the jury could
have rationally found the following facts. State v. Lowden, 2014 ME 29, ¶ 3,
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The offense in this case predated the amendment to 29-A M.R.S. § 2411 that increased the mandated
loss of license from 90 days to 150 days. See 29-A M.R.S. § 2411(5)(A)(2) (2012) (providing for a
ninety-day license suspension).
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87 A.3d 694. On July 6, 2012, at around 7:00 p.m., the Belfast Police Department
received a complaint describing the erratic operation of a small, red sedan with
Pennsylvania license plates. Shortly thereafter, a police officer saw a car matching
that description pull into a restaurant parking lot. The officer observed that the
driver, Kenneth Fay, was slouched over and moving slowly as he operated the car.
After Fay parked the car, he struggled to get out, stumbled, and put his hands on
the car for balance.
[¶3] The officer approached Fay and noticed that his breath smelled of
alcohol and that his speech was slurred and, at times, incomprehensible. Fay
admitted that he had been drinking earlier that day and agreed to perform field
sobriety tests. He was unable to perform successfully three field sobriety tests:
(1) horizontal gaze nystagmus (HGN); (2) heel-to-toe walk; and (3) one-legged
stand. The officer concluded that Fay was impaired, arrested him, and transported
him to the county jail, where he refused intoxilyzer and blood tests.
[¶4] The State presented at trial a video recording of Fay’s actions during
the field sobriety tests. On cross-examination, Fay testified that his eccentric
demeanor in the video resulted from never having been “put through that situation”
before. In response to that statement, the State’s attorney asked Fay, “You never
had an interaction with an officer regarding OUI?” Before Fay could answer,
defense counsel objected and moved for a mistrial at sidebar on the ground that the
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question was substantially prejudicial. The court sustained the objection, but
denied the motion for a mistrial. Defense counsel declined a curative instruction.
[¶5] The jury, using a verdict form that both Fay and the State consented to,
found Fay guilty of operating under the influence pursuant to 29-A M.R.S. § 2411,
and made an additional finding that Fay had failed to submit to an intoxilyzer test.
Fay was sentenced to thirteen days in jail, fined $940, and had his license
suspended for ninety days.
II. DISCUSSION
A. Sufficiency of the Evidence
[¶6] Fay asserts that the evidence was insufficient to support the jury’s
guilty verdict. “When a criminal defendant claims on appeal that the evidence was
insufficient to support his conviction, we view the evidence in the light most
favorable to the State in determining whether the fact-finder could rationally have
found each element of the offense beyond a reasonable doubt.” State v. Reed,
2013 ME 5, ¶ 9, 58 A.3d 1130 (quotation marks omitted).
[¶7] Fay contends that the evidence was insufficient to support a conclusion
that he was under the influence of intoxicants specifically because the field
sobriety tests did not strictly comply with the National Highway Traffic Safety
Administration (NHTSA) training manual. A police officer’s failure to strictly
adhere to the specific procedures promulgated by NHTSA does not render
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evidence regarding those field sobriety tests inadmissible or without value in
determining whether a suspect is under the influence of intoxicants. The use of
alternative approaches might be relevant to the weight the jury places upon that
evidence, but that is a matter that can be addressed through cross-examination.
Thus, a fact-finder may consider a suspect’s unsatisfactory performance of field
sobriety tests as evidence of intoxication, notwithstanding variations in the
administration of those tests.
[¶8] In addition to Fay’s poor performance on the field sobriety tests, the
jury had additional evidence before it allowing it to rationally find Fay guilty of
operating under the influence and refusing to submit to an intoxilyzer test. The
jury heard Fay testify during direct and cross-examination that he drank before
driving, drank while driving, and that he refused the intoxilyzer test. The jury
heard the officer’s testimony that Fay had (1) a half-consumed beer in his car;
(2) an odor of alcohol on his breath; (3) slurred and incomprehensible speech;
(4) bloodshot and glassy eyes with droopy eyelids; and (5) slow and lethargic
movements. The evidence is sufficient to support the jury’s verdict. See State v.
Soucy, 2012 ME 16, ¶¶ 13-14, 36 A.3d 910; State v. Melanson,
2002 ME 145, ¶¶ 8-10, 804 A.2d 394; State v. Jordan, 599 A.2d 74, 76
(Me. 1991).
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B. Denial of Motion for Mistrial
[¶9] Fay asks us to conclude that the trial court abused its discretion in
refusing to grant a mistrial after the State’s attorney asked Fay about prior
interactions with police officers in the context of OUI offenses. We review the
denial of a motion for a mistrial for an abuse of discretion “[b]ecause the trial court
has a superior vantage point . . . .” State v. Logan, 2014 ME 92, ¶ 14, 97 A.3d 121(quotation marks omitted). “We will overrule the denial of a mistrial only in the
event of exceptionally prejudicial circumstances or prosecutorial bad faith.” Id.(quotation marks omitted).
[¶10] The trial court committed no abuse of discretion in denying the
motion for a mistrial. The unanswered question was not asked in bad faith nor was
it particularly prejudicial. In so concluding, we note that (1) the question was
never answered; (2) the question did not inherently suggest a prior conviction; and
(3) defense counsel rejected any potential curative instruction. See Jamshidi v.
Bowden, 366 A.2d 522, 524 (Me. 1976) (“[W]e look upon defense counsel’s
decision to stake his all on being right in his claim of the necessity for a mistrial,
and his consequent refusal to agree to a curative instruction by the presiding
Justice, as a tactical choice by which he assumed the risk of being wrong. Hence,
defendant may not now complain, on appeal, of potential prejudice resulting from
his own trial tactics.”).
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[¶11] Fay suggests that the State’s attorney asked the question about prior
interactions with police officers in bad faith. At sidebar, however, the State’s
attorney represented to the court that he was prepared to offer a certified copy of a
previous, out-of-state OUI conviction to rebut Fay’s answer that he had “never
been put through that situation” before. Although the trial court ultimately
sustained Fay’s objection, the record does not suggest that the question was asked
in bad faith.
C. Jury Verdict Form
[¶12] Fay asserts that the court committed prejudicial error by using a jury
verdict form because, he alleges, the form provided no guidance on the jury’s
ability to find the defendant guilty of OUI but not guilty of the refusal
enhancement. Because Fay’s counsel expressly consented to the use of the verdict
form at trial, we review this issue for obvious error. Sullivan v. Porter,
2004 ME 134, ¶ 24, 861 A.2d 625.
[¶13] An error is “obvious” if it is “(1) an error, (2) that is plain, . . . (3) that
affects substantial rights[,] . . . [and] (4) the error seriously affects the fairness and
integrity or public reputation of judicial proceedings.” State v. Pabon,
2011 ME 100, ¶ 29, 28 A.3d 1147. “An error affects a criminal defendant’s
substantial rights if the error was sufficiently prejudicial to have affected the
outcome of the proceeding.” State v. Dolloff, 2012 ME 130, ¶ 37, 58 A.3d 10327
(alteration omitted) (quotation marks omitted). Fay has the burden to demonstrate
obvious error. Id. ¶ 39.
[¶14] The use of verdict forms in criminal trials is a common practice
because they are “useful to determine if sentencing or crime classification
enhancement elements have been proven.” Alexander, Maine Jury Instruction
Manual § 5-4A at 5-8 (2015 ed.). We have cautioned, however, that a verdict form
is incompatible with Maine criminal practice to the extent that it will “lead the
jurors down the guilty trail,” State v. McNally, 2007 ME 66, ¶ 9,
922 A.2d 479 (quotation marks omitted), or require “the jury to state the reason or
reasons for its not-guilty verdict,” State v. Fournier, 554 A.2d 1184, 1188
(Me. 1989). To protect against these concerns, “a form is best limited to direct
questions that simply ask the jury to report whether they find the defendant guilty
or not guilty as to each charge.” McNally, 2007 ME 66, ¶ 9, 922 A.2d 479.
[¶15] We conclude that there was no error in the use of the jury verdict
form. Contrary to Fay’s contention, the jury was not compelled to find Fay guilty
of the refusal enhancement after finding him guilty of OUI because the form, by its
plain terms, makes clear that the refusal enhancement is a separate and distinct
finding. The verdict form explicitly states “[i]f the Jury’s verdict is Guilty [of
OUI], then please answer the following question. If the Jury’s verdict is Not
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Guilty, do not answer the following question.” Because the following question
was answerable “yes” or “no,” the jury was free to reject the refusal enhancement.
[¶16] The use of the verdict form in this case was entirely appropriate
because it protected Fay’s right to a jury finding on the sentencing enhancement
for a refusal to submit to an intoxilyzer. See Apprendi v. New Jersey,
530 U.S. 466, 490 (2000) (“[A]ny fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.”); see also Alexandre v. State, 2007 ME 106, ¶¶ 15-16,
927 A.2d 1155. The design of the form used here complied with our guidance in
State v. McNally, 2007 ME 66, ¶ 9, 922 A.2d 479, because it simply stated the
options of “guilty” or “not guilty” of operating under the influence of intoxicants.
With respect to the intoxilyzer refusal enhancement, the form separately asked a
“yes” or “no” question. We find no error and commend the use of such verdict
forms.
The entry is:
Judgment affirmed.
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On the briefs:
William F. Pagnano, Esq., Rockland, for appellant Kenneth A.
Fay
Neil E. McLean Jr., Asst. Dist. Atty., Belfast, for appellee State
of Maine
Waldo County Superior Court docket number CR-2014-227
FOR CLERK REFERENCE ONLY