State v. Carey
| Decision Date | 08 October 2013 |
| Docket Number | Docket No. Ken–13–50. |
| Citation | 77 A.3d 471,2013 ME 83 |
| Parties | STATE of Maine v. Jonathan M. CAREY. |
| Court | Maine Supreme Court |
OPINION TEXT STARTS HERE
Robert E. Sandy, Jr., Esq., Sherman & Sandy, Waterville, for appellant Jonathan M. Carey.
Meaghan Maloney, District Attorney, Prosecutorial District IV, Augusta, for appellee State of Maine.
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.
[¶ 1] Jonathan M. Carey appeals from a judgment of conviction of unlawful sexual contact (Class B), 17–A M.R.S. § 255–A(1)(F) (2012), and unlawful sexual touching (Class D), 17–A M.R.S. § 260(1)(C) (2012), entered in the Superior Court (Kennebec County, Mills, J.) after a jury found him guilty. This trial was the third held in this case after two mistrials.
[¶ 2] Carey argues on appeal that the court ( Murphy, J.) erred in declaring a mistrial in his second trial. Carey also argues that the court ( Mills, J.) erred in denying his motion for a new trial, filed on the grounds of prosecutorial misconduct, after the third trial, and that the court erred in failing to “limit,” on its own initiative, misstatements of law and fact that the prosecutor allegedly made in closing argument and in rebuttal at the third trial. We affirm the judgment.
[¶ 3] Viewing the evidence in a light most favorable to the State, the jury could rationally have found the following facts beyond a reasonable doubt. See State v. Woodard, 2013 ME 36, ¶ 7, 68 A.3d 1250.
[¶ 4] In summer 2008, three girls had a sleepover at the home of one of the girls who lived with her mother and her mother's then-boyfriend, Jonathan M. Carey. The three girls all slept in the daughter's room on a mattress on the floor. After the girls went to sleep, Carey entered the bedroom and began stroking the hair of one of the daughter's friends. That girl told Carey to stop, and he moved around the bed and lay down next to the victim in this case.
[¶ 5] The victim, then twelve or thirteen years old, woke up to find Carey touching her sexually. The victim shoved him away and retreated into the bathroom. She later told the other two girls what had happened, but by agreement, the girls did not tell anyone else until a year later when the daughter “told.” One can infer from the record that the daughter told her mother, Carey's then-girlfriend, what Carey had done to the victim and that the daughter also told her mother that Carey had previously sexually assaulted her.
[¶ 6] A criminal complaint was filed against Carey. Carey was subsequently indicted on one count of unlawful sexual contact and one count of unlawful sexual touching committed against the victim and two counts of unlawful sexual contact committed against the daughter. Carey pleaded not guilty, and the case was set for a jury trial.
[¶ 7] The first jury trial began on July 20, 2010. The victim and the daughter testified and were subject to Carey's cross-examination. However, after another State's witness invoked her Fifth Amendment right against self-incrimination during her testimony, precluding Carey from cross-examining her, the court ( Mills, J.) declared a mistrial in response to Carey's motion and due to manifest necessity.
[¶ 8] A second trial began in September 2011. The victim again testified. The daughter then testified on direct examination to facts relevant to Carey's sexual assault of the victim and testified that Carey did “[t]he same thing [to her that] he did to” the victim, but refused to be more specific. The daughter became very emotional, broke down, and essentially refused, both in and out of the jury's presence, to answer any further questions.
[¶ 9] The State requested that the daughter be treated as an unavailable witness pursuant to M.R. Evid. 804(a)(2) and (b)(1) so that her complete testimony from the first trial could be admitted in the second trial under that exception to the hearsay rule. Carey objected, arguing that the witness was not “unavailable” because she had partially testified at the second trial and that his inability to cross-examine her on that partial testimony raised Sixth Amendment confrontation issues.
[¶ 10] Carey acknowledged the dilemma at issue; he agreed with the State that the witness should not be brought back given what had already occurred in the jury's presence, but he explicitly did not waive his Sixth Amendment right to confrontation, arguing, “I would object myself to having her brought in again [before the jury] because I think it has been damaging to my ... case at this point, but if [the State] is not going to bring her back, [I] still [have] a right to cross-examine her.” Carey also acknowledged that there was a similarity between this trial and how the first trial ended when the parties agreed to a mistrial due to manifest necessity, observing at the second trial that, “for [me] not to be able to cross-examine [the witness] would be manifest necessity again.” The court ( Murphy, J.) and the parties then had a lengthy discussion about how to proceed, including discussing the possibility that another mistrial could be declared due to manifest necessity if no other resolution could be reached. The court recessed for the day to allow the parties time to consider the issues.
[¶ 11] The witness did not return the next day, and the State reported that she would persist in refusing to testify in any event. Carey initially indicated that he wanted an opportunity to cross-examine the witness on testimony she gave the previous day, but withdrew that request acknowledging that bringing her back in front of the jury was not in his best interest. The court appeared to agree that any attempt to coerce additional testimony from the witness would be both futile and prejudicial to Carey. Accordingly, the court declared a mistrial, finding manifest necessity, concluding that “there is a confrontation issue that cannot be remedied by the introduction of the prior trial testimony because there were statements in front of the jury that were different from what [the daughter] testified to at trial,” and observing that “the defense seems to be agreeing that it would be futile to try to ask her those questions and in fact prejudicial to the defense if she was brought back in front ... of the jury....”
[¶ 12] There was no objection to the declaration of a mistrial. Carey's only response was to inquire about an unrelated topic. The court then conferred with counsel off the record. There is no indication that Carey opposed a mistrial during that conference or at any other time before the court discharged the jury.
[¶ 13] Before the third trial, the State dismissed the two counts of unlawful sexual contact relating to the daughter and proceeded on only the two counts relating to the victim. Carey did not move to have the two remaining counts dismissed on the grounds that double jeopardy precluded retrial.
[¶ 14] The court ( Mills, J.) held the third trial in March 2012. The jury found Carey guilty of unlawful sexual contact and unlawful sexual touching. Carey moved for a new trial. The trial court held a non-evidentiary hearing on Carey's motion. At the hearing, Carey argued that he was deprived of a fair trial on multiple grounds, including that Carey had personally observed at trial (but not informed his attorney until after trial) that the prosecutor nodded his head “yes” or shook his head “no” and made hand gestures at certain times when Carey's attorney was cross-examining the victim. Carey argued to the trial court that these gestures were an attempt to coach the witness's testimony. He did not argue that the prosecutor's gestures may have influenced the jury.
[¶ 15] The prosecutor admitted at the hearing that he pointed to a visual aid for the benefit of opposing counsel and nodded and shook his head at trial as Carey cross-examined the victim. However, the prosecutor stated that he was not intending to transmit any answers to the victim and that he could not have transmitted any message to the victim because the victim's view of the prosecutor was blocked by Carey's counsel. The prosecutor indicated that he nodded his head in the course of taking notes and preparing for redirect. The court denied Carey's motion for a new trial in a written decision. Carey timely appeals from the judgment of conviction pursuant to 15 M.R.S. § 2115 (2012) and M.R.App. P. 2.1
[¶ 16] Carey presents three issues on appeal, arguing that the trial court erred in (1) declaring a mistrial in the second trial; (2) denying his motion for a new trial based on allegations of prosecutorial misconduct in the prosecutor's gestures during the third trial; and (3) failing to limit, on its own initiative, alleged misstatements of law and fact that the prosecutor made in closing argument and in rebuttal at the third trial. Reviewing the prosecutorial statements challenged in the third issue for obvious error because Carey did not object at trial, see M.R.Crim. P. 52(b); Woodard, 2013 ME 36, ¶¶ 33, 37, 68 A.3d 1250, we conclude that there was no obvious error and do not address the third issue further.2
[¶ 17] Carey argues that the court erred in ordering a mistrial at the second trial because (1) Carey did not move for a mistrial, (2) the court's ruling “did not afford the defense an opportunity to retain primary control over the course of the case,” and (3) there was no manifest necessity because alternatives to mistrial were available. Carey asserts that when a mistrial is improperly declared, retrial violates the defendant's constitutional right to be free from double jeopardy and that the case should be dismissed.
[¶ 18] Carey did not object to the declaration of a mistrial at any time at the second trial, or at any time until this appeal for that matter, and we therefore review the declaration of a mistrial for obvious error. See M.R.Crim. P. 52(b); see also,...
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