State v. Fleming, 101320 MESC, Oxf-19-426

Docket Nº:Oxf-19-426
Opinion Judge:JABAR, J.
Attorney:Christopher S. Berryment, Esq. (orally), Mexico, for appellant Philip Fleming Andrew S. Robinson, District Attorney, and Alexandra W. Winter, Asst. Dist. Atty. (orally), Office of the District Attorney, South Paris, for appellee State of Maine
Case Date:October 13, 2020
Court:Supreme Judicial Court of Maine

2020 ME 120




No. Oxf-19-426

Supreme Court of Maine

October 13, 2020

Argued: July 15, 2020

Christopher S. Berryment, Esq. (orally), Mexico, for appellant Philip Fleming

Andrew S. Robinson, District Attorney, and Alexandra W. Winter, Asst. Dist. Atty. (orally), Office of the District Attorney, South Paris, for appellee State of Maine



[¶1] Philip Fleming appeals from a judgment of conviction of trafficking in prison contraband (Class C), 17-A M.R.S. § 757(1)(B) (2020), unlawful possession of a scheduled drug (Class D), 17-A M.R.S. § 1107-A(1)(C) (2020), and violating a condition of release (Class E), 15 M.R.S. § 1092(1)(A) (2020), entered by the trial court (Oxford County, Stokes, J.) following a jury trial.[1] For the reasons that follow, we vacate the judgments of conviction and remand the matter to the trial court for further proceedings.


A. Factual Background

[¶2] Viewing the evidence in the light most favorable to the verdict, the jury rationally could have found the following facts beyond a reasonable doubt. See State v. Ouellette, 2019 ME 75, ¶ 11, 208 A.3d 399.

[¶3] On March 6, 2019, Philip Fleming, who identifies as a Black man, was arrested for domestic violence assault (Class D), 217-A M.R.S. § 207-A(1)(A) (2020). He was placed in handcuffs and transported to the Oxford County Jail. Upon his arrival, a corrections officer (CO.) conducting Fleming's intake opened the rear door of the cruiser and asked Fleming the "standard three questions" that he asks individuals brought into the jail: (1) whether Fleming was suicidal, (2) whether Fleming had any drugs or weapons on him or inside of him, and (3) whether Fleming had received medical treatment in the past 48 hours. With regard to the second question, Fleming answered that to his knowledge he did not have any drugs or weapons on or inside him, and that he "ha[d] already been patted down." The CO. warned Fleming that it would be a Class C offense to bring any contraband into the jail with him; this warning also appeared on a sign posted at the entry to the jail. Fleming did not respond to the C.O.'s warning.

[¶4] Fleming was then brought into the booking room where his handcuffs were removed and a pat down search was performed. At that time, the arresting officer informed the CO. that Fleming was going to be charged "with drug paraphernalia." In light of this information, the CO. brought Fleming into a holding cell to conduct a strip search. When Fleming removed his undergarments the CO. "noticed that there was a plastic bag wrapped around [Fleming's] penis."3 At that point, Fleming and the CO. "both kind of looked at each other and then [Fleming] look[ed] down and said, [T]hat's not mine, I don't know how that got there.[']" The CO. did not ask Fleming anything about the plastic bag before Fleming volunteered that the bag did not belong to him. Following Fleming's statement, however, the CO. asked "whose it may be." Fleming told the officer that it belonged to the girl and that "she [was] trying to set me up." The CO. testified that the contents of the bag appeared to be "crack."4 The CO. never informed Fleming of his Miranda rights and, to the C.O.'s knowledge, Fleming was not otherwise informed of his Miranda rights.

B. Procedural History

[¶5] A four-count indictment was filed against Fleming, charging him with (1) trafficking in prison contraband (Class C), 17-AM.R.S. §757(1)(B); (2) domestic violence assault (Class D), 17-A M.R.S. § 207-A(1)(A); (3) unlawful possession of a scheduled drug (Class D), 17-A M.R.S. § 1107-A(1)(C); and (4) violating a condition of release (Class E), 15 M.R.S. § 1092(1)(A).5

1. Jury Selection

[¶6] Jury selection took place on July 8, 2019. Fleming requested eleven race-related voir dire questions that would explore the potential jurors' beliefs and experiences-both positive and negative-with regard to African Americans.6 In addition to identifying racial bias, defense counsel proffered as a reason for asking the questions, "I suspect that we'd be lucky if a fraction of [jurors] have had or currently have African American friends, family or acquaintances. So I think it's fair that the defendant have knowledge of who those people . . . are, so that he . . . can rationally exercise his peremptory challenges."

[¶7] The court rejected Fleming's proposed questionnaire but had the prospective jurors complete a questionnaire that required them to answer "yes" or "no" to the following four questions: 1. Would you find it difficult to be fair, impartial and objective if the witnesses, victim and/or defendant are of a different race or ethnicity than you?

2. Based on your life experiences, would you decide the credibility of a witness or actions of a person differently because of that person's race or ethnicity?

3. Have you had any adverse problems or confrontations with a person of a different ethnicity?

4. If you answered "Yes" to any of the above questions, will it be difficult for you to decide this case fairly, impartially and objectively?

Before the distribution of the juror questionnaires, the court instructed the jury pool on the importance of basing any decision on the evidence in the case, and not on any "preconceived belief" or "preconceived prejudices" they might have. Jurors who answered "yes" to questions 1, 2, or 4 were automatically removed from the jury pool.7 The jurors who responded "yes" to question 3 but "no" to question 4 underwent additional voir dire. As a result of this process, one additional juror was stricken for cause.

2. Motion to Suppress

[¶8] Fleming filed a motion to suppress seeking to suppress the statements he made to the CO., and a suppression hearing was held on the morning of trial. The court granted Fleming's motion to suppress with regard to the statement he made in response to the C.O.'s question of whether Fleming had any drugs or weapons on him. The court denied Fleming's motion as it pertained to the exchange that took place during Fleming's strip search. It found that Fleming's statement during the strip search, "It is not mine, I don't know how it got there," was a spontaneous volunteered statement and the C.O.'s follow-up question was designed to clarify that ambiguous statement.

3. Trial

[¶9] A one-day jury trial was held on July 11, 2019. At trial, the parties argued over the court's instructions on the issue of the culpable mental state required by 17-A M.R.S. § 757(1)(B) and how the parties could address this issue in their arguments. Fleming argued that the State should be prohibited from arguing that his intent to possess prison contraband could be inferred from his failure, despite warnings, to disclose to the officers that he had something wrapped around his penis. Over Fleming's objection, the court opined that the warning was relevant to Fleming's culpable mental state and allowed the State to argue that point.8 Indeed, in her closing argument the prosecutor argued that Fleming's intent to possess prison contraband could be inferred from both his failure to disclose his possession in response to the warnings given to him and his explanation for the plastic bag upon its discovery.

[¶10] The jury returned guilty verdicts on Count 1, trafficking in prison contraband (Class C), and Count 3, unlawful possession of a scheduled drug (Class D). The court found Fleming guilty of Count 4, violating a condition of release (Class E).

[¶11] The court entered a judgment of conviction for Counts 1, 3, and 4, and sentenced Fleming to one year in prison for Count 1, six months in prison on Count 3, and six months in prison on Count 4, all to run concurrently. Fleming timely appeals. M.R. App. P. 2B(b)(2).


[¶12] Fleming raises two primary issues on appeal: (1) whether the trial court abused its discretion when it denied Fleming's requested race-related voir dire questions, and (2) whether the trial court erred in partially denying Fleming's motion to suppress. Because we are vacating the convictions and remanding the case for a new trial, we address both issues to provide guidance to the parties and the trial court. A. Voir Dire

[¶13] Fleming asserts that the four voir dire questions contained on the court's questionnaire were insufficient to uncover racial biases among potential jurors. Recognizing that our earlier decisions may not have provided sufficient guidance in this area, we hold today that the questionnaire used by the trial court was insufficient. In order to allow the parties and the court to ensure that jurors chosen to sit in judgment will base their decisions on evidence rather than bias or prejudice, we must task the trial courts with doing more.

[¶14] In a recent decision addressing this issue, we noted that "the purpose of the voir dire process is to detect bias and prejudice in prospective jurors, thus ensuring that a defendant will be tried by as fair and impartial a jury as possible." State v. Roby, 2017 ME 207, ¶ 11, 171 A.3d 1157 (quotation marks omitted). We have also held that a "trial court is not required to conduct voir dire precisely in the manner requested by a defendant so long as the voir dire process is sufficient to disclose facts that would reveal juror bias." State v. Bethea, 2019 ME 169, ¶ 16, 221 A.3d 563 (quotation marks omitted). Although neither holding is incorrect, neither has provided the trial courts with sufficient guidance. We attempt to address that lack of guidance today.

1. Turner and Bethea

[¶15] Thirty-five years ago, in State v. Turner, we explained that "the United States Supreme Court has noted that 'there is no constitutional presumption...

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