State v. Hemminger
| Decision Date | 14 June 2022 |
| Docket Number | Docket: And-21-288 |
| Citation | 276 A.3d 33,2022 ME 32 |
| Parties | STATE of Maine v. Hillary HEMMINGER |
| Court | Maine Supreme Court |
Rory A. McNamara, Esq. (orally), Drake Law LLC, York, for appellant Hillary Hemminger
Andrew S. Robinson, District Attorney, and Patricia A. Mador, Asst. Dist. Atty. (orally), Office of the District Attorney, Lewiston, for appellee State of Maine
Panel: MEAD, JABAR, HORTON, CONNORS, and LAWRENCE, JJ.*
[¶1] Hillary Hemminger appeals from a judgment of conviction for operating under the influence (Class D), 29-A M.R.S. § 2411(1-A)(A) (2022), entered in the trial court (Androscoggin County, Stewart, J. ) after a jury trial. Hemminger contends that (1) the court erred in denying her challenge for cause to a prospective juror based on implied bias and (2) the court violated her constitutional rights by taking into account in its sentence what the court deemed her untruthful trial testimony without first making independent perjury findings. We disagree with both arguments and affirm.
[¶2] "Viewing the evidence in the light most favorable to the jury's verdict, the trial record supports the following facts." State v. Murray , 2021 ME 47, ¶ 2, 259 A.3d 1276. Sometime in the early evening on April 7, 2020, the vehicle that Hillary Hemminger was driving veered off the road and into a ditch in Livermore Falls. An officer responded to a bystander's call reporting the accident at around 6:30 p.m. Video from the officer's body camera showed Hemminger to be visibly unsteady on her feet and slurring her speech. In response to the officer's questions, Hemminger said that she had consumed two alcoholic beverages between 12:00 and 1:30 p.m. and did not mention any subsequent consumption of alcohol. After administering a roadside test to detect impairment, the officer concluded that Hemminger was impaired and placed her under arrest. The officer brought Hemminger to the police station to administer an Intoxilyzer test of her breath alcohol level, which yielded a result of .21 grams of alcohol per 210 liters of breath. The State charged Hemminger by complaint1 with operating under the influence (Class D), 29-A M.R.S. § 2411(1-A)(A).
[¶3] During jury selection on August 5, 2021, the court had the following exchange with one of the randomly selected jurors:
Hemminger challenged the juror for cause, but the court denied the challenge, stating that the "[o]nly parallel I see is [that the driver in the accident the juror described was] a woman." Hemminger did not use a peremptory challenge to exclude the juror, and the juror was empaneled.
[¶4] The court held a one-day jury trial on August 18, 2021. The State presented testimony from multiple witnesses and entered in evidence the responding officer's body camera footage and the Intoxilyzer results. Hemminger testified that on April 7, 2020, she had two alcoholic beverages at a friend's house at around 12:30 p.m. and that she left at around 3:00 p.m. to go to the grocery store, where she purchased coffee brandy. She testified that she left the grocery store at around 3:30 or 3:45 p.m. to drive home but that, during the drive, the car slid on debris on the road and swerved into a ditch. She testified that, from about 4:00 until 6:00 p.m., no cars drove by and that she called fifteen or twenty people for help. Hemminger testified that the accident caused severe pain in her back and that, during the time between the accident and when the police arrived, she consumed approximately thirty-six ounces of coffee brandy to ease the pain. She further testified that she hid the bottle under the seat before the officer arrived because she did not think that he would believe that she had been drinking after the accident.
[¶5] The jury found Hemminger guilty of operating under the influence and of having a blood-alcohol level of .15 grams or more per 210 liters of breath at the time of the offense. See 29-A M.R.S. § 2411(1-A)(A), (5)(A)(3)(a)(i). The court sentenced Hemminger immediately after the trial and weighed the mitigating and aggravating factors:
After the court's remarks, Hemminger challenged the court's characterization of her testimony, although she did not ask the court to make independent perjury findings. The court sentenced Hemminger to a four-day period of incarceration, imposed a $500 fine, and suspended her license for 150 days. Hemminger timely appealed. See 15 M.R.S. § 2115 (2022) ; M.R. App. P. 2B(b)(1).
[¶6] Hemminger argues2 that the court erred in denying her challenge to strike for cause a juror whose father was injured by a drunk driver because the juror was impliedly biased3 as a matter of law. "Whether a juror's partiality may be presumed from the circumstances is a question of law," State v. Carey , 2019 ME 131, ¶ 25, 214 A.3d 488 (quotation marks omitted), and we review questions of law de novo, Medeika v. Watts , 2008 ME 163, ¶ 5, 957 A.2d 980.
[¶7] We discussed the doctrine of implied juror bias for the first time in State v. Carey , 2019 ME 131, ¶¶ 25-26, 214 A.3d 488. There, we explained that, in determining whether a juror's bias may be implied, the inquiry is an objective one focusing on whether an average person in the position of the challenged juror "could remain impartial in deliberations under the circumstances." Id. ¶ 25 (alterations and quotation marks omitted). "[B]ias can be implied ... only in extreme or extraordinary circumstances." Id. ¶ 26. In Carey , when the charges against the defendant were described during jury selection, one prospective juror stated, clearly enough that other jurors could have heard, "No, I'm not staying for this" and "[t]his is ridiculous" and abruptly left the room. Id. ¶ 5. We concluded that the remaining jurors were not impliedly biased because we "[could] not 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 [outburst]." Id. ¶ 27.
[¶8] Because Carey is the only case in which we have addressed implied juror bias and the circumstances were distinguishable from those here, federal jurisprudence4 is instructive.5 Consistent with our precedent in Carey , federal courts apply the doctrine only in extreme or extraordinary circumstances. See, e.g. , United States v. Kechedzian , 902 F.3d 1023, 1027-28 (9th Cir. 2018) ; Hunley v. Godinez , 975 F.2d 316, 319 (7th Cir. 1992) ; Gonzales v. Thomas , 99 F.3d 978, 987 (10th Cir. 1996). Courts have sometimes concluded that a juror is impliedly biased "where a juror or his close relatives have been personally involved in a situation involving a similar fact pattern." Tinsley v. Borg , 895 F.2d 520, 528 (9th Cir. 1990) ; s...
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