State v. Holland

• Decision Date: 21 July 2009
• Docket Number: Docket: Yor-08-311.
• Parties: STATE of Maine v. Rory C. HOLLAND.
• Court: Maine Supreme Court

976 A.2d 227

2009 ME 72

STATE of Maine v. Rory C. HOLLAND.

Docket: Yor-08-311.

Supreme Judicial Court of Maine.

Submitted on Briefs: April 30, 2009.

Decided: July 21, 2009.

Thomas J. Connolly, Esq., Portland, ME, for Rory Holland.

Mark W. Lawrence, Dist. Atty., John M. Pluto, Asst. Dist. Atty., Anne Marie Pazar, Contract Brief Writer, Alfred, ME, for State of Maine.

Panel: CLIFFORD, and ALEXANDER, LEVY, SILVER, MEAD, and GORMAN, JJ.

ALEXANDER, J.

[¶ 1] Rory C. Holland appeals from the judgment of conviction of one count of criminal mischief (Class D), 17-A M.R.S. § 806(1)(A) (2008), entered in the Superior Court (Androscoggin County, Delahanty, J.) following a jury trial. Holland argues that the court erred when it: (1) denied his challenge to the lack of racial diversity in his jury pool; (2) denied his challenge to certain jurors for cause; and (3) denied his request for a jury instruction on the competing harms defense pursuant to 17-A M.R.S. § 103 (2008).¹ We affirm the judgment.

I. CASE HISTORY

A. Events Leading to the Indictment

[¶ 2] The basic facts of the case are not in dispute. The jury could reasonably have found the following facts, viewing them in a light most favorable to Holland. See State v. Nadeau, 2007 ME 57, ¶ 9 n. 1, 920 A.2d 452, 454 (stating that when determining whether there was evidence on each element of a competing harms defense sufficient to submit the defense to the fact-finder, we review the evidence in a light most favorable to the defendant).

[¶ 3] Holland owned and lived in a small multi-unit building in Biddeford. Between Holland's property and a neighbor's home was a line of six poplar trees that, in 2005, were approximately sixty feet tall and encroached upon Holland's property. Holland and his neighbor had disputed, but not resolved, the location of their boundary line in relation to the poplar trees. Power lines to Holland's home run parallel to the line of poplars along Holland's side of the poplars.

[¶ 4] On September 22, 2005, Holland cut four of the six trees, causing three of those four trees to fall over. One of the felled trees landed on his neighbor's car and destroyed it. The power lines running from the street to Holland's home were not damaged.

[¶ 5] On September 26, 2005, the neighbor saw Holland standing next to the remaining two poplars holding a power saw, after which she discovered deep cuts to those two trees. A tree company took down the two damaged trees later that day. Holland did not dispute that he cut the trees, including the one that damaged the neighbor's car, asserting that he acted to avoid damage to his home and the power lines to his home.

[¶ 6] Holland was indicted by the York County Grand Jury on one count of aggravated criminal mischief (Class C), 17-A M.R.S. § 805(1)(A) (2005), for intentionally, knowingly, or recklessly damaging his neighbor's car.²

B. Challenge to the Jury Pool and Voir Dire

[¶ 7] Holland is African-American. On February 24, 2006, he filed motions challenging the racial composition of the York County jury pool and requesting State funds to conduct a jury pool study. On March 1, 2006, the day of his arraignment, Holland filed a motion to change venue. After changes of court-appointed counsel and several continuances, the court (Bradford, J.): (1) granted Holland's motion for a change of venue; (2) transferred the case for trial to Androscoggin County; and (3) granted Holland $750 to conduct a jury pool study.

[¶ 8] Holland subsequently filed a motion challenging the jury pool in Androscoggin County and a motion requesting State funds for a jury pool expert. Holland's counsel also filed a motion to withdraw. Holland's motion challenging the jury pool asserted that the jury selection process was not race-neutral, that it systemically resulted in underrepresentation of African Americans, and accordingly, violated his constitutional rights under the Sixth Amendment and the Equal Protection Clause.

[¶ 9] The Superior Court (Delahanty, J.) held a hearing on the motions. The court denied counsel's motion to withdraw. The court also concluded that the challenge to the jury panel for Androscoggin County was premature. The court denied additional funds for an expert based on Holland's failure to show grounds, the expert methodology, and basis for the expert's charges. The court noted that it had previously approved $750 for a study, and that there was no sufficient showing that those funds had been used or were inadequate.

[¶ 10] Jury selection was conducted on May 19, 2008. At Holland's request, the court gave the prospective jurors a written questionnaire containing eighteen questions intended to examine the potential jurors' feelings about and experiences concerning African-Americans and other minorities. The questions asked included whether the potential juror feels nervous, anxious, or intimidated alone in the presence of a black male; feels uncomfortable around black people; has lived with or has a close friendship with a black person; and, if the juror answered yes to any of the eighteen questions, whether the juror's feelings make it difficult for him or her to be fair and impartial. Of the eighty-one venire persons, seventeen responded affirmatively to one or more of the questions and also responded that their feelings would make it difficult for them to be fair and impartial jurors. The court excused each of those seventeen jurors. Forty-five additional jurors responded affirmatively to one or more of the additional questions, most stating they had lived with or had a close friendship with an African-American, but also stating that their ability to be fair and impartial would not be impaired.

[¶ 11] Based on the written answers, the court excused for cause several additional prospective jurors. Holland objected to twelve other potential jurors who stated that: (1) they felt intimidated by and uncomfortable around African-Americans; (2) they or someone in their family had used a particular racial epithet; or (3) both; but (4) they thought they could be fair and impartial. After other voir dire was conducted, the court granted Holland's challenges for cause as to jurors based on their having admitted to using, or having family members who used, the racial epithet. This left four potential jurors in the venire pool who had stated that they felt uncomfortable or intimidated around African-Americans, but that they could be fair and impartial. The court did not ask, and Holland did not request, although invited to do so, further questions of the challenged jurors concerning their feelings about race.

[¶ 12] Of the four remaining potential jurors whom Holland had challenged for cause, one was struck by the State's exercise of a peremptory challenge. Holland did not use his eight peremptory challenges to strike any of the remaining three challenged jurors. Two of the three challenged jurors were impaneled.

[¶ 13] Holland then objected to the jury based on lack of racial diversity. Holland argued that, based on his observations, the assembled jury pool contained no racial minorities. The court and State both agreed with this observation. Holland made an offer of proof that the panel was assembled pursuant to the "normal protocol that the clerk's office uses," and that it is "typical to the racial outcome that they are expected and normally do see in this county, that nothing untoward or unusual was done in reference to this selection process, and this is consistent with the way things have been done for at least ... the last five years or longer...." The court clarified, "By that you're talking about the so-called master plan that exists and the process of obtaining the names from the Secretary of State's office," to which Holland agreed.³

[¶ 14] The court stated that the clerk had compiled some information at the court's request, i.e., that 151 people total were summonsed of which twenty-five were excused for medical reasons, nineteen were deferred for work or financial reasons, eleven failed to appear, and there were four whose mail was returned for improper address and the like. Of the remaining ninety-two potential jurors, two called in sick on the day of jury selection. The court believed eighty-one potential jurors actually appeared for Holland's jury selection. The court noted that it had no way of knowing the race of the potential jurors who did not appear for jury duty because the questionnaires sent to prospective jurors do not request racial information. The court also observed, based on the sitting justice's personal experience, that minorities have been in the jury pool and have sat on juries in Androscoggin County over the last twenty-five years, but that the court had no actual figures and "would not guess."

[¶ 15] Holland requested that the court take judicial notice of census data from Androscoggin County stating that the racial composition of the county for the year 2000, the most recent statistics then available, was 97% White, 0.7% Black, 0.3% Native American, 0.6% Asian, and .3% other, and that 1% of the population was described as Hispanic. The census data also shows that 1.2% of the county's 2000 population represented more than one race. Holland acknowledged that the racial data included all persons in the county in 2000 regardless of age, citizenship status, or eligibility for jury duty.

[¶ 16] Holland concluded by arguing that the venire pool, and thus the jurors that ultimately participated in the voir dire, "were not a fair and equal representative of the community" in which Holland was to be tried, that the jury pool selected was based on an unfair selection process, and he was denied equal protection and due process. Holland requested that the court either change venue to a locale where the "probability of a representative sample is higher, such as Portland"; convene a separate panel for which the court would affirmatively seek out racial minorities to serve as jurors; or...