State v. White, Docket: Aro-21-366

• Court: Supreme Judicial Court of Maine (US)
• Citation: 285 A.3d 262,2022 ME 54
• Docket Number: Docket: Aro-21-366
• Parties: STATE of Maine v. Jomo WHITE
• Decision Date: 08 November 2022

285 A.3d 262
2022 ME 54

STATE of Maine
v.
Jomo WHITE

Docket: Aro-21-366

Supreme Judicial Court of Maine.

Argued July 6, 2022
Decided: November 8, 2022

285 A.3d 264

Verne E. Paradie, Jr., Esq. (orally), Lewiston, for appellant Jomo White

Todd R. Collins, District Attorney (orally), and Kari Wells-Puckett, Dep. Dist. Atty., 8th Prosecutorial District, Caribou, for appellee State of Maine

Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, and LAWRENCE, JJ.

CONNORS, J.

285 A.3d 265

[¶1] Jomo White appeals from a judgment of conviction of various offenses, including attempted murder (Class A), 17-A M.R.S. § 152(1)(A) (2022), entered by the trial court (Aroostook County, Nelson, J. ).¹ White's principal argument is that the trial court erred in denying his repeated motions for a mistrial based on allegedly improper comments made in the State's opening statement, closing argument, and rebuttal. We agree that multiple acts of prosecutorial error occurred. Under the Maine Constitution, Me. Const. art. I, §§ 6, 6-A, and our supervisory power, we vacate the judgment and remand for a new trial.

I. BACKGROUND

A. Factual Background

¶2] Viewing the evidence admitted at trial in the light most favorable to the State, the fact finder could rationally have found the following facts beyond a reasonable doubt. See State v. Athayde , 2022 ME 41, ¶ 2, 277 A.3d 387.

[¶3] Both White and the victim were involved in drug trafficking. In the early hours of September 9, 2019, White and at least one other individual went to a house in the Micmac housing area in Presque Isle. The victim was staying in the basement of the house where several of his associates resided. White and the victim had recently had a dispute about proceeds from drug sales, and White went to the house to take money and drugs from the victim.

[¶4] White, who had previously been convicted of a felony, was wearing a white Halloween mask and was armed with a handgun. He entered the house and went down the stairs leading to the basement where the victim was located. The victim was wearing body armor and had a handgun nearby. Upon seeing White masked and armed, the victim retrieved his handgun and shot at White. White then headed back up the stairs while shooting at the victim, who was now chasing him. Several other individuals were present in the basement during the shootout. White shot the victim at least once in the arm and twice in the torso before exiting the house. After White left, the victim called 9-1-1, and first responders arrived. Although the victim's injuries were life-threatening, he survived the shooting.

[¶5] White subsequently discarded his mask and handgun and cut his hair and beard. After he was arrested the following day, while being transported to the police station, he stated that he had acted in self-defense but also that he had "shot to kill." Later that day, White was interviewed by a detective and made multiple statements about the shootout, including that he acted

[285 A.3d 266

in self-defense and that he had wanted only to speak with the victim.

B. Procedural History

¶6] On September 11, 2019, White was charged by complaint. He was then indicted by a grand jury and pleaded not guilty to all counts.

1. Venue and Venire

[¶7] Prior to trial, White, who describes himself as a Black man, moved for a change of venue based on pretrial publicity and a claim that the jury venire did not represent a fair cross-section of the community. The trial court denied the motion.²

2. The Prosecutorial Comments at Issue

[¶8] White proceeded to a jury trial on four of the five counts in the indictment and elected to waive his right to a jury trial on the charge of illegal possession of a firearm by a prohibited person. The trial court held a seven-day jury trial from July 27, 2021, to August 5, 2021.

[¶9] Over the course of the trial, White objected to aspects of the State's opening statement, closing argument, and rebuttal. First, during the opening, White objected on the ground that the opening was argumentative, which objection the trial court overruled. Second, White moved for a mistrial at the end of the State's opening after the prosecutor asked the jury "to hold the defendant accountable for his criminal actions and to find him guilty." Although the trial court concluded that the comment was improper, it determined that the issue could be remedied with a curative instruction, which the court provided immediately thereafter.

[¶10] The third and fourth comments to which White objected were made during the State's closing. During the trial, a detective testified that he recorded an interview he had with White in which White made statements about the shootout. The audio recording was played and entered into evidence. White did not testify at the trial. In his closing, alluding to the statements made by White during his interview with the detective, the prosecutor stated: "It's hard to assess the testimony of an audio recording separately from the witnesses who are on the stand and you're able to look at them and see them and make certain assessments." Thereafter, the prosecutor "urg[ed]" the jury to find White guilty.

[¶11] White renewed his motion for a mistrial based on these two statements, contending that the prosecutor improperly referenced his decision not to testify and that the prosecutor had again improperly implied that the jury had a duty to find him guilty. The trial court found that the statement referencing the audio recording was improper because it "illuminated the fact that the defendant didn't take the stand." The court concluded, however, that a curative instruction could rectify the problem and denied White's motion for a mistrial on that basis. It provided the jury with an instruction before continuing with closing arguments. The trial court concluded that the "urging" statement was not improper.

[¶12] Finally, the prosecutor ended his rebuttal by once again urging the jury to "find the defendant guilty." White renewed his request for a mistrial, which the trial court again denied.

[285 A.3d 267

3. Conviction

¶13] The jury found White guilty of attempted murder, elevated aggravated assault, robbery, and reckless conduct with a dangerous weapon. The trial court also found that the State proved beyond a reasonable doubt that White had illegally possessed a firearm.³ Judgment was entered, and White was sentenced to twenty-six years’ imprisonment for attempted murder, with all but sixteen years suspended.⁴ White timely appeals.⁵ See 15 M.R.S. § 2115 (2022) ; M.R. App. P. 2B(b)(1).

II. DISCUSSION

A. White's contentions that the trial court erred or abused its discretion in denying his motion to change venue because of pretrial publicity and the makeup of the jury venire fail as stand-alone arguments.

[¶14] We review the trial court's denial of a motion to change venue for an abuse of discretion. State v. Saucier , 2001 ME 107, ¶ 14, 776 A.2d 621.

[¶15] To prevail on a motion to change venue based on pretrial publicity, the movant must show prejudice absent the change. See id. White does not contend, and did not contend below, that his motion should have been granted due to actual prejudice.

Prejudice is presumed only when the defendant demonstrates that "pretrial publicity has the immediacy, the intensity, or the invidiousness sufficient to arouse general ill will and vindictiveness against the accused at the time of jury selection." Id. ¶ 15 (quotation marks omitted). White did not introduce any evidence of pretrial publicity, let alone publicity that was so immediate, intense, or invidious as to justify a presumption of prejudice.

[¶16] With respect to White's challenge to the makeup of the venire,⁶ the Sixth Amendment of the United States

[285 A.3d 268

Constitution⁷ guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a ... trial, by an impartial jury of the State and district wherein the crime shall have been committed." U.S. Const. amend. VI. As part of that right, the jury venire "must be drawn from a ‘fair cross section of the community,’ but a ‘fair cross section’ does not guarantee that juries be ‘of any particular composition.’ " State v. Thomas , 2022 ME 27, ¶ 27, 274 A.3d 356 (quoting Taylor v. Louisiana , 419 U.S. 522, 527, 538, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) ). "All that is required is that the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." State v. Holland , 2009 ME 72, ¶ 22, 976 A.2d 227 (quotation marks omitted).

[¶17] To establish a prima facie claim that the jury selection process violates the Sixth Amendment by failing to include a fair cross-section of the community, the challenging party must show that

(1) the group alleged to be excluded is a "distinctive" group in the community; (2) the representation of this group in jury pools from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) this underrepresentation is due to systematic

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