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State v. Frisbee

Supreme Court of Maine

June 7, 2016


          Argued: March 1, 2016

         Reporter of Decisions

         On the briefs:

          Arnold S. Clark, Esq., Fletcher Mahar & Clark, Calais, for appellant Kenneth Frisbee

          Mathew Foster, District Attorney, and Ethan Plaut, Asst. Dist. Atty., Prosecutorial District VII, Ellsworth, for appellee State of Maine

         At oral argument:

          Arnold S. Clark, Esq., for appellant Kenneth Frisbee

          Ethan Plaut, Asst. Dist. Atty., for appellee State of Maine

          Panel: SAUFLEY, C.J., and MEAD, GORMAN, JABAR, and HJELM, JJ.

          SAUFLEY, C.J.

         [¶1] A jury found Kenneth Frisbee guilty of three crimes involving sexual misconduct. During jury selection and the trial, a frequent and occasionally disruptive visitor to the Washington County Courthouse caused a brief distraction. Frisbee argues that the court (Washington County, Stokes, J.) should have granted his motion for a mistrial because the presence and conduct of that spectator distracted one or more jurors. We address the competing interests that the court must balance in such a situation, as well as the precautions taken by the court, to ensure that Frisbee received a fair and impartial trial. We discern no abuse of discretion, and we conclude that Frisbee received a fair trial. We affirm the judgment.

         I. BACKGROUND

         [¶2] On March 21, 2013, the State filed a two-count complaint in the Superior Court charging Frisbee with unlawful sexual contact (Class B), 17-A M.R.S. § 255-A(1)(E-1) (2015) (other person under age twelve), and unlawful sexual contact (Class C), 17-A M.R.S. § 255-A(1)(E) (2015) (other person under age fourteen). On September 9, 2013, Frisbee was indicted on the two unlawful sexual contact charges and two additional charges-gross sexual assault (Class A), 17-A M.R.S. § 253(1)(C) (2015) (other person under age twelve), and gross sexual assault (Class A), 17-A M.R.S. § 253(1)(B) (2015) (other person under age fourteen). Frisbee pleaded not guilty to all of the charges, which were based on allegations that he had sexual contact with and committed sexual assaults on a minor.

         [¶3] During jury selection, Frisbee's attorney noticed that one of his former clients, who had no connection to this matter, was in the courtroom. The spectator had been convicted of, and had spent eleven months in prison for, threats against Frisbee's attorney and his family.[1]

         [¶4] Frisbee's attorney was not the only one in the courtroom who had a history with this man. Before becoming a judge, the trial judge had been a prosecutor, and he had prosecuted the spectator some twenty years prior, resulting in the spectator being sentenced to jail. The State's attorney had also prosecuted the spectator for the threats against Frisbee's attorney and his family. Finally, the spectator had just been released from prison for charges of criminal threatening involving one of the potential jurors-juror 116-who would later be empaneled on the case.

         [¶5] Initially, the court asked the judicial marshals to move the spectator so he would not be directly behind Frisbee's attorney during voir dire of potential jurors, but Frisbee's attorney continued to be distracted because the spectator was glaring at him, smiling, making gestures, and smirking. The court, noting that Frisbee's attorney's fears and concerns regarding the spectator were not "fanciful and not an exaggeration, " then instructed the judicial marshals to remove the spectator should he reappear in the courtroom during the remainder of jury selection in order to protect Frisbee's rights to effective assistance of counsel and prevent compromising Frisbee's attorney's professional responsibilities to his client. Jury selection continued without incident.

         [¶6] Approximately half-way through the first day of the trial, a marshal informed the court that the spectator was in the courtroom again and had moved closer to juror 116. The court immediately ordered a brief recess. The court, the State, and Frisbee's attorney discussed the spectator's arrival. Frisbee's attorney, who had heard reports that the spectator had recently been seen in the community with a weapon, told the judge that he would not reenter the courtroom until the spectator had been screened by security.[2] The court, considering the spectator's significant history with juror 116 and with the defense attorney, directed security to take the spectator through security screening. The court also interviewed juror 116, who provided her history with the spectator.[3] She stated that she was "very distracted" by the spectator's presence in the courtroom, but that she would not continue to be distracted as long as he was removed from the courtroom.

         [¶7] The court concluded that the spectator's presence "is disruptive and distracting . . . he cannot be allowed to distract both the defense attorney and the jury or a juror from paying full attention to this case." The court then indicated that it would not close the courtroom or the courthouse, but it would exclude that spectator from the trial.

         [¶8] On the second day of trial, the court was informed that the spectator had been in the building, had made a transcript request, and had been approaching jurors inside and outside the courthouse that morning and asking them to take a copy of a book that he had written. Frisbee's attorney requested that the jury be sequestered for the remainder of trial. The court undertook a voir dire of each juror individually to ask whether the spectator had been a distraction or would influence each juror's ability to remain fair and impartial in deciding the case. Several of the jurors had seen the spectator, and several had heard that the spectator had stalked one of the jurors and her family. One juror stated that "some of the ladies on the jury are upset, disturbed." However, all of the jurors except for juror 116 stated that they had not been distracted by the spectator's presence, and all of the jurors stated that the spectator in no way would affect their ability to be fair and impartial. The court did not grant Frisbee's attorney's request for sequestration.

         [¶9] Later that same morning, a judicial marshal alerted the court and the parties that the spectator had left his notebook at the courthouse. In the back of the notebook, there was a note that read, "I wish you were all dead, but since you're not I hope you all die as soon as possible. And with as much agony as possible."

         [¶10] After the notebook was found, Frisbee moved for a mistrial on the ground that the spectator's distraction of the jury on the previous day had interfered with the jurors' ability to devote their full attention to the evidence on that day. In considering the motion, the court found that the jurors had been forthright during voir dire earlier in affirming that they were not distracted by the spectator and could devote their full attention to the case. In addition, the court noted that it had ordered a recess as soon as the spectator's presence had been noted the previous day. It thus concluded that "the likelihood that there was in fact distraction is low, " and it denied Frisbee's motion for a mistrial.

         [¶11] At the conclusion of the trial, the jury found Frisbee guilty of Counts 1, 2, and 4-both counts of unlawful sexual contact and one count of gross sexual assault.[4] See 17-A M.R.S. §§ 253(1)(B), 255-A(E)-(E-1). Frisbee was sentenced to twelve years' imprisonment, all but five years suspended, with four years of probation on Count 4. The court imposed a three-year concurrent sentence on Count 1 and a two-year concurrent sentence on Count 2. Frisbee timely appealed to us.[5] See 15 M.R.S. § 2115 (2015); M.R. App. P. 2.


         A. Standard of Review

         [¶12] We review a denial of a motion for a mistrial for abuse of discretion, Seabury-Peterson v. Jhamb, 2011 ME 35, ¶ 14, 15 A.3d 746, and we will overrule a denial "only in the event of prosecutorial bad faith or in exceptionally prejudicial circumstances, " State v. Bridges, 2004 ME 102, ¶ 10, 854 A.2d 855 (quotation ...

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