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State v. Simons

Supreme Court of Maine

August 15, 2017


          Submitted On Briefs: July 19, 2017

          Tina Heather Nadeau, Esq., The Law Office of Tina Heather Nadeau, PLLC, Portland, for appellant John T. Simons

          Kathryn Loftus Slattery, District Attorney, and Nicholas Heimbach, Asst. Dist. Atty., Prosecutorial District #1, Alfred, for appellee State of Maine

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

          MEAD, J.

         [¶1] John T. Simons appeals from a judgment of conviction of operating under the influence (Class B), 29-A M.R.S. § 24ll(l-A)(D)(2) (2016), entered by the trial court (York County, Dhscoll J.) following a jury trial. Simons asserts that (1) the court erred when it denied his motion to suppress evidence from the traffic stop, (2) the court improperly allowed testimony regarding his performance on the horizontal gaze nystagmus (HGN) test, (3) there was insufficient evidence to support his conviction, and (4) the court erred when it determined that prospective jurors were impartial. We affirm the judgment.

         I. BACKGROUND

         [¶2] Viewing the evidence in the light most favorable to the State, the jury could have found the following facts beyond a reasonable doubt. State v. Hinkel, 2017 ME 76, ¶ 2, 159 A.3d 854. On November 17, 2015, around 9:45 p.m., Officer Gregory Caldwell of the Kittery Police Department observed a vehicle leave the parking lot of a bar and enter a traffic rotary. He followed the vehicle and observed it accelerate quickly to forty-two miles per hour in a twenty-five-miles-per-hour zone. After following the vehicle for approximately 100 yards, Caldwell turned on his emergency lights to effectuate a traffic stop; the vehicle pulled over after travelling about another quarter mile.

         [¶3] Caldwell approached the car and requested insurance and registration documents; he identified the driver as John Simons using Simons's driver's license. He observed Simons's hands to be "very shaky" when Simons was searching for his registration and insurance documents. Caldwell detected a strong odor of mint coming from Simons's car and breath, and he noticed a can of mints in the car. From his training, Caldwell knew that drivers who have been drinking may use mints to attempt to disguise the odor of intoxicants. Simons told the officer that he was coming from a nearby bar where he was a "door guy." Caldwell took the paperwork to his police cruiser where he reviewed it. Upon returning to Simons's vehicle, he smelled the odor of alcohol emanating from Simons's breath and inside the car. Simons told Caldwell that he had been drinking but had stopped at 5:00 p.m. Caldwell asked Simons if he was willing to perform field sobriety tests to make sure that he was safe to drive. Simons agreed, and he "stumbled quickly but caught his balance" when getting out of the car. Outside the car, Caldwell could smell alcohol on Simons's breath from three to four feet away.

         [¶4] Caldwell first led Simons through the HGN test. Simons swayed in small circular motions throughout the test, and Caldwell could smell the odor of intoxicants on Simons's breath and observed clues of impairment on the test. He next had Simons perform the walk-and-turn test, during which Simons "stepped out of the instructional phase position on multiple occasions" despite being told to remain in that position, lost his balance and broke the heel-to-toe position, lifted his arms up more than six inches to keep his balance, took a step off the line, did not touch his heel to his toe on several steps, and failed to turn properly. Caldwell then had Simons complete the one-leg-stand test. He observed Simons sway and raise his arms higher than six inches from his sides to keep his balance during the test. Caldwell arrested Simons for operating under the influence.[1]

         [¶5] On June 9, 2016, Simons filed a motion to suppress evidence from the traffic stop. Following a hearing, the court [Dhscoll, J.) denied the motion. The court found the following facts. Caldwell observed Simons enter a traffic rotary and accelerate to seventeen miles per hour over the speed limit, and that Simons drove for a quarter mile after Caldwell activated his emergency lights. Caldwell did not, however, observe Simons operate his vehicle "in a manner that would [imply] or raise the issue of impaired driving." Simons "fumbled somewhat" when producing his paperwork, and Caldwell initially smelled a strong odor of mint and saw a container of mints in the car but "did not smell alcohol, observe bloodshot eyes or any other indicia of impairment or alcohol consumption." However, when Caldwell returned to Simons's vehicle, he "smelled the odor of alcohol from the vehicle." He asked Simons if he had anything to drink that night; Simons responded that he last had a drink at 5:00 p.m. and was a door person at a nearby bar. To isolate the source of the smell of alcohol, Caldwell asked Simons if he would step out of the car. Simons complied, and Caldwell administered field sobriety tests. The court found that Caldwell was credible and concluded that he had a reasonable articulable suspicion of facts sufficient to support both the traffic stop for speeding, and, as the situation evolved, asking Simons to get out of the car and perform field sobriety tests.

         [¶6] Jury selection was held on October 25, 2016. As part of voir dire, prospective jurors were directed to complete a questionnaire[2] that included the following question:

14. A person accused of a crime should be required to present at least some evidence to prove their innocence. ( ...

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