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State v. Carey

Supreme Court of Maine

August 8, 2019

STATE OF MAINE
v.
KEVIN CAREY

          Argued: June 12, 2019

          Rory A. McNamara, Esq. (orally), Drake Law, LLC, Berwick, for appellant Kevin Carey

          Jonathan Sahrbeck, District Attorney, and Nicole M. Albert, Asst. Dist. Atty. (orally), Prosecutorial District No. Two, Portland, for appellee State of Maine

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

          SAUFLEY, C.J.

         [¶1] Kevin Carey appeals from a judgment of conviction entered by the court (Cumberland County, L. Walker, J.) after a jury found him guilty of multiple sex crimes.[1] He argues that the court [Cashman, J.) erred in the jury selection process when it denied his motion to strike one of the jurors for cause and denied his motion to strike the entire venire after one prospective juror left the courtroom in an agitated state. We affirm the judgment.

         I. BACKGROUND

         [¶2] Viewing the evidence in the light most favorable to the State, the jury rationally could have found the following facts beyond a reasonable doubt. See State v. Ayotte, 2019 ME 61, ¶ 2, 207 A.3d 614. When Carey was more than thirty-five years old, he began to sexually assault a seven-year-old female relative who lived with him and other members of their family. After his first assault, his conduct became more frequent and he would enter the child's bedroom every night, touch her genitals with his fingers, put his mouth on her genitals and make her put her mouth on his, and place objects in her vagina and anus. He told her not to tell anyone because they would both be in trouble.

         [¶3] After the child moved to a different home with other family members to avoid him, Carey would visit that home to babysit one night each week. During those visits, he would sexually assault the child. He threatened to hurt her or other, younger children in her family if she told anyone. When the child was about twelve years old, Carey moved into the house where the child was living. Every day, he sexually assaulted the child. He did not listen when she told him to stop. Even after the child moved a second time to avoid Carey, Carey continued his sexual assaults against her on each of the three days each week that she would return to his residence to visit others in her family. At age sixteen, the child told a friend and a family member what had been happening.[2]

         [¶4] In March 2017, Carey was initially charged by complaint with seven counts of gross sexual assault, one count of unlawful sexual contact, one count of visual sexual aggression against a child, and one count of sexual misconduct with a child (Class C), 17-A M.R.S. § 258(1-A) (2018). He was later charged by indictment with fifteen counts of gross sexual assault, two counts of unlawful sexual contact, one count of visual sexual aggression against a child, and one count of sexual misconduct with a child.

         [¶5] Jury selection was held in September 2018. At the beginning of jury selection, in front of the full pool of jurors, one prospective juror abruptly left the room when the charges against Carey were being described. Although not everyone could hear it, the prospective juror said, as captured on the record, "No, I'm not staying for this." Defense counsel also heard the prospective juror say something like, "This is ridiculous." The court directed the judicial marshal to go after that prospective juror and ask him to stop.

         [¶6] The court then took a short break, met with counsel, and upon return, asked the remaining pool of jurors, "Based on what just happened with the individual who left the courtroom, is there anyone, who, based on that act alone, would have any difficulty being fair and impartial going forward here today or through this case?" Thirty-four potential jurors answered in the affirmative. Based on the number of people who rose in response to the question, Carey moved at sidebar to strike the entire jury venire for this case. The court denied the motion to strike the entire venire but struck all members of the jury pool who had indicated that they would have difficulty being fair and impartial after witnessing the potential juror leave the courtroom.

         [¶7] The court read the remaining charges and asked the remaining potential jurors if they knew any of the attorneys or listed witnesses, had heard of the matter in the media, had an inability to be fair and impartial as to law enforcement witnesses, believed that anyone charged with a crime must have done something wrong, had philosophical or religious beliefs that would make it difficult to sit in judgment, or had any other reason that they could not be fair and impartial.

         [¶8] After receiving responses, the court held a conference with counsel during which Carey again moved for the entire pool to be stricken. In support of that motion, he argued that the potential juror who left the courtroom had been sputtering negative words, that there were audible sighs and groans from other potential jurors when the charges were read, and that there seemed to be a pervasively negative view of Carey within the pool of jurors. The court stated that it intended to "continue on and do the individual voir dire," but that it would also ask those jurors who would be questioned in individualized voir dire whether the events in court would affect their ability to be impartial.

         [¶9] The court then proceeded with individual voir dire of particular jurors, separate from the rest of the jury pool. Relevant here, the court inquired why Juror 183 had answered "yes" to the question on the written sex questionnaire "involving knowledge of either [him]self, or a friend, or family member." The juror indicated that a friend had been a victim of sexual abuse by a priest when he was a child. Asked if there had been any type of prosecution, the juror stated, "I don't know the final outcome. ... So I don't know. I know he was . . . defrocked. And then I don't honestly know what happened." The court inquired further about those circumstances and about the effect of the in-court outburst on the potential juror:

THE COURT: All right. And was there anything-is there anything about that incident and friend-did you and your ...

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