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State v. Chesnel continued

	[¶31]  In examining whether inaccurate responses to voir dire
questions justify a new trial, one writer has observed that:
[All] states require that defendants and their lawyers exercise
"due diligence."  Essentially, this means that defendants will
not be allowed to raise on appeal any error that could have
been corrected at the trial level.  The rule has two main
applications in practice.  First, the lawyer must ask specific
questions during voir dire designed to elicit the concealed
information from the prospective juror.  Second, defendants
and their lawyers must immediately notify the court of any
evidence they have, or should have, concerning the validity of
the juror's responses.
Loewy, When Jurors Lie:  Differing Standards for New Trials,
22 Am. J. Crim. L. at 744.  The question posed here does not meet the
specificity requirement.  It is not sufficiently clear that Juror B's-and all the
other juror's-nonanswer is apparently a dishonest or incorrect answer to
the question in the context in which it was asked.  On the present record,
there is an insufficient basis to find that Juror B incorrectly or dishonestly
answered the very vague question posed.  Without a sufficient record to
indicate that a juror improperly answered a voir dire question, there is no
other basis to inquire into the substance of the jury's deliberations. 
Chesnel's attempt to impeach the jury verdict by suggesting juror
misconduct fails.  
	[¶32]  Chesnel contends that at several times during closing
argument, counsel for the State improperly asserted personal opinions on
the issues.  No objections were made at these times during the closing
argument.  Thus, we must review the State's closing remarks for obvious
error.  See M.R. Crim. P. 52(b).  "Error is obvious only when it is so highly
prejudicial and so taints the proceedings as virtually to deprive the
defendant of a fair trial."  State v. Pelletier, 673 A.2d 1327, 1330 (Me.
1996).  While counsel needlessly risks claims of improper uses of personal
opinion any time they personalize closing argument with terms such as "I"
or "my," none of the statements which the defense singles out rise to the
"highly prejudicial" level for obvious error review.  
	[¶33]  Chesnel's counsel also objected to certain testimony of
witnesses who were with Michael Allen.  The testimony described
statements by Allen during and after a phone call which Allen received
immediately prior to leaving their presence for the apparent purpose of
meeting Chesnel and Tomah.  Some of the statements at issue may have
been hearsay, but any error in their admission was harmless, see
M.R. Crim. P. 52(a), as the statements did not relate to issues seriously in
dispute after Chesnel's testimony.  Specifically, the statements have no
relation to the question of who was the principle actor causing Allen's death. 
No substantial rights were affected by the admission of this evidence. 
	The entry is:
			Judgments affirmed.

Attorneys for State: Andrew Ketterer, Attorney General Donald W. Macomber, Asst. Atty. Gen., (orally) Fernand Larochelle, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006 Attorney for defendant: William Maselli, Esq., (orally) 98 Court Street Auburn, ME 04210
FOOTNOTES******************************** {1} . Title 17-A M.R.S.A. § 201(1)(A) provides: "A person is guilty of murder if . . . [h]e intentionally or knowingly causes the death of another human being . . . ." {2} . Title 17-A M.R.S.A. § 651 provides: 1. A person is guilty of robbery if he commits or attempts to commit theft and at the time of his actions: . . . . D. He intentionally inflicts or attempts to inflict bodily injury on another; or E. He or an accomplice to his knowledge is armed with a dangerous weapon in the course of a robbery as defined in paragraphs A through D. {3} 3. In a murder case, both the prosecution and the defense are entitled, at a minimum, to ten peremptory challenges, see M.R. Crim. P. 24(c)(3), plus one challenge to alternates,see M.R. Crim. P. 24(d). Thus, a minimum of 36 jurors would have been needed to select a murder jury with two alternates. In this case, the court exercised its discretion and allowed 48 challenges, which is more than the minimum required by the rule. Rule 24(c)(2) notes that: "If there is more than one defendant, the court may allow the defendants additional preemptory challenges, permit the challenges to be exercised separately or jointly, and determine the order of the challenges." {4} . Bruton v. United States, 391 U.S. 123 (1968). {5} . The "other case" refers to the 1996 Sabattus assault case. {6} . This question is best asked at side bar, or in another place out of the presence of the jury, so that counsel who may have an objection do not have to state dissatisfaction with the selected jury in front of the jury if they want to preserve an issue for review. {7} . M.R. Crim. P. Rule 33 requires that motions for new trials regarding jury misconduct be filed within ten days of the verdict. See State v. Sabattis, 602 A.2d 671, 672 (Me. 1992); State v. Gatcomb, 478 A.2d 1129, 1131 (Me. 1984). {8} . The record does not include documentation of the defense's objection to the State's request. The objection, however, was acknowledged by both parties at oral argument. {9} . M.R. Evid. 606(b) provides: Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that juror's or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning any juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received. {10} 10. M. Bar. R. 3.7(f) provides: (1)At no time shall a lawyer connected with the trial of a case communicate extrajudicially, directly or indirectly, with a juror, with anyone the lawyer knows to be a member of the pool from which the jury will be selected, or with any member of such person's family. (2)After discharge of a juror from further jury service, a lawyer may ask or answer questions and make comments to the former juror provided the questions or comments are not intended to harass or embarrass the juror or influence the juror's action in future jury service. (3) A lawyer shall reveal promptly to the court knowledge of improper conduct by a juror or member of the jury pool, or by another toward a juror or member of the jury pool, or a member of the juror's or jury-pool member's family. {11} . M. Bar Rule 3.7(f) was adopted as part of the original adoption of the Bar Rules in 1978. The advisor's notes to Rule 3.7(f) state that "Rule 3.7(f) is a restatement of DR7-108. No substantive change is intended." Maine Reporter, 396-400 A.2d at LXXXVII (1979). DR7-108 refers to the section of the American Bar Association Code of Professional Responsibility which previously governed conduct of Maine attorneys, enforced through actions of the Maine State Bar Association. At the time of the Patterson decision, DR7-108 provided: (D)After discharge of the jury from further consideration of a case with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service. (E)A lawyer shall not conduct or cause, by financial support or otherwise, another to conduct a vexatious or harassing investigation of either a venireman or a juror. (F)All restrictions imposed by DR7-108 upon a lawyer also apply to communications with or investigations of members of a family of a venireman or a juror. (G)A lawyer shall reveal promptly to the court improper conduct by a venireman or a juror, or by another toward a venireman or a juror or a member of his family, of which the lawyer has knowledge. {12} . 64 Me. 211 (1874). {13} . 73 Me. 408 (1882). {14} 14. Benjamin M. Lawsky, Limitations on Attorney Post Verdict Contact with Jurors: Protecting the Criminal Jury and Its Verdict at the Expense of the Defendant, 94 Colum. L. Rev. 1950, 1951 (1994); see also Note, Public Disclosures of Jury Deliberations, 96 Harv. L. Rev. 886, 888, 889 (1983): "Trial judges have long tried to insulate jurors from 'harassment,' 'molestation,' 'ransacking,' and 'intimidat[ion]' by prying counsel and others. This protectiveness is not simply the product of regard for the jurors in the case at hand: courts are also influenced by the notion that failure to shield current jurors from unwanted scrutiny will cause other citizens to shun jury duty in the future. In these days of courtroom cameras, however, there may be no practical way to preserve complete privacy for publicity-shy jurors in 'big cases.'" (Footnotes omitted.) As an example of the practice in one State, Florida Bar Rule 4-3.5(d)(4) prohibits contact with jurors after dismissal of the jury except to determine whether the verdict may be subject to legal challenge. Even for this purpose, however, jurors may not be interviewed "unless the lawyer has reason to believe that grounds for such challenge may exist[.] . . . [B]efore conducting any such interview the lawyer must file in the cause a notice of intention to interview setting forth the name of the juror or jurors to be interviewed. A copy of the notice must be delivered to the trial judge and opposing counsel a reasonable time before such interview." Fla. Bar Rule 4-3.5(d)(4). Similarly, Florida Rule of Civil Procedure 1.431(h) sets forth a preliminary procedure to be followed if a party believes that grounds for a legal challenge to a verdict exist and wants to interview a juror. Enforcing these rules, Florida courts have held that evidence of juror misconduct obtained by direct contacts with jurors without first obtaining an order allowing interviewing of jurors upon demonstrating appropriate cause will not be considered. See Seymour v. Solomon, 683 So.2d 167, 168 (Fla. Dist. Ct. App. 1996); Walgreens, Inc. v. Newcomb, 603 So.2d 5, 6 (Fla. Dist. Ct. App. 1992); see also Craig B. Willis, Juror Misconduct: Balancing the Need for Secret Deliberations with the Right to a Fair and Impartial Trial, 72- May Fla. B.J. 20, 24 (1998).

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