MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 9 ME 81 Docket: Ken

- 18

- 56 Argued: November	8,	2018 Decided: May	28,	2019 Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD, GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.

STATE	OF	MAINE

v. TERRENCE	N.	TOWNES

HUMPHREY,	J. [¶1] In	t his	appeal we examine assertion s that	sanctions	imposed	against the	State	 for	discovery	violations and	 for	 failing	 to	comply	with	court	orders

w ere	insufficient	and	that	the	defendant	was	deprived	of	his	fundamental	right to	an	impartial	jury	that	represented	a	fair	cross	section	of	his	community. [¶ 2 ]		Terrence	N.	Townes	appeals	from a	judgment	of	conviction	entered by	the Superior	Court	(Kenne bec	County, Murphy,	J .) , as	a	result	of	a	jury	verdict , for	 aggravated	 assault	 (Class	 A),	 17

- A	 M.R.S.	 §	 208(1)(A

- 1)	 (201 8 ) , and violating	 a	 condition	 of	 release	 (Class	 E),	 15	 M.R.S.	 §	 1092(1)(A)	 (201 8 ). Townes	was	sentenced	to	twenty

- five years	in	prison,	with	all	but	twelve	years suspended,	followed	by	four	years	of	probation. We	affirm	the	judgment.2 I.		BACKGROUND [¶ 3 ] “ View ing	the	evidence in	the	light	most	favorable	to	the	State,	the jury	 rationally	 could	 have	 found	 the	 following	 fact s	 beyond	 a	 reasonable doubt.” State	 v.	 Burton ,	 2018	 ME	 162, ¶	 2, 198	 A.3d	 195	 (quotation	 marks omitted). [¶ 4 ]		On	October	24,	2016, the	manager	of the residential	complex where Townes	 lived ordered	 Townes	 to	 leave	 the	 premises	 because Townes had threatened	another	tenant. Townes	then	struck	the	manager,	knocked	her	to the	 floor,	 kicked	 her,	 got	 on	 top	 of	 her,	 and	 punched her in	 the	 face several times.		The	owner	of	 the	complex	 tried	 to	stop	Townes	by	hitting	him	in	 the back	with	a	fire	extinguish er,	injuring	his	own	shoulder	in	the	process.		Townes gained	control	of	the	fire	extinguisher	and	struck	the	manager	in	the	face	with it,	causing her permanent	blindness	in	one	eye. [¶ 5 ]	 	 One	 of	 the Augusta	 police	 officers who responded	 to the scene observed	 Townes shouting	 at	 two	 women	 as	 he	 followed	 them	 out	 of the complex

. When that	 officer approached Townes , he observed	 blood	 on Townes’s	shirt, saw Townes place	his	hands	behind	his	head and drop	 to	his knees,	 and heard	 him state	 “I’ve	 done	 something.” Townes	 was	 taken	 into custody , and	a s he was	being	placed	in	the	cruiser, he kicked another	officer in3 the	chest. Townes	also	made	inculpatory	statements after he	was	restrained and placed in	the	police	cruiser

. [¶ 6 ]	 	 On December	 21,	 2016,	 a	 grand	 jury	 returned	 a	 six

- count indictment,	which	included	the	two	count s for	which	Townes	was	subsequently convicted

— a ggravated a ssault	 (Count	2)	and v iolating a c ondition	 of r elease (Count	6)

. 1
A

. Discovery	Violations a nd	Sanctions [¶ 7 ] Townes	filed a motion	for	a	bill	of	particulars in March	2017	seeking clarification of the	 allegations	 in	 Counts	 1	 through	 3	 of	 the	 indictment	 and copies	of medical	records	compiled	by	the medical first responders that	had	not been	provided to	him

. He	also	filed	a	motion	for	sanctions	alleging	t hat	the	State committed	 a	series	 of	discovery	 violations	and	 failed	 to	comply	with	several court	orders. T ownes	withdrew	his	motion	for	a	bill	of	particulars	on	May	18,

1 The	 remaining	 counts	 were	 disposed	 of	 as	 follows:	 Count	 1,	 elevated	 aggravated	 assault (Class A),	 17

- A	 M.R.S.	 §	 208

- B(1)(A)	 (2018) , resulted	 in	 a	 hung	 jury	 and	 a mistrial ;	 Count	 3, aggravated	assault	(Class A),	17

- A	M.R.S.	§	208(1)(A

- 1) (2018) , was	dismissed	as	a	sanction	for the State’s discovery	violations;	Count	4,	assault	on	a	police	officer	(Class	B),	17

- A	M.R.S. §§ 752

- A(1)(A) (2018) ,	1252(4

- A)	(2017),	resulted	in	an	acquittal	pursuant	to	M.R.U.	Crim.	P.	29(a);	and	Count	5, assaul t	(Class	C),	17

- A	M.R.S.	§§ 207(1)(A) , 1252(4

- A) (2018) , resulted	in	a	judgment	of	acquittal entered	by	the	court	after	the	jury	found	Townes	not	guilty. Title	 17

- A	 M.R.S. §	 1252	 was	 amended	 after	 Townes	 was	 indicted	 to	 expand	 the	 list	 of	 prior convictions	 subject	 to	 the	 section’s	 sentence	 enhancements. See P.L.	 2017 , ch. 336 , § 1	 (effective Aug. 1,	2018)	(codified	at	17

- A	M.R.S.	§ 1252 (4

- A). The	amendment	did	not affect	the	charges	against Townes	at	the	time	of	trial	and	therefore	would	not	have	affected	the	case.4 2017 , and,	on	the	same	date,	the cour t ( Billings, J. ) granted Townes ’s motion for sanctions	and	ordered	the	State	to	furnish	the	requested	records

. [¶ 8 ] In	 November	 2017,	 Townes	 filed	 a	 second	 motion	 for	 a	 bill	 of particulars , again	seeking	clarification	of	Counts	1	 through	3

. In	addition,	he filed a	motion to dismiss	 those	counts	as	a	 sanction	 for	 the	State’s	discovery violations.	 	 The	 State finally provided	 the	 requested	 medical	 records	 on December	 5,	 2017,	 three	 days	 before	 the beginning	 of	 the trial term	 that included Townes’s	 case ,	 and	 sent	 an	 email	 to	 defense	 counsel	 stating	 that Counts	1	and	2	were	charged	in	the	alternative;	the	State’s	response made	no mention	of Count	3. The	jury	was	selected	on	December	8,	2017,	and	the	trial began	on	December	19,	2017.		On	the first	day	of	trial,	Towne s filed	a	motion	in limine	with	regard to	Count	4, seeking to	exclude	the	testimony	of	the	officer who	had	allegedly	been	kicked, and arguing	that	the State	had	not	provided	any information	about	the bodily injur ies that it	alleged that Townes	caused

. [¶ 9 ]		The	court	denied Townes’s motion to	dismiss	Counts	1	and 2 , but did	 sanction	 the	 State	 for	 its	 failure	 to	 comply	 with	 the	 discovery	 order	 by dismissing Count	3 of	the	indictment .		The	court also prohibited	the	State	from introducing	 the	 testimony and	 records of	 the medical first responders regarding injuries they treated as	 a	 result	 of th e incident , as	 well	 as the5 testimony of the	officer	who	was	allegedly	kicked ,	and prohibit ed the	State

— but	not Townes

— from	calling a	witness who had disclosed to	the	State that	she
was	vision

- impaired

. 2
B

. Jury	Selection [¶1 0 ] On	 the	 first	 day	 of	 trial, Townes	 raised two issue s of	 jury impartiality.		First, Townes filed	a	motion	for	a	new	jury venire, arguing	that ,	by having inform ed the	jurors	 that the	defense	attorneys	were	 “from	Portland,” the	court	had	caused prejudice to him

. The	court	denied	the	motion. [¶1 1 ] Second,	Townes

— who	identifies	as	African

- American

— moved to dismiss	the	indictment , 3 arguing	that he	would	“not	be	tried	before	a	jury	of	his peers	as	is	constitutionally	 required.” Citing our	decision	in State	v.	Holland , 2009	 ME	 72,	 976 A.2d	 227 ,	 and	 applying	 the	 test articulated in Duren

v. Missouri , 439	 U.S.	 357,	 364	 (1979) , the trial court denied the motion ,

2 During	a	pre

- trial	interview	in	 the	days	leading	up	 to	the	docket	call,	a	witness	informed	the State	that	she	was	blind.		The	State	immediately	not ified	the	defense	of	this	fact	and	its	intention	not to	call	this	witness	at	trial.		Townes	alleged	a	discovery	violation	and	initially	requested	a	dismissal or,	at	the	least,	a	continuance,	to	allow	him	to	adjust	strategies,	arguing,	without	support,	that this witness	may	have	influenced	other	witnesses	who	gave	statements	at	the	scene	of	the	incident. The	court’s	docket	record	indicates	that	the	witness	was	“deaf”	and	not	blind	as	the	parties	stated on	the	record;	that	docket	entry	appears	to	have	been i n	error.

3 On	appeal,	Townes	alleges	that	his	motion	was	for	a	new	jury	panel.		During	the	hearing	on	what the	court	identified	as	“the Holland motion,”	there	was	no	discussion	of	the	specific	relief	requested by	the	defendant.6 concluding that Townes	 had	 not	 established	 a	 prima	 facie case that	 the	jury selection	 process	 violated	 the	 Sixth	 Amendment’s requirement	 that	 jurors represent	a fair	cross section of the	community

. II.		DISCUSSION [¶1 2 ] Townes	now challenges the sufficiency	of	the sanctions imposed on	the	Stat e and	the	court’s decision	not to investigate the	jurors ’ impartiality or	grant	his	motion	for	a	new	jury	venire.
A

. Sufficiency	of	the	Sanctions [¶1 3 ]	 	 Townes	 argues	 that	 the	 sanctions	 imposed on	 the	 State were insufficient to	 remedy	 the	 prejudice caused	 by the discovery violations.	 	We have	 consistently	 recognized	 that	 a	 trial	 court	 confronted	 with	 a	 discovery violation has	 broad	 discretion	 in determining what	 sanction,	 if	 any,	 is appropriate. State	v.	Poulin ,	2016	ME	110,	¶¶	27

- 28,	144 A.3d 574.		We	review such	determinations	for	an	abuse	of	discretion and	will	order	a	new	trial	only where	 the discovery violation	 prejudices	 the	 defendant	 to	 the	 extent	 tha t	 it deprived	him	of	a	 fair	 trial. State	v.	Cruthirds ,	2014	ME	86,	¶	37,	96	A.3d	80 (quotation	marks	omitted). [¶1 4 ] The trial	 court	 did	 not	 abuse	 its	 broad	 discretion to	 impose
sanctions for	the	State’s	discovery	violations

. It dismissed	Count	3	(aggravated7 assault) ; excluded evidence relevant to	Counts	1,	2,	and	5 ; and ,	as	to	Count	4, barred	any	testimony from	the	officer	who m	Townes allegedly	kicked

. Further, Townes	conceded	that	the court’s	decision to bar	the	witness	who disclosed she was	blind from	 testifying	was	sufficient to “resolve	 [his]	concerns”	about	 the unreliability	 of	 her	 testimony	 or	 her	 potential	influence	 on	 the	 testimony	 of other	 witnesses. Under	 these	 circumstances, the	 court	 did	 not	 abuse	 its discretion w hen	it	granted these ,	but	not	other , requested	sanctions,	nor	did	the court’s	decision	deprive	Townes	of	a fair	trial

. Cf

. i d .	¶¶ 34,	37

- 38.
B

. Right to a n	Impartial	Jury [¶1 5 ]	 	 Townes also contends	 that	 he	 was	 deprived	 of	 his	 Sixth Amendment	 right	 to	 “an impartial	 jury	 of	 the	 State	 and	 district ” where the
crime s were alleged	 to	 have	 been	 committed because the	 court	 injected	 a geographic	bias	against	him	and because	he	could	not	determine	whether	the jury represent ed a fair c ross section	of	the surrounding community

. U.S.	Const. amend.	VI,	XIV; see	also Me.	Const.	art. I, §	6; Taylor	v.	Louisiana , 419	U.S.	522, 52 6 (1975) ; Holland ,	2009	ME	72,	¶	2 2 ,	976	A.2d	227. [¶1 6 ]	 	 Townes first argues that	 he	 was	 deprived	 of	 his	 right	 to	 an impartial	jury when the	court	introduced	his	attorneys	to	the	jury pool as	being “from	 Portland” because that	 information “created	 an	 immediate	 divide8 between	 the jurors ,	 drawn	 from	 the	 local	 area [ Kennebec	 County]	 and	 the defense,	which	was	from	‘away.’” As	the	trial	court	correctly	noted, the purpose of identifying	attorneys	at	the	outset	of	the	jury	selection	process is to “allow the	jurors	to	know	who	the	attorneys	were	and	to	be	able	to	tell	[the	court]	if they	 knew	 the	 attorneys.” The First	 Circuit has	 characterized inquir ies into whether	 any	 juror	 know s an	 attorney	 or	 witness	 as “stock	 questions , ” suggesting	that disclosure	of	such	information	is routine and	to	be	expected	at any	jury	trial. Jewell v. Arctic	Enters

. ,	Inc .,	801	F.2d	11,	12	(1st Cir. 1986) (per
curi a m); see	 also United	 States	 v.	 Gordon ,	 634	 F.2d	 639,	 641	 (1st	 Cir.	 1980) (rejecting	 defendant’s	 specific	 voir	 dire	 questions	 but	 relying instead on “general	 questioning”	 to	 determine	 whether	 jurors	 knew	 the	 parties	 or	 the attorneys)

. We	 co nclude that the	 court	 did	 not	 prejudice the	 jury against
Townes when it identified his attorneys	 and	 stated that they	 were	 from Portland

. 4 [¶1 7 ] Second, Townes argu es that he was effectively	 precluded from making a	meaningful	inquiry	into	whether the jury	venire	was	comprised	of	a fair	 and	 reasonable	 cross	 section	 of	 the	 community

. The	 Sixth	 Amendment guarantees	 every	 criminal	 defendant	 the	 absolute	 right	 to	 a	 fair	 trial	 by	 an

4 We	also	reject	the	n otion	that	being	“from	Portland”	creates	a	basis	for	prejudice.9 impartial	 jury.	 	 In	 order	 to	 ensure	 that	 defendants	 have	 the	 opportunity	 to exercise	this	inviolable	constitutional	right,	courts	are	charged	with	assembling a	 pool	 of	 prospective	jurors	 from	 the	 surrounding	 community	who	 are	 then selected	 and	 empaneled	 to	 hear	 the	 evidence	 and	 cast	 judgment	 on	 cases pending	 before	 the	 court. 5 T he	 United	 States	 Supreme	 Court	 has “unambiguously declare d	 that	 the	 American	 concept	 of	 the	 jury	 trial contemplates	a	jury	drawn	from	a	fair	cross section	of	the	community	.	.	. [and] that	the j ury	be	a	body	truly	representative	of	the	community.” Taylor , 419	U.S.
at 527 (quotation	 marks	 omitted)	 (citation	 omitted)

. Fair	 cross

- sectional representation	 does	 not	 require	 that	 the	jury ultimately	chosen	 “mirror”	 the community,	nor	does	it	entitle	a	defendant	to	a	jury	of	“any	particular	[racial] composition	 .	 .	 .	 .” Id .	 at	 538. Rather,	jury	 venires “ must	 not	 systematically

5 W e	underscore	the	enduring	importance	of	jury	service	in	the	criminal	justice	system. Jury	service	is	an	important	civic	duty,	and	a	valuable	and	basic	right	in	our	justice system.	 	 It	 gu arantees	 citizen	 participation	 at	 a	 critical	 point	 in	 our	 government structure,	 assuring	 that	 people	 accused	 of	 crime	 will	 be	 judged	 by	 impartial, disinterested	 citizens	 from	 the	 community,	 not	 some	 specially	 selected	 groups	 of permanent	employees.
State v.	 Chambers ,	 CR

- 83

- 440

- A,	 1983	 Me.	 Super.	 LEXIS	 157,	 at	 *6	 (Sept.	 2,	 1983).	 	 Thus,	 the unexcused	 failure	of	any	citizen	to	appear	 for	jury	service	when	called	is	not	only	a failure	of that citizen to	perform	a civic	duty,	it	is	a	threat	to	 the	ability	of	o ur	courts	to ensure	that	the	accused receive	 all	 of	 their constitutional	 rights. Id .	 	 For	 example,	 in Holland ,	 although	 not	 every nonappearance	 was	 unexcused,	 of	 the	 151	 community	 members	 summonsed	 to	 report	 for	 jury selection,	only	eighty

- one	people,	or about	fifty

- four	percent,	appeared.		2009	ME	72,	¶	14,	976	A.2d 227.10 exclude	distinctive	groups in	the community and	thereby	fail	to be	reasonably representative”	of	the	community. Id

. [¶1 8 ]	 	 To	 establish	 a	 prima	 facie case that	 the	 jury	 selection	 process violates	 the	 Sixth	 Amendment ’s requirement	 for	 a fair cross section ,	 a defendant must show (1) that the	group	alleged	to	be	excluded	is	a	“distinctive”	group	in the	 community;	 (2) that the	 representation	 of	 this	 group	in	 jury venires from	which	juries	are	selected	is	not	fair	and	reasonable	in relation	 to	 the	 number	 of	 such	 persons	 in	 the	 community;	 and (3) that this	underrepresentation	is	due	to	systematic	exclusion	of the	group	in	the	jury

- selection	process.
Duren	 v.	 Missouri , 439	 U.S.	 357,	 364	 (1979).	 	 There	 are	 various	 ways	 of measuring	 underrepresentation. 6 We	 have followed Duren and	 applied	 the “absolute	 disparity”	 test,	 which	 measures	 the	 difference	 between	 the percentage	 of	 members	 of	 the	 distinctive	 group	 in	 the	 community	 and	 the percentage	of	group	members	on	 the	jury venire

. 7 See	Holland ,	2009 ME	72, ¶ 30,	976	A.2d	227; Duren ,	439	U.S.	at	365

- 66

.

6 Townes	identifies	the	inherent	difficulty	of	establishing	an	“absolute	disparity”	between	a	jury venire	and	a	community	that	is	overwhelmingly	 racially	homogeneous,	but	does	not	advoca te	 for another	viable	method.		Other	courts	have	applied	different	methods,	such	as	the	“absolute	numbers” test, see	United	States	v.	Biaggi , 909	F.2d	662,	678	(2d	Cir.	1990) , and	the	“comparative	disparity”	test , which	 the	First	Circuit	has	repeatedly	rej ected, see United	States	v.	Royal ,	174	F.3d	1,	7

- 8	(1st	Cir. 1999) ,	but	Townes	has	presented	no	compelling	reason	for	us	to	deviate	from	the	absolute

- disparity test that we	applied	in Holland ,	and	we	decline	to	do	so	here. Holland ,	2009 ME 72, ¶ ¶ 29

- 30 ,	976 A.2d	227.

7 Some	courts	that	have	adopted	the	absolute

- disparity	test	have	gone	further	to	hold	that	a	racial disparity	 of	 less	 than	 ten percent	 is	 per	 se	 insufficient	 to	 demonstrate	 underrepresentation.11 [¶1 9 ]	 	 In Holland , the	 defendant,	 who	 identified	 as	 African

- American, challenged	 the	racial	composition	of	 the	jury	pool	and requested	a	change	in venue	 from York	 County to	 Androscoggin	 County,	 where	 0.7	 percent	 of	 the populatio n wa s	 African

- America n, 2009 ME	 72,	 ¶ ¶	 7,	 15 ,	 976	 A.2d	 227 ,	 the same	 percentage	 as	in	Kennebec	 County in	 this	 case

. We	 rejected Holland’s claim	 because	 a	 racial	 disparity	 of	 0.7	 percent

— the	 difference	 between	 the percentage	of	African

- Americans	residing	in	Androscoggin	County (0.7) and	the percentage	of	African

- Americans	on	the	jury	venire (zero)

— was not sufficient to	 show	 racial	 underrepresentation. Id .	 ¶	 31. We also	 noted	 that,	 even	 if Holland	 could	 show	 a	 disparity,	 he	 did	 not	 demo nstrate	 that	 the underrepresentation on	the	venire	wa s	a	result	of	the	“systematic	exclusion”	of African

- Americans in	the	jury

- selection	process. Id

. ¶ ¶ 32 ,	34 ; see Duren , 43 9
U.S.	at	366. We are	not	persuaded	on	this	record to	depart	from	our	reasoning
in Holland

. [¶ 20 ]	 	 Here, Townes similarly presented	 no	 evidence	 of	 a	 “systematic exclusion”	and failed	to	carry	his	burden	of	showing that	the	representation	of

Id. (listing	circuit	courts	that	have	adop ted	the	ten

- percent	threshold).		Although	Townes	argued	in his	brief	that	he	“could	never	have	come	close”	to	meeting	this	ten

- percent	threshold,	the	trial	court did	not	apply	that	requirement,	we	expressly	declined	to	adopt	the	ten

- percent	statistical	thr eshold in Holland , id. ¶	31,	and	we	do	not	reconsider	that	issue	on	the	facts	of	this	case.12 African

- Americans	on the jury	venire wa s	not	fair	and	reasonable in	relation	to the	number	of	African

- Americans	in	the	community. Holland ,	2009	ME	72,	¶ 31 , 976	A.2d	227

. To the	extent	that	Townes	argues that the	court	erred	in	denying his	motion	 for	 a	 new	jury venire	 to	 be	 assembled ,	 the	 prospective	jurors	 he sought would have	been drawn	from	the	same	community	that	is	home	to	the same	low	percentage	of	African

- Americans	as	the	first venire

. 8 [¶ 2 1] Because	his argument fails	 to satisfy at	least	one element	of	 the
Duren test , 439	U.S. at	36 4

- 66 , Townes fails	to establish a	prima	facie violation of the Sixth	Amendment ’s	fair

- cross - section requirement .		Accordingly, the t rial court	did	not	err	in	denying his motion	 for	a	new	jury. Holland ,	2009	ME	72, ¶ 40,	976	A.2d	227. The	entry	is: Judgment	affirmed.

Marina	L.	Sideris,	Esq. (orally ) ,	Camden,	for	appellant	Terrence N. Townes Maeghan	 Maloney,	 District	 Attorney,	 and	 Tyler	 J.	 LeClair,	 Asst.	 Dist.	 Atty. (orally) ,	Prosecutorial	District	IV,	Augusta,	for	appellee	State	of	Maine

Kennebec	County	Unified	Criminal	Docket	docket	number	CR

- 2016

- 2691 F OR C LERK R EFERENCE O NLY

8 Although	 Townes	 filed	 a	 motion	 to	 change	 venue,	 he	 withdrew	 that	 motion	 on September 28, 2017.