MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019 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	this	appeal we	examine	assertions that	sanctions	imposed	against	

the	State	 for	discovery	violations	and	 for	 failing	 to	comply	with	court	orders	

were	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	(Kennebec	County,	Murphy,	J.), as	a	result	of	a	jury	verdict,

for	 aggravated	 assault	 (Class	 A),	 17-A	 M.R.S.	 §	 208(1)(A-1)	 (2018), and	

violating	 a	 condition	 of	 release	 (Class	 E),	 15	 M.R.S.	 §	 1092(1)(A)	 (2018).	

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]		“Viewing	the	evidence in	the	light	most	favorable	to	the	State,	the	

jury	 rationally	 could	 have	 found	 the	 following	 facts	 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	extinguisher,	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	as	he	was	being	placed	in	the	cruiser,	he	kicked	another	officer in	
3

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	counts	for	which	Townes	was	subsequently	

convicted—aggravated	assault	 (Count	2)	and	violating	a	condition	 of	 release	

(Count	6).

1		

A. Discovery	Violations	and	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	that	the	State	

committed	 a	series	 of	discovery	 violations	and	 failed	 to	comply	with	several	

court	orders.		Townes	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,	

assault	(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 court	(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,	Townes 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	injuries	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	 the incident, as	 well	 as	 the	
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testimony	of	the	officer	who	was	allegedly	kicked,	and prohibited the	State—

but	not	Townes—from	calling	a	witness	who had	disclosed	to	the	State	that	she	

was	vision-impaired.

2

B. Jury	Selection

[¶10]	 	 On	 the	 first	 day	 of	 trial,	 Townes	 raised	 two issues	 of	 jury	

impartiality.		First,	Townes	filed	a	motion	for	a	new	jury	venire,	arguing	that,	by	

having	informed the	jurors	 that the	defense	attorneys	were	 “from	Portland,”	

the	court	had	caused	prejudice	to	him.	 The	court	denied	the	motion.		

[¶11]		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	notified	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	in	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

[¶12]		Townes	now	challenges the	sufficiency	of	the	sanctions	imposed	

on	the	State 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

[¶13]	 	 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	 that	 it	

deprived	him	of	a	 fair	 trial.		State	v.	Cruthirds,	2014	ME	86,	¶	37,	96	A.3d	80

(quotation	marks	omitted).		

[¶14]	 	 The	 trial	 court	 did	 not	 abuse	 its	 broad	 discretion	 to	 impose	

sanctions for	the	State’s	discovery	violations. It dismissed	Count	3	(aggravated	
7

assault); excluded	evidence relevant	to	Counts	1,	2,	and	5;	and,	as	to	Count	4,	

barred	any	testimony from	the	officer	whom	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 when	it	granted these,	but	not	other,	requested	sanctions,	nor	did	the	

court’s	decision	deprive	Townes	of	a	fair	trial.		Cf.	id.	¶¶ 34,	37-38.

B. Right	to an	Impartial	Jury

[¶15]	 	 Townes	 also	 contends	 that	 he	 was	 deprived	 of	 his	 Sixth	

Amendment	 right	 to	 “an impartial	 jury	 of	 the	 State	 and	 district”	 where	 the	

crimes were	 alleged	 to	 have	 been	 committed because the	 court	 injected	 a	

geographic	bias	against	him	and	because	he	could	not	determine	whether	the	

jury	represented a	fair	cross 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,	

526 (1975);	Holland,	2009	ME	72,	¶	22,	976	A.2d	227.		

[¶16]	 	 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	 divide	
8

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 inquiries into	

whether	 any	 juror	 knows 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	

curiam); 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	 conclude that the	 court	 did	 not	 prejudice the	 jury against	

Townes when	 it identified	 his attorneys	 and	 stated	 that	 they	 were	 from

Portland.

4		

[¶17]	 	 Second,	 Townes argues 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	notion	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	 	 The	 United	 States	 Supreme	 Court	 has	

“unambiguously	 declared	 that	 the	 American	 concept	 of	 the	 jury	 trial	

contemplates	a	jury	drawn	from	a	fair	cross section	of	the	community	.	.	. [and]	

that	the jury	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		We	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	 guarantees	 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	our	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.		

[¶18]	 	 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	advocate	 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	rejected,	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

[¶19]	 	 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	

population	 was	 African-American,	 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	 demonstrate	 that	 the	

underrepresentation	on	the	venire	was	a	result	of	the	“systematic	exclusion”	of	

African-Americans in	the	jury-selection	process.		Id.	¶¶ 32,	34;	see Duren,	439	

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	adopted	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	threshold	

in	Holland,	id. ¶	31,	and	we	do	not	reconsider	that	issue	on	the	facts	of	this	case.			
12

African-Americans	on	the	jury	venire	was	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		

[¶21]		Because	his argument	fails	 to satisfy	at	least	one element	of	 the	

Duren test, 439	U.S.	at	364-66,	Townes fails	to	establish a	prima	facie	violation	

of	the Sixth	Amendment’s	fair-cross-section	requirement.		Accordingly, the	trial	

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

FOR	CLERK	REFERENCE	ONLY

 8	 	 Although	 Townes	 filed	 a	 motion	 to	 change	 venue,	 he	 withdrew	 that	 motion	 on	

September 28, 2017.