MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 7 ME 180 Docket: Yor

- 16

- 548 Submitted

On	Briefs: July	19,	2017 Decided: August	15,	2017
Panel: SAUFLEY,	C.J.,	and	ALEXANDER, MEAD , GORMAN ,	JABAR, and	HJELM ,	JJ.

STATE	OF	MAINE

v. J OHN	T. SIMONS

MEAD ,	J. [¶1] John	T.	Simons	appeals	from	a	judgment	of	conviction	of	operating under	the	influence	(Class	B), 29

- A	M.R.S.	§ 2411(1

- A)(D ) (2) ( 2016),	entered by	the	trial	court	(York	County, Driscoll,	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	b eyond	a	reasonable	doubt. State	v.2 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 follow ed 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	ve hic le	pulled	over	after	travelling about another quarte r mile. [¶3 ] Caldwell approached	 the	 car and	 requested insurance and registration	documents ; he identified	the	driver	as	John	Simons	us ing	Simons’s driver’s	license. He	observed	Simons’s	hands	to	be	“very	shaky”	when	Simons

was searching	for his	regist ration	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	 di sguise	 the	 odor	 of	intoxicants. Simons	told	the	officer	that	he	was	coming	from	a	nearby	bar	where	he	was	a “do or	 guy.” Caldwell took	 the paperwork to	 his	 police	 cruiser where	 he
revi e wed	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	d rinking	but	had	stopped at	5:00 p.m. Caldwell asked	Simons	if	he3 was	willi ng	 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	fe et	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	c lues	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	t han	six	inches	to	keep	his	balance,	took	a	step off	the	line,	did	not	touch	his	heel	to	his	toe	on	several	step s,	and	failed	to	turn properly. Caldwell then	 had	 Simons	 c omplete	 the	 one

- leg

- stand test. He observed	Simons	sway	and	rais e his	arms	hig her	tha n	six inches	from	his	sides to	 ke ep	 his	 balance	 during	 the	 test. Caldwell arrested	 Simons	 for operating under	the	influence

. 1

1 Caldwell subsequently	administered	a	breath	test	to	Simons, but the	court	ruled	that	the test results	were	inadmissible	due	to an	improper observation period that	compromised	the	reliability	of the	test

.4 [¶5 ] On	June	9,	2016,	Simons	filed	a	motion	to	suppress evidence	from the	traffic	stop. Following	a	hearing,	the	court	( Driscoll,	J. )	denied	the	motion. The	court	found the	following	facts. Caldwell observed	Simons	enter	a	traffic

rot ary	and accelerate	to	seventeen	miles	per hour	over	the	speed	limit ,	and	that
Simons drove for a quarter mile	after	Caldwell	activated	his	e mergency	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	impa irment	or	alcohol consumption.” However, when Caldwell returned	 to	 Simons’s	 vehicle,	 he “smelled the	 odo r	 of	 alcohol	 from	 the	 vehicle.” He	 asked	 Simons	 if	 he	 h ad anything	 to	 drink	 that	 night; Simons	 responded	 that	 he	 last	 had	 a	 dri nk	 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	Si mons	i f	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 ,	as5 the	 situation	 evolved, ask ing 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	evide nce	to	prove	their	innocence. (Please	circle	one.) Agree

_____ __ Disagree	_______
Eighteen prospective	 jurors	 answered	 “Agree

. ” T he	 court	 ( Fritzsche,	 J. ) individually interviewed each prospective	 juror	 who	 answered	 in	 the affirmative to	inquire	further	as	to	their	beliefs	and	ability	to	f ollow	the	court’s
instructions. Simons	objected	to	this	process,	expressing his concern	that	those jurors	could	not	be	rehabilitated. [¶7 ] When	 questioned	 by	 both	 the	 court	 and	 counsel,	 several	 jurors indicated	 that	 the y	 were	 confused	 by	 the	 question	 and had	 answered incorrectly and	confirmed during	the	colloquy	that	they could fol low	the	c ourt’s instructions	on	the	law. T he	court	excused	several	j urors for	caus e	after	they confirm ed the	belief that a	defendant	should	pres ent	evidence	of	innocence	or

2 The	record	indicates	that	the	questionnaire	was	prepared	by	both	Simons	and	the	State,	who “were	able	to	negotiate	and	work	through	and	produce	th[ e]	questionnaire	by	agreement.”6 seemed hesitant about	 whether they could	 follow	 the	 court’s	 instructions

. Simons objected	 to only	one	additional	prospective	juror	on	 the	basis	of	her response	to	Question	14,	and	that	juror	was also excused	for	cause	by	the	court.
Seven jurors	 who	 had	 answered	 Question	 14	 affirmatively	 were	 eliminated during	 the	 exercise	 of Simons’s and	 the	 State’s pe r emptory challenges

. See
M.R.U. Crim.	P. 24(c). Of	the	jurors	who	were	ultimately	impaneled, four had initially	 answered	 “Agree”	 to	Question	 14 ;	 two of	 those	jurors later told	 the

court that	 they misread	 the	 question	 and intended	 to	 “Disagree ,”	 and	 two indicated	that	they	were	confused	by	the	question and could	follow	the	court’s instructions	on	the	law

. Simons	did	not	object	to	those	jurors	being	seated. [¶8 ] Immediately	 prior	 to	 the	 commencement	 of	 the	 trial ,	 the	 cou rt ( Driscoll,	J. ) and	counsel	discussed	various	pretrial	matters	including	Simons’s objection ,	based	upon	lack	of	foundation, to Caldwell testifying	about	Simons’s performance	on	the	HGN	test because Caldwell	was	not certified	as “proficient” at	that	test. The	court ruled that	the	testimony	would	be	admissible, concluding that	the	issue	of whether	or	not Caldwell was	certified	as proficient went	to the weight

— not the admissibility

— of	the	evidence

. [¶9 ] At	the	trial,	the	jury	heard	testimony	from Caldwell

. In	addition	to testifying	to	the	facts	set	forth herein , Caldwell testified	that	he	had	been	with7 the	 Kittery Police	 Department	 since	 January 2015	 and had completed	 an eig hteen

- week	program	at	the	Maine Criminal	Justice	Academy. An	entire	week of	 his	 t raining	 focused	 on	 operating	 under	 the	 influence and	 in cluded	 both classroom	 and	 first

- hand,	 hands

- on	 training. Caldwell was	 taught	 the procedures	 for	 the HGN,	 walk

- and

- turn,	 and	 one

- leg

- stand	 test s ; a	 manual concerning detecting OUI	 was	 part	 of	 his	 curriculum. At	 the	 time	 of	 his interaction	 with	 Simons, Caldwell was	 in	 the	 process	 of	 being	 deemed “proficient”	a t	the	HGN	test	by	the	Academy. [¶1 0 ] Following two	days	of deliberations,	the	jury	returned	a	verdict	of guilty. The	c ourt	entered	a	judgment	of	conviction	on	the	verdict, from which Simons	now	appeals. 3 See M.R.	App.	P. 2.
II.		DISCUSSION
A

. Motion	to	Suppress [¶1 1 ] Simons asserts that	the	court erred	in	determining	that Caldwell had a reasonable	articulable	suspicion supporting his	request	that	Simons	exit

3 Simons	was	convic ted	pursuant	to	29

- A	M.R.S.	§ 2411(1

- A)(D)(2)	(2016)	because	he	had	a	prior Class	C	conviction	for	operating	under	the	influence. The	court	sentenced	Simons	to	eight	years	of imprisonment,	with	all	but	eighteen	months	suspended;	three	years	of	probation; a	ten
- year	license suspension;	 and	 a	 $2,100	 fine. The	 Sentence Review	 Panel	 denied	 Simons	 leave	 to	 appeal	 his sentence. State	v.	Simons ,	No.	SRP

- 16

- 549	(Me.	Sent.	Rev.	Panel	Jan.	26,	2017).8 his	 vehicle	 and	 perform	 field	 sobriety	 tests ,	 and	 thus	 erred	 in	 denying	 his motion	to	suppress

. 4 [¶1 2 ] “[A]	field	sobriety	test,	like	any	other	invest igatory	stop,	must	be based	 on specific	 and	 articulable	 facts	 which,	 taken	 together	 with	 rational inferences	from	those	facts,	reasonabl y	warrant	that	intrusion. ” State	v.	Wood , 662	A.2d	919,	920	(Me.	1995)	( quotation	marks	omitted ). At	the	time	of making

an investigatory	 stop, a police officer	 must	 have	 “an	 articulable	 suspicion, objectively	reasonable	in	light	of	all	 the	circumstances,	 that	 the	object	of	 the search	has	committed	or	is	about	to	commit	a	crime. ” Id. Whether	an	officer had	an	articulable “subjective	suspicion	of	o perating	under	the	influence	and the	facts	upon	which	that	suspicion	is	based	are	factual	findings	revie wed	for clear	error,” State	v.	King , 2009	ME	14,	¶ 6 ,	965	A.2d 52 , and we	will	affirm the court’s	 finding if it	is supported	 by “ any	 competent evidence in	 the record, ” State	v.	McPartland ,	2012	ME	12,	¶	13, 36	A.3d	881 .		“ [ T ] he	determination	of whether	th e suspicion	was	objectively	reasonable	is	a	legal	conclusion that	we
review de	novo.” King , 2009	ME	14,	¶ 6 ,	965	A.2d 52

. “The	only	requirement we	have imposed	on	 the	reasonable	articulable	suspicion	standard	is	 that	an

4 Simons	does	not	challenge	the	initial	sto p	of	his	vehicle for	speeding.9 officer’s	 suspicion	 be	 more	 than	 mere	 speculation	 or	 an	 unsubstantiated hunch.” State	v.	Porter ,	2008	M E	175,	¶	11,	960	A.2d	321. [¶1 3 ] Here, the suppression court	 found	 that Si mons	 admitted	 to Caldwell that	he	h ad	been	drinking	 that	evening ; that Caldwell had	observ ed Simons	fumble	with	his documents and smelled	alcohol	coming	from	Simons’s vehicle ; and that	Caldwell ob served Simons	driving	seventeen	miles	per hour over	the speed	limit. Caldwell also testified	that he asked	Simons	to	exit	the	car and	perform	field	sobriety	tests in	order to	“make	sure	that [Simons]	was	safe to	driv e, ” supporting th e	trial	court’s	implicit	conclusion	th at Caldwell harbored

a subjective belief	that	Simons	was	impaired. The	motion	court	did	not	err	in finding	 that Caldwell entertained	 a reasonable articulable sus picion that Simons	was	impaired , thus	justifying	 the	administration	 of	 the	 field	sobriety

tests

. See State	v.	Sylvain , 2003 ME 5,	¶	18,	814	A.2d	984 ( conclud ing that it	was “objectively	reasonable	for [an] officer	to	entertain	a	suspicion	that [a] driver may	 be	 im paired	 by

.	 .	 . alcohol ” when	 the	 officer	 observed the driver’s bloodshot	e yes	and the	driver	admitted to consum ing tw o	beers ) ; cf. State	v. Nelson , 638	 A.2d	 720,	 722	 (Me. 1994) (determining	 that there	 was	 “a	 clear deficiency	 in	 the	 evidence	 supporting	 the	 reasonableness	 of	 [an	 officer’s] suspicion”	that	a	defendant	was	operating	under	the	influence	when	“the	officer10 observed	 nothing	 to	 support	 his	 suspicion”	 other	 than	 the	 defendant’s “consumption	of	a	single	can	of	beer	ove r	the	course	of	nearly	one	hour ” )

. The

court did	not	err	by	denying Simons’s	motion	 to	suppress evidence from	 the traffic	stop.
B

. HGN	Test [¶1 4 ] Simo ns	contends	that	the	court	erred	by	allowing	the	jury	to	hear evidence regarding	 his	 performance	 on	 the	 HGN	 test because the	 proper foundation for	 its	 admission was	 not established , compromising the	 test’s reliability

. We	 review an evidentiary ruling “ for	clear	error	and	an	abuse	of discretion. ” Hinkel , 2017 ME	76,	¶	7 , 159 A.3d 854

. [¶1 5 ] We	have taken	judicial	notice	of	the	reliability	of	the	HGN	test	“for
purposes of	establishing	criminal	guilt in	cases	involving	operating	under	the influence,” and concluded that “the results	 of [ an ] HGN	 test should	 be admissible	if	 a	 proper	 foundation	is	 laid	 for	 their	introduction	in	 evidence.” State	 v.	 Taylor ,	 1997	ME	 81,	 ¶¶	 10, 12,	 694	 A.2d	 907. A proper	 f oundation
consists of	two	elements:	ev idence	that	the officer	who administered	the	test “is	 trained	 in	 the	 procedure,”	 and	 evidence	 that	 “the	 test	 was	 properly administered.” Id. ¶ 12

. In Taylor , we determined	 that	an	 officer	who	 “was trained	at	a	 three

- day	course	 taught	by	instructors	and	has	 tested	numerous11 subjects	both	in	the	field	and	in	controlled	situations”	was	qualified	to	testify	as an	expert	on	the	HGN	test. Id. ¶	12	n.9.		More	recently,	in State	v.	Hinkel , we held that	the	State	laid	a	proper	foundation	pursuant	to Taylor when	the	officers	who administered	 the	 HGN	 test	 “testified	 that	 they	 graduated	 from	 the
Maine Criminal	 Justice	 Academy,	 where	 they	 received	 training	 on	 the administration	of	field	sobriety	te sts,	including	the	HGN	test.” 2017	ME	76,	¶	8, 159 A.3d 854

. [¶1 6 ] Here, Caldwell testified	 that	 he	 completed	 a	 program	 at the
Maine Criminal	 Justice	 Academy	 where	 he	 re ceived	 both	 classroom	 and hands

- on	training	on	field	sobriety tests,	including	the	H GN	test. Accordingly, we	 conclude that the	 court	 did	 not	 err	 in	 determining	 that Ca ldwell was qualified	to	testify	as	an	expert	on	the	test. Regarding the	second element of the necessary foundation , Caldwell testified	 in	 detail concerning how	 he administered	the	HGN	test	to	Simons,	and	Simons points	to	no record	evidence demo nstrating how	 the HGN	 test	 administered	 by	 Caldwell deviated	 from standards	 prescribed	 in	 the	 National	 Highway	 Traffic	 Safety	 Administration manual

. See	i d. ¶	9

. Eve n	if	he	had, an	officer’s “failure	to	strictly	adhere	to	the specific	 procedures	 promulgated	 by	 NHTSA	 does	 not	 render	 evidence regarding	 those	 field	 sobrie ty	 tests	 inadmissible,”	 and	 Simons	 was free	 to12

cross - examine Caldwell about	any	failures	to	adhere	to protocol. Id. (quotation marks	 omitted). Therefore ,	 the	 court	 did	 not err	 or abuse	 its	 discretion	 in admitting evidence regarding	the	HGN	test ing

. C

. Sufficiency	of	the	Evidence [¶1 7 ] Simons	asserts	that	there	was	insufficient	evidence	to	support	his conviction	for operating	under	the	influence. “When	determining	whether	the record	 contained	 enough	 evidence	 to	 support	 a	 criminal	 defendant’s conviction, we	 view the	 evidence	 in	 the	 light	 most	 favorable	 to	 the	 State	 to determine	whether	 the	 fact

- finder	c ould	 rationally	 find	every	element	of	 the offense	 beyond	 a	 reasonable	 doubt.” State	 v.	 Atkins ,	 2015 ME	 162,	 ¶	 20,
129 A.3d	952	(quotation	marks	omitted). The	fact

- finder	is	permitted	to	“draw all	reasonable	inferences	from	the	evidence.” State	v.	Soucy , 2012	ME	16,	¶	10, 36	A.3d	910	(quotation	marks	omitted). Testimony	that	the	defendant	showed indications of	 intoxication	 “can	 be	 sufficient	 to	 support	 a	 finding	 that	 the defendant	 was	 under	 the	 influence .” State	 v.	 McCurdy ,	 2002	 ME	 66,	 ¶	 10, 795 A.2d	84 .		T he	jury	may	also	consider	a	defendant’s	performance	on	 field sobriety	 tests	 as	 evidence	 of	 intoxication,	 though	 such	 performan ce	 is	 not dispositive	of	guilt. See State	v.	Fay ,	2015	ME	160,	¶	7,	130	A.3d 364; Taylor ,13 1997	 ME	 81,	 ¶	 13,	 694	 A.2d	 907 (stating	 that	 results	 of	 an	 HGN	 test	 are admissible	as	circumstantial	evidence	of	a	defendant’s	intoxication). [¶1 8 ] Here,	 the	 jury	 heard	 testimony	 that	 Simons	 was	 speeding,	 had admitted	 to	 drinking	 earlier	 in	 the	 evening,	 had	 the	 smell	 of	 alcohol	 on	 his breath, fumbled when	hand l ing	documents, stumbled	when	exiting	his	vehicle, and	 performed	 poorly	 on	 three	 field	 sobriety	 test s. The re	 was sufficient evidence in	the	record for the jury	to	rationally	find ,	beyond	a	reasonable	doubt, that Simons operated	 a vehicle	 while impaired , “however	 slightly	 or	 to	 any

extent , ”	by alcohol. 5 See Atkins ,	201 5 ME 16 2 ,	¶ 1 , 129 A.3d 952 ;	29

- A	M.R.S. § 2411(1

- A)(D)(2); see	also Hinkel , 2017 ME	76,	¶ ¶	2

- 5,	13 , 159 A.3d 854; State v.	Just ,	2007	ME	91,	¶¶	4,	9

- 10 ,	18,	926 A.2d	1173; McCurdy ,	2002	ME	66,	¶	11, 795	A.2d	84.
D

. Juror Impartiality [¶1 9 ] Simons	asserts	that	the	court	erred	in	concluding , after	conducting a	more	extensive	colloquy	with	the	jurors , that jurors who initially	answer ed “Agree”	 to	 Question	 14	 on	 the juror	 questionnaire were	 impartial

. We ordinarily review “the	 trial	 court’s	 finding	 of	juror	impartiality	 for	 clear

5 At	trial, Simons stipulated	to his prior OUI conviction ,	and	the	judgment	and	commitment for that	conviction was	admitted	in	evidence	by	agreement ,	although	the	document	was	not	presented to	the	jury

. See	State	v.	Atkins ,	2015	M E	162,	¶	2 1	n.5,	129	A.3d 952.14 error”	and	“the	conduct	of	voir	dire	for	an	abuse	of	discretion.” State v.	Holland , 2009	ME	72,	¶	49,	976	A.2d	227. However,	because	Simons	did	not	object	to any	of	the	jurors who were	i mpaneled,	our	review of	the	jurors’	impartiality is for	obvious	error. See State	v.	Logan ,	2014	ME	92,	¶ 16, 97	A.3d 121; State	v. Lovejoy ,	2014	ME	48, ¶ 19,	89	A.3d	1066. T he	court’ s	determination	of	juror impartiality	“is	accorded	substantial	deference	because	of	the	[court]’s	ability to	observe the	juror and	assess	credibility.” State	v.	DePhilippo ,	628	A.2d	1057, 1059	(Me.	1993) (quotation	marks	omitted). [¶20 ] “ When	 a	 juror’s impartiality	 is	 questioned,	 the	 court	 should interview	 the	 juror	 to	 determine	 whether	 it	 is	 satisfied	 with	 the	 juror’s ability

. . . to	participate	in	reaching	a	verdict	based	on	 the	evidence	and	 the law.” State	 v. Rollins ,	 2008	 ME	 189,	 ¶ 12 ,	 961	 A.2d	 546 (quotation	 marks omitted). A juror’s	assuran ce	to	the	court	that	he	or	she could be impartial	is significant in	 this determination

. See	 State	 v.	 Dyer ,	 2007	 ME	 118,	 ¶	 15,
930 A.2d 1040 ; see	also	Rollins ,	2008	ME	189,	¶	12,	961	A.2d	546

. [¶ 2 1] Here,	the	court individually interviewed	each	potential	juror who had answered “Agree”	 to Qu estion	 14 ,	 and counsel for	 both	 Simons	 and	 the
State also	had	the	opportunity	to question	each	prospective	juror	about his	or her	response

. Of	the	four	jurors	who answered	Question	14	aff irmatively	and15 were	ultimately	i mpaneled, when	questioned, two said that	they	had	misread the	question	and	intended	to	“Disagree”	with	the	statement	in	Question	14 ,	and the	other	two express ed	confusion	about	the	question	and expressly indicated that	 they	 could	 follow	 the	 court’s	 instructions on	 the	 law

. 6 Therefore, considering	 both	 the record evidence	 and our deference	 to	 the	 court’s determination	 of	 juror	 impartiality, we conclude	 that	 there	 was neither	 an abuse	of	discretio n	in	the	way	the	court	conducted	voir	dire n or obvious error in	the	court’s	conclusion	that	the	jurors	were	impartial. [¶22 ] Nonetheless,	 we note	 with	 disapproval the	 use	 of	 a	 voir	 dire question	that	presents	an	utterly	incorrect	statement	of	law	and	asks	jurors	to agree	 or	 disagree	 with	 the	 policy	 pronouncement	 contained	 therein. Regardless	of	whether	an	individual	juror	may	disagree	with	an	aspect	of	law, the	 tr ue objective of	 voir	 dire is to	 determine whether	jurors	are	able	 to	 be impartial	and	follow	the court’s	instructions	on	the	law, even	if	the	juror	may

6 At	trial, Simons	was apparently persuaded that	the i mpaneled jurors	were	impartial ,	as	he	stated in	his	opening	argument : [O]ne	of	the	reasons	why	we	chose	all	thirteen	of	you	is	because	you all universally rejected	 two hypotheticals.		The	 first	one	was:	if	someone is	charged	with	a	crime, they’ re	probably	guilty.		You	all	universally	said	you	disagreed	with	that.	.	.	.	And	you all	universally	rejected	the	notion	that	if	someone	is	charged	with	a	crime,	they	should show	s ome	evidence	of	their	innocence.		You	universally	rejected	that.		That’s	one	of the	reasons	why	the	thirteen	of	you	are	on	this	jury.		And	that’s	important	because, without	realizing	it,	you	all	actually	embraced	a	foundational	bedrock	principle	of	our leg al	system	and	that	is	a	person	charged	with	a	crime	is	presumed to	be innocent.16 disagree	with	the	particular	law. See Alexander, Maine	Jury	Instruction	Manual §	2

- 3 at	2

- 5	(201 7 ed.) (“The	predominant	purpose	of	questions	asked	of	jurors , whether	oral	or	written, m ust	be	development	of	information	supporting	the objective	of	impaneling	a	qualified	and	impartial	jury.”). “Questions	 that	are unrelated	 to	a prospective juror’s	 knowledge,	 bias,	 or	 pr edisposition	 .	 .	 .	are improper.” Id. Specifically , questions	 that	 “cause[]	 the	prospective	jurors	 to adopt	a	position	on	the	law	without	the	benefit	of	the	court’s	instructions,	and without	reference	to	the	jurors’	duty	to apply	the	law	as	instructed	and	not	as each	juror saw fit,”	are not appropriate	questions. Grover	v.	Boise	Cascade	Corp. , 2004	 ME	 119,	 ¶ 2 0 ,	 860	 A.2d 851

. T he introduction	 of	 an	 erroneous	 legal concept presents	 the danger that	 jurors	 may continue	 to consider	 and ultimately embrace	the	erroneous	notion.		W e	note finally that	asking	a	juror	to agree	 or	 disagree with	 a	 legal tene t injects unnecessary confusion in to an already	intrusive	process. The	entry	is: Judgment	affirmed.17 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.,	Pros ecutorial	District	#1,	Alfred,	for	appellee	State	of	Maine

York	County	Unified	Criminal	Docket	docket	number	CR

- 2015

- 544 F OR C LERK R EFERENCE O NLY