MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 20 20 ME 83 Docket: Aro

- 19

- 329 Submitted

On	Briefs: April	14,	2020 Decided: June	4,	2020 Panel: MEAD, GORMAN,	JABAR , HUMPHREY, HORTON,	and	CONNORS, JJ.

STATE	OF	MAINE

v. JONATHAN	LIMARY

HORTON, J. [¶1] Jonathan	 Limary	 appeals	 from	 a	 judgment	 of	 conviction	 of manslaughter	(Class	A),	17

- A	M.R.S.	§	203(1)(A)	(20 20 ),	and	aggravated	assault (Class	 B),	 17

- A	 M.R.S.	 §	 208(1)(A) (20 20 ),	 entered	 by	 the	 court	 (Aroostook County, Stewart,	J. )	after	a	jury	trial. Limary	argues	that	the	court	deprived	him of	 a	 fair	 trial	 by	 denying	 his	 request during	 jury	 voir	 dire to	 pose	 certain questions	in	 the	jury	questionnaire , and	 that	 the	evidence	was	insufficient	 to support	 a	 finding	 that	 Limary ’s	 actions

— rather	 than	 subsequent	 medical
treatment

— caused	the	victim’s	death. We	affirm	the	judgment.
I.		BACKGROUND [¶ 2 ] Viewing	 the	evidence	in	 the	light	most	 favorable	 to	 the	Sta te,	 the jury	could	rationally	have	found	the	following	facts	beyond	a	reasonable	doubt.2 See State	 v.	 Asaad ,	 2020	 ME	 11,	 ¶	 8,	 224	 A.3d	 596. Late on	 the	 night	 of October 29,	2017,	Limary	and	some	friends	had	a	dispute,	via	text

- based and
voice

- based	social	media,	with	the	victim

— a	man	whom	none	of	them	had	met. As	a	result,	Limary	and a friend of	his

— with	three	others	in	the	vehicle

— drove from	 Presque	 Isle	 to	 Caribou	 to	meet	 up	with	 the	 victim	 and	 his	 friend	in	 a parking	lot	to	fight.		While	Li mary	and	the	victim’s	friend	fought, Limary’s	friend fought	with	the	victim. Limary’s	friend and	the	victim	ended	up	on	the	ground, and Limary’s	 friend eventually	got	up	and	backed	away	 from	 the	 victim.		By then,	another	friend	of	the	victim	had	arrived	w ith	his	teenage	son	and	had	gone over	to	help	the	victim	up	off	the	ground.		Before	the	victim	could	rise from	his knees ,	Limary approached	and forcefully	kicked	the	victim	in	the	face,	resulting in	 numerous	 fractures	 to	 the	 victim’s	 nose,	eye	 orbits,	uppe r	jaw,	and	cheek bones. [¶ 3 ] The	 victim	 received	 medical	 care	 in	 the	 early	 morning	 hours	 of October 30	and	was	released,	but	he	returned	to	the	hospital	later	that	day	and was	admitted.		He	was	released	on	November 2.		He	then	had	two	surgeries	on Novembe r 9	and	was	released	on	November	17.		For	purposes	of	the	surgeries, a	tracheostomy	tube	was inserted ;	that	tube	was	removed	two	days	before	the3 victim’s	release	from	the	hospital,	leaving	the	victim	with	a	healing	hole	in	his throat	at	the	incision	site w here	the	tracheostomy	tube	had	been

. [¶ 4 ] On	the	day	that	the	victim	was	released,	his	friend	and	the	friend’s son	brought	him	to	their	house.		That	evening,	the	victim	began	bleeding	from the	opening	in	his	neck,	and	his	friend	called	9

- 1

- 1. Under the g uidance of	the dispatcher,	the	victim’s	friend performed CPR	until	the	ambulance arrived .		The victim	 bled	 profusely,	 and,	 despite	 the	 paramedics’	 resuscitation	 efforts,	 he died.		An	autopsy	revealed	that,	although	at	least	some	blood	exited	the	victim thr ough	the	tracheostomy	site, 1 more extensive hemorrhaging	occurred	in	the victim’s	sinuses. 2 [¶ 5 ] In	 January	 2018,	 Limary	 was	 charged	 by	 indictment	 with manslaughter	 (Class	 A),	 17

- A	 M.R.S.	 §	 203(1)(A),	 and	 aggravated	 assault (Class B), id. § 208(1)(A).		He	pleaded	not	guilty , and the	matter proceeded	to	a jury	trial.

1 There	was	also	evidence	of	bleeding	from	the	nose	and	of	blood	having	entered	the	stomach	and lungs.

2 From	these	facts,	the	jury	could	rationally	have	found	beyond	a	reasonable	doubt	that	Limary committed	 the	aggravated	assault	by	“intentionally,	knowi ngly	or	recklessly	caus[ing]	.	.	.	[b]odily injury	to	another	that	create[d]	a	substantial	risk	of	death	or	extended	convalescence	necessary	for recovery	of	physical	health.”		17

- A	M.R.S.	§	208(1)(A)	(20 20 ); see 17

- A	M.R.S.	§	35(1)

- (3)	(20 20 ) .		The suffici ency	of	the	evidence	of	manslaughter	is	discussed	below.4 [¶ 6 ] Jury	 selection	 was	 held	 on	 May	 13,	 2019. The	 court	 refused	 to include	o n	the	jury	questionnaire three	of	the	questions	that	Limary	proposed relating	to	self

- defense	and defense	of	another :

• “[I]f	 during	 the	 trial	 Mr.	 Limary	 generates	 evidence	 that	 he	 acted	 in self

- defense	or	in	the	defense	of	another	in	using	physical	force	against [the	 victim],	 the	 State	 must	 prove	 beyond	 a	 reasonable	 doubt	 that Mr. Limary	did	not	act	in self

- defense	or	defense	of	another.		Would	you have	 any	 difficulty	 applying	 this	 burden	 on	 the	 State	 to	 disprove self

- defense	or	defense	of	another	beyond	a	reasonable	doubt?”

• “[W]ould	 you	 be	 willing	 to	 find	 Mr.	 Limary	 not	 guilty	 if	 he	 acted	 in self

- defen se	or	in	defense	of	another	in	using	physical	force	against	[the victim]?”

• “[D]o	you	have	any	personal,	religious,	philosophical	or	other	beliefs	that a	person	is	never	justified	in	using	physical	force	against	another	human being	even	if	it	is	done	in	se lf

- defense	or	defense	of	another?” The	 court	 reasoned	 that	 it	 was	 not	 evident	 that	 a	 self

- defense	 or defense

- of

- another	instruction	would	be	generated	by	the	evidence .		T he	court indicated	that	it	would	ask	“whether	or	not	jurors	would	have	.	.	.	any difficulty in	 being	 a	 fair	 and	 impartial	 juror	 when	 fighting	 has	 occurred.”	 	 The questionnaire	presented	 to	 the	potential	jurors	included	such	a	question	and also	 asked	 the	 jurors	 if	 they	 would	 be	 able	 to	 “base	 their	 verdict	 upon	 the evidence	 and	 according to	 the	 law ” without	 allowing “ any	 feelings	 of	 bias, prejudice,	pity,	anger,	sympathy	or	other	emotion	[to]	influence	their	verdict	in5 any	way”	and	if	they	would	be	able	to	follow	the	law	as	instructed	by	the	court “even	if	[the y ]	d[id]	not	agree	with	the law. ” [¶ 7 ] After	 the	 potential	jurors	 completed	 the	 questionnaire,	 the	 court conducted	individual	voir	dire

. Both	the	State	and	Limary	agreed	that	the jury that	was ultimately selected was	satisfactory. [¶ 8 ] The	jury	trial	was	held	over	the	course	of	th e	next	four	days.		The
State offered	testimony	from eyewitnesses ,	a	paramedic	who	treated	the	victim on	the	day	of	his	death,	a	police	officer,	and	the	State’s	Chief	Medical	Examiner. The	 State	 offered	 no	 evidence	 that	 would	 suggest	 that	 Limary	 had	 acted in self

- defense	or	defense	of	another

. The	medical	examiner	testified	that,	b efore performing	an	autopsy	of	the	victim, he reviewed	hospital	records	summarizing the	 multiple,	 serious	 fractures	 to	 the	 victim’s	 face.	 	 He	 also	 considered	 a post
- surgery	x - ray	showing	the	surgeons’	use	of	braces	and	other	materials	to reconstruct	 the	 victim’s	 face.	 	 The	 autopsy	 revealed	 no	 hemorrhaging	in	 the area	of	the	tracheostomy	but	extensive	hemorrhaging	in	the	sinuses,	where	the victim	 had	 sustained	 the	 inju ries	 and	 undergone	 surgery.	 	 The	 medical examiner	 concluded	 that	 the	 victim	 died	 of	 blood	 loss

— specifically, “hemorrhagic	complications	following	multiple	fractures	of	facial	bones	due	to the blunt	force	trauma	of	his	head.”6 [¶ 9 ] Limary	 moved	 for	 a	 judgme nt	 of	 acquittal	 on	 the	 manslaughter charge,	arguing	that	the	victim’s	surgery,	which he	claims was	elective,	broke the	chain	of	causation between	his	actions	and	the	victim’s	death such	that	the jury	could	not	find	him	guilty	of	manslaughter. See M.R.U.	C rim.	P.	29. The	court denied	the	motion. [¶1 0 ] Limary	 then	 offered	 an	 expert	 witness

— the	 Chief	 Medical Examiner	for	the	State	of	Maryland

— who se	testimony	differed	from	the	State’s Chief Medical	 Examiner’s	 mainly	 in	 identifying the	 source	 of	 the	 victim’s bleeding as one	or	more	 veins	at	 the	site	of	 the	 tracheostomy,	not	 the	site	of Limary’s	injuries	and	surgery. 3 Limary	also	offered	his	own	testimony	that	he had	kicked	the	victim	in	the	mouth	to	protect his	friend because	he	tho ught	the victim	was	getting	up	to	continue	fighting	and	he	wanted	to	get	away	from	the victim	and	his	friends. [¶1 1 ] In	its	instructions	to	the	jury,	the	court	provided	instructions	on self

- defense	and	defense	of	another.		The	jury	found	Limary	guilty	of both	the manslaughter	and	aggravated	assault	charges.		After	a sentencing hearing,	the court	sentenced	Limary	to	sixteen	years	in	prison	for	manslaughter,	with	all	but

3 Through	cross

- examination,	it	became	clear	that,	when	the	expert	prepared	his	report,	he	had mistakenly	believed	that	the	tracheostomy	tube	had	still	been	in	the	victim’s	throat	when	he	died.7 forty

- five	months	suspended	and	four	years	of	probation.		For	the	conviction	of aggravat ed	assault,	the	court	sentenced	Limary	to	forty

- five	months	in	prison, to	 be	 served	 concurrently	 with	 the	 manslaughter	 sentence.	 	 The	 court	 also ordered	 Limary	 to	 pay	 $70	 plus	 restitution	 of	 $2,519	 to	 the	 Victims’ Compensation	Fund.		Execution	of	the	sente nce	was	stayed	pending	appeal. See M.R.U.	 Crim.	 P.	 38(a). Limary	 timely	 appealed. 15 M.R.S.	 §	 2115	 (20 20 );
M.R. App.	P.	2B(b)(1)

. II.		DISCUSSION [¶1 2 ] Limary	 challenges	 (A)	 the	 court’s denial	 of	 his	 request	 to	 pose questions regarding	 self

- defense and	 defense	 of	 another in the	 juror questionnaire	and	(B) the	sufficiency	of	the	evidence	that	he	caused	the	victim’s death. We	address	each	issue	in	turn.
A. Juror	Questionnaire [¶1 3 ] Limary	argues	 that	he	was	deprived	 of	a	 fair	and	impartial	jury beca use	 the	 questionnaire	 did	 not specifically inquire	 of	 the	 jurors	 whether they	 were	 able	 to	 be	 fair	 and	 impartial	 regarding	 issues	 of	 self

- defense and defense	of	another.		He	contends	that,	unlike	in State	v.	Burton ,	2018	ME	162, ¶ 17	&	n.2,	198	A.3d	195, the	court	did	not	i nclude	other	questions	regarding self

- defense	or	defense	of	another	that	would	satisfy	the	concerns	he	raised.8 [¶1 4 ] We	 review	 challenges	 to	 the	 conduct	 of	 voir	 dire	 for	 abuse	 of discretion

. State	v.	Roby ,	2017	ME	207,	¶	11,	171	A.3d	1 157. “[T]he	purpose	of the	voir	dire	process	is	to	detect	bias	and	prejudice	in	prospective	jurors,	thus ensuring	 that	 a	 defendant	 will	 be	 tried	 by	 as	 fair	 and	 impartial	 a	 jury	 as possible.” Burton ,	2018	ME	162,	¶	15,	198	A.3d	195	(quotation	marks	omitte d). Thus,	 a	 trial	 court	 has	 considerable	 discretion	 over	 the	 scope	 of	 voir dire provided	that	it	is	adequate	to	disclose	facts	that	would	reveal	juror	bias. Id. [¶1 5 ] A	 court	 need	 not	 voir	 dire	 potential	jurors	in	 the	 exact	manner requested by	a	party a s	long	as	 the	process	is	sufficient	 to	reveal	bias. Roby , 2017	ME	207,	¶	13,	171	A.3d	1157.		Nor	does	a	court	abuse	its	discretion	in excluding	 questions	 “that	 have	 no	 relationship	 to	 a	 prospective	 juror’s knowledge,	bias,	or	predisposition,	or	that	are	i ntended	to	advocate	a	party’s position	regarding	the	facts	or	issues	in	dispute.” Roby ,	2017	ME	207,	¶	11,	171 A.3d	1157	(quotation	marks	omitted). [¶1 6 ]	 	 For	 purposes	 of	 the	 United	 States	 Constitution,	 “ [t]o	 be constitutionally	compelled,	.	.	.	it	is	not enough	that	[voir	dire] questions might be	helpful.		Rather,	the	trial	court’s	failure	to	ask	these questions must	render the	defendant's	 trial	 fundamentally	unfair.” Mu’Min	v.	Virginia ,	500	U.S.	415, 425

- 26	(1991) .		For	instance,	the	United	States	Supre me	Court	has	determined9 that	 voir	 dire	 questions about	 racial	 bias may	 be	 constitutionally	 required, particularly	in	death penalty	cases. See Turner	v.	Murray ,	476	U.S.	28,	35

- 36 (1986) ; Rosales

- Lopez	v.	United	States ,	451	U.S.	182,	190	(1981)	(holding	th at, although	there	is	no	presumption	of	racial	bias,	a	court	may	be	required	to	ask
voir dire	 questions	 about	 race	 if	 there	 are	 “substantial	 indications	 of	 the likelihood	of	racial	or	ethnic	prejudice	affecting	the	jurors	in	a	particular	case”); Aldridge	v .	United	States ,	283	U.S.	308,	314

- 15	(1931) (vacating	a	judgment	of conviction	 of	murder,	 for	which	 the	defendant	had	been	sentenced	 to	 death, because	the	court	failed	to inquire of	the	jurors	regarding	racial	bias). [¶1 7 ]	 	 Consistent	 with	 this	 jurisprudence,	 the Maine	 Jury	 Instruction Manual , widely	used	in	civil	and	criminal	jury	trials	in	Maine , recommends	that the	trial	court	consider	specific	voir	dire	in	cases	that	“may	involve	particularly sensitive	 issues	 such	 as	 r ace,	 religion,	 sexual	 preferences,	 interpersonal	 or sexual	violence,	or	child	abuse.” Alexander, Maine	Jury	Instruction	Manual §	2

- 4
at	2

- 6	(2019

- 2020	ed.	2019) .		The	same	resource	recommends	that	during	jury
voir dire	 the	 trial	 court	 “describe	 the	 basic law	 applicable	 to	 the	 case

— in criminal	cases,	the	presumption	of	innocence,	the	State’s	beyond	a	reasonable doubt	standard	of	proof,	the	defendant’s	right	to	remain	silent	and	not	present any	evidence

— and	then	ask	the	jurors	if	they	were	willing	and	able	t o	accept10 and	apply	the	law	to	the	case	if	they	were	selected	as	jurors,	regardless	of	any personal	view	they	may	have	as	to	what	the	law	should	be.” Id. §	2

- 4E	at	2

- 2 0

. In	 this	 case,	 all	 of	 these	 principles	 were	 addressed	 in	 the	 written	 jury questionnaire

. [¶1 8 ]		On	the	other	hand,	the Manual recommends	against	“[q]uestions that	 ask	 about	 jurors’	 knowledge	 or	 beliefs	 about	 the	 law	 and	 whether	 the jurors	agree	with	the	law	as	stated	by	counsel.” Id. §	2

- 4F	at	2

- 24 (“Voir dire	is not	a	mini	bar	exam	for	citizen	jurors	untrained	in	the	law.”)

. [¶1 9 ]	 	 The	 principles	 set	 forth	 in	 the Manual are	 consistent	 with,	 and derive	from,	our	own	jurisprudence.		“A	voir	dire	of	jurors	becomes	essential when	 the	 potential	 for	 bias	 and	 pr ejudice	 is	 manifest.” State	 v.	 Barczak , 562 A.2d	140,	142	(Me.	1989) .		“Whether	prejudice	is	manifest	is	a	question	of fact	 for	 the	 trial	 court's	 determination	 and	 the	 scope	 of	 an	 examination	 is	 a matter	of	discretion	for	the	court.” Id. Based	on	the	ev idence	anticipated	in	a case,	therefore,	special	inquiry	of	jurors	during	voir	dire	may	be	required	with respect	to	potential	bias	regarding matters	such	as race	and	sexual	orientation, pretrial	publicity,	and	law	enforcement	connections. See State	v.	Bet hea ,	2019 ME	 169,	 ¶¶	 15

- 19,	 221	 A.3d	 563 ; State	 v.	 Turner ,	 495	 A.2d	 1211,	 1212

- 1 3 (Me. 1985); State	 v.	 Lovely ,	 451	 A.2d	 900,	 901

- 02	 (Me.	 1982); see	 also11 Alexander, Maine	 Jury	 Instruction	 Manual §	 2

- 4I	 at 2

- 31	 to	 2

- 32 (including sample	jury	 questions	 about	 pretrial	 publicity); cf. State	 v.	 Saucier ,	 2001	ME 107,	¶	21,	776	A.2d	621 (affirming	the	denial	of	a	motion	to	change	venue	in part	because	voir dire	questions	about	pretrial	publicity	had	been	posed	to	the jury). Applying	 these	 principles,	we	 held	 that	jury	 voir	 dire	was	inadequate when	trial	courts	precluded	inquiry	into	the	nature	of	jurors’	associations	with prospective	law	enforcement	witnesses, State	v.	O'Hara ,	627	A.2d	1001,	1003 (Me.	 1993) ,	 and	 jurors’	 past experiences	 with	 violent	 crime, State	 v.	 Lowry , 2003	ME	38,	¶¶ 10

- 11,	819	A.2d	331

. [¶ 20 ]	 	 In	 many	 circumstances,	 it	 will	 be	 necessary	 for	 a	 defendant	 to provide	evidence	of	potential	bias	for	voir	dire	to	be	required. See,	e.g. , State	v.
Lowe ,	 2015	ME 124,	¶	17,	124	A.3d	156 (holding	 that	 there	was	insufficient evidence	that	pretrial	publicity	generated	a	potential	for	bias); see	also United States	v.	Robinson ,	475	F.2d	376,	381	(D.C.	Cir.	1973) (holding	 that,	when	no recognized	 class	 of	 societal	 bias	 i s	 involved,	 “it	 is	 incumbent	 upon	 the proponent	to	lay	a	foundation	for	his	question	by	showing	that	it	is	reasonably calculated	 to	 discover	 an	 actual	 and	 likely	 source	 of	 prejudice,	 rather	 than pursue	a	speculative	will

- o - the

- wisp”).12 [¶ 21 ]	 	 In	 a	 case	 in	 w hich	 the	 defendant	 was	 a	 patron	 of	 a	 gay	 bar, however,	we	in	effect	took	judicial	notice	of	societal	prejudice	that	compelled inquiry	 on	 the	 subject	 of	 anti

- gay	 bias. See Lovely ,	 451	 A.2d at 901

- 02 (acknowledging	the	undeniable	“stigmatization	of	homosexu als	in	our	society” and	concluding	that	the	trial	court	was	required	to	inquire	about	anti

- gay	bias during	jury	voir	dire	when	the	evidence	suggested	that	the	defendant	had	been a	patron	of	a	gay	bar).		The	common	theme	in	our	jury	voir dire	jurisprudence has	been	to	require	inquiry	into	jurors’	attitudes	and	experiences	involving	the parties	and	witnesses	or	involving	specific	areas	of	evidence	when	 there	is	a more	than	speculative	potential	for	juror	bias. [¶ 22 ]		As	 to	legal	defenses	and	justifications

— as	opposed	 to	questions regarding potential evidence

- based and	status

- based	biases	against	parties	or expected witnesses

— some	 courts	 in	 other	 states	 have	 decided	 that	 several possible	 defenses	 and	 justifications, including	 self

- defense,	 are	 sufficiently “controversial”	 that	 they	 must	 be	 specifically	 explored	 during	 voir dire	 if requested	 by	 a	 party

. See Griffin	 v.	 State ,	 389	 S.W.2d	 900,	 902	 (Ark.	 1965) (self

- defense); People	 v.	 Gregg ,	 732	 N.E.2d	 1152,	 1163	 (Ill.	 A pp.	 Ct.	 2000) (“Although	 the	 insanity	 defense	 upon	 which	 the	 defendant	 relied	 is	 a well

- recognized	legal	defense,	it	remains	a	subject	of	intense	controversy	and13 has	 been	 described	 as	 ‘a	 defense	 which	 is	 known	 to	 be	 subject	 to	 bias	 or prejudice.’”	(quoting People	v.	Bowel, 488	N.E.2d	995,	999	(Ill.	1986) )); People v.	Taylor ,	489	N.W.2d	99,	101	(Mich.	Ct.	App.	1992) (per	curiam)	(self

- defense and	 the	 use	 of	 deadly	 force); cf. People	 v.	 Keenan ,	 758	 P.2d	 1081,	 1123 (Cal. 1988) (holding	 that	 sequestered	 voir dire	 may	 be	 required	 in	 a	 death penalty	case	as	to	“ potentially	controversial	defenses” such	as	self

- defense ). [¶ 23 ]		The	majority	of	the	other	courts	that	have	considered	whether	a requested	 self

- defense	 question	 must	 be	 posed	 to	 potential	 jurors	 during
voir dire,	however,	hold	that	the	determination	is	in	the	discretion	of	the	trial court	based	 on	 the	circumstances	before	it. See State v. Ebron ,	975	A.2d	17,
26 & n.14	(Conn.	2009), overruled	in	part	on	other	grounds	by State	v.	Kitchens , 10 A.3d	942,	959	(Conn.	2011); see,	e.g.,	Robinson ,	475	F.2d	at	380

- 81	(holding that,	although	it	may	have	been	preferable	for	the	trial	court	to	inquire	about juror	attitudes	toward	self

- defense,	the	refusal	to	do	so	did	not	prejudice	the defendant’s	substan tial	rights); Simpson	v.	State ,	276	So.	3d	955,	958	(Fla.	Dist. Ct.	 App.	 2019)	 (“This	 Court	 has	 recognized	 that	 no	 bright	 line	 rule	 can	 be fashioned	to	determine	the	limits	a	trial	court	may	impose	on	voir	dire	because the	complexities	in	each	case	are	dif ferent.”); State v. Bedford ,	529	N.E.2d	913, 920	(Ohio	1988)	(“The	scope	of voir dire i s	within	the	trial	court’s discretion14 and	varies	depending	on	the	circumstances	of	each	case.”); see	also Savo	v.	State , 382	P.3d	1179,	1182	(Alaska	Ct.	App.	2016)	 (vaca ting	a	conviction	when	 the court	refused	to	allow	requested	voir	dire	when	“the	evidence	already	known to	the	State	provided	support	for	th[e]	claim	of	self

- defense”). [¶ 24 ] We	have	not	identified	any	particular	defense	or	justification	as being	 sufficiently	 “controversial”	 to	 warrant	 special	 inquiry	 during	 jury
voir dire	 whenever	 raised	 and	 cannot	 now	 conclude	 that	 the	 law	 regarding defense	 of	 self	 or	 others	 is	 sufficiently	 c ontroversial	 to	 justify	 elevating	 its significance	above	the	many	other	potential forms of	bias	that	could,	in	theory, be	the	subject	of	specific	inquiry	during	jury	voir	dire.		We	are	not	persuaded that	there	exists	societal	bias	against	the	law	of	defens e	of	self	or	others	to	the extent	 that	 the	 constitutional	 right	 to	 a	 fair	 trial	 compels	 specific	 voir dire inquiry	during	jury	selection. See Commonwealth v. Fisher ,	290	A.2d	262,	264 (Pa.	1972)	(holding	that	there	was	no	evidence	of	widespread	bias	again st	the self

- defense	 justification); Commonwealth v. Morales ,	 800	 N.E.2d	 683,	 69 4 (Mass.	2003)	(“There	is	no	reason	to	suspect	juror	prejudice	against	claims	of self

- defense	and	 the	defendant	has	not	 shown	a	substantial	risk	of	juror	bias against	such	a	def ense.”).15 [¶ 25 ]		To	the	extent	that	we	have	addressed	voir	dire	about	self

- defense, we	affirmed	a	trial	court’s	decision	not	to	ask	the	following	question	regarding self

- defense	in	a	murder	case: The	law	allows	a	person	to	use	deadly	force	against	another person in	 self

- defense.	 	 Do	 you	 have	 any	 beliefs	 or	 opinions	 that	 would prevent	 you	 from	 applying	 the	 law	 of	 self

- defense	 if	 the	 Court provided	such	an	instruction	in	this	case?
Burton ,	2018	ME	162,	¶	7,	198	A.3d	195	(quotation	marks	omitted).		We	held th at	the	proposed	question	was	not	required	to	ensure	impartiality	and	that	the question	about	self

- defense	that	the	court	did	ask

— which	stated	that	the	law allowed	the	use	of	deadly	force	in	self

- defense	“in	certain	circumstances”

— was sufficient	 to	 reveal	 j uror	 bias. Id. ¶17	 &	 n.2 (emphasis	 omitted)	 (quotation marks	 omitted) .	 	 We	 affirmed	 the	 judgment	 based	 on	 the	 adequacy	 of	 the questions	asked	to	determine	bias	and	the	availability	of	individual	voir	dire	of the	potential	jurors. Id. ¶¶ 17	&	n.2,	19. [¶ 2 6 ]		Unlike	the	jury	question	propounded	by	the	court	in Burton ,	the three	 questions	 that	 Limary	 proposed	 regarding	 self

- defense	 and	 defense	 of another	did	not	indicate	 that	a	person’s	 rights	 of	 self

- defense	and	defense	 of others	are	limited, see 17

- A	M.R.S .	§	108(1)

- (2)	(2020), 4 and,	in	 that	respect,

4 A t	the	time	of	the	crime	at	issue	here,	subsection 3 of	17

- A	M.R.S.	§	108	(2020)	had	not	yet	taken effect. See P.L.	2019,	ch.	462,	§	2	(effective	Sept.	19,	2019)

.16 they	failed	to	provide	accurate	statements	of	the	law. See	Burton ,	2018	ME	162, ¶ 17	n.2,	198	A.3d	195.		The	court	was	justified	in	declining	to	adopt	them	as phrased. See	Roby ,	2017	ME	207,	¶	14,	171	A.3d 1157. [¶ 27 ]	 	 Although	 t he	 court	 could well have	 included	 an	 appropriate question	 regarding	 self

- defense	 and	 defense	 of	 another	 based	 on	 Limary’s contention	that	those	issues	would	likely	be	generated	at	trial,	the	court	did	not abuse	 its	 discretion	 in	 declining	 to	 include	 such	 a	 question. Limary	 did	 not supply	 an	 evidentiary	 basis	 to	 establish	 societal	 bias	 against	 the	 law	 of self

- defense	or	defe nse	of	another, cf.	Lowe ,	2015	ME	124,	¶	17,	124	A.3d	156; it	was	not	clear	whether	the	evidence	would	generate	either	justification,	which increased	 the	 risk	 that	 the	 question	 would	 amount	 to	 improper	 pretrial advocacy, see	Roby ,	2017	ME	207,	¶	11,	171	A.3d	1157;	and	Limary’s	concerns regarding	 bias	 against	 the	 law	 of	 self

- defense	 and	 defense	 of	 another	 were addressed	by	the	court’s	questions	about	whether	the	jurors	could	follow	all	of the	 court’s	instructions,	 even	if	 they	 disa greed	with	 the	law,	including	when there	 had	 been	 fighting. 5 Ultimately,	 Limary	 agreed	 that	 the	 jury that	 was selected	was	acceptable,	and	there	is	no	evidence	of	bias	in	any	particular	juror

5 The	written	jury	questionnaire	asked	jurors	whether	they	could	follow	the	law	in	five	diff erent questions.17 or	in	 the	jury	as	a	whole	as	a	result	of	 the	court’s	exclusion of	 the	 requested instructions.		Because	the	questions	asked	in	the	questionnaire	were	adequate to	reveal	facts	that	would	identify any bias against	applying	the	existing	law and there	is	no	evidence	that	Limary	was	deprived	of	an	impartial	jury,	we	will	no t vacate	the	judgment	on	this	basis. See	Burton ,	2018	ME	162,	¶	15,	198	A.3d 195.
B. Sufficiency	of	the	Evidence	of	Causation [¶ 28 ] Limary	argues	that,	because	the	victim	did	not	die	until	eighteen days	and	 two	surgeries	after	 the	 fight,	 the	evidence	can not	support	a	 finding that,	but	for	Limary’s	conduct,	the	death	would	not	have	occurred	or	that	his conduct	was	the	legal	cause	of	the	victim’s	death.		He	contends	that	the	kick	was a	 “non

- dispositive	event”	 that	did	not,	beyond	a	 reasonable	doubt,	cause	 t he victim’s	 death	 because	 the	 victim	 had	 elective	 surgery	 and	 was	 released	 in stable	condition.		He	contends	that	there	was	no	evidence	that	the	kick	caused the	bleeding	that	occurred	on	November 17, 2017. [¶ 29 ] When	 a	 defendant challenges the	 sufficiency	 of	 the	 evidence to support a	conviction, we	view the	evidence	in	the	light	most	favorable	to	the
State to	 determine whether	 a	 trier	 of	 fact	 rationally	 could	 find	 beyond	 a reasonable	doubt each element	of	the	offense	charged. Asaad ,	2020	ME 11,	¶ 8,
224 A.3d 596 .		“ T he	 fact

- finder	may	draw	all	reasonable	inferences	 from	 the18 evidence , and	decide	the	weight	to	be	given	to	the	evidence	and	the	credibility to	be	afforded	to	the	witnesses.” Id. (quotation	marks	omitted). [¶ 30 ] “A	person	is guilty	of	manslaughter	if	that	person	.	.	.	[r]ecklessly, or	 with	 criminal	 negligence,	 causes	 the	 death	 of	 another	 human	 being.”
17

- A M.R.S.	 § 203(1)(A).	 	 Limary	 does	 not	 contest	 the	 sufficiency	 of	 the evidence	 that	 he	 acted	 recklessly	 or	 with	 criminal	 ne gligence.
See 17

- A M.R.S. § 35(3)(A),	 (C),	 (4)(A),	 (C)	 (20 20 ) (defining	 “recklessly”	 and “criminal negligence”).		He	argues	only	that	the evidence	did	not	permit	the jury
to find	beyond	a	reasonable	doubt	that	his	conduct caused the	victim’s	death. [¶ 3 1] At	 the	 time	 of	 the fight ,	 the	 statute	 governing	 causation stated , “Unless	 otherwise	 provided,	when	 causing	 a	 result	is	 an	 element	 of	 a	 crime, causation	may	be	found	whe re the	result	would	not	have	occurred	but	for	the conduct	of	the	defendant	operating	either	alone	or	concurrently	with	another cause,	unless	the	concurrent	cause	was	clearly	sufficient	to	produce	the	result and	 the	 conduct	 of	 the	 defendant	was	 clearly	insuff icient.”	 	 17

- A	 M.R.S.	 § 33 (2017). 6

6 The	language	regarding	concurrent	causation	was	amended,	effective	after	the	events	at	issue here,	to	state	the	concurrent	causation	standard	in	the	affirmative	and	in	a	separate paragraph,	using simplified	language :19 [¶ 32 ] “Section	 33	 expressly	 imposes	 limitations	 on	 causative responsibility	and	imposes	standards	similar	to	the	common	law	standards	of proximate	 cause.” State	 v.	 Snow ,	 464	 A.2d	 958,	 962	 (Me.	 1983).	 	 Thus,	 the foresee ability	 of	 events	 or	 conditions	 contributing to the	 victim’s	 death becomes	relevant. See State	v.	Shanahan ,	404	A.2d	975,	983	(Me.	1979); see	also United	States	v.	Kilmartin ,	944	F.3d	315,	331	(1st	Cir.	2019) (“Proximate	cause is	commonly	understood	as	a function	of	the	foreseeability	of	the	harm.”).		In applying	section	33,	“the	State	must	prove	beyond	a	reasonable	doubt	not	only that	the	result	would	not	have	occurred	but	for	the	conduct	of	the	defendant, but	also	that	the	concurrent	cause	was	not	alone clearly	sufficient	to	produce the	result	and	that	the	conduct	of	the	defendant	was	not	clearly	insufficient	to produce	the	result.” Snow ,	464	A.2d	at	962; see also State	v.	Crocker ,	431	A.2d 1323,	1325	(Me.	1981).

§	33.	Result	as	an element;	causation 1. Unless	 otherwise	 provided,	when	 causing	a	 result	is	an	 element	 of	 a	 crime, causation	may	be	found	when	the	result	would	not	have	occurred	but	for	the	conduct of	the	defendant,	operating	either	alone	or	concurrently	with	another cause. 2. In	cases	in	which	concurrent	causation	is	generated	as	an	issue,	the	defendant ’ s conduct	must	also	have	been	sufficient	by	itself	to	produce	the	result. 17

- A	M.R.S.	§	33	(2020) (codifying P.L.	2017,	ch.	432,	§	C

- 1	( emergency, effective	July	4, 2018 ) ) ; see L.D.	1091,	Summary	(128th	Legis.	2017) (“Subsection	2	contains	a	simplified	test	to	be	applied	in	the event	concurrent	causation	is	generated	as	an	issue.		It	provides	that,	when	a	defendant’s	conduct may	have	operated	concurrently	with	another cause,	in	addition	to	satisfying	 the	‘but	 for’	 test	 the defendant’s	conduct	must	have	been	sufficient	by	itself	to	produce	the	result	.	.	.	.”).20 [¶ 33 ] The	 evidence	 plainly	 support ed a	 jury	 finding	 that	 the	 victim underwent	surgeries	to	repair	injuries	caused	by	Limary’s	kick	and	that	those surgeries	would	not	have	occurred	but	 for	Limary’s	actions.		The	question	is whether	the	evidence	was	sufficient	for	 the	jury	to	find,	beyond	a	re asonable doubt,	 that	 the	 surgeries	were	not	 the	 sole	cause	 of	death	 and	 that Limary’s actions	were	not	“clearly	insufficient”	to	cause	the	death.		17

- A M.R.S.	§	33. In other	 words,	 we	 must	 decide	 whether	 the	 medical	 treatment	 undertaken before	the	victim’ s	death was,	as	a	matter	of	law, an intervening

— rather	than merely a concurrent

— cause of	the	victim’s	death ,	negating criminal	liability. [¶ 34 ] We	 have not	 explicitly	 announced	 a	 rule	 regarding	 concurrent versus	intervening caus es	 of	death in	 the	context	 of	medical	 treatment	 of	an injured	victim. I n State	v.	Hachey ,	278	A.2d	397,	400

- 01	(Me.	1971), however,

we affirmed	a	murder	conviction	when,	although	the	victim	received	medical care,	 including	 a	 tracheo s tomy,	 after	 the	 defendant	 shot	 hi m,	 the	 victim ultimately	died	of	infection:	“Certainly	[the	jury]	could	find	that	the	cause	of	the septicemia	was	the	entry	of	the	bullet	into	the	body	of	the	decedent.” Id. 7

7 We	reached	this holding	at	common	law	because	no	statute	equivalent	to	section 33	was in	force until	the	ad option	of	the	Maine	Criminal	Code	in	the	mid

- 1970s. See P.L.	1975,	ch.	499,	§	1 (effective Mar.	1,	1976)	(codified	at	17

- A	M.R.S.A.	§ 56	(1979)). As	the bill’s comment	reveals,	the	new	statutory language	 was	 taken	 from	 a	 proposed	 Massachusetts	 Code	 and	 b ased	 on	 the	 proposed	 Federal Criminal	Code. L.D.	314,	§ 1,	cmt.	to	17

- A M.R.S. A. §	56	(107th	Legis.	1975) .		The	 federal	drafters specifically	noted	that “ [t]he	major	problem	in	enunciating	such	rules	is	presented	by	situations	in which	two	or	more	factors ‘ cause ’ the	result. ” Nat ’ l	Comm ’ n	on	Reform	of	Fed

. Criminal	Laws, Final21 [¶ 35 ] In	 other	concurrent	causation	contexts, we similarly	held	 that	a jury	cou ld	find	causation , despite	other	events	or	circumstances	that	may	have contributed	to	the	victim’s	death.		For	instance, we concluded	that	the	evidence was	 sufficient	 to	 support	 a	 manslaughter	 conviction	 when	 the	 medical examiner	 testified	 that	 a	 wound	 inf licted	 by	 the	 defendant,	 which	 was accompanied	by	other	injuries	not	inflicted	by	the	defendant,	would	eventually have	 caused	 death	 if	 untreated. State	 v.	 Morelli ,	 493	 A.2d	 336,	 338

- 40 (Me. 1985) ; see	also State	v.	Cumming ,	634	A.2d	953,	954,	956

- 57	(Me. 1993) (affirming	 a murder conviction	 when,	 although	 the	 pathologist	 could	 not distinguish	 which	 injuries	 resulted	 from	 the	 victim leaping	 or	 being	 pushed from the	 defendant’s	 car	 and	 which injuries resulted	 from	 him	 then	 driving over	her,	 the evidence	coul d	 support	a jury finding that	 the	 victim	was	alive when	 she	 was	 run	 over); State	 v.	 Peaslee ,	 571	 A.2d	 825,	 826

- 27	 (Me.	 1990) (affirming	 a	 vehicular	 manslaughter	 conviction	 when	 the	 defendant’s passenger	 was	 thrown	 from	 the	 vehicle	 and	 then	 run	 over	 by	 anot her	 car because	the	victim would	not	have been	in	the	road	if	not	for	the	defendant’s

Report 32	(1971) .		The	section	was	proposed	as “ a	modified ‘ but	for ’ test	with	a	proviso	that	excludes those	situations	in	which	the	concurrent	cause	was	clearly	sufficient	to	produce	the	result	and	the accused ’ s	conduct	clearly	insufficient.	.	.	. ‘ But	for ’ is	a	minimal	requirement	for	guilt;	and	resolving that	question	p ermits	focusing	on	the	more	important	issue	of	culpability	as	to	the	result	caused. ” Id.22 conduct ); State	v.	Reardon ,	486	A.2d	112,	116

- 18	(Me.	1984) (affirming	a	trial court’s	finding	of	causation	in	a	felony	murder	case	because	it	was	reasonably foreseeable that	 a	 sixty

- seven - year - old	 robbery	 victim	 would	 have	 a	 heart attack	 due	 to	 the	 stress	 of	 the	 robbery , his	 foreseeable	 attempt	 to	 chase	 the perpetrator , and his agitated	explanation	of the robbery to	police); Shanahan , 404 A.2d	at	983	(holding that	the	victim’s	foreseeable	conduct	in	attempting	to wrest	 the	 gun	 away	 from	 the	 defendant	 was	 not,	 “as	 a	 matter	 of	 law,	 an intervening	cause	relieving	defendant	of	criminal	responsibility	for	her	death ”)

. [¶ 36 ] Other	jurisdictions	have more	specifical ly	held that	when	medical treatment	is	provided	 to	an	injured	victim,	negligent	 treatment	cannot	be	an intervening	cause	“unless	the	doctor’s	treatment	is	so	bad	as	to	constitute	gross negligence	 or	 intentional	 malpractice.”	 	 1	 Wayne	 R.	 LaFave, Substantive Criminal	Law § 6.4(f)(5)	at	658

- 59	(3d	ed.	2018).		T he se	courts have	held	that gross	negligence,	which	is	 not	 reasonably	 foreseeable,	can	be	an	intervening cause	if	the	fact

- finder	determines	that	the	victim	would	have	survived	without that gross negligen ce. See	People	v.	Calvaresi ,	534	P.2d	316,	319	(Colo.	1975) ( “ [M]ere	medical	negligence	can	 reasonably	be	 foreseen. We	hold,	however, that	gross	negligence	is	abnormal	human	behavior,	would	not	be	 reasonably foreseeable,	and	would	constitute	a	defense,	if,	but	 for	 that	gross	negligence,23 death	would	not	have	resulted. ” ) ; State	v.	Soucy ,	653	A.2d	561,	565	(N.H.	1995) (“Th e	majority	of	jurisdictions	.	.	.	have	adopted	what	has	been	termed	a	‘sole’ cause	test,	under	which	malpractice	constitutes	a	supervening	cause	only	if	it was	the	‘sole’	cause	of	the	death.”); cf

. State	v.	Jackson ,	223	N.W.2d	229,	233

- 34 (Iowa	1974) (hold ing,	with	respect	to ordinary negligence,	that	“[a]n	injury	is the	 proximate	 cause	 of	 resulting	 death	 although	 the	 deceased	 would	 have recovered	had	he	been	treated	by	the	most	approved	surgical	methods	or	by more	skillful	methods,	or	with	more	prudent	car e”). [¶ 37 ] Applying	 these	 generally	 accepted	 standards,	 courts	 have concluded	 that a	 jury	 could	 find	 causation	 despite	 interceding	 medical
treatment when	 there	 was	 no	 evidence that	 the	 medical	 care	 was	 grossly negligent , see People	v.	Saavedra

- Rodriguez , 971	P.2d	223,	228

- 29	(Colo.	1998); when	the	wound	was	so	dangerous	on	its	own	that	the	medical	treatment	could not	have	been	the	sole	cause	of	death, see State	v.	Shabazz ,	719	A.2d	440,	444

- 45 (Conn.	1998); Wright	v.	State ,	374	A.2d	824,	827,	828

- 29	(Del. 1977); State	v. Surbaugh ,	786	S.E.2d	601,	607

- 08,	616	(W.	Va.	2016);	and	when nonnegligent emergency	 treatment caused	 some	 bleeding	 but	 not	 enough	 to	 cause	 the victim’s	death, Neal	v.	State ,	722	S.E.2d	765,	768	(Ga.	2012)

. 8

8 In	contrast,	a	court	 found	 that	the	evidence	was insufficient to	establish	causation	beyond	a reasonable	do ubt	when	 the	 victim	was	stabbed	in	 the	stomach	and	durin g	surgery,	 the	surgeons24 [¶ 38 ] Here,	there	is	no	evidenc e	of	medical	negligence

— much	less	gross medical negligence

— nor	 any	evidence	 that	 the	 surgery	was	 for	any	purpose other	than	to	treat	the	injuries	inflicted	on	the	victim	by	Limary. Cf.	id. Although there	was	evidence	that the	victim	could	have	deferred the surgery,	the	surgery was	entirely	 foreseeable	and	was	not	cosmetic;	 the	medical	examiner	opined that	the	stability	of	the	victim’s	face	was	at	risk	and	that,	without	surgery,	he would	be	in	danger	 of	bleeding	 or	 of	 the	bones	in	his	 face	healing	badly	a nd impeding	his	breathing.		The	medical	examiner	also	testified	that	a	bone	shard could	 have	 severed	 multiple	 blood	 vessels	 and	 cause d the	 type	 of	 excessive sinus	bleeding	that	he	concluded	had	occurred	here.		Given	this	evidence, and the	 medical	 examiner’ s	 specific	 determination	 that	 the	 victim	 died	 of “hemorrhagic	complications	following	multiple	fractures	of	facial	bones	due	to the blunt	 force	 trauma	 of	 his	 head,” the	 jury	 could	 rationally find that	 the surgery	was	not	 the	sole	cause	of	 the	bleeding	and that	 the	damage	inflicted

discovered	an	incarcerated	hernia,	which	they	proceeded	to	correct	after	the	initial	surgery. People v.	Stewart ,	358	N.E.2d	487,	489

- 90	(N.Y.	1976). During	that	second	surgical	procedure,	the	victim went	into	cardiac	arrest. Id. at	490.		The	medical	examiner	testified	that	the	cardiac	arrest	could	have been	caused	by	 the	shock	of	 the	stab	wound	or	by	 the	physical	strain	of	either	operation;	he	also testified	that	the	anesthesiologist’s	report	and	surgeons’	report	were	contradictor y	about	whether the	anesthesiologist	had	 failed	to	deliver	oxygen	 to	 the	victim,	which	alone	could	have	caused	the victim’s	death. Id. at	490

- 91.		The	court	concluded	that	it	could	not	be	ruled	out	as	a	possibility	that the	hernia	operation	had	caused	the victim’s	death,	“certainly	not	beyond	a	reasonable	doubt.” Id. a t 492.25 through	the	kick	was	not	“clearly	insufficient”	to	cause	death. See 17

- A M.R.S. § 33. [¶ 39 ] Based	on	the	evidence	in	the	record,	t he	jury	could	rationally	find beyond	a	reasonable	doubt	that (1) the	victim’s	death	“would	not	hav e	occurred but	 for	 the	 conduct	 of	 the	 defendant,	 operating	 either	 alone	 or	 concurrently with	another	cause ” ; and (2) the medical	care	was	not “clearly	sufficient ,” and the	kick	to	the	victim’s	face was	not “clearly	insufficient , ”	to	cause	the	victim’s death.		17

- A M.R.S.	§ 33; see Calvaresi ,	534	P.2d	at	319; Soucy ,	653	A.2d	at	565. We	therefore affirm	the	judgment	of	conviction. The	entry	is: Judgment	affirmed.

Hunter	J.	Tzovarras,	Esq.,	Bangor,	for	appellant	Jonathan	Limary Aaron	M.	Frey,	Attorney	General , and	Katie	Sibley,	Asst.	Atty.	Gen.,	Office	o f	the Attorney	General,	Augusta,	for	appellee	State	of	Maine

Aroostook	County	Unified	Criminal	Docket	docket	number	CR

- 2018

- 12 F OR C LERK R EFERENCE O NLY