MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions

Decision: 2019	ME	131

Docket: Cum-18-434

Argued: June	12,	2019

Decided: August 8,	2019

Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	and	HUMPHREY,	JJ.

STATE	OF	MAINE

v.

KEVIN	CAREY

SAUFLEY,	C.J.

[¶1]		Kevin	Carey appeals	from	a	judgment	of	conviction	entered	by	the	

court	 (Cumberland	 County,	 L.	 Walker,	 J.)	 after	 a	 jury	 found	 him	 guilty	 of	

multiple	sex	crimes.

1		He	argues	that	the	court	(Cashman,	J.)	erred	in	the	jury	

selection	process	when	it	denied his	motion	to	strike	one	of	the	jurors	for	cause	

and	denied his	motion	to	strike	the	entire	venire	after	one	prospective	juror	left	

the	courtroom	in	an	agitated	state.		We	affirm	the	judgment.

 1		Specifically,	Carey	was	convicted	of	seven	counts	of	gross	sexual	assault	(Class	A),	17-A	M.R.S.	

§ 253(1)(C)	(2018);	 two	counts	of	gross	sexual	assault	 (Class	A),	17-A	M.R.S.	 §	253(1)(B)	(2018);	

three	counts	of	gross	sexual	assault	(Class	A),	17-A	M.R.S.	§	253(1)(A)	(2018);	one	count	of	unlawful	

sexual	contact	(Class	A),	17-A	M.R.S.	§	255-A(1)(F-1)	(2018);	one	count	of	unlawful	sexual	contact	

(Class	B),	17-A	M.R.S.	§ 255-A(1)(F)	(2018);	and	one	count	of	visual	sexual	aggression	against	a	child	

(Class	C),	17-A M.R.S.	§	256(1)(B)	(2018).	
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I.		BACKGROUND

[¶2]		Viewing	 the	evidence	in	 the	light	most	 favorable	 to	 the	State,	 the	

jury	rationally	could	have	found	the	following	facts	beyond	a	reasonable	doubt.	

See	State	v.	Ayotte,	2019	ME	61,	¶	2,	207	A.3d	614.		When	Carey was	more	than	

thirty-five	 years	 old,	 he	 began	 to	 sexually	 assault a seven-year-old	 female	

relative who lived	with	him and other	members of	their	family.		After	his first	

assault,	 his	 conduct	 became	 more	 frequent and	 he	 would	 enter the	 child’s

bedroom every night,	touch her	genitals with	his	fingers,	put	his	mouth	on	her	

genitals	and	make	her	put	her	mouth	on	his,	and	place	objects	in	her	vagina	and	

anus.		He	told	her	not	to	tell	anyone	because	they	would	both	be	in	trouble.		

[¶3]	 	 After the	 child moved	 to	 a	 different	 home	 with	 other	 family	

members to	avoid	him,	Carey would	visit	that	home	to	babysit	one	night	each	

week.		During	those	visits,	he	would	sexually	assault	the	child.		He	threatened	

to hurt	her	or	other,	younger	children	in	her	family if she	told	anyone.		When	

the	child	was	about	 twelve years	old,	Carey	moved	into	 the	house	where	 the	

child	was	living.		Every	day,	he	sexually assaulted the	child.		He	did	not	listen	

when	she	told	him	to	stop.		Even	after	the	child	moved	a	second time	to	avoid	

Carey,	Carey	continued	his	sexual	assaults	against her	on	each of the	three	days	

each	week	that she	would	return	to	his	residence	to	visit	others	in	her	family.		
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At	 age	 sixteen,	the	 child told	 a	 friend	 and	 a	 family	 member what	 had	 been	

happening.2

[¶4]		In	March	2017,	Carey	was	initially	charged	by	complaint	with	seven	

counts	of	gross	sexual	assault,	one	count	of	unlawful	sexual	contact,	one	count	

of	visual	sexual	aggression	against	a	child,	and	one	count	of	sexual	misconduct	

with	a	child (Class	C),	17-A	M.R.S.	§	258(1-A)	(2018).		He	was	later	charged	by	

indictment	with	fifteen	counts	of	gross	sexual	assault,	two	counts	of	unlawful	

sexual	contact,	one	count	of	visual	sexual	aggression	against	a	child,	and	one	

count	of	sexual	misconduct	with	a	child.		

[¶5]	 Jury	selection	was	held in September	2018.		At	the	beginning	of	jury	

selection,	in	front	of	the	full pool	of	jurors,	one	prospective	juror	abruptly	left

the	room	when	the	charges	against	Carey	were	being	described.		Although	not	

everyone	could	hear	it,	the	prospective	juror	said, as	captured	on	the	record,

 2		The	evidence	was	sufficient	to	support	the	jury’s	findings	that	Carey	engaged	in	the	charged	acts	

of	 physical	 contact	 between	 his	mouth,	 or	 an	instrument	 or	 device	manipulated	 by	 him, and	 the	

genitals	of	the	child,	and	between	her	mouth	and	his	genitals,	before	the	age	of	twelve,	before	the	age	

of	fourteen,	and,	regardless	of	age,	through	threats	of	physical	force.		See	17-A M.R.S.	§§ 251(1)(C),	

(E),	253(1)	(2018)	(gross	sexual	assault).		The	evidence	was	also	sufficient	to	demonstrate	that,	on	

all	charged	occasions,	Carey,	with	the	conscious	object	to	do	so,	touched	the	child’s	genitals	or	anus	

for	 the	 purpose	 of	 arousing	 or	 gratifying	 sexual	 desire	 before	 she	 turned	 twelve	 and	 before	 she	

turned	 fourteen	when	he	was	not	her	spouse	and	was	at	least	 three	years	older	than	she	was,	see	

17-A	M.R.S.	§§ 35(1)(A),	251(1)(D),	255-A(1)(F),	(F-1)	(2018)	(unlawful	sexual	contact),	and	that	he	

exposed	 his	genitals	 to	 her	 and	 caused	 her	 to	 expose	 hers	 to	 him	 for	 the	purpose	 of	arousing	 or	

gratifying	sexual	desire	when	she	was	under	the	age	of	twelve	and	he	was	an	adult,	see 17-A	M.R.S.	

§ 256(1)(B)	(visual	sexual	aggression	against	a	child).		
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“No,	I’m	not	staying	for	this.”		Defense	counsel	also	heard	the	prospective	juror

say	something	like,	“This	is	ridiculous.”		The	court	directed	the	judicial	marshal	

to	go	after	that	prospective	juror	and	ask	him	to	stop.		

[¶6]	 	 The	 court	 then	 took	 a	 short	 break,	 met	 with	 counsel, and upon	

return,	asked	the	remaining	pool	of	jurors, “Based	on	what	just	happened	with	

the	individual	who	left	the	courtroom,	is	there	anyone,	who,	based	on	that	act	

alone,	would	have	 any	difficulty	being	 fair	 and	impartial	going	 forward	here	

today	 or	 through	 this	 case?”	 	 Thirty-four	 potential	 jurors	 answered	 in	 the	

affirmative.	 	 Based	 on	 the	 number	 of	 people	 who	 rose	 in	 response	 to	 the	

question,	Carey	moved	at	sidebar	to	strike	the	entire	jury	venire	for	this	case.		

The	court	denied	the	motion to	strike	the	entire	venire but	struck	all	members	

of	the	jury	pool	who	had	indicated	that	they	would	have	difficulty	being	fair	and	

impartial	after	witnessing	the potential juror	leave the	courtroom.

[¶7]	 The	 court	 read	 the	 remaining	 charges	 and	 asked	the	 remaining

potential	jurors	if	they	knew	any	of	the	attorneys	or	listed	witnesses,	had	heard	

of	 the	matter	in	 the	media,	had	an	inability	 to	be fair	and impartial	as	 to	law	

enforcement	witnesses,	believed	that	anyone	charged	with	a	crime	must	have	

done	something	wrong,	had	philosophical	or	religious	beliefs	that	would	make	
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it	difficult	to	sit	in	judgment,	or	had	any	other	reason	that	they	could	not	be	fair	

and	impartial.		

[¶8]		After	receiving	responses,	the	court	held	a	conference	with	counsel	

during	which	Carey	again	moved	for	the	entire	pool	to	be	stricken.		In	support	

of	that	motion,	he	argued	that	the	potential	juror	who	left	the	courtroom had	

been	sputtering	negative	words,	that	there	were	audible	sighs	and	groans	from	

other	potential	jurors	when	the	charges	were	read,	and	that	there	seemed	to	be	

a	pervasively negative	view	of	Carey	within the	pool	of	jurors.		The	court	stated	

that	 it	 intended	 to	 “continue	 on	 and	 do	 the	 individual	 voir	 dire,”	 but	 that	 it	

would	also	 ask	 those jurors	who	would	be	questioned	in individualized voir	

dire	whether	the	events	in	court	would	affect	their	ability	to	be	impartial.		

[¶9]	 	 The	 court then proceeded	 with	 individual	 voir	 dire	 of	 particular	

jurors, separate	from	the	rest	of	the	jury	pool.		Relevant	here,	the	court	inquired	

why	 Juror	 183	 had answered	 “yes”	 to	 the	 question on	 the	 written	 sex	

questionnaire	“involving	 knowledge	of	either	[him]self,	or	a	 friend,	or	 family	

member.”		The	juror indicated	that	a	friend	had	been	a	victim	of	sexual	abuse	

by	 a	 priest	 when	 he	 was	 a	 child.	 	 Asked	 if	 there	 had	 been	 any	 type	 of	

prosecution,	 the	 juror	 stated,	 “I	 don’t	 know	 the	 final	 outcome.	 .	 .	 .	 So	 I	 don’t	

know.	 	 I	 know	 he	was .	 .	 .	defrocked.	 And	 then	 I	 don’t	 honestly	 know	what	
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happened.”		The	court	inquired	 further	about	 those	circumstances	and	about	

the	effect	of the	in-court	outburst	on	the	potential	juror:

THE	 COURT:	 All	 right.	 And	 was	 there	 anything—is	 there	

anything	about	that	incident	and	friend—did	you	and	your	friend	

talk	about	it?

PROSPECTIVE	JUROR:	No,	no.	I	kind	of	knew.		We	knew,	we	

had	 heard	 things	 were	 happening,	 et	 cetera,	 but	 never	 spoke	

directly	about	it.		 I	spoke	with	him	after	everything	kind	of	came	

out.		But	he	never	talked	about	the	situation.

THE	 COURT:	 All	 right.	 Would	 anything	 about	 that—the	

knowledge	of	that	event	or	what	you	believe	happened,	would	that	

affect	your	ability	to	be	fair	and	impartial	in	this	case?

PROSPECTIVE	JUROR:	I	don’t	believe	so.

THE	 COURT:	 And	 is there	 anything	 that	 happened	 in	 the	

courtroom	this	afternoon,	having	had	a	little	bit	of	time	to	reflect,	

has	that	had	any	effect	on	your	ability	to	be	fair	and	impartial?

PROSPECTIVE	JUROR:	I	don’t	believe	so.

THE	COURT:	 Is	 there	any	question?	You	said,	“I	don’t	 think	

so.”	 Do	you	have	any	pause	about	that?

PROSPECTIVE	 JUROR:	 No,	 it’s—no.	 I	 would	 say	 “no.”	 My	

answer	would	be	“no.”		It’s	just,	I	guess,	you’re	hard	until	you’re	in	

that	situation	to	know	for	sure.	 But	I	would	say	most	likely	not.

Carey	moved	to	strike	the	juror	on	the	ground	that	he	had	been equivocal	about	

his	ability	to	remain	fair	and	impartial.		See	M.R.U.	Crim. P. 24(b)	(“Challenges	

for	 cause	 of	individual	 prospective	jurors	 shall	 be	made	 at	 the	 bench,	 at	 the	
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conclusion	of	the	examination.”).	 The	court	stated,	“The	fact	patterns	are	very	

different.	 	 And	 he	 didn’t	 have	 any	 direct	 conversations,	 he	 said,	 with	 that	

individual.		It	was	more	stuff	that	he	had	heard	about	or	suspected.		So	I	will	

deny	[the	motion].”		

[¶10]		After	the	court	struck nine	other	jurors	for	cause,	Carey	renewed	

his	motion	 to	 strike	 the	entire	 venire.		 The	court	denied	 that	motion	finding

that,	after	having	spoken to	the	potential	jurors in	individual	voir	dire,	it	was	

confident that	they had	been candid	in	their	responses	to	questions and could	

be	fair	 and	 impartial.	 	The	 State	 and	 Carey	 then	 exercised	 their	 peremptory	

strikes;	Carey	used	all	of	his	peremptory	strikes	but	did	not	remove	Juror	183.3		

[¶11]		The	court	(L.	Walker,	J.)	held a	jury	 trial	beginning	 the	next	day.		

After	the	State	presented	its	case,	Carey	moved	for	a	judgment	of	acquittal	on	

Counts 7, 9,	13,	and	17—the	charge	of	sexual	misconduct	with	a	child	and	three	

charges	of	gross	sexual	assault.		The	court	granted	that	motion.		

[¶12]		The	jury	found	Carey	guilty	of	the remaining fifteen	charges.		After	

holding	 a	 sentencing	 hearing,	 the	 court	 sentenced	 Carey	 to	 concurrent	

forty-year	sentences	on	seven	of	the	gross	sexual	assault counts and	imposed	

 3		“As	long	as	a	defendant	exercised	all	of	his	peremptory	strikes	.	.	.	the	fact	that	he	did	not	use	

them	to	strike	a	juror	that	he	challenged	for	cause	does	not	defeat	his	right	to	complain	on	appeal	as	

to	the	impaneling	of	those	jurors.”		State	v.	Holland,	2009	ME	72,	¶	55	n.15,	976	A.2d	227.
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concurrent	 sentences	 on	 the	 other	 counts.

4	 	 Carey	 timely	 appealed.	 	 See	

15 M.R.S.	§	2115	(2018);	M.R.	App.	P.	2A,	2B(b)(1).		

II.	 DISCUSSION

[¶13]		The	United	States	Constitution	guarantees	the	right	of	an	accused	

“to	 a	 speedy	 and	 public	 trial,	 by	 an	 impartial jury.”	 	 U.S.	 Const.	 amend.	 VI	

(emphasis	 added);	see	 also Me.	 Const.	 art.	 I,	 §	 6	 (guaranteeing	 the	 right	 to	 a	

“speedy,	public	and	impartial trial”	(emphasis	added)).		The	Due	Process	Clause	

also	guarantees	this	right.		See	U.S.	Const.	amend.	XIV,	§	1;	Morgan	v.	Illinois,	504	

U.S.	719,	727	(1992);	see	also	Me.	Const.	art.	I,	§ 6-A.

A. Appellate	Review	of	Determinations	of	Juror	Impartiality

[¶14]		We	“review	the	trial	court’s	finding	of	juror	impartiality	for	clear	

error	and	the	conduct	of	voir	dire	for	an	abuse	of	discretion.”		State	v.	Simons,	

2017	 ME	 180,	 ¶	 19,	 169	 A.3d	 399	 (quotation	 marks	 omitted).	 	 A	 finding	 of	

 4		Specifically,	the	court	sentenced	Carey	to	concurrent	sentences	of	forty	years	for	the	gross	sexual	

assaults	charged	in	Counts	1,	2,	3,	4,	8,	10,	and	11;	thirty	years	for	the	gross	sexual	assaults	charged	

in	Counts	14,	15,	16,	18,	and	19;	thirty	years	for	the	unlawful	sexual	contact	charged	in	Count	5;	ten	

years	for	the	unlawful	sexual	contact	charged	in	Count	12;	and	five	years	for	visual	sexual	aggression	

against	a	child,	charged	in	Count	6.		
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impartiality	will	stand	unless	there	is	no	competent	evidence	to	support	that	

decision.		State	v.	Diana,	2014	ME	45,	¶ 22,	89	A.3d	132.

[¶15]	 	 We	 “accord	 substantial	 deference”	 to	 the	 trial	 court’s	 ultimate	

finding	about	whether	a	juror	can	be	fair	and	impartial	“because	of	its	unique	

ability	to	observe	and	assess	the	juror’s	credibility.”		State	v.	Durant,	2004	ME	

136,	¶	15,	861	A.2d	637;	see also	Skilling	v.	United	States,	561	U.S.	358,	397-98	

(2010) (stating	that	the	trial	court	is	in	the	best	position	to	observe	a	potential	

juror’s	comprehension	of	the	questions	asked	and	the	certainty	of	the	juror’s	

responses). The	trial	court’s	“predominant	function	in	determining	juror	bias	

involves	 credibility	 findings	whose	 basis	 cannot	 be	 easily	 discerned	 from	 an	

appellate	record.”		Wainwright	v.	Witt,	469	U.S.	412,	429	(1985).

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[¶16]	 	 Because	 of	 the	 constitutional	 rights	 at	 stake,	 however,	 if	we	 do	

discern	 an	 error	 that	 affects	 the	 right	 to	 an	impartial	 adjudicator,	 that	 error	

cannot	 be	 regarded	 as	 harmless.	 	 See	 Gray	 v.	 Mississippi,	 481	 U.S.	 648,	 668	

(1987);	 United	 States	 v.	 French,	 904	 F.3d	 111,	 119	 (1st	 Cir.	 2018)	

 5	 	 See	 also	 Skilling	 v.	 United	 States,	 561	U.S.	 358,	 386	 (2010)	 (“Reviewing	 courts	 are	 properly	

resistant	 to	 second-guessing	 the	 trial	 judge’s	 estimation	 of	 a	 juror’s	 impartiality,	 for	 that	 judge’s	

appraisal	is	 ordinarily	influenced	 by	a	 host	 of	 factors	impossible	 to	 capture	 fully	in	 the	 record—

among	 them,	 the	 prospective	 juror’s	 inflection,	 sincerity,	 demeanor,	 candor,	 body	 language,	 and	

apprehension	of	duty.”).
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(characterizing	such	error	as	“structural	error—that	is,	per	se	prejudicial	and	

not	susceptible	to	harmlessness	analysis”).

B. Trial	Court	Process—Ensuring	the Impartiality	of	Individual	Jurors

[¶17]		As	a	procedural matter, Maine’s	statute	governing	jury	selection	in	

criminal	cases authorizes	those	accused	of	crimes	to	challenge	jurors	for	cause

“as	in	civil	cases.”		15	M.R.S.	§ 1259	(2018).		Thus,	“[t]he	court,	on	motion	of	

either	party	in	an	action, may	examine,	 on	oath,	any	person	called	as	a	juror	

therein,	whether	he	.	.	.	has	given	or	formed	an	opinion	or	is	sensible	of	any	bias,	

prejudice	or	particular	interest	in	 the	cause.”		14	M.R.S.	§	1301	(2018).		“If	it	

appears	 from	his	answers	 or	 from	any	 competent	evidence	 that	he	does	not	

stand	indifferent	in	 the	cause,	another	juror	shall	be	called	and	placed	in	his	

stead.”		Id.

[¶18]	 	 Criminal	 charges	 alleging	 sexual	 assaults	 on	 children	 present	

particular	 challenges	 in	 jury	 selection.	 	 Judges,	 prosecutors,	 and	 defense	

counsel	 must	 help	 jurors	 distinguish	 between	 the	 natural	 and	 unavoidable	

abhorrence	of	those	types	of	assaults	and	the	very	different	issue	of	each	juror’s	

capacity	 to	determine	whether	 the	defendant	committed	 the	crimes	charged.		

Although	the	court	must	be	alert	to	the	sort	of	animus	that	would	undermine	a	

juror’s	 ability	 to	 presume	 the	 particular	 defendant’s	 innocence,	 a	 juror’s	
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consideration	of	sexual	assault	on	a	child	to	be	repulsive	does	not	alone	require	

the	court	to	strike	the	juror	for	cause.		Sexual	assaults	are	designated	as	crimes	

for	the	very	reason	that	society	condemns	such	behavior.

[¶19]	 	 If	 the	 impartiality	 of	 a	 potential	 juror	 has	 been	 brought	 into	

question,	 a	 trial	 court	 should	 interview	 the	 prospective	 juror	 “to	 determine	

whether	he	or	she	can	remain	impartial.”		Durant,	2004	ME	136,	¶	15,	861	A.2d	

637.	 	 The	 questions	 that	 a	 court	 chooses	 to	 ask	 during	 voir	 dire	 must	 be	

sufficient	to	elicit	any	facts	that	would	reveal	juror	bias	so	that	the	court	can	

make	an	informed	decision.		State	v.	Lowry,	2003	ME	38,	¶ 11,	819	A.2d	331.		

There	 is,	 however,	 no	 “hard-and-fast	 formula”	 that	 dictates	 exactly	 what	

questions	the	individual	voir	dire	must	include.		Skilling,	561	U.S.	at 386.		The	

trial	court	has	“[c]onsiderable	discretion	over	the	conduct	and	scope	of	juror	

voir	dire”	and	must	balance “the	competing	considerations	 of	 fairness	 to	 the	

defendant,	 judicial	 economy,	 and	 avoidance	 of	 embarrassment	 to	 potential	

jurors.”		State	v.	Woodburn,	559	A.2d	343,	344	(Me.	1989).

[¶20]		Because	jurors,	in	responding	 to	 voir	dire	questions,	“cannot	be	

expected	 invariably	 to	 express	 themselves	 carefully	 or	 even	 consistently,”	

Skilling,	561	U.S.	at	397	(quotation	marks	omitted),	the	observations	of	the	trial	

court	and	input	from	counsel	at	the	point	of	the	individual	voir	dire	are	of	great	
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importance.		Colloquial	uses	of	phrases	 such	as	“I	 think”	or	“I	hope”	must	be	

understood	by	the	trial	court	in	context.		For	instance,	a	court	may	determine	

that	there	is	no	actual	bias	when	a	juror,	in	the	course	of	the	voir	dire,	says,	“I	

think	 I	 could	 be	 fair”;	 the	 court	is	 not	 required	 to	 find	 that	 statement,	 taken	

alone, to	 represent	equivocation.		Miller v.	Webb,	385	F.3d	666, 675	(6th Cir.	

2004)	(quotation	marks	omitted).		The	trial	court	may	also	weigh	most	heavily	

“those	statements	that	were	the	most	fully	articulated”	by	the	juror	during	voir	

dire.	 Patton	v.	Yount,	467	U.S.	1025,	1039	(1984).

[¶21]		If	a	potential	juror	overhears	the	improper	comments	of	a	fellow	

prospective	juror,	“the	test	for	juror	impartiality	is	whether	a	juror	can	lay	aside	

any	impressions	from	the	improper	comment	and	render	a	verdict	based	only	

on	the	evidence	presented	during	the	trial.”		Alexander,	Maine	Jury	Instruction	

Manual §	2-7	at	2-34 (2018-2019 ed.	2018)	 (citing	United	States	v.	Lacey,	86	

F.3d	956,	969	(10th	Cir.	1996)).		If	a	juror	is	exposed	to	information	that	could	

affect	the	juror’s	impartiality,	the	court	may	still seat	the	juror	if	the	juror,	upon	

court	inquiry,	credibly	states	that	the	information	would	not	affect	the	juror’s	

ability	to	be	impartial.		Durant, 2004	ME	136,	¶¶	16-17,	861	A.2d	637.		Similarly,	

a	court	may	find	it	appropriate	to	seat	a	juror	who,	when	asked	if	the	juror	could	

set	aside	an	opinion	regarding	guilt	before	entering	the	jury	box,	says,	“I	think	
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I	could	enter	it	[the	jury	box]	with	a	very	open	mind.		I	think	I	could	.	.	.	very	

easily.”		Patton,	467	U.S.	at	1039-40	(alterations	in	original) (quotation	marks	

omitted).		And	when	a	juror	indicates	that	she	“believe[s]”	she	can	be	impartial,	

the	 trial	 court	 may	 find	 that	 the	 juror	 can	 be	 impartial.	 	 United	 States	 v.	

Alexander,	48	F.3d	1477,	1484	(9th	Cir.	1995) (quotation	marks	omitted).	

[¶22]	 	 It	 is	 against	 this	 backdrop	 that	 we	 review	 the	 jury	 selection	

process,	and	the	ultimate	seating	of	the	jury,	in	the	matter	before	us.

C. Review	of	Jury	Selection	in	Carey’s	Case

1. Individual	Voir	Dire,	Juror	183

[¶23]		In	speaking	with	Juror	183,	the	court here	(Cashman,	J.)	did	exactly	

what	a	trial	court	should	do	when	a	juror’s	impartiality	has	been	questioned;	it	

posed	questions	 to	the	potential	juror individually that	were	designed	 to	aid	

the	 court	 in	 evaluating	 whether	 the	 juror	 could	 be	 fair	 and	 impartial	

notwithstanding the	sexual	abuse	of	his	childhood	friend	and	his	observation	

of	the	potential	juror’s	conduct in	leaving	the	courtroom.		See Durant,	2004	ME	

136,	¶¶ 15-17,	861	A.2d	637. When	asked	if	either	his	friend’s	experience	of	

sexual	 abuse	 or	 the	 events	 he	 witnessed	 in	 the	 courtroom	 would	 affect	 his	

ability	to	be	impartial,	the	juror stated,	“I	don’t	believe	so.”		The	court carefully	

followed	up	by	questioning whether	he	had	any	pause.		The	juror	then	made	his	
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response	clear:	“No,	it’s—no.		I	would		say	‘no.’		My	answer	would	be	‘no.’”		The	

juror added,	“It’s	just,	I	guess,	you’re	hard	until	you’re	in	that	situation	to	know	

for	sure.		But	I	would	say	most	likely	not.” The	court	concluded	that	those	final	

ruminations	did	not	undermine its	determination of	the	juror’s	impartiality.		

[¶24]		The	court acted	in	its	proper role when	it interpreted the	juror’s	

repeated	“no”	answers	as	genuinely	communicating	a belief	that	neither	his	life	

experiences	nor	the	events	he	observed	in	court	would	affect	his	ability	to	be	

fair	 and	 impartial.	 	 Based	 on	 its	 observation	 of	 the	 potential	 juror	 and	

consideration	of	his	words and	the	way	in	which	he	delivered	them,	the	court’s	

reliance on	 the	 juror’s	 “most	 fully	 articulated”	 statements provided	 a	 solid	

foundation	for	its	determination	that	Juror	183 could	be	impartial.		Patton, 467	

U.S.	at	1039.		We	defer	to	the	court’s	finding	following	its	individualized inquiry,	

see	Durant,	2004	ME	136,	¶	15,	861	A.2d	637,	and	we	discern	no	error	in	the	

court’s	decision.

2. Denial	of	Motion	to	Strike	the	Entire	Jury	Pool

[¶25]	 	Carey	 also	 contends	 that	 the entire jury	 pool	 should	 have	 been	

stricken	because	the	pool	was	impliedly	biased	against	him	after	the	outburst	

that	the	potential	jurors	witnessed	in	court.		“Whether	a	juror’s	partiality	may	

be	 presumed	 from	 the	 circumstances	 is	 a	 question	 of	 law”	 that	 calls for	 a	
15

determination	of	whether	the	circumstances	at	hand	are	“extraordinary”	such

that	bias	or	prejudice	will	be	implied	or	presumed.		Hunley	v.	Godinez,	975	F.2d	

316,	318-19 (7th	Cir.	1992).	 The	inquiry	is	an	objective	one	that	asks	whether	

“it	 is	 highly	 unlikely	 that	 the	 average	 person	 could	 remain	 impartial	 in	 .	 .	 .	

deliberations	under	the	circumstances.”		United	States	v.	Kechedzian,	902	F.3d	

1023,	1027-28	(9th	Cir.	2018)	(quotation	marks	omitted).

[¶26]		Although we	have	not	had	occasion	to	address	the	issue,	federal	

jurisprudence	has	made	clear	that	bias	can	be	implied	or	prejudice	presumed	

only	in	extreme	or	extraordinary	circumstances.		See	Hunley,	975	F.2d at 318	

(“Use	 of	 the	 ‘implied	 bias’	 doctrine	 is	 certainly	 the	 rare	 exception.”).	 	 For	

instance,	 bias	 was	 implied	 when	 jurors’	 hotel	 rooms	 were	 burglarized	

overnight	while	the	jurors	were	sequestered	for	a	trial	involving	a	burglary	and	

murder,	and	 there	was	 some	indication	 that	jurors	who	had	been	 victimized	

changed	their	votes	to	guilty.	 Id. at	317,	320.		In	another	case,	bias	was	implied	

when	jurors	listened	to	sixty-five	percent	of	the	potential	jurors	indicate	that	

they	thought	the	defendant	was	guilty	of	murder	and	state	that	they could	not	

be	fair	and	impartial.		Seals	v.	State,	44	So.	2d	61,	67-68	(Miss.	1950).

[¶27]	 	 The	 circumstances	 of	 this	 case	 do	 not in	 any	 way present	 an	

extraordinary	situation	in	which	prejudice	may	be	presumed	or	bias	implied.		
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The	 departing	 potential	 juror	 did	 not	 speak	 about	 the	 defendant	 or	 the	

defendant’s	 guilt;	 he	 said	 only,	 “No,	 I’m	 not	 staying	 for	 this,”	 and,	 “This	 is	

ridiculous.”		We	cannot	conclude,	 as	 a	matter	 of	law,	 that	it	would	be	highly	

unlikely	 that	 members	 of	 the jury	 pool	 could	 be	 fair	 and	 impartial	 after	

observing	 one juror’s	 reaction to	 charges	 of	 child	 sexual	 assault.

6	 	 See	

Kechedzian,	902	F.3d	at	1027-28.

The	entry	is:

Judgment	affirmed.

Rory	A.	McNamara,	Esq. (orally),	Drake	Law,	LLC,	Berwick,	for	appellant	Kevin	

Carey

Jonathan	 Sahrbeck,	 District	 Attorney, and	 Nicole	 M.	 Albert,	 Asst.	 Dist.	 Atty.

(orally), Prosecutorial	District No. Two,	Portland,	for	appellee	State	of	Maine

Cumberland	County	Unified	Criminal	Docket	docket	number	CR-2017-1609

FOR	CLERK	REFERENCE	ONLY

 6		Although	it	was	possible	that	some	potential jurors	had	identified, in	the	court’s	question,	an	

expedited	method	 for	avoiding	jury	 service, the	 court	 here	made	 no	such	 finding,	 and	we	 do	not	

discuss	that	issue.		See, e.g., Gray	v.	Mississippi,	481	U.S.	648,	652-53,	656	(1987).