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State v. Raymond Junkins, corrected 2-7-02
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2002 ME 20
Docket: 	Yor-00-330
Submitted
  on  Briefs: 	December 20, 2001
Decided:		February 7, 2002

Panel: 	SAUFLEY, C.J., and CLIFFORD, RUDMAN, DANA, ALEXANDER, and CALKINS, JJ.




STATE OF MAINE v. RAYMOND JUNKINS

CALKINS, J.

	[¶1]  Raymond Junkins appeals from the judgment entered in the
Superior Court (York County, Fritzsche, J.) following a jury verdict finding him
guilty of five offenses: intentional or knowing murder, 17-A M.R.S.A.
§ 201(1)(A) (1983); attempted murder (Class A), id. §§ 152(1), 201(1)(A); robbery
(Class A), id. §§ 651(1)(D), (2); theft by unauthorized taking or transfer (Class
D), id. §§ 353, 362(1), (4)(B) (1983 & Supp. 2001); and tampering with a witness
(Class B), id. § 454(1)(A) (Supp. 2001).  He contends that the evidence was
insufficient, the court made evidentiary errors, and the jury pool was tainted.{1} 
We affirm the judgment.

I.  FACTS

	[¶2]  Junkins is the grandson of Verna Junkins, who was eighty-eight
years old when these offenses were committed.  Verna was known to distrust
banks and keep large sums of money in her purse in twenty-dollar bills rolled
up and secured with an elastic.  She would keep from $2000 to $6000 in her
purse at any given time.  Verna resided with a companion, Howard LaFoe, the
murder victim.  LaFoe, age sixty-three, was the caretaker for Verna, who was
frail and suffering from dementia.
	[¶3]  On September 3, 1998, in the evening, a neighbor found Verna
outside her residence.  Verna was asking for help and complaining of neck
pain.  The neighbor escorted Verna, who walked with a shuffle, to the police
station, a short distance away, where they arrived at about 8:00 p.m.  A police
officer spoke briefly with Verna, who appeared confused, and the officer
arranged for her to be transported to the hospital.  The officer then went to
Verna and LaFoe's apartment where he found LaFoe's body on the kitchen floor
with blood on the floor and on the body.   The medical examiner later
determined that LaFoe had been stabbed with a knife five times.  Three of the
wounds were superficial, but the stab wounds to the neck had caused LaFoe's
death.  The wounds were consistent with a knife the police found in the
kitchen.  
	[¶4]  Verna was examined at the hospital.  She had grip marks on her
neck consistent with being choked or smothered.  The police interviewed Verna
several times that evening, both at the hospital and at her daughter's home. 
Neither Verna's purse nor LaFoe's wallet was ever found.
	[¶5]  On the day that LaFoe was killed, Junkins owed $1480 to a friend
for rent and for interest on bail money that the friend had posted.  Junkins
had been charged with the crime of escape in the State of New Hampshire and
released on bail.  The friend had asked Junkins for the money on several
occasions, and on the day of the murder she told Junkins that she would turn
him in to New Hampshire officials, which would result in his incarceration
pending trial, unless he paid the debt immediately.  Junkins promised he
would pay the sum that day.  At about 9:00 that evening Junkins went to the
friend's home and paid her in full, all in twenty-dollar bills.
	[¶6]  The next day Junkins asked his ex-wife to give him a ride to Bow,
New Hampshire.  During the ride, he asked his ex-wife to say that he had been
with her the night before, "[e]ven if it meant someone coming to you saying
that they were investigating a murder."  After hesitating, the ex-wife agreed she
would say he had been with her.  Junkins asked her to stop at a store where he
purchased a new pair of boots, and in another store he bought pants and a
baseball cap.  He put the new clothes on in the car and placed his old clothes
in one of the shopping bags.  He had brought a black plastic garbage bag with
him when he met his ex-wife, and he asked her to dispose of the garbage bag
and the shopping bags in Concord, New Hampshire, which she did. 
	[¶7]  In the meantime Junkins' girlfriend, with whom he resided, had
become suspicious.  Junkins was gone for about three hours on the evening
that LaFoe was killed.  He returned home at 8:30, but left again briefly.  When
he came back he took off his shirt, put it in the hamper and told his girlfriend
there was blood on it.  He threw money onto the bed.  The girlfriend asked
where the money came from, and Junkins said he stole it.  He then left, saying
that he was going to pay the friend. 
	[¶8]  The next day when the girlfriend came home from work, she looked
in the hamper for the shirt, but it was gone.  The day after that, while at her
mother's house, the girlfriend learned that LaFoe had been killed.  The
girlfriend told her mother about Junkins' behavior and the money.  The mother
called the police, and Junkins was arrested later that day.  When questioned
by the police, the ex-wife stated that he had been with her on the evening of
LaFoe's murder.  Later, when confronted with the time records from her place
of employment, she admitted she had been working that night.
	[¶9]  Junkins was incarcerated pending the trial.  While in jail he met
Anthony Dorothy, a federal prisoner awaiting sentencing.  Dorothy testified
that Junkins admitted to him that he killed LaFoe after an argument.
	[¶10]  Junkins testified at trial and denied killing LaFoe and committing
the other crimes.  He testified that he received $800 in twenty-dollar bills from
his employer, a painting contractor, in August and still had those twenty-
dollar bills on September 3.  He claimed that on the evening of September 3 he
went first to his employer's home in East Wakefield and then to Rochester,
New Hampshire, where he sold marijuana to an acquaintance for $800 in
twenty-dollar bills.  Junkins claimed that aspects of the testimony of his
girlfriend and his ex-wife were lies.
	[¶11]  The jury convicted Junkins on all five charges.  He was sentenced
to forty years incarceration on the murder charge and to lesser concurrent
periods of incarceration on the other charges.

II.  DISCUSSION

A.	Sufficiency of the Evidence

	[¶12]  When the defendant claims that the evidence was insufficient to
support a conviction, we review the evidence in the light most favorable to the
jury's verdict to determine if the factfinder, acting rationally, could find every
element of the offenses beyond a reasonable doubt.  State v. Parsons, 2001 ME
85, ¶ 6, 733 A.2d 1034, 1036.  A conviction can be based on circumstantial
evidence.   State v. Dill, 2001 ME 150, ¶ 13, 783 A.2d 646, 651.
	[¶13]  The circumstantial evidence that Junkins caused the death of
LaFoe by intentionally stabbing him is overwhelming, as is the evidence that
he attempted to murder Verna Junkins by choking her.  The evidence amply
proves that Junkins murdered LaFoe and tried to murder Verna during a
robbery from which he obtained a substantial amount of cash in twenty-dollar
bills.  In addition, there was sufficient evidence for the jury to find that,
knowing that an official investigation was to be instigated, Junkins induced
his ex-wife to lie to the police as to his whereabouts on the night of the
murder.  There is no merit to Junkins' sufficiency of the evidence challenge.

B.	Exclusion of Verna's Statements to the Police

	[¶14]  Verna made statements to the police during four videotaped
interviews totalling six hours in length.  The State and Junkins' trial counsel
agreed that Verna, because of her health, was an unavailable witness for
purposes of M.R. Evid. 804(a).  The trial court had reviewed the tapes of the
interviews, read the transcripts made from those tapes, and found that in
response to leading and persistent questioning by the police Verna gave
inconsistent answers.  The court found that the tapes demonstrated that Verna
was suffering from the effects of advanced age and dementia.  It concluded that
although there was some suggestion in the interviews that Verna admitted
killing LaFoe, possibly in self-defense, her statements were not reliable, and
the attendant circumstances did not indicate trustworthiness.  The court
found that Verna's confused and jumbled statements amounted to little more
than that she had been present when some altercation took place, that LaFoe
and maybe a third person were present, and that she got hurt and ran outside. 
On the basis of the record before us, we cannot say that the trial court abused
its discretion in refusing to admit the videotapes as statements against interest
pursuant to Rule 804(b)(3).  The court's finding that Verna's statements to the
police contained in the videotapes were untrustworthy is supported by the
record and is not clearly erroneous.  
	[¶15]  On the fifth day of trial Junkins requested that the tapes of
Verna's interviews be admitted to impeach one of the State's witnesses,
Anthony Dorothy.  Dorothy testified that Junkins admitted that he had killed
LaFoe after an argument and that he put the knife in his grandmother's hands
telling her repeatedly that she had hit LaFoe with the knife.  
	[¶16]  Junkins requested that the court allow the videotapes of Verna's
interviews by the police to be shown to the jury for the purpose of impeaching
Dorothy's testimony.  Counsel asserted that anyone who saw the videotapes
would see that Verna was not susceptible to suggestions that she had killed
LaFoe and that Junkins, who had read the transcripts, never would have told
Dorothy what he did.  The court ruled that the videotapes were not admissible
to impeach Dorothy because they would take six hours of the jury's time, and
it was difficult to understand how the videotapes would impeach Dorothy's
testimony.  
	[¶17]  The court did not abuse its discretion in refusing to admit the
videotapes.  Having the jury review six hours of interviews of a witness
suffering from dementia would have been a waste of time given the dubious
proposition that the tapes would tend to impeach Dorothy's testimony.  See
M.R. Evid. 403.  The rationale as to how the tapes would impeach Dorothy was
twisting and tortuous,{2} at best, and because it did not appear that
impeachment could possibly be the result, it was within the court's discretion
to disallow the tapes.
 	   
C.	Evidence of Charge Pending Against Junkins in New Hampshire

	[¶18]  The State's theory was that Junkins' motive for the robbery was to
obtain money to pay the friend who had posted bail in Junkins' criminal case
in New Hampshire so that the friend would not revoke the bail and cause
Junkins to be incarcerated.  Thus, the State indicated to the court that it
would be offering evidence that Junkins had been charged in New Hampshire
and was out on bail at the time of LaFoe's murder.  The trial court allowed the
evidence but instructed the prosecutor that he was not to give the specifics of
the New Hampshire offense and to refer to it as a nonviolent offense.  The
court gave a limiting instruction to the jury that the exact nature of the New
Hampshire charge was of no consequence and that the jurors were not to use
the fact for any purpose except motive.  The probative value of this motive
evidence sufficiently outweighed any danger of unfair prejudice, particularly
given the court's instruction.  The court did not abuse its discretion in
allowing the evidence.

D. 	Tainted Jury Pool

	[¶19]  The final issue concerns whether the jury pool was tainted by the
remarks of Juror # 60, who had said to Juror # 10, in church the day before
jury selection, that Junkins was guilty, and who was overheard by other
potential jurors the morning of jury selection to say that Junkins was "guilty
as sin."  Juror # 60 had been excused before jury selection began for another
reason.  Through thorough questioning of the pool and individual jurors the
court eventually concluded that five members of the jury pool had overheard
Juror # 60 make the remarks.  Juror # 10 and all other members of the jury
pool who had overheard the "guilty as sin" statement were excused for cause.
	[¶20]  Junkins now argues that the entire venire was tainted by the
remark of Juror # 60, and that in spite of questioning jurors and excusing all
those who responded that they overheard the remark, the court could not be
absolutely certain that others had not heard the statement.  Junkins argues
that the court should have dismissed the entire pool although he did not
request that remedy from the trial court and did not object to the seating of
the jury as chosen.  
	[¶21]  We cannot presume, from the sole fact that Juror # 60 made the
"guilty as sin" remark, that Junkins was prejudiced.  This is not similar to a
situation in which we will presume prejudice because pretrial publicity has
been so immediate, intense, or invidious as to arouse ill will or vindictiveness
toward the defendant.  See State v. Saucier, 2001 ME 107, ¶ 15, 776 A.2d 621,
626.  Because there can be no presumption of prejudice in this case, Junkins
must demonstrate that he suffered actual prejudice from Juror # 60's
statement.  See State v. Corson, 572 A.2d 483, 485 (Me. 1990).  He has not
made this demonstration.  When pretrial publicity is at issue, a court
determines actual prejudice based on the impartiality of the panel from which
the jury members are chosen.  Saucier, 2001 ME 107, ¶ 20, 772 A.2d at 627. 
Here all of the jurors who had overheard the "guilty as sin" remark were
excused before the clerk began the process of drawing numbers.  The available
panel did not include any person who had overheard Juror # 60's statement. 
Junkins has failed to establish any error by the court in the jury selection
process.{3}
	The entry is:
			Judgment affirmed.

Attorneys for State: G. Steven Rowe, Attorney General Donald W. Macomber, Asst. Atty. General William Stokes, Asst. Atty. General 6 State House Station Augusta, ME 04333-0006 Attorney for defendant: Douglas D. Hendrick, Esq. P O Box 387 Cornish, ME 04020
FOOTNOTES******************************** {1} . Junkins' appellate counsel first filed an Anders brief and requested leave to withdraw. In State v. Junkins, 2001 ME 133, 779 A.2d 948, we denied the motion to withdraw and ordered counsel to fully address the issues that he had previously identified. Junkins' counsel and the State have submitted briefs addressing the four identified issues on appeal. {2} . The unstated but possibly inferential rationale was as follows: Verna did not confess to the police that she had killed LaFoe even though the police seemed to try to get her to confess; therefore, the tapes demonstrate that she was not susceptible to suggestions; Junkins knew that his grandmother was resolute and not gullible; Junkins had read the transcripts of the interviews; Junkins would never have intimated that his grandmother was suggestible; therefore, Dorothy had to be lying when he testified about the conversation with Junkins. {3} . Junkins has also suggested that pretrial publicity may have tainted the jury pool. He has made no showing, however, as to the extent of any pretrial publicity or that he suffered any actual prejudice from potential jurors having been exposed to such publicity. The trial court carefully asked the entire jury pool whether they had seen or heard anything about the case. The court then interviewed individually all members of the pool who responded affirmatively. All those who had heard or seen publicity concerning the case were asked to describe that publicity; whether they had discussed the publicity with anyone; whether they had formed an opinion about the guilt or innocence of Junkins; and whether the publicity had in any way affected their feelings or viewpoint about the case. Depending upon the answer, the court asked follow-up questions and gave the prosecutor and Junkins' counsel the opportunity to ask additional questions. Jurors who responded that the pretrial publicity had an effect on them or who were not certain that the publicity did not affect them were excused for cause.