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State v. Chesnel, revised 8-11-99
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 120
Docket:	And-98-212
Argued:	June 8, 1999
Decided:	July  29, 1999

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.
STATE OF MAINE v. BRAD CHESNEL
ALEXANDER, J.

	[¶1]  Brad Chesnel appeals from the judgments entered in the
Superior Court (Androscoggin County, Delahanty, J.) following a jury trial at
which he was found guilty of murder in violation of
17-A M.R.S.A. § 201(1)(A) (1983){1} and robbery (Class A) in violation of
17-A M.R.S.A. § 651(1)(E) (1983).{2}  Chesnel contends that the trial court
erred by:  (1) denying his motion for a change of venue because of the
publicity surrounding the homicide and a previous aggravated assault for
which he pled guilty; (2) denying his motion to sever the trial; (3) denying
his motion for a new trial based on assertions of juror misconduct; (4) failing
to grant a mistrial when the prosecutor allegedly asserted personal opinions
during closing arguments; and (5) admitting hearsay statements of the
deceased.  After review of the issues raised, we affirm.
I. CASE HISTORY
	[¶2]  On the morning of April 29, 1997, an employee of the Holiday
Motel in Lewiston found the body of Michael Allen lying on the floor of a
motel room.  According to the Chief Medical Examiner, Dr. Henry Ryan, the
cause of Allen's death was blunt head injury.  Allen's jaw, nose, and facial
bones were fractured and his face, hands, legs, and back contained abrasions
and lacerations.  In Dr. Ryan's opinion, the injuries were inflicted with a fist
as well as with a steel weapon such as a tire iron.
	[¶3]  Chesnel and an acquaintance, Leroy Tomah, both admitted
being present on April 28, when the fatal assault occurred.  In conflicting
statements, each accused the other of conducting the fatal attack.  Both
stated that following the attack, Chesnel took jewelry and other items from
Allen's body.  They then drove Allen's truck to Old Orchard Beach, where
they abandoned the truck and disposed of the weapon and Allen's
belongings.  They rented a hotel room in Old Orchard Beach, stayed for an
hour, then took a cab to a hotel near the bus station in Portland.  The next
morning they took a bus to California.  After several days, Tomah contacted
detectives in Maine and turned himself in to the police.
	[¶4]  Chesnel and Tomah were indicted on charges of robbery and
murder in connection with Allen's death and were tried together in the
Superior Court.  The jury found both men guilty on both counts.  Chesnel was
sentenced to life in prison on the murder charge and 40 years on the
robbery charge.  Tomah was sentenced to 47 years on the murder charge
and 14 years on the robbery charge.  Each appealed their convictions. 
Tomah's conviction was affirmed, State v. Tomah, 1999 ME 109,      A.2d    .
II. MOTION TO CHANGE VENUE
	[¶5]  Pretrial publicity about a case will require a change of venue
only where (i) the pretrial publicity is so extensive and pervasive that
prejudice will be presumed, or (ii) actual prejudice is demonstrated.  See
State v. Johnson, 479 A.2d 1284, 1286 (Me. 1984).  Prejudice will be
presumed where the pretrial publicity so taints the atmosphere surrounding
the trial that a presumption of prejudice is necessary under due process
principles.  See id.; see also Rideau v. Louisiana, 373 U.S. 723, 724-26
(1963).  To support a change of venue on presumption of prejudice grounds,
a defendant must demonstrate "'intensive and extensive pretrial publicity of
an invidious nature tending to arouse general ill will and vindictiveness
against the accused.'"  State v. Cooper, 617 A.2d 1011, 1014 (Me. 1992)
(quoting State v. Addington, 518 A.2d 449, 451 (Me. 1986)). 
	[¶6]  Alternatively, to demonstrate actual prejudice on the part of
the jury venire, the focus is not on the number of jurors who know of the
case or the ratio of the jurors who know of the case to the panel as a whole, 
but the impartiality of the available panel members, with review for an abuse
of discretion.  See State v. Corson, 572 A.2d 483, 485 (Me. 1990); Johnson,
479 A.2d at 1287-88. 
	[¶7]  In support of his efforts to change venue, Chesnel produced
copies of thirteen articles from Lewiston newspapers.  Four of the articles
appeared in July and August of 1996 and discussed a beating that occurred
in Sabattus with a hammer and the search for, and apprehension of, Chesnel
and a codefendant in connection with the beating.  The remaining nine
articles appeared between April and June of 1997 and discussed the Allen
homicide, the search for, and apprehension of, Chesnel and Tomah in
connection with the homicide, and references to the victims of the earlier
hammer attack in Sabattus in which Chesnel had participated.  Looking at
the articles as a whole, they were published over an extended period of
time, the most recent approximately eight months before jury selection, and
they did not call for specific action or express opinions as to guilt.  They
cannot be said in total to constitute pretrial publicity with the immediacy,
the intensity, or the invidiousness sufficient to arouse general ill will and
vindictiveness against the accused at the time of the jury selection.  See
State v. Clark, 386 A.2d 317, 319-20 (Me. 1978); State v. Littlefield, 374
A.2d 590, 593-594 (Me. 1977).  Therefore, prejudice per se or presumed
prejudice is not demonstrated.  
	[¶8]  With respect to the issue of actual prejudice, the record
reflects that the trial court extensively examined jurors about their
knowledge of the case.  In this inquiry, the trial court included questions
requested by the defense.  Further, the trial court gave the defense the
opportunity to suggest additional questions and, ultimately, the defense did
not suggest any more questions.  After challenges for cause were exercised,
with the court granting most of the defense's challenges for cause, a panel of
63 jurors remained, whom the trial court determined could be impartial.   A
total of only 48 jurors were needed to pick a jury, considering the number of
peremptory challenges which had been allowed.{3}  All jurors ultimately
chosen to serve asserted that they could remain impartial. 
	[¶9]  Given the large number of jurors that were available for
selection after questioning and the exercise of challenges for cause, Chesnel
has not demonstrated actual prejudice in the jury panel or that the trial
court abused its discretion in denying his motion to change venue. 
See Corson, 572 A.2d at 485.
III. MOTION TO SEVER TRIALS
	[¶10]  Prior to trial, Chesnel filed a motion to sever his trial from
that of the codefendant, Tomah.  The grounds for the motion appear to be
(i) the anticipated offering by the State of statements by Tomah, and (ii) the
anticipated antagonistic defenses of the two defendants.  Tomah objected to
Chesnel's motion to sever.  After a hearing, the court denied Chesnel's
motion to sever, "provided that any statements attributable to defendant
Tomah offered by the State or by Tomah during the State's case in chief
shall be redacted to apply only to the conduct of defendant Tomah."  
	[¶11]  From the record, it does not appear that the statement to
which the trial court's concern was directed was ever presented by the
State.  Further, as Tomah testified at trial and was subject to cross-
examination, any Bruton{4} problems, were effectively avoided.  See State v.
Drake, 1999 ME 91, ¶ 9,       A.2d      .
	[¶12]  Chesnel also argued that the antagonistic defenses which the
defendants would offer justified severance.  An allegation that two
codefendants will present antagonistic defenses and point the finger at each
other is not sufficient to require severance of a joint trial.  See Zafiro v.
United States, 506 U.S. 534, 538-40 (1993).  In Zafiro, the United States
Supreme Court faced a similar case where a defendant was seeking
severance on the grounds that each defendant claimed innocence and would
accuse the other of the crime.  See id. at 539-40.  The Court did not find
prejudice in that situation, reasoning that a defendant is not entitled to
severance just because a defendant is more likely to receive an acquittal
through a separate trial.  See id. at 540-41.  The Court noted that any risk of
prejudice could be cured by instructions to the jury that they must
separately determine each defendant's guilt beyond a reasonable doubt.  See
id.  Here, the trial court properly instructed the jury as suggested by Zafiro.
	[¶13]  A trial court's grant or denial of a motion to sever a trial of
two defendants is reviewed for abuse of discretion.  See State v. Johnson,
472 A.2d 1367, 1370 (Me. 1984).  In determining whether to grant a
motion to sever, the trial court "'must balance the general policy in favor of
joint trials against the prejudice to a defendant which may result.'"  State v.
Boucher, 1998 ME 209, ¶ 9, 718 A.2d 1092, 1094 (quoting 1 Cluchey &
Seitzinger, Maine Criminal Practice § 8.9 at III-65 (1995)).  The trial court
did not abuse its discretion in denying Chesnel's motion to sever.  
IV. ASSERTIONS OF JUROR MISCONDUCT
A.  Juror Contact History

	[¶14]  After the jury panel was questioned about their knowledge of
"the case" and whether they could be impartial, some jurors were asked
individual follow-up questions, and some jurors were excused for cause. 
Then in a side bar discussion, counsel for Chesnel asked the court to
question the panel further as to any details of news reports they recalled,
leading to the following discussion:
(Counsel for Chesnel):  I would also ask if any of the jurors are
familiar with media reports involving any details concerning
Mr. Chesnel or Mr. Tomah related to any topic which really
picks up from the other case,{5} because the question you
asked . . . .

(The Court):  Do you want to open the door to that?

(Counsel for Chesnel):  I don't want to mention another case. 
I just want to say do you recall anything relating
to Mr. Tomah or Mr. Chesnel relating to anything whatsoever.

(The Court):  Okay.
	[¶15]  To accommodate the defense's request, the court first asked
a follow-up question as to whether any of the jurors who had indicated that
they had heard something about "the case," recalled any of the details of the
case.  To this question, one juror responded affirmatively.  Following the
question about "the case," the court then asked:  
And is there any member of the jury panel, ladies and
gentlemen, who may recall reading anything in the
newspaper or hearing anything on the news concerning
either of the defendants, either concerning this case or any
other reason?  
No jurors responded to this question. 
 
	[¶16]  The court then proceeded to ask jurors about issues unrelated
to their knowledge of the case or the defendants, such as whether any jurors
possessed a law enforcement background.  At the conclusion of these
questions, the court again asked counsel if there were any additional
questions they wished the court to ask the jury.  Counsel for the State and
for both defendants responded in the negative.  Following the court's
consideration of more challenges for cause, counsel for Chesnel renewed the
motion for a change of venue, which the court denied.  The jury was then
selected.  After each counsel exercised peremptory challenges, the court
asked if counsel were satisfied with the jury as constituted, to which all
three counsel replied:  "Yes, your honor."{6}
	[¶17]  After the trial and the guilty verdicts, counsel for Chesnel sent
a private investigator to find and interview the trial jurors in an attempt to
find evidence of prior knowledge of the murder or the attack occurring in
Sabattus.  The defense actions were what might be characterized as a
"fishing expedition" since, as counsel acknowledged at oral argument,
he had no prior indication of juror misconduct.
	[¶18]  As a result of contacts with jurors identified in the record as
A, B, and C, the private investigator reported as follows:
	1.  Juror A advised that, during the jury's deliberations,
he had heard Juror B make a statement regarding Chesnel
that was not part of the trial testimony.  Juror A stated that
he did not recall exactly what Juror B had said.  

	2.  Juror B stated that he was aware of the details of the
assault occurring in Sabattus involving Chesnel as they were
recounted in the newspapers prior to the trial.  The
investigator also asserted that Juror B expressed
"considerable remorse" that he had not informed the court
of this knowledge prior to the trial.

	3.  Juror C asserted that during the course of jury
deliberations, Juror B had said:  "(Chesnel) is perfectly
capable of something like that.  He did the same thing in
Sabattus with a hammer."
	[¶19]  Chesnel filed a timely motion for a new trial,{7} supported by
affidavits from his private investigator about the statements the investigator
claimed the jurors had made to him.  A hearing on the motion for a new trial
was scheduled at which the involved jurors were subpoenaed to appear. 
After hearing arguments but no testimony, the court, citing
M.R. Evid. Rule 606(b), denied the motion for a new trial.  In its ruling, the
court stated that the law "does not permit the verdict of the jury to be
impeached by the testimony of the jurors themselves as to what took place
in the jury room during their deliberations."
	[¶20]  After the court's ruling and while this appeal was pending,
counsel for the State asked us to stay the appeal and remand the case to the
trial court to reopen the matter and take testimony from Juror B to properly
determine (i) Juror B's alleged knowledge of the prior attack, and
(ii) whether Juror B had improperly failed to respond to the court's voir
dire questions regarding knowledge of the defendants.  Defense counsel
objected to this request, preferring to leave the record as it existed.{8}  We
denied the stay, the trial court took no further action, and the matter is now
before us on appeal on the present record.

B.  Juror Contact Discussion

	[¶21]  The prohibition against the use of jurors' testimony to
impeach their own verdict or disclose the basis for their deliberations or
decisions long predates codification of the rule in Rule 606(b) of the Maine
Rules of Evidence{9} and the Federal Rules of Evidence.  "It is the general rule
since Lord Mansfield's time that the testimony of a juror is not available to
impeach a verdict in which he participated."  Patterson v. Rossignol,
245 A.2d 852, 856 (Me. 1968).  
	[¶22]  We have repeatedly stated the public policy considerations
against permitting jurors to impeach their own verdicts:
(1) the need for stability of verdicts; (2) the need to conclude
litigation and desire to prevent any prolongation thereof;
(3) the need to protect jurors in their communications to
fellow jurors made in the confidence of secrecy of the jury
room; (4) the need to save jurors harmless from tampering
and harassment by disappointed litigants; (5) the need to
foreclose jurors from abetting the setting aside of verdicts to
which they may have agreed reluctantly in the first place or
about which they may in the light of subsequent
developments have doubts or a change of attitude. 
Taylor v. Lapomarda, 1997 ME 216, ¶ 8, 702 A.2d 685, 688 (citing
Patterson, 245 A.2d at 857). 
 	[¶23]  While M.R. Evid. Rule 606(b) does not prohibit post-verdict
contacts with jurors and M. Bar Rule 3.7(f)(2){10} permits such contacts
subject to certain conditions, the usefulness of such contacts in efforts to
impeach verdicts is narrowly circumscribed.  "[A] court may not inquire into
the substance of the jury's deliberations."  State v. Coburn, 1999 ME 28, ¶ 7
n.3, 724 A.2d 1239, 1242 n.3.  Juror testimony "may be offered only to
show 'external misconduct of individual jurors' or 'the exertion of outside
influence' upon the jury."  Marr v. Shores, 495 A.2d 1202, 1204 (Me. 1985).
	[¶24]  With similar ethical rules in effect,{11} our past decisions have
been critical of efforts by defeated litigants to contact jurors and seek
information about their deliberations in hope of impeaching the verdict.  In
Patterson, defeated counsel contacted a juror who had changed her vote
between two jury polls in a civil case, which, at that time, required a
unanimous verdict.  See 245 A.2d at 855.  Counsel reported that the juror
had said she changed her vote because of alleged improper coercion from
the jury foreman.  See id.  In refusing to consider the juror statement in
support of the effort to overturn the verdict, the court noted:  
	Her ill considered statements were not volunteered but
were made to defeated counsel upon his abusive invasion of
her privileged status as a juror and undoubtedly given under
the mistaken idea that she owed him a duty of explanation. 
Such conduct by counsel is a serious impediment to the
administration of justice, causes jurors great embarrassment
and harassment, has the natural tendency to prevent free
expression of thoughts amongst jurymen in their
deliberations and is an effective deterrent to a willing
acceptance of jury service. 

	In Greeley v. Mansur, supra,{12} our Court has said that '[i]t
is therefore useless for parties or their counsel, to
interrogate jurors with respect to their verdicts, in the hope
thereby to obtain evidence on which to ground a motion for a
new trial.  Such efforts will not avail.'  This statement was
repeated in Trafton v. Pitts, supra.{13}

	We now condemn the practice, not only as a useless
gesture, but as undesirable and highly unethical and
improper.  Jurors must receive court protection against
private investigations by defeated counsel unless the purpose
thereof be to establish proof of external misconduct of
individual jurors or of the existence of an outside influence
which our Court has recognized as an exception to the rule of
exclusion.
245 A.2d at 857-58.  Under the current rules, evidence obtained from juror
contacts can only be used to impeach a jury verdict if the evidence reveals
that the jury was subject to "extrajudicial prejudicial information" or
"outside influence."  See M.R. Evid. 606(b); Marr, 495 A.2d at 1204.
	[¶25]  Many jurisdictions go even further in proscribing post-verdict
juror contacts, and "require a threshold showing of good cause, or the
explicit prior approval of the court before attorneys may interview jurors."{14}	
	[¶26] We do not encourage or suggest approval of post-verdict
contact with jurors, seeking information with which to impeach the verdict,
where such contacts are initiated without any cause to believe that
improprieties occurred.  Certainly, we could not vacate a conviction solely
upon a defeated litigant's affidavit as to what he claims jurors may have said. 
We have no basis to determine the veracity of such statements or the
circumstances in which they were made.  To some jurors, a post-verdict
contact by a convicted murderer's agent may be an event of particular stress
and fear.  Such contacts may or may not invite accurate responses that
recount events as they occurred.  Instead, because of the difficult position in
which a juror is placed, such contact may invite statements which the
contacted juror may think necessary to satisfy the agent.
	[¶27]  The most action we could take, in the present context, is to
remand the matter to the trial court for a hearing to determine the facts as
to (i) whether Juror B may have had knowledge which, during voir dire, he
knew he should disclose and did not disclose, (ii) the circumstances under
which the defendant's agent contacted the jurors, and (iii) the
representations the agent made to the jurors.  The State urged the defense
to join in pursuing an opportunity to obtain just such a hearing, at least with
respect to Juror B's knowledge at the time of the voir dire, but the defense
declined the opportunity, preferring to bring the matter forward for appeal
on the available record.
	[¶28]  The appellant has the burden and the responsibility to ensure
that the record on appeal is sufficient to permit us to assess adequately each
claim of error.  See Cooper, 617 A.2d at 1014; Addington, 518 A.2d at 451; 
2 Cluchey & Seitzinger, Maine Criminal Practice § 39.1 at VII-128 (1995).
Accordingly, declining an opportunity to improve the quality of information
available for review is not likely to be a successful tactic in appellate
advocacy. 
	[¶29]  Rule 606(b) would permit the trial court to inquire about
whether Juror B knew of information about Chesnel that, upon inquiry
during voir dire, he knew he should disclose and did not disclose.  See Clark
v. United States, 289 U.S. 1, 9-12 (1933).  A post-trial hearing would be the
appropriate forum in which the accuracy of a juror's voir dire response and
potential bias can be explored.  See Robert G. Loewy, When Jurors Lie: 
Differing Standards for New Trials,  22 Am. J. Crim. L. 733, 737 (1995).  To
obtain a new trial on an allegation that a juror did not accurately answer a
voir dire question, a party must demonstrate that (i) the juror failed to
honestly or correctly answer a material question, and (ii) a correct response
would have provided a valid basis for a challenge for cause.  See McDonough
Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984); Grover v.
Minette-Mills, Inc., 638 A.2d 712, 715 (Me. 1994).  A new trial would be
ordered only if the nondisclosure prevented the discovery of juror bias as
probably, not speculatively existent.  See Eckenrode v. Heritage Management
Corp., 480 A.2d 759, 764-65 (Me. 1984) (citation omitted).  
	[¶30]  Here, after many questions referring to "the case" had been
asked, the court asked a question as to whether any of the jurors recalled
anything in the news "concerning either of the defendants, either
concerning this case or any other reason."  Even assuming that the reported
statements made to the private investigator were accurate and given in a
noncoercive context, they do not establish a dishonest or incorrect answer. 
The voir dire question was very vague.  No more specific questions were
sought by defense counsel such as:  "Other than information about this case,
have you heard or read anything else about Mr. Chesnel?"  


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