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State v. Theresa Coburn
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:	1999 ME 28
Docket:	Cum-98-47
Submitted 
On Briefs:	December 22, 1998
Decided:	February 11, 1999


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




STATE OF MAINE v. THERESA COBURN


SAUFLEY, J.

	[¶1]  Theresa Coburn appeals from a judgment entered in Superior
Court (Cumberland County, Crowley, J.) denying her motion for a judgment
of acquittal or, alternatively, for a new trial.  On appeal, Coburn contends
that the Superior Court erred when it refused to grant her motion for a new
trial after the jury received extraneous information during its deliberations. 
We agree and vacate the judgment.
I. Background
	[¶2] In January 1998, Theresa Coburn was tried by a jury and found
guilty of a single count of operating under the influence of alcohol.  The
State presented the following evidence in support of the charge.  In the
early morning hours of July 21, 1997, Robert Doherty, a Portland police
officer, observed two cars traveling outbound on Congress Street; the rear
car was operating with its high beams illuminated.  Finding the use of high
beams behind another car unusual, Officer Doherty turned his car around
and followed.  He observed that the rear car stopped at a flashing yellow
light for approximately 15 seconds and then observed that it weaved in and
out of its travel lane.  He also observed the car make an extremely wide turn
from Congress Street onto Stevens Avenue.  He testified that, "if you are
familiar with Congress and Stevens, . . . it's a large intersection, and the
vehicle actually went over to the lane where you would be either heading
straight into Westgate or the lane for people that would turn left onto
Congress Street."
	[¶3]  Doherty signalled the car to stop and asked the driver of the car,
Coburn, for her driver's license, proof of registration, and insurance.  While
she complied with his instructions, he noticed both that her breath smelled
of intoxicants and that her eyes appeared glassy and bloodshot.  As a result of
his observations, Doherty asked Coburn to perform a series of field sobriety
tests.  She cooperated at first, but then refused to perform the tests,
displaying further signs of possible intoxication while doing so.  Doherty
then arrested Coburn for operating under the influence of alcohol.  At the
county jail, Coburn refused to acknowledge that the officer had read the
form advising her of her rights, refused to sign the form, and refused to take
a breath test. 
	[¶4]  Coburn was charged with operating under the influence of
alcohol pursuant to 29-A M.R.S.A. § 2411(1) (1996).  A jury trial was held in
January of 1998.  During its deliberations, the jury asked the court for a
read-back of Doherty's testimony concerning Coburn's alleged "wide turn." 
At a later point in its deliberations, the jury reported that it was having
difficulty reaching a unanimous verdict.  The trial judge gave the jurors
appropriate instructions on continued deliberations and sent them home for
the day with instructions not to discuss the case with anyone and to return
to their deliberations the next day, a Friday.  Unfortunately, the ice storm of
1998 prevented the jurors from returning to the courthouse until the
following Monday.  After a brief period of deliberations, the jury returned a
verdict of guilty.
	[¶5]  After the jury entered its verdict, Coburn learned that two jurors
had received extraneous information regarding her case at some time during
the trial or the deliberations.  Coburn therefore filed a motion for a
judgment of acquittal or, alternatively, for a new trial.  The State and Coburn
entered into a stipulation regarding the extraneous information in order to
avoid calling the jurors to testify.  The stipulations read as follows:
[A juror] inquired of her husband, a former law enforcement
officer and current Superior Court financial screener, what
purpose the breathylizer [sic] served.  He told her that the
breathylizer [sic] served a twofold purpose.  One, a test result
over the legal limit would confirm or validate the officer's
testimony regarding his observations of impairment.  Two, the
defendant had the opportunity to show that she was innocent by
providing a breath sample below the legal limit;
and,
[The] jurors were given information from another juror
regarding the "wide turn" from Congress Street onto Stevens
Avenue.  Specifically, a female juror who was unfamiliar with the
intersection in question went out of her way to make that turn
and reported to the other jurors that she did not have to turn
wide. 
After a hearing on the matter, the Superior Court denied Coburn's motion
for a judgment of acquittal or for a new trial.  Coburn then filed this appeal.
II. Discussion
	[¶6]  To have found Coburn guilty of OUI, the jury must have
concluded, beyond a reasonable doubt, that Coburn "operate[d] a motor
vehicle . . . [w]hile under the influence of intoxicants[,] or . . . [w]hile having a
blood-alcohol level of 0.08% or more."  29-A M.R.S.A. § 2411(1).  It was
undisputed that Coburn had operated a motor vehicle; therefore, the only
question before the jury was whether she did so while under the influence of
intoxicants.{1}  The state and federal constitutions guarantee that the accused
shall have a right to a fair and impartial jury trial.  See Me. Const. art. I, § 6;
U.S. Const. amend. VI.  Coburn contends that she was denied this right when
the jury received extraneous information concerning both the purpose of an
intoxilyzer test and Coburn's alleged "wide turn" from Congress Street onto
Stevens Avenue.  
	[¶7]  When a defendant demonstrates that a juror was subjected to
extraneous information and that the information is sufficiently related to the
issues presented at trial, a presumption of prejudice is established, and the
burden of proof shifts to the State to demonstrate by clear and convincing
evidence that the information did not cause prejudice to the defendant.  See
State v. Royal, 590 A.2d 523, 525 (Me. 1990) (citing State v. Kelley, 357
A.2d 890, 898-99 (Me. 1976)).{2}  The trial court begins its analysis by
determining the nature, extent, timing and source of the information
received by the jurors.  It may not, however, inquire into the substance of
the jury's deliberations.  See Taylor v. Lapomarda, 1997 ME 216, ¶ 6, 702
A.2d 685; State v. Kelley, 357 A.2d 890, 898-99 (Me. 1976); Patterson v.
Rossignol, 245 A.2d 852, 856-57 (Me. 1968).{3} 
	[¶8]  Once the trial court is convinced that a juror received extraneous
information that was meaningfully related to the issues presented at trial,
the jury verdict must be vacated unless the State demonstrates, by clear and
convincing evidence, that the extraneous information did not prejudice the
defendant.  See Royal, 590 A.2d at 525.  We review the trial court's finding
regarding the prejudicial effect of extraneous evidence "only for clear error
and will overturn the court's denial of a motion for a new trial only if there is
no competent evidence to support it."  Id. 
A.  Presumption of Prejudice
	[¶9]  Because of the "long-recognized and very substantial concerns
support[ing] the protection of jury deliberations from intrusive inquiry," the
trial court must assure that the process used to ascertain the facts relative to
the juror's receipt of extraneous information does not encroach on the
contents of the deliberations. Tanner v. United States, 483 U.S. 107, 127
(1987).  See M.R. Crim. P. 606(a).  The trial court did so here by accepting
the stipulations of the parties in lieu of testimony from the jurors.  When the
parties are able to agree on the source and the specifics of the extraneous
facts acquired by a juror during trial, there is no need for testimony from
that juror.  This mechanism, similar to in camera inquiry by the court,
avoids the prospect of unacceptable intrusions into the deliberations of the
jury.{4}  
	[¶10] Once the trial court received the stipulations, its next task was
to determine whether the information was, in fact, sufficiently relevant to
the issues presented at trial to raise the presumption of prejudice.  See
State v. Kaler, 1997 ME 62, ¶¶ 12-13, 691 A.2d 1226.  Here, the court
concluded that the information regarding the layout of the intersection did
raise the presumption.  It also determined that, while the information
regarding the purpose of a breath test was only marginally relevant, it would
assume that the presumption of prejudice had been raised.  Because the jury
in an OUI trial is entitled to consider the failure of a defendant to submit to
a chemical test,{5} information regarding the "purpose" of a test is directly
relevant to the issues before the jury.  To avoid misunderstandings or
possible jury confusion, any such information should be presented to the
jury, if at all, in the controlled confines of the trial.  We find no error in the
court's determination that the presumption of prejudice had been raised. 
See Royal, 590 A.2d at 525.  
	[¶11]  The burden then shifted to the State to prove, by clear and
convincing evidence, that the extraneous information did not prejudice the
jury's verdict.  See id.  Because the trial court is in the best position to
understand the nuances of the evidence presented and the context in which
the extraneous information was received, we give substantial deference to
the trial court's assessment of the prejudicial effect, if any, of extraneous
information received by a juror.  See id.; United States v. Rogers, 121 F.3d
12, 17 (1st Cir. 1997) (citing United States v. Cheyenne 855 F.2d 566, 568
(8th Cir. 1988)).
(1) The View of the Intersection
	[¶12]  The trial court concluded that the information obtained by the
juror who went to the intersection at issue did not have much of an impact
on the jury's deliberations and therefore that the State had rebutted the
presumption of prejudice.  We conclude that the State offered no persuasive
evidence that the extraneous information did not prejudice the case.
	[¶13]  The stipulation demonstrates that one of the jurors went out of
her way to locate and drive through the intersection at issue and determine
whether it was necessary to make a "wide turn" from Congress Street onto
Stevens Avenue.  She then shared her conclusion--that a wide turn was not
necessary--with the rest of the jury.  Her conclusion confirmed the State's
position that Coburn's operation of her car was unusual and therefore that
she was impaired by alcohol.  
	[¶14]  This is not a case where jurors used their own knowledge about
local geography or their common sense regarding driving patterns.  Nor was
this information obtained coincidentally during the course of the trial. 
Rather, a juror who was not familiar with the intersection went out of her
way to see it on her own after hearing the State's evidence regarding the
intersection.{6}  A reasonable inference can be drawn from this act that the
State did not provide sufficient evidence regarding the intersection to allow
the juror to draw conclusions without an independent investigation.{7} 
Moreover, the jury's request for a read-back of the officer's "wide turn"
testimony demonstrates that it played a role in the jury's determination.
	[¶15]  In its effort to rebut the presumption, the State presented no
persuasive argument that Coburn was not prejudiced by the juror's
investigation except to rely on our decision in State v. Royal, 590 A.2d at
525.  There, the evidence against the defendant suggested that he had
bound his victim with duct tape, and there was testimony during the trial
about the presence of "residue" from the tape on the victim's skin.  See id. 
The jury was reported to have "smuggled duct tape into the jury room and
performed an experiment with it by wrapping it around [a juror's] wrists and
leaving it there for 15 minutes before removing it to see if it left a residue." 
Id.  We let stand the trial court's conclusion that the experiment did not
have a prejudicial impact on the verdict.  In contrast to the facts before us
today, the experiment in Royal took place in the jury room, during
deliberations, when all jurors were present and were apparently "testing"
the State's conclusions.  With the exception of the presence of the duct
tape, such conversations and efforts to test the conclusions urged on the
jurors by the parties are a natural part of the deliberation process.  
	[¶16]  Here, in contrast, a single juror went to an intersection and
gathered additional facts about the scene of the events.  She did so outside
of the fact-gathering process of the trial, without other jurors, and under
circumstances that could not be addressed by the parties or challenged by
other jurors.  She then gave the information she had gathered to the other
jurors under circumstances where no advocacy could be brought to bear on
the jurors' receipt of that information and the trial court could not give a
curative instruction.  We conclude that the State did not meet its burden of
rebutting the presumption of prejudice.
(2) The Purpose of the Intoxilyzer
	[¶17]  A second juror questioned her husband at some time during the
trial about the purposes of an intoxilyzer test.  Her husband, a former law
enforcement officer, was then employed as a financial screener for the
Superior Court.  He told her that the test could confirm the officer's
suspicion of Coburn's intoxication and could provide the defendant with the
opportunity to "show" her "innocence." 
	[¶18]  The only argument offered by the State to rebut the
presumption of prejudice from this information was the assertion that this
was not a "test" case--it was a "refusal" case.  Therefore, according to the
State, the information was only tangentially relevant and could cause no
prejudice.  The trial court agreed.  Again, we look for competent evidence to
support the court's conclusion and will overturn the denial of the motion for
new trial only if there is clear error.  
	[¶19]  We find error for two reasons.  First, the very fact that a juror in
a criminal proceeding has discussed the evidence at trial with a former
member of law enforcement gives rise to concerns about the juror's ability
to remain impartial.  Second, the husband's response indicated that the
defendant had the opportunity and, by implication, the burden of proving
that she was not guilty of the crime with which she had been charged.  We
regard the risk that this implication was accepted by the juror as significant. 
Having scrutinized the record for any evidence offered by the State that
would show that the jury's verdict was not, in fact, tainted by this prejudice,
we find none.  Again, the court did not learn of the juror's conversation with
her husband in time to provide a curative instruction regarding the State's
burden or addressing the acceptable use to which evidence of the refusal
could be put.  
	[¶20]  Because the court may not inquire into the substance of the
jury's deliberations, we recognize that direct evidence that the jury's verdict
was not tainted by the extraneous information is almost impossible to
produce.{8}  Therefore, in making its case that the jury's verdict was not
influenced by the extraneous information, the State will usually be limited to
circumstantial evidence and arguments based on inductive reasoning.  This
task was designed to be difficult, and in this case, we can reach no other
conclusion but that the State failed to satisfy its burden.  Accordingly, we
vacate the judgment of the trial court denying Coburn's motion for a new
trial.
	The entry is
Judgment vacated.  Remanded to the Superior
Court with instructions to grant the
defendant's motion for a new trial.

Attorneys for State: Stephanie Anderson, District Attorney Julia A. Sheridan, Asst. Dist. Atty. 142 Federal Street Portland, ME 04101 Attorney for defendant: Matthew B. Nichols, Esq. Boulos & Nichols P O Box 856 Saco, ME 04072
FOOTNOTES******************************** {1} . Because Coburn refused to submit to an intoxilyzer test, there was no evidence of her blood-alcohol level. {2} . Extraneous information refers to information that is received during the juror's activities as a juror and must be distinguished from information or knowledge held by a juror prior to jury service. A juror's life experiences and common sense understandings are not "extraneous information" giving rise to the presumption. "Information disclosed to other jurors from the prelitigation experience of a juror usually is not grounds for impeaching the verdict, even if the information relates specifically to the case on trial." Field & Murray, Maine Evidence § 606.2 at 250 (4th ed. 1997) (citing Marr v. Shores, 495 A.2d 1202 (Me. 1990)). If, however, a juror fails during pretrial voir dire to respond to the court's inquiries regarding specific knowledge about the facts of the case at bar, the court may separately assess the possible prejudice to a party. See generally Eckenrode v. Heritage Management Corp., 480 A.2d 759, 764 (Me. 1984). {3} . The extent to which a juror may testify regarding the process of the jury's deliberation is governed by M.R. Evid. 606. This rule provides: Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that juror's or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning any juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. M.R. Evid. 606(b) (emphasis added). We recognize that our opinion in State v. Royal, 590 A.2d 523, 525 (Me. 1990) implied that a trial court should question the jurors concerning the impact of any extraneous information to which they were exposed, in order to determine whether the jury's verdict was tainted by the extraneous information. Such an inquiry would be incorrect as a matter of law. We now emphatically restate that a court may not inquire into the substance of the jury's deliberations. {4} . See also United States v. Calbas, 821 F.2d 887, 896 (2d Cir. 1987) (finding that the trial court, in order to prevent inappropriate inquiry into deliberations, had "wisely refrained from allowing an inquiry to become an adversarial evidentiary hearing"). {5} . "Failure of a person to submit to a chemical test is admissible in evidence on the issue of whether that person was under the influence of intoxicants." 29-A M.R.S.A. § 2431(3) (1996). {6} . Although the potential for prejudice may not be as strong in civil matters, courts have required new trials where jurors have investigated the scene of an accident. See Bowler v. Inhabitants of Washington, 62 Me. 302, 303-04 (1873) (new trial granted where two jurors visited the road where the alleged accident occurred); Markee v. Biasetti, 575 N.E.2d 1083, 1085 (Mass. 1991) (new trial granted for lack of a fair trial where two jurors visited the scene of the accident, made various measurements, and observed automobiles going through the intersection). {7} . But see State v. Rodriquez, 694 A.2d 1202, 1202-03 (R.I. 1997) (juror investigation of store to observe location of surveillance cameras and layout of store where alleged robbery occurred did not warrant new trial); Forney v. State, 338 S.E.2d 252, 256 (Ga. 1986) (fact that eight jurors made unauthorized visit to the scene of alleged murder did not warrant a new trial). {8} . For this reason, jurors are instructed frequently throughout the course of a trial that they must not discuss the case with anyone and must not undertake any independent investigations. See Alexander, Maine Jury Instruction Manual, § 2-26 (3d ed. 1998). Where a juror does not heed those instructions, the State's burden of demonstrating no prejudice to the defendant is heavy.