State of Maine v. John T. Simons

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 180
Docket: Yor-16-548
Submitted
On Briefs: July 19, 2017
Decided: August 15, 2017

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

STATE OF MAINE

v.

JOHN T. SIMONS

MEAD, J.

[¶1] John T. Simons appeals from a judgment of conviction of operating

under the influence (Class B), 29-A M.R.S. § 2411(1-A)(D)(2) (2016), entered

by the trial court (York County, Driscoll, J.) following a jury trial. Simons asserts

that (1) the court erred when it denied his motion to suppress evidence from

the traffic stop, (2) the court improperly allowed testimony regarding his

performance on the horizontal gaze nystagmus (HGN) test, (3) there was

insufficient evidence to support his conviction, and (4) the court erred when it

determined that prospective jurors were impartial. We affirm the judgment.

I. BACKGROUND

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

jury could have found the following facts beyond a reasonable doubt. State v.
2

Hinkel, 2017 ME 76, ¶ 2, 159 A.3d 854. On November 17, 2015, around

9:45 p.m., Officer Gregory Caldwell of the Kittery Police Department observed

a vehicle leave the parking lot of a bar and enter a traffic rotary. He followed

the vehicle and observed it accelerate quickly to forty-two miles per hour in a

twenty-five-miles-per-hour zone. After following the vehicle for approximately

100 yards, Caldwell turned on his emergency lights to effectuate a traffic stop;

the vehicle pulled over after travelling about another quarter mile.

[¶3] Caldwell approached the car and requested insurance and

registration documents; he identified the driver as John Simons using Simons’s

driver’s license. He observed Simons’s hands to be “very shaky” when Simons

was searching for his registration and insurance documents. Caldwell detected

a strong odor of mint coming from Simons’s car and breath, and he noticed a

can of mints in the car. From his training, Caldwell knew that drivers who have

been drinking may use mints to attempt to disguise the odor of intoxicants.

Simons told the officer that he was coming from a nearby bar where he was a

“door guy.” Caldwell took the paperwork to his police cruiser where he

reviewed it. Upon returning to Simons’s vehicle, he smelled the odor of alcohol

emanating from Simons’s breath and inside the car. Simons told Caldwell that

he had been drinking but had stopped at 5:00 p.m. Caldwell asked Simons if he
 3

was willing to perform field sobriety tests to make sure that he was safe to

drive. Simons agreed, and he “stumbled quickly but caught his balance” when

getting out of the car. Outside the car, Caldwell could smell alcohol on Simons’s

breath from three to four feet away.

[¶4] Caldwell first led Simons through the HGN test. Simons swayed in

small circular motions throughout the test, and Caldwell could smell the odor

of intoxicants on Simons’s breath and observed clues of impairment on the test.

He next had Simons perform the walk-and-turn test, during which Simons

“stepped out of the instructional phase position on multiple occasions” despite

being told to remain in that position, lost his balance and broke the heel-to-toe

position, lifted his arms up more than six inches to keep his balance, took a step

off the line, did not touch his heel to his toe on several steps, and failed to turn

properly. Caldwell then had Simons complete the one-leg-stand test. He

observed Simons sway and raise his arms higher than six inches from his sides

to keep his balance during the test. Caldwell arrested Simons for operating

under the influence.1

1 Caldwell subsequently administered a breath test to Simons, but the court ruled that the test

results were inadmissible due to an improper observation period that compromised the reliability of
the test.
4

[¶5] On June 9, 2016, Simons filed a motion to suppress evidence from

the traffic stop. Following a hearing, the court (Driscoll, J.) denied the motion.

The court found the following facts. Caldwell observed Simons enter a traffic

rotary and accelerate to seventeen miles per hour over the speed limit, and that

Simons drove for a quarter mile after Caldwell activated his emergency lights.

Caldwell did not, however, observe Simons operate his vehicle “in a manner

that would [imply] or raise the issue of impaired driving.” Simons “fumbled

somewhat” when producing his paperwork, and Caldwell initially smelled a

strong odor of mint and saw a container of mints in the car but “did not smell

alcohol, observe bloodshot eyes or any other indicia of impairment or alcohol

consumption.” However, when Caldwell returned to Simons’s vehicle, he

“smelled the odor of alcohol from the vehicle.” He asked Simons if he had

anything to drink that night; Simons responded that he last had a drink at

5:00 p.m. and was a door person at a nearby bar. To isolate the source of the

smell of alcohol, Caldwell asked Simons if he would step out of the car. Simons

complied, and Caldwell administered field sobriety tests. The court found that

Caldwell was credible and concluded that he had a reasonable articulable

suspicion of facts sufficient to support both the traffic stop for speeding, and, as
 5

the situation evolved, asking Simons to get out of the car and perform field

sobriety tests.

[¶6] Jury selection was held on October 25, 2016. As part of voir dire,

prospective jurors were directed to complete a questionnaire2 that included the

following question:

14. A person accused of a crime should be required to present at
least some evidence to prove their innocence. (Please circle one.)

Agree _______ Disagree _______

Eighteen prospective jurors answered “Agree.” The court (Fritzsche, J.)

individually interviewed each prospective juror who answered in the

affirmative to inquire further as to their beliefs and ability to follow the court’s

instructions. Simons objected to this process, expressing his concern that those

jurors could not be rehabilitated.

[¶7] When questioned by both the court and counsel, several jurors

indicated that they were confused by the question and had answered

incorrectly and confirmed during the colloquy that they could follow the court’s

instructions on the law. The court excused several jurors for cause after they

confirmed the belief that a defendant should present evidence of innocence or

2 The record indicates that the questionnaire was prepared by both Simons and the State, who

“were able to negotiate and work through and produce th[e] questionnaire by agreement.”
6

seemed hesitant about whether they could follow the court’s instructions.

Simons objected to only one additional prospective juror on the basis of her

response to Question 14, and that juror was also excused for cause by the court.

Seven jurors who had answered Question 14 affirmatively were eliminated

during the exercise of Simons’s and the State’s peremptory challenges. See

M.R.U. Crim. P. 24(c). Of the jurors who were ultimately impaneled, four had

initially answered “Agree” to Question 14; two of those jurors later told the

court that they misread the question and intended to “Disagree,” and two

indicated that they were confused by the question and could follow the court’s

instructions on the law. Simons did not object to those jurors being seated.

[¶8] Immediately prior to the commencement of the trial, the court

(Driscoll, J.) and counsel discussed various pretrial matters including Simons’s

objection, based upon lack of foundation, to Caldwell testifying about Simons’s

performance on the HGN test because Caldwell was not certified as “proficient”

at that test. The court ruled that the testimony would be admissible, concluding

that the issue of whether or not Caldwell was certified as proficient went to the

weight—not the admissibility—of the evidence.

[¶9] At the trial, the jury heard testimony from Caldwell. In addition to

testifying to the facts set forth herein, Caldwell testified that he had been with
 7

the Kittery Police Department since January 2015 and had completed an

eighteen-week program at the Maine Criminal Justice Academy. An entire week

of his training focused on operating under the influence and included both

classroom and first-hand, hands-on training. Caldwell was taught the

procedures for the HGN, walk-and-turn, and one-leg-stand tests; a manual

concerning detecting OUI was part of his curriculum. At the time of his

interaction with Simons, Caldwell was in the process of being deemed

“proficient” at the HGN test by the Academy.

[¶10] Following two days of deliberations, the jury returned a verdict of

guilty. The court entered a judgment of conviction on the verdict, from which

Simons now appeals.3 See M.R. App. P. 2.

II. DISCUSSION

A. Motion to Suppress

[¶11] Simons asserts that the court erred in determining that Caldwell

had a reasonable articulable suspicion supporting his request that Simons exit

3 Simons was convicted pursuant to 29-A M.R.S. § 2411(1-A)(D)(2) (2016) because he had a prior

Class C conviction for operating under the influence. The court sentenced Simons to eight years of
imprisonment, with all but eighteen months suspended; three years of probation; a ten-year license
suspension; and a $2,100 fine. The Sentence Review Panel denied Simons leave to appeal his
sentence. State v. Simons, No. SRP-16-549 (Me. Sent. Rev. Panel Jan. 26, 2017).

8

his vehicle and perform field sobriety tests, and thus erred in denying his

motion to suppress.4

[¶12] “[A] field sobriety test, like any other investigatory stop, must be

based on specific and articulable facts which, taken together with rational

inferences from those facts, reasonably warrant that intrusion.” State v. Wood,

662 A.2d 919, 920 (Me. 1995) (quotation marks omitted). At the time of making

an investigatory stop, a police officer must have “an articulable suspicion,

objectively reasonable in light of all the circumstances, that the object of the

search has committed or is about to commit a crime.” Id. Whether an officer

had an articulable “subjective suspicion of operating under the influence and

the facts upon which that suspicion is based are factual findings reviewed for

clear error,” State v. King, 2009 ME 14, ¶ 6, 965 A.2d 52, and we will affirm the

court’s finding if it is supported by “any competent evidence in the record,”

State v. McPartland, 2012 ME 12, ¶ 13, 36 A.3d 881. “[T]he determination of

whether the suspicion was objectively reasonable is a legal conclusion that we

review de novo.” King, 2009 ME 14, ¶ 6, 965 A.2d 52. “The only requirement

we have imposed on the reasonable articulable suspicion standard is that an

4 Simons does not challenge the initial stop of his vehicle for speeding.
 9

officer’s suspicion be more than mere speculation or an unsubstantiated

hunch.” State v. Porter, 2008 ME 175, ¶ 11, 960 A.2d 321.

[¶13] Here, the suppression court found that Simons admitted to

Caldwell that he had been drinking that evening; that Caldwell had observed

Simons fumble with his documents and smelled alcohol coming from Simons’s

vehicle; and that Caldwell observed Simons driving seventeen miles per hour

over the speed limit. Caldwell also testified that he asked Simons to exit the car

and perform field sobriety tests in order to “make sure that [Simons] was safe

to drive,” supporting the trial court’s implicit conclusion that Caldwell harbored

a subjective belief that Simons was impaired. The motion court did not err in

finding that Caldwell entertained a reasonable articulable suspicion that

Simons was impaired, thus justifying the administration of the field sobriety

tests. See State v. Sylvain, 2003 ME 5, ¶ 18, 814 A.2d 984 (concluding that it was

“objectively reasonable for [an] officer to entertain a suspicion that [a] driver

may be impaired by . . . alcohol” when the officer observed the driver’s

bloodshot eyes and the driver admitted to consuming two beers); cf. State v.

Nelson, 638 A.2d 720, 722 (Me. 1994) (determining that there was “a clear

deficiency in the evidence supporting the reasonableness of [an officer’s]

suspicion” that a defendant was operating under the influence when “the officer
10

observed nothing to support his suspicion” other than the defendant’s

“consumption of a single can of beer over the course of nearly one hour”). The

court did not err by denying Simons’s motion to suppress evidence from the

traffic stop.

B. HGN Test

[¶14] Simons contends that the court erred by allowing the jury to hear

evidence regarding his performance on the HGN test because the proper

foundation for its admission was not established, compromising the test’s

reliability. We review an evidentiary ruling “for clear error and an abuse of

discretion.” Hinkel, 2017 ME 76, ¶ 7, 159 A.3d 854.

[¶15] We have taken judicial notice of the reliability of the HGN test “for

purposes of establishing criminal guilt in cases involving operating under the

influence,” and concluded that “the results of [an] HGN test should be

admissible if a proper foundation is laid for their introduction in evidence.”

State v. Taylor, 1997 ME 81, ¶¶ 10, 12, 694 A.2d 907. A proper foundation

consists of two elements: evidence that the officer who administered the test

“is trained in the procedure,” and evidence that “the test was properly

administered.” Id. ¶ 12. In Taylor, we determined that an officer who “was

trained at a three-day course taught by instructors and has tested numerous
 11

subjects both in the field and in controlled situations” was qualified to testify as

an expert on the HGN test. Id. ¶ 12 n.9. More recently, in State v. Hinkel, we held

that the State laid a proper foundation pursuant to Taylor when the officers who

administered the HGN test “testified that they graduated from the

Maine Criminal Justice Academy, where they received training on the

administration of field sobriety tests, including the HGN test.” 2017 ME 76, ¶ 8,

159 A.3d 854.

[¶16] Here, Caldwell testified that he completed a program at the

Maine Criminal Justice Academy where he received both classroom and

hands-on training on field sobriety tests, including the HGN test. Accordingly,

we conclude that the court did not err in determining that Caldwell was

qualified to testify as an expert on the test. Regarding the second element of

the necessary foundation, Caldwell testified in detail concerning how he

administered the HGN test to Simons, and Simons points to no record evidence

demonstrating how the HGN test administered by Caldwell deviated from

standards prescribed in the National Highway Traffic Safety Administration

manual. See id. ¶ 9. Even if he had, an officer’s “failure to strictly adhere to the

specific procedures promulgated by NHTSA does not render evidence

regarding those field sobriety tests inadmissible,” and Simons was free to
12

cross-examine Caldwell about any failures to adhere to protocol. Id. (quotation

marks omitted). Therefore, the court did not err or abuse its discretion in

admitting evidence regarding the HGN testing.

C. Sufficiency of the Evidence

[¶17] Simons asserts that there was insufficient evidence to support his

conviction for operating under the influence. “When determining whether the

record contained enough evidence to support a criminal defendant’s

conviction, we view the evidence in the light most favorable to the State to

determine whether the fact-finder could rationally find every element of the

offense beyond a reasonable doubt.” State v. Atkins, 2015 ME 162, ¶ 20,

129 A.3d 952 (quotation marks omitted). The fact-finder is permitted to “draw

all reasonable inferences from the evidence.” State v. Soucy, 2012 ME 16, ¶ 10,

36 A.3d 910 (quotation marks omitted). Testimony that the defendant showed

indications of intoxication “can be sufficient to support a finding that the

defendant was under the influence.” State v. McCurdy, 2002 ME 66, ¶ 10,

795 A.2d 84. The jury may also consider a defendant’s performance on field

sobriety tests as evidence of intoxication, though such performance is not

dispositive of guilt. See State v. Fay, 2015 ME 160, ¶ 7, 130 A.3d 364; Taylor,
 13

1997 ME 81, ¶ 13, 694 A.2d 907 (stating that results of an HGN test are

admissible as circumstantial evidence of a defendant’s intoxication).

[¶18] Here, the jury heard testimony that Simons was speeding, had

admitted to drinking earlier in the evening, had the smell of alcohol on his

breath, fumbled when handling documents, stumbled when exiting his vehicle,

and performed poorly on three field sobriety tests. There was sufficient

evidence in the record for the jury to rationally find, beyond a reasonable doubt,

that Simons operated a vehicle while impaired, “however slightly or to any

extent,” by alcohol.5 See Atkins, 2015 ME 162, ¶ 1, 129 A.3d 952; 29-A M.R.S.

§ 2411(1-A)(D)(2); see also Hinkel, 2017 ME 76, ¶¶ 2-5, 13, 159 A.3d 854; State

v. Just, 2007 ME 91, ¶¶ 4, 9-10, 18, 926 A.2d 1173; McCurdy, 2002 ME 66, ¶ 11,

795 A.2d 84.

D. Juror Impartiality

[¶19] Simons asserts that the court erred in concluding, after conducting

a more extensive colloquy with the jurors, that jurors who initially answered

“Agree” to Question 14 on the juror questionnaire were impartial.

We ordinarily review “the trial court’s finding of juror impartiality for clear

5 At trial, Simons stipulated to his prior OUI conviction, and the judgment and commitment for

that conviction was admitted in evidence by agreement, although the document was not presented
to the jury. See State v. Atkins, 2015 ME 162, ¶ 21 n.5, 129 A.3d 952.
14

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

2009 ME 72, ¶ 49, 976 A.2d 227. However, because Simons did not object to

any of the jurors who were impaneled, our review of the jurors’ impartiality is

for obvious error. See State v. Logan, 2014 ME 92, ¶ 16, 97 A.3d 121; State v.

Lovejoy, 2014 ME 48, ¶ 19, 89 A.3d 1066. The court’s determination of juror

impartiality “is accorded substantial deference because of the [court]’s ability

to observe the juror and assess credibility.” State v. DePhilippo, 628 A.2d 1057,

1059 (Me. 1993) (quotation marks omitted).

[¶20] “When a juror’s impartiality is questioned, the court should

interview the juror to determine whether it is satisfied with the juror’s

ability . . . to participate in reaching a verdict based on the evidence and the

law.” State v. Rollins, 2008 ME 189, ¶ 12, 961 A.2d 546 (quotation marks

omitted). A juror’s assurance to the court that he or she could be impartial is

significant in this determination. See State v. Dyer, 2007 ME 118, ¶ 15,

930 A.2d 1040; see also Rollins, 2008 ME 189, ¶ 12, 961 A.2d 546.

[¶21] Here, the court individually interviewed each potential juror who

had answered “Agree” to Question 14, and counsel for both Simons and the

State also had the opportunity to question each prospective juror about his or

her response. Of the four jurors who answered Question 14 affirmatively and
 15

were ultimately impaneled, when questioned, two said that they had misread

the question and intended to “Disagree” with the statement in Question 14, and

the other two expressed confusion about the question and expressly indicated

that they could follow the court’s instructions on the law.6 Therefore,

considering both the record evidence and our deference to the court’s

determination of juror impartiality, we conclude that there was neither an

abuse of discretion in the way the court conducted voir dire nor obvious error

in the court’s conclusion that the jurors were impartial.

[¶22] Nonetheless, we note with disapproval the use of a voir dire

question that presents an utterly incorrect statement of law and asks jurors to

agree or disagree with the policy pronouncement contained therein.

Regardless of whether an individual juror may disagree with an aspect of law,

the true objective of voir dire is to determine whether jurors are able to be

impartial and follow the court’s instructions on the law, even if the juror may

6 At trial, Simons was apparently persuaded that the impaneled jurors were impartial, as he stated

in his opening argument:

[O]ne of the reasons why we chose all thirteen of you is because you all universally
rejected two hypotheticals. The first one was: if someone is charged with a crime,
they’re probably guilty. You all universally said you disagreed with that. . . . And you
all universally rejected the notion that if someone is charged with a crime, they should
show some evidence of their innocence. You universally rejected that. That’s one of
the reasons why the thirteen of you are on this jury. And that’s important because,
without realizing it, you all actually embraced a foundational bedrock principle of our
legal system and that is a person charged with a crime is presumed to be innocent.
16

disagree with the particular law. See Alexander, Maine Jury Instruction Manual

§ 2-3 at 2-5 (2017 ed.) (“The predominant purpose of questions asked of jurors,

whether oral or written, must be development of information supporting the

objective of impaneling a qualified and impartial jury.”). “Questions that are

unrelated to a prospective juror’s knowledge, bias, or predisposition . . . are

improper.” Id. Specifically, questions that “cause[] the prospective jurors to

adopt a position on the law without the benefit of the court’s instructions, and

without reference to the jurors’ duty to apply the law as instructed and not as

each juror saw fit,” are not appropriate questions. Grover v. Boise Cascade Corp.,

2004 ME 119, ¶ 20, 860 A.2d 851. The introduction of an erroneous legal

concept presents the danger that jurors may continue to consider and

ultimately embrace the erroneous notion. We note finally that asking a juror to

agree or disagree with a legal tenet injects unnecessary confusion into an

already intrusive process.

The entry is:

Judgment affirmed.

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Tina Heather Nadeau, Esq., The Law Office of Tina Heather Nadeau, PLLC,
Portland, for appellant John T. Simons

Kathryn Loftus Slattery, District Attorney, and Nicholas Heimbach, Asst. Dist.
Atty., Prosecutorial District #1, Alfred, for appellee State of Maine

York County Unified Criminal Docket docket number CR-2015-544
FOR CLERK REFERENCE ONLY