State of Maine v. Hillary Hemminger

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2022 ME 32
Docket: And-21-288
Argued: May 10, 2022
Decided: June 14, 2022

Panel: MEAD, JABAR, HORTON, CONNORS, and LAWRENCE, JJ.*

STATE OF MAINE

v.

HILLARY HEMMINGER

HORTON, J.

[¶1] Hillary Hemminger appeals from a judgment of conviction for

operating under the influence (Class D), 29-A M.R.S. § 2411(1-A)(A) (2022),

entered in the trial court (Androscoggin County, Stewart, J.) after a jury trial.

Hemminger contends that (1) the court erred in denying her challenge for cause

to a prospective juror based on implied bias and (2) the court violated her

constitutional rights by taking into account in its sentence what the court

deemed her untruthful trial testimony without first making independent

perjury findings. We disagree with both arguments and affirm.

* Although Justice Humphrey participated in the appeal, he retired before this opinion was
certified.
2

I. BACKGROUND

[¶2] “Viewing the evidence in the light most favorable to the jury’s

verdict, the trial record supports the following facts.” State v. Murray, 2021 ME

47, ¶ 2, 259 A.3d 1276. Sometime in the early evening on April 7, 2020, the

vehicle that Hillary Hemminger was driving veered off the road and into a ditch

in Livermore Falls. An officer responded to a bystander’s call reporting the

accident at around 6:30 p.m. Video from the officer’s body camera showed

Hemminger to be visibly unsteady on her feet and slurring her speech. In

response to the officer’s questions, Hemminger said that she had consumed two

alcoholic beverages between 12:00 and 1:30 p.m. and did not mention any

subsequent consumption of alcohol. After administering a roadside test to

detect impairment, the officer concluded that Hemminger was impaired and

placed her under arrest. The officer brought Hemminger to the police station

to administer an Intoxilyzer test of her breath alcohol level, which yielded a

result of .21 grams of alcohol per 210 liters of breath. The State charged

Hemminger by complaint1 with operating under the influence (Class D),

29-A M.R.S. § 2411(1-A)(A).

1The docket record indicates that the complaint was filed on May 6, 2020, but the complaint itself
is dated June 30, 2020, and it is not date-stamped.
 3

[¶3] During jury selection on August 5, 2021, the court had the following

exchange with one of the randomly selected jurors:

THE COURT: One of the questions asked whether you or
anyone in your family has been a victim of an
accident involving a drunk driver. You said yes.

THE JUROR: Yes, my father.

THE COURT: He was a victim in that?

THE JUROR: He was.

THE COURT: How long ago?

THE JUROR: It’s going to be 15 years ago.

THE COURT: What happened to him?

THE JUROR: He was in [L]owell, Mass., and a young woman
[who] had her grandmother’s car hit him in the
back end[.]

THE COURT: Was he injured?

THE JUROR: He was. He went to the -- hit his head, hit the
glass.

THE COURT: Did he recover?

THE JUROR: He died of CTE complication[s]. I think he
recovered. It’s hard to know. I don’t mean to be
vague, it’s just --

THE COURT: Those experiences of you knowing what
happened to your father and the effect that
4

would have had on the entire family, would that
make it difficult for you to sit on an OUI case?

THE JUROR: It would not.

THE COURT: You think you’d be able to be fair and impartial
particularly --

THE JUROR: I do.

THE COURT: -- to the defendant in this case?

THE JUROR: Yes, sir.

THE COURT: And you don’t think that in that case with your
dad -- was the driver charged?

THE JUROR: Yes.

THE COURT: Convicted?

THE JUROR: I don’t know. I wasn’t aware.

THE COURT: Do you think ultimately you’d be able to base
your verdict if you were to sit on this case only
upon the evidence of this case and the
instructions given by the Court?

THE JUROR: I do.

THE COURT: Wouldn’t be influenced by those personal
experiences?

THE JUROR: No, sir.

Hemminger challenged the juror for cause, but the court denied the challenge,

stating that the “[o]nly parallel I see is [that the driver in the accident the juror
 5

described was] a woman.” Hemminger did not use a peremptory challenge to

exclude the juror, and the juror was empaneled.

[¶4] The court held a one-day jury trial on August 18, 2021. The State

presented testimony from multiple witnesses and entered in evidence the

responding officer’s body camera footage and the Intoxilyzer results.

Hemminger testified that on April 7, 2020, she had two alcoholic beverages at

a friend’s house at around 12:30 p.m. and that she left at around 3:00 p.m. to go

to the grocery store, where she purchased coffee brandy. She testified that she

left the grocery store at around 3:30 or 3:45 p.m. to drive home but that, during

the drive, the car slid on debris on the road and swerved into a ditch. She

testified that, from about 4:00 until 6:00 p.m., no cars drove by and that she

called fifteen or twenty people for help. Hemminger testified that the accident

caused severe pain in her back and that, during the time between the accident

and when the police arrived, she consumed approximately thirty-six ounces of

coffee brandy to ease the pain. She further testified that she hid the bottle

under the seat before the officer arrived because she did not think that he

would believe that she had been drinking after the accident.

[¶5] The jury found Hemminger guilty of operating under the influence

and of having a blood-alcohol level of .15 grams or more per 210 liters of breath
6

at the time of the offense. See 29-A M.R.S. § 2411(1-A)(A), (5)(A)(3)(a)(i). The

court sentenced Hemminger immediately after the trial and weighed the

mitigating and aggravating factors:

So if we were talking about . . . operating under the influence,
it was in the allegation of a high test, which this one is, we would be
talking about a case that would probably in the normal realm be a
48 hours, which is a mandatory minimum, up to seven days. That
would be the normal range for a case such as this . . . . Single-vehicle
accident with a[n] extremely high test of a .21. So I would say . . .
48 hours, could be as high as seven days . . . .

So if we were to put this in the range of two to seven days,
now we’re going to look at some things that are more particular to
you. . . . What I quickly identify as the mitigating factors are there’s
no criminal history and there’s no driving history. . . . And you are
a young mother with some responsibilities there. And you’re also
now . . . having some financial difficulties as well as physical
difficulties. So those would be mitigating factors. And also that you
previously were employed, et cetera.

....

Now, what there are for aggravating factors are not just -- not
taking responsibility, but not being truthful . . . in court. Everyone
has a right to trial. Everyone is presumed innocent. Everyone has
a right to come into court and make the State prove their case. . . .
[S]o it is not an aggravating factor to have a trial. . . .

But I heard the evidence, compared it against the balance, the
overwhelming evidence of . . . what otherwise the State put on. But
more importantly, the jury heard the evidence, also. And I don’t
have it down to the minute on how long they deliberated, but just
for whatever it’s worth. And they didn’t deliberate very long. So
they discredited that testimony quite quickly. And so . . . it is of
 7

concern that we have someone that came into court that testified
untruthfully.

After the court’s remarks, Hemminger challenged the court’s characterization

of her testimony, although she did not ask the court to make independent

perjury findings. The court sentenced Hemminger to a four-day period of

incarceration, imposed a $500 fine, and suspended her license for 150 days.

Hemminger timely appealed. See 15 M.R.S. § 2115 (2022); M.R.

App. P. 2B(b)(1).

II. DISCUSSION

A. Implied Juror Bias

[¶6] Hemminger argues2 that the court erred in denying her challenge to

strike for cause a juror whose father was injured by a drunk driver because the

juror was impliedly biased3 as a matter of law. “Whether a juror’s partiality

2Hemminger’s brief does not expressly rest her argument on any particular constitutional
provision. We presume, however, based on the invocation of the Sixth and Fourteenth Amendments
in her reply brief and our discussion in State v. Carey, 2019 ME 131, ¶ 13, 214 A.3d 488, that the
argument rests on the right to an impartial jury guaranteed by the Sixth and Fourteenth Amendments
to the United States Constitution.

Implied bias is distinct from implicit bias and actual bias, although jury selection can involve
3

identifying all three forms of bias.

“Implicit biases, [unlike explicit biases], are unstated and unrecognized and operate outside of
conscious awareness. Social scientists refer to them as hidden, cognitive, or automatic biases, but
they are nonetheless pervasive and powerful. Unfortunately, they are also much more difficult to
ascertain, measure, and study than explicit biases.” Mark W. Bennett, Unraveling the Gordian Knot of
Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson,
and Proposed Solutions, 4 Harv. L. & Pol’y Rev. 149, 152 (2010); see Ill. Pattern Jury Instr., No. 1.08,
cmt. (May 2018) (“The literature on implicit bias explains that everyone has implicit biases. This
8

may be presumed from the circumstances is a question of law,” State v. Carey,

2019 ME 131, ¶ 25, 214 A.3d 488 (quotation marks omitted), and we review

questions of law de novo, Medeika v. Watts, 2008 ME 163, ¶ 5, 957 A.2d 980.

[¶7] We discussed the doctrine of implied juror bias for the first time in

State v. Carey, 2019 ME 131, ¶¶ 25-26, 214 A.3d 488. There, we explained that,

in determining whether a juror’s bias may be implied, the inquiry is an objective

one focusing on whether an average person in the position of the challenged

juror “could remain impartial in deliberations under the circumstances.” Id.

¶ 25 (alterations and quotation marks omitted). “[B]ias can be implied . . . only

in extreme or extraordinary circumstances.” Id. ¶ 26. In Carey, when the

charges against the defendant were described during jury selection, one

prospective juror stated, clearly enough that other jurors could have heard,

means that judges and jurors are not immune. . . . It is particularly important for judges and jurors,
who strive to be impartial decision-makers, to be aware of this phenomenon and to try to guard
against it for purposes of the trial.”).

Implied bias, on the other hand, involves unusual or extreme situations in which the law presumes
that a juror should be disqualified from service because of the likelihood that the average person in
the juror’s position would be unable to serve impartially as a juror in the case: “Unlike the inquiry for
actual bias, in which we examine the juror’s answers on voir dire for evidence that she was in fact
partial, the issue for implied bias is whether an average person in the position of the juror in
controversy would be prejudiced.” United States v. Gonzalez, 214 F.3d 1109, 1112 (9th Cir. 2000)
(quotation marks omitted). Some state statutes define situations in which a juror is disqualified
based on implied bias, see, e.g., Wash. Rev. Code § 4.44.180 (2022) (implied bias defined in four
different forms), although Maine has no such statute.

Hemminger’s argument is limited to implied bias; she does not contend that the juror was actually
biased or implicitly biased. Because Hemminger does not argue actual or implicit bias on appeal, we
do not consider them further. See Moyant v. Petit, 2021 ME 13, ¶ 7 n.4, 247 A.3d 326.
 9

“No, I’m not staying for this” and “[t]his is ridiculous” and abruptly left the

room. Id. ¶ 5. We concluded that the remaining jurors were not impliedly

biased because we “[could] not 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 [outburst].” Id. ¶ 27.

[¶8] Because Carey is the only case in which we have addressed implied

juror bias and the circumstances were distinguishable from those here, federal

jurisprudence4 is instructive.5 Consistent with our precedent in Carey, federal

courts apply the doctrine only in extreme or extraordinary circumstances.

See, e.g., United States v. Kechedzian, 902 F.3d 1023, 1027-28 (9th Cir. 2018);

Hunley v. Godinez, 975 F.2d 316, 319 (7th Cir. 1992); Gonzales v. Thomas,

99 F.3d 978, 987 (10th Cir. 1996). Courts have sometimes concluded that a

juror is impliedly biased “where a juror or his close relatives have been

4Hemminger’s appeal regarding implied bias raises no independent argument specific to the
Maine Constitution. See State v. Chan, 2020 ME 91, ¶ 18 n.10, 236 A.3d 471.
5 Although the United States Supreme Court has never explicitly applied the implied bias doctrine,

it has been invoked in concurring and dissenting opinions. See Smith v. Phillips, 455 U.S. 209, 222-23
(1982) (O’Connor, J., concurring) (noting that “[n]one of [the Supreme Court’s] previous cases
preclude the use of the conclusive presumption of implied bias in appropriate circumstances” and
that some examples of implied bias “might include a revelation that the juror is an actual employee
of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the
criminal transaction, or that the juror was a witness or somehow involved in the criminal
transaction”); McDonough Power Equip. v. Greenwood, 464 U.S. 548, 558 (1984) (Brennan, J.,
dissenting) (“Because the bias of a juror will rarely be admitted by the juror himself, . . . it necessarily
must be inferred from surrounding facts and circumstances.”).
10

personally involved in a situation involving a similar fact pattern.” Tinsley v.

Borg, 895 F.2d 520, 528 (9th Cir. 1990); see United States v. Gonzalez, 214 F.3d

1109, 1112-13 (9th Cir. 2000); Jackson v. United States, 395 F.2d 615, 618

(D.C. Cir. 1968). Courts have also considered whether the juror disclosed the

information about the similar experience during jury selection. See, e.g., Dyer v.

Calderon, 151 F.3d 970, 983 (9th Cir. 1998) (“[W]e presume bias where a juror

lies in order to secure a seat on a jury.”); Kechedzian, 902 F.3d at 1027-28 (“This

Court has found implied bias in those extreme situations . . . where repeated lies

in voir dire imply that the juror concealed material facts in order to secure a

spot on the particular jury.” (citations and quotation marks omitted)); cf.

Gonzales v. Thomas, 99 F.3d at 989 (“Though a juror’s dishonesty in voir dire

may be considered in an implied bias inquiry, it is not necessary to an implied

bias finding.”).

[¶9] For example, in United States v. Eubanks, the Ninth Circuit concluded

that a juror was impliedly biased where the charges involved heroin because

his sons were currently incarcerated for crimes related to heroin use,

information that he did not disclose during jury selection. 591 F.2d 513, 516-17

(9th Cir. 1979). Likewise, in Jackson v. United States, the D.C. Circuit concluded

that a juror was impliedly biased where the juror was allegedly involved in a
 11

love triangle remarkably similar to the one at issue in the case. 395 F.2d at

616-18. The Seventh Circuit also applied the doctrine in Hunley v. Godinez,

concluding that jurors in a burglary case were impliedly biased because, during

sequestration, their hotel had been burglarized in a manner similar to that

alleged in the defendant’s case. 975 F.2d at 317-20.

[¶10] Conversely, the Ninth Circuit declined to apply the implied bias

doctrine in an identity-theft case where a juror had previously been a victim of

identity theft but had fully disclosed the experience during voir dire.

Kechedzian, 902 F.3d at 1025, 1028. The Tenth Circuit also held that a juror

who had been a victim of rape under circumstances similar to the facts of the

case was not impliedly biased because the experience did not have “a

detrimental life-changing impact on [the juror’s] life” and occurred twenty-five

years before the trial. Gonzales v. Thomas, 99 F.3d at 990-91.

[¶11] We conclude that the juror here was not impliedly biased because

the circumstances were not so “extreme or extraordinary” as to make it unlikely

that the average person in the position of the juror could serve impartially. See

Carey, 2019 ME 131, ¶ 26, 214 A.3d 488. The juror’s father was injured fifteen

years earlier in an accident involving a female drunk driver. Although a

particular person might remain so affected by such circumstances as to be
12

unable to serve impartially, others might not, so we cannot say that “it is highly

unlikely that the average person could remain impartial” under these

circumstances. Id. ¶ 25 (quotation marks omitted). As the trial court explained,

the only parallel between the juror’s experience and Hemminger’s case is that

the intoxicated driver was a woman in both instances.

[¶12] Hemminger does not point to any judicial determination of implied

bias where, as here, the victim of the prior criminal event was the juror’s family

member rather than the juror himself, the event occurred many years ago, the

juror forthrightly disclosed that information to the court, and the juror

repeatedly affirmed his ability to serve impartially. Further, Hemminger

ignores the cases in which courts have concluded that a juror was not impliedly

biased under circumstances that were seemingly more extreme than those

here. See Gonzales v. Thomas, 99 F.3d at 987-91; Kechedzian, 902 F.3d at 1028.

[¶13] For these reasons, we conclude that the court did not err in

denying Hemminger’s challenge to the juror for cause.

B. Constitutionality of the Sentence

[¶14] Although we generally do not review sentences on direct appeal,

such review is allowed “when a defendant asserts that his sentence is illegal

and the illegality is apparent on the record.” State v. Grindle, 2008 ME 38, ¶ 13,
 13

942 A.2d 673. “On direct appeal, we review only the legality, not the propriety,

of a sentence,” id. (quotation marks omitted), and our review is de novo, see

Portland Reg’l Chamber of Com. v. City of Portland, 2021 ME 34, ¶ 7,

253 A.3d 586.

[¶15] Hemminger contends that the court violated her rights under the

Sixth and Fourteenth Amendments6 by increasing her sentence based on its

belief that she testified untruthfully without first making perjury findings. She

argues that, under United States v. Dunnigan, 507 U.S. 87 (1993), a court is

constitutionally required to make independent perjury findings before

increasing a sentence based on a belief that a defendant testified untruthfully

at trial.7 Because we disagree with Hemminger’s interpretation of Dunnigan,

we affirm the sentence.

6 In her brief, Hemminger does not identify the precise constitutional protections on which she
rests her argument. Based on her reply brief and her statements at oral argument, however, we
presume that her invocation of the Fourteenth Amendment refers to the right to due process and the
right to testify on one’s own behalf. See United States v. Dunnigan, 507 U.S. 87, 96 (1993). We
presume that her invocation of the Sixth Amendment, as was the case in State v. Grindle, refers to the
right to trial by jury. 2008 ME 38, ¶ 1, 942 A.2d 673.

Our analysis of the constitutionality of the sentence rests on the United States Constitution,
instead of the Maine Constitution, because Hemminger’s argument does not rely on the Maine
Constitution. Although a footnote in her reply brief asserts that Maine’s constitutional right to testify
might be more expansive than the right to testify that is implicit in the United States Constitution, we
decline to address that argument because it is both undeveloped, see Mehlhorn v. Derby, 2006 ME 110,
¶ 11, 905 A.2d 290, and unpreserved because Hemminger mentions it for the first time in her reply
brief, see Lincoln v. Burbank, 2016 ME 138, ¶ 41, 147 A.3d 1165.
7 To the extent that Hemminger challenges the basis for the court’s view that she testified
untruthfully, rather than the absence of independent findings to justify that view, that claim is not
14

[¶16] The United States Supreme Court first addressed this question in

United States v. Grayson, 438 U.S. 41 (1978). There, the sentencing court

indicated that its view of the defendant’s trial testimony as a “complete

fabrication” would be a consideration in the sentence. Id. at 44. The defendant

argued that the trial court’s action violated his constitutional rights both to

testify and to due process, but the Court rejected both arguments and upheld

the sentence. Id. at 53-54. The Court noted that the right to testify does not

include the right to testify untruthfully and that it is necessary for a sentencing

court “to consider the defendant’s whole person and personality, as manifested

by his conduct at trial and his testimony under oath.” Id.

[¶17] In Dunnigan, decided fifteen years after Grayson, the Court

revisited the issue but under different circumstances. 507 U.S. at 88-89. Then,

the Court framed the question as whether “the Constitution permits a court to

enhance a defendant’s sentence [as required by the federal sentencing

guidelines], if the court finds the defendant committed perjury at trial” and

concluded that it did. Id. However, in clarifying the sentencing guideline at

issue, the Court explained that “if a defendant objects to a sentence

reviewable on direct appeal, where our review is limited to the legality of the sentence rather than
its propriety. Grindle, 2008 ME 38, ¶ 13, 942 A.2d 673.
 15

enhancement resulting from her trial testimony, a district court must review

the evidence and make independent findings necessary to establish” all of the

elements of perjury. Id. at 95. Further, it addressed the defendant’s concern

that the enhancement undermined her right to testify:

The concern that courts will enhance sentences as a matter of
course whenever the accused takes the stand and is found guilty is
dispelled by our . . . explanation that if an accused challenges the
sentence increase based on perjured testimony, the trial court must
make findings to support all the elements of a perjury violation in
the specific case. And as to the risk of incorrect findings of perjury
by district courts, that risk is inherent in a system which insists on
the value of testimony under oath. To uphold the integrity of our
trial system, we have said that the constitutionality of perjury
statutes is unquestioned.

Id. at 96-97.

[¶18] We first considered whether the trial court’s view that a defendant

gave false testimony may be a factor in sentencing in State v. Plante,

417 A.2d 991 (Me. 1980), a case decided after Grayson and before Dunnigan. In

that case, the sentencing court stated that it increased the defendant’s sentence

based on its belief that the defendant had testified untruthfully. Plante,

417 A.2d at 994-95. The defendant argued that the court deprived him of the

due process right to be tried and convicted before being sentenced for perjury.

Id. at 995. Relying on Grayson, we concluded that a sentencing court is
16

permitted to consider that the defendant has testified untruthfully in imposing

a sentence. Plante, 417 A.2d at 995-96.

[¶19] We addressed this issue again after the Supreme Court’s decision

in Dunnigan in State v. Grindle, 2008 ME 38, 942 A.2d 673, and we reaffirmed

our conclusion in Plante. During sentencing, the court considered the

defendant’s trial testimony as an aggravating factor, stating that “[the

defendant] chose to testify in an exculpatory way [but that] [t]he jury rejected

that testimony . . . .” Grindle, 2008 ME 38, ¶ 10, 942 A.2d 673. In rejecting the

defendant’s contention that the court violated his constitutional right to testify,

we emphasized that, “[w]hile a criminal defendant has a right to trial, and a

right to testify at that trial, a defendant does not have a right to testify falsely

without risk of sanction.” Id. ¶ 17. We explained,

Courts have broad discretion in determining what information to
consider in sentencing; they are limited only by the due process
requirement that such information must be factually reliable and
relevant.

There is a difference between increasing a defendant’s
sentence because the defendant chooses to exercise the right to
trial and to testify, and considering a defendant's conduct at trial
and information learned at trial, along with other factors, in
determining the genuineness of a defendant’s claim of personal
reform and contrition. . . .

....
 17

Here, the sentencing court did state, explicitly, that it
considered Grindle’s “exculpatory testimony,” which the court
suggested was untruthful, to be an aggravating factor, because it
demonstrated his unwillingness to accept responsibility for his
actions and his lack of remorse. Such a consideration is permissible
to support our goal that the court properly individualize the
sentence, considering all aggravating and mitigating factors
regarding the offender and the offense.

Id. ¶¶ 18-19, 26 (citations and quotation marks omitted). We did not impose a

requirement that courts make independent perjury findings before increasing

a sentence based on untruthful testimony.8

[¶20] However, the defendant in Grindle did not make the argument that

Hemminger makes here—that Dunnigan allows a trial court’s view that the

defendant has given false trial testimony to be a factor in sentencing only if the

trial court has first made findings on the record that the defendant’s testimony

constituted perjury. See Grindle, 2008 ME 38, 942 A.2d 673. Hemminger

contends that Grindle was incorrectly decided because Dunnigan articulates a

constitutional requirement that a court must make independent perjury

findings when it increases a sentence based on its belief that a defendant has

testified untruthfully. We conclude, however, that Dunnigan’s requirement for

8 In fact, we mentioned Dunnigan only to support the proposition that “a criminal defendant’s
sentence may be enhanced when the trial court finds that the defendant perjured himself at trial.”
Grindle, 2008 ME 38, ¶ 17, 942 A.2d 673.
18

perjury findings is based on the federal sentencing guidelines rather than on

the United States Constitution, and it is thus not binding upon state courts,

where the federal sentencing guidelines do not apply. See Cobb v. State, 843

S.E.2d 912, 916 (Ga. Ct. App. 2020) (concluding that “Dunnigan is inapposite

because the federal court there was required, under federal sentencing

guidelines, to make specific findings of fact before it could enhance a

defendant’s sentence based on his untruthful testimony at trial”).

[¶21] Hemminger cites several decisions that she says support her

interpretation of Dunnigan, but we are unpersuaded. Some are distinguishable

on their facts. See, e.g., People v. Wechsler, 854 P.2d 217, 218, 222 n.3

(Colo. 1993) (bar disciplinary matter); State v. Smart, 995 P.2d 407, 412

(Kan. Ct. App. 1999) (enhancement of sentence governed by state statutory

guidelines comparable to the federal guidelines); People v. Armstrong,

743 N.E.2d 215, 224-25 (Ill. App. Ct. 2000) (sentence enhancement based on

“wanton cruelty” rather than untruthful trial testimony); People v. Baiz, 2007

Mich. App. LEXIS 34, at *2-7 (Mich. Ct. App Jan. 9, 2007) (sentence enhancement

governed by state statutory sentencing guidelines); State v. Westlund, 2012

Minn. App. Unpub. LEXIS 786, at *13-14 (Minn. Ct. App. Aug. 20, 2012)

(sentence not increased); Fuller v. State, 860 A.2d 324, 333 (Del. 2004)
 19

(sentence enhanced based on false testimony of a witness other than the

defendant). And contrary to Hemminger’s contention, many of the cases she

cites do not indicate whether the conclusion that findings are required rests on

the Constitution or on applicable state sentencing guidelines or standards.

See Armstrong, 743 N.E.2d at 225; Westlund, 2012 Minn. App. Unpub. LEXIS

786, at *13; Wechsler, 854 P.2d at 222 n.3; Baiz, 2007 Mich. App. LEXIS, at *6-7.

[¶22] We read Dunnigan to indicate that the requirement for

independent perjury findings is based on the rights conferred by the federal

sentencing guidelines. Dunnigan, 507 U.S. at 95-97. In articulating the

requirement that a sentencing court make perjury findings before enhancing a

sentence based on a defendant’s false trial testimony, the Court refers only to

federal trial courts and cites only the federal sentencing guidelines, a federal

rule of criminal procedure, and a United States Supreme Court case addressing

those rules and guidelines.9 Id. at 95. Although the Court acknowledged that

the guidelines’ requirement for findings protects against the risk that a trial

court will “enhance sentences as a matter of course whenever the accused takes

9 The Court’s exact phrasing of its conclusion, with all citations, reads: “For these reasons, if a
defendant objects to a sentence enhancement resulting from her trial testimony, a district court must
review the evidence and make independent findings necessary to establish a willful impediment to,
or obstruction of, justice, or an attempt to do the same, under the perjury definition we have set out.
See USSG § 6A1.3 (Nov. 1989); Fed. Rule Crim. Proc. 32(c)(3)(D). See also Burns v. United States,
501 U.S. 129, 134 (1991).” Dunnigan, 507 U.S. at 95.
20

the stand and is found guilty,” it did not state that such findings were required

by the Constitution independent of the guidelines. Id. at 96.

[¶23] Moreover, there is no mention of any requirement for perjury

findings in Grayson, which was decided before the implementation of the

federal sentencing guidelines.10 See Grayson, 438 U.S. at 44; U.S. Sent’g

Guidelines Manual ch. 1, pt. A, introductory cmt. (U.S. Sent’g Comm’n 1987). If

the requirement that a trial court make perjury findings before considering a

defendant’s untruthful testimony in sentencing had a constitutional basis, the

Court would have said so in Grayson.

[¶24] Based on that interpretation of Grayson and Dunnigan, we

conclude that the court committed no error in failing to make independent

perjury findings because such findings are not required, constitutionally or

otherwise.11

In imposing the sentence upheld in Grayson, the trial court made no perjury findings and stated
10

only that “it is my view that your defense was a complete fabrication without the slightest merit
whatsoever. I feel it is proper for me to consider that fact in the sentencing, and I will do so.” United
States v. Grayson, 438 U.S. 41, 44 (1978) (emphasis omitted).

A court’s view that a defendant has testified untruthfully should rest on the court’s own
11

assessment of the testimony rather than on the length of the jury’s deliberations because the latter
may be open to multiple interpretations. Here, although the court did refer to the length of the jury’s
deliberations in explaining its reasoning, it was plainly guided by its own impression: “I heard the
evidence, compared it against the balance, the overwhelming evidence of . . . what otherwise the State
put on.”
 21

C. Conclusion

[¶25] Because we reject Hemminger’s contentions that the court erred

in denying her challenge to a juror for cause based on implied bias and that the

court violated her constitutional rights by factoring into the sentence its view

that her testimony was untruthful without making perjury findings, we affirm

the judgment.

The entry is:

Judgment affirmed.

Rory A. McNamara, Esq. (orally), Drake Law LLC, York, for appellant Hillary
Hemminger

Andrew S. Robinson, District Attorney, and Patricia A. Mador, Asst. Dist. Atty.
(orally), Office of the District Attorney, Lewiston, for appellee State of Maine

Androscoggin County Unified Criminal Docket docket number CR-2020-906
FOR CLERK REFERENCE ONLY