State of Maine v. Carey

• Court: Superior Court of Maine
• Decided: August 20, 2012
• Docket: KENcr-09-752
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT KENNEBEC, ss CRIMINAL ACTION Docket No. CR-P9-7p2 ;VN\- ~tv'- ~/2o/J(i::_

STATE OF MAINE ORDER ON DEFENDANT'S v. MOTION FOR NEW TRIAL

JONATHAN M. CAREY,

Defendant

The defendant seeks a new trial. He argues that the prosecutor impermissibly

asked leading questions to the State's witnesses, Aundria St. Amand (born 7/11/95),

who was the victim of the charges of unlawful sexual contact, class B, and unlawful

sexual touching, class D, and Morgan Leadbetter (born 11/9/96), who was with the

victim when the events occurred. The defendant argues further that the prosecutor

communicated with the victim during cross-examination through head shaking and

hand signals.

The defendant was convicted of both charges at the third jury trial on March 15-

16, 2012. Two previous jury trials resulted in mistrials. As a result of the second

mistrial, the original counts I and II were dismissed.

Leading Questions

"As a general rule, leading questions are inadmissible on direct examination.

However, children may be asked leading questions on direct examination in the trial

court's sound discretion. In embarrassing sex crimes, where a child would be hesitant

to testify, leading questions may be particularly appropriate." State v. Moore, 377 A.2d

1365, 1366 (Me. 1977) (prosecutor "reframed and rephrased" his questions to a ten-year-

old victim because of objections by the defendant); see also State v. Roman, 622 A.2d 96,

101 (Me. 1993) ("State is accorded much latitude in attempting to elicit relevant testimony from a child witness."); State v. Rouselle, 559 A.2d 779, 780 (Me. 1989) (court

allowed leading questions on direct examination to victims who were ten and fourteen

years old at the time of trial).

The court has reviewed the portions of the trial transcript identified by the

defendant. 1 Many of the prosecutor's leading questions were a repetition of the

witness's testimony. (March 2012 Tr. Transcript 47, 48, 76, 77, 81, 83, 86, 87, 89.) There

is no suggestion that the witness's testimony would have been different in response to

other leading questions. (Id. 46, 71, 73, 74, 75, 78, 79, 80, 85, 88, 91 (see September 2011

Tr. Trans. 89-90), 92, 94.); State v. Dube, 522 A.2d 904, 910 (Me. 1987). The victim,

although crying, testified about the defendant's acts that constituted sexual contact and

sexual touching in response to essentially nonleading questions. (Id. 87-89.); United

States v. Rossbach, 701 F.2d 713, 718 (8th Cir. 1983) (prosecution's use of leading

questions was necessary and not excessive when both witnesses were hesitant to

answer questions regarding the sexual assault). The court is satisfied that the

prosecutor's use of leading questions did not deprive the defendant of a fair trial.

Dube, 522 A.2d at 910.

Communication with Witness

In the motion/ the defendant alleges during the cross-examination of Aundria St.

Amand regarding the positions of the three people on the mattress, the prosecutor

communicated with the witness by nodding or shaking his head or by using hand

signals. (Mot. 3.) The prosecutor responded in writing and at oral argument that he

1 Defense counsel objected four times to the prosecutor's leading questions. (March 2012 Tr. Trans. 46, 83, 87, 92.) 2 Hearsay statements included in a motion provide an insufficient basis for a finding of prosecutorial misconduct.

2 did not improperly communicate with the witness during her testimony. (State's Resp.

Mot.)

The witness corrected defense counsel during the questioning regarding the

positions on the mattress. (March 2012 Tr. Trans. 100-101.) It would have been difficult

for the prosecutor to communicate that correction to the witness. (Id. 101, line 16.)

Further, the witness's testimony on cross-examination on this issue was not different

from her testimony on direct examination. (Id. 82-84.)

The entry is

The Defendant's Motion for New Trial is DENIED.

Date: August 20, 2012 ancy Mills Justice, Superior Court