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 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