State v. Lambert

528 A.2d 890, 1987 Me. LEXIS 778
Supreme Judicial Court of Maine·Decided July 30, 1987·Published·Cited by 14 cases

Opinions

GLASSMAN, Justice.

The defendant, Arthur Lambert, Jr., appeals from a judgment of the Superior Court, Somerset County, entered on a jury verdict finding him guilty of gross sexual misconduct in violation of 17-A M.R.S.A. § 253(2)(B) (Supp.1986) (Class C). The defendant contends that (1) the trial court abused its discretion in the voir dire of prospective jurors, and (2) it was obvious error to admit evidence of the victim’s heterosexuality. We disagree and affirm the judgment.

I

The crucial evidence at trial consisted of the conflicting testimony of the victim (hereinafter referred to as John Doe) and the defendant. Sixteen-year-old John Doe testified that while in the defendant s car the defendant compelled him to allow the defendant to place his mouth on the penis of John Doe. The 33-year-old defendant testified that after John Doe had pulled his own pants down and told the defendant he could do what he wanted, the defendant briefly touched John Doe’s penis, then reconsidered and drove him home.

Jury selection began with each prospective juror responding in writing to a confidential written questionnaire consisting of the following:

Have you or a friend or a close relative had any involvement in a sexual abuse matter as a victim, witness, accused or in any other way? Would you for any reason find it difficult to be fair and impartial in a case involving evidence of sexual abuse?

The court excluded from the pool of prospective jurors anyone that answered either question in the affirmative. After a hearing on the defendant’s request for an opportunity to ask specific questions as to possible bias against homosexuals by individual voir dire of the remaining prospective jurors, the court denied the request. As a part of its general voir dire of the remaining prospective jurors, the court posed the following question:

It’s been brought to my attention that the evidence might disclose or suggest that the defendant in this case is a homosexual or has been involved in homosexual behavior. In the event that the evidence should show or suggest that, is there anybody on the panel who because of personal, moral or religious beliefs or for any other reason would find it difficult to be fair — to be completely fair and impartial and to decide this case based solely upon the evidence produced in the courtroom and the Court’s instructions to you? If it should be disclosed that this defendant has been involved in homosexual behavior or is a homosexual or suggested that he may have homosexual tendency or has been so involved, would [892] that — either because of any experience that anyone of you had or any moral or religious belief or attitude that you have — make it difficult for you to be completely fair and impartial and to decide this case based entirely on the evidence and the Court’s instruction to you?

Receiving no response, the court then asked:

[I]s there anybody on this panel who knows of any reason whatsoever why you could not be fair and impartial and decide this case solely on the evidence produced in the courtroom and the Court’s instructions to you? Do you know of any reason why you could not be fair and impartial?

Again, no one responded.

On appeal the defendant asserts that the trial court abused its discretion by refusing to allow the defendant to individually voir dire the prospective jurors concerning possible bias against homosexuals and in admitting evidence of the heterosexuality of John Doe.

II

The defendant first asserts that he was entitled to have the potential jurors interrogated individually because they would hesitate to admit to bias in open court. The presiding justice has discretion to determine the need for individual voir dire. See State v. Durost, 497 A.2d 134, 136 (Me.1985). Individual voir dire may be appropriate for questions relating to a potential juror’s direct or indirect involvement in any matter similar to that to be heard by the selected jurors. See, e.g., State v. Moody, 486 A.2d 122 (Me.1984) (whether juror victim of child sexual abuse). But individual voir dire is not required in every case. See, e.g., State v. Weymouth, 496 A.2d 1053, 1055 (Me.1985), and State v. Durost, 497 A.2d at 136-37 (exposure to child sexual abuse); State v. Waterhouse, 513 A.2d 862, 863-64 (Me.1986) (opinions on satanism). In this case, the potentially embarassing questions concerning a personal involvement with sexual abuse, presumably including sexual abuse by a homosexual, were asked of the potential jurors in the confidential questionnaire. The additional questions asked by the court did not contain a potential for such undue embarrassment to a potential juror as to require individual voir dire. The trial court did not abuse its discretion by questioning the array en masse.

The defendant also argues that the initial voir dire by the court did not adequately cover the subject of possible anti-homosexual bias. The trial court has considerable discretion over the scope of voir dire. See State v. Durost, 497 A.2d at 136; State v. Turner, 495 A.2d 1211, 1212 (Me.1985). We have recognized that the existence of anti-homosexual bias in our society requires voir dire directed at such prejudice if the evidence might suggest that the defendant is homosexual. State v. Lovely, 451 A.2d 900 (Me.1982).

In this case there was evidence of the defendant’s homosexuality. Moreover, the issue of homosexuality was “inextricably bound up” with the crime alleged. See State v. Turner, 495 A.2d at 1213. The presiding justice squarely addressed the potential for anti-homosexual bias by asking the array whether evidence of the defendant’s homosexuality would affect any potential juror’s ability to decide the case fairly and impartially based solely on the evidence provided in the courtroom and the court’s instruction as to the applicable law. This was followed by a general question to elicit from the prospective jurors if there was “any reason” any one of them felt unable to act fairly and impartially. No one of the prospective jurors responded affirmatively to either question. “The determination whether a subject germane to a juror’s qualifications has been adequately covered during the initial voir dire is appropriately left to the court’s discretion.” State v. Weymouth, 496 A.2d 1053, 1055. The questions suggested by the defendant were simply variations of the court’s questions. The court did not abuse its discretion in not allowing continued questioning concerning any anti-homosexual bias of the potential jurors.

[893] III

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State v. Lambert, 528 A.2d 890, 1987 Me. LEXIS 778 (Me. 1987).

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