State of Maine v. Jonathan M. Carey, 2013 ME 83

Background

In summer 2008 Jonathan M. Carey (then his girlfriend’s boyfriend) allegedly entered a bedroom during a girls’ sleepover and touched a 12–13-year-old victim sexually; the victim later reported the incident a year after it occurred.
Carey was indicted on counts for unlawful sexual contact and unlawful sexual touching relating to the victim and two counts relating to the daughter who lived in the home; Carey pleaded not guilty.
First trial ended in mistrial when a State witness invoked the Fifth Amendment during testimony, preventing cross-examination; court declared mistrial for manifest necessity.
At the second trial the daughter testified incompletely, became emotionally unavailable, and refused further testimony; the State sought to admit her first-trial testimony under M.R. Evid. 804 as an unavailable witness; defense objected on Confrontation Clause grounds.
The court (Murphy, J.) declared a mistrial in the second trial after concluding the confrontation problem could not be remedied and noting the defense declined to have the witness return; Carey did not object to that mistrial at the time.
Third trial proceeded on the counts related to the victim only; Carey was convicted. He moved for a new trial alleging prosecutorial misconduct (prosecutor’s head/hand gestures during cross-examination) and also raised other alleged misstatements on appeal; the trial court denied the new-trial motion and Carey appealed. Judgment affirmed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Carey)	Held
Whether mistrial in second trial was erroneous and barred retrial by double jeopardy	Implied consent and no double jeopardy bar because defendant did not timely object; alternatives were not feasible	Mistrial improper because Carey did not move for it, was deprived of control over course of case, and alternatives existed; retrial violates double jeopardy	Affirmed: No obvious error — Carey impliedly consented to mistrial by conduct and silence; retrial not barred (no intentional prosecutorial misconduct)
Whether prosecutorial nonverbal gestures during third trial require new trial for misconduct	Gestures were inadvertent, intended for counsel preparation, and did not influence witness; trial court reasonably found no improper communication	Gestures constituted vouching/coaching of witness, could have been seen by jury and prejudiced outcome; new trial required	Affirmed: Trial court did not abuse discretion; record does not show prosecutor coached witness or that gestures prejudiced trial; no obvious error on appeal
Whether court should have sua sponte limited alleged misstatements by prosecutor in closing and rebuttal	Statements were not so plainly erroneous to trigger reversal; no timely objection made	Prosecutor misstated law and facts in closing/rebuttal and court should have intervened to prevent prejudice	No obvious error; appellate review finds insufficient merit and Carey failed to preserve the issue
Standard of appellate review for unpreserved errors	Unobjected issues reviewed for obvious error; new-trial denial reviewed for abuse of discretion/clear error	Same	Applied: obvious-error standard for unpreserved claims; denial of new trial reviewed for abuse of discretion/clear error

Key Cases Cited

State v. Woodard, 68 A.3d 1250 (Me. 2013) (standard for obvious error review in criminal appeals)
State v. Beaudoin, 600 A.2d 1097 (Me. 1991) (failure to object can constitute implied consent to mistrial, permitting retrial)
United States v. DiPietro, 936 F.2d 6 (1st Cir. 1991) (defendant’s conduct may constitute effectual consent to mistrial)
State v. Lewis, 816 A.2d 823 (Me. 2003) (abuse-of-discretion review for mistrial declared for manifest necessity)
United States v. Chambers, 944 F.2d 1253 (6th Cir. 1991) (isolated prosecutorial nonverbal reactions do not necessarily render trial fundamentally unfair)
State v. Carr, 58 A.3d 1102 (Me. 2012) (standard for reviewing denial of motion for new trial)