State of Maine v. Jameson

STATE OF MAINE UNIFIED CRIMINAL COURT
AROOSTOOK, ss DOCKET NO. AROCD-CR-20-30424

STATE OF MAINE )
)
v. ) ORDER ON MOTION FOR NEW TRIAL
)
DANA JAMESON )

The Defendant was charged by the State in a single count complaint with the

offense of Domestic Violence Assault, Class D. Defendant was represented at trial by

Adam Swanson, Esq. and Benjamin Everett, Esq. The State was represented at trial by

Assistant District Attorney Matthew Hunter. For this matter, jury selection was

conducted on December 13, 2021, with a single day jury trial conducted on December 14,

2021. After trial, the jury returned a verdict of guilty. After excusing the jury, the court

conducted a sentencing hearing and the court sentenced the Defendant to 90 days in jail,

all suspended with probation for a period of 2 years.

On December 21, 2021, the Defendant filed a motion for new trial. The Defendant

contends that he was unable to clearly hear any words spoken by any participant who

wore a mask. The court conducted a hearing on the motion on April 4, 2022. The

Defendant was represented by Dan Umphrey, Esq. The State was represented by

Assistant District Attorney Christiana Rein. The court received testimony from Adam

Swanson, Esq., Benjamin Everett, Esq., and the Defendant. The court received

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Defendant's Exhibit 1 into evidence, without objection. After consideration of the

testimony and evidence presented on the motion, the court finds and orders as follows:

The jury trial and jury selection in this matter was conducted while the world was

still in the midst of the Covid-19 pandemic. However, as of the time of the trial the

restrictions put in place by the judicial branch were relaxed somewhat from the height of

the pandemic. For the Defendant's all trial witnesses while testifying, counsel while

addressing the jury or conducting any examination of a witness, and the court during

jury instructions, all were permitted to and did remove their masks. The sole contention

in the Defendant's motion is that he could not adequately hearing the proceedings and

that impacted his ability to adequately defend the charge.

Maine Rule of Unified Criminal Procedure 33 states in pertinent part "[t]he court

on motion of the defendant may grant a new trial to the defendant if required in the

interest of justice." "Problems discovered or reasonably discoverable before verdict, but

not called to the court's attention until after verdict, are usually viewed as waived, subject

only to obvious error review, for not being raised when the court might have resolved or

limited the problem before the verdict. .. A party complaining of a problem after verdict

has the burden to show that neither the party nor counsel knew of or could with due

diligence have discovered the problem in time to advise the court of the problem and

give the court the opportunity to correct the problem before verdict." M.R.Crim.P. 33,

Comment (Citing, State v. Daluz, 2016 ME 102, ifif47-52, 143 A.3d 800; State v. Kelly, 606

A.2d 786, 788 (Me. 1992); and State v. Chattley, 390 A.2d 472,477 (Me. 1978).

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The record in this matter makes clear that the Defendant had a full opportunity to

coordinate with his attorneys and prepare his defense for trial. He did not at any time

prior to trial bring up hearing issues, except for one occasion during a meeting in a

conference room with his attorneys when one or both of them were masked.

The Defendant was late for jury selection day but was present during the selection

process for his case. He also participated in the sidebar individual voir dire inquiry

conducted outside the presence of the others in the jury pool. The Defendant has

presented no credible evidence that his alleged hearing deficits were an issue that in any

way impacted his participation in the jury selection process.

During the hearing on the motion for new trial, the Defendant was asked whether

he had an adequate opportunity to participate in the trial, the Defendant stated that he

did "for the most part" and he was able to recall "maybe once" when he had a hard time

hearing but he knows what was said at the time. The Defendant also testified that he was

able to follow the testimony by all of the witnesses by hearing their words, reading their

lips, or some combination of the two.

The Defendant did not raise to his attorneys or to the court any issues related to

his hearing ability. It was not until after the State had rested and the court was addressing

his right to testify that the court stumbled on to this issue and was informed by the

Defendant that there was an issue with masked speakers. See, Tll0:21-23; Tll0-24-25;

Tlll:2-31. The court promptly referenced the ability to have a listing device provided to

the Defendant, as was the normal procedure for the court at any time a participant brings

1 All references to the transcript of the trial will be stated as T(trial transcript) 110(page):17­
20(lines).

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the issue up. Tll0:4-6 ("So, Mr. Jameson should have [a] listening [device] - - have you

been able to hear the trial as it's been playing out?"). The court notes that the

undersigned was masked at that moment. Upon removing the mask, the court inquired

again to the Defendant: "and so have you been able to hear the trial - - that's been going

on?" T111-8-9. The Defendant indicated that he had. T111-10("Yeah"); Tlll-12 ("Yeah").

The Defendant declined a listening device. Tlll-19 ("No, I'm all set"). The court then

instructed the marshal to close the door to the back of the courtroom, from where the

devices are stored. T111-20-21("THE COURT: We'll need to shut that door. MARSHAL

TAGGART: Yeah.").

After the noon recess, the court addressed the Defendant's motion for acquittal

and again addressed the ability of the Defendant to hear. The following exchange took

place:

"THE COURT: All right. We are back on the record in State vs. Jameson.

The Defendant has made a Motion for Acquittal at the close of the State's evidence.

So, the test - - and, Mr. Jameson, are you able to hear me okay? Okay. And so, Mr.

Jameson, have been able to hear this trial?

THE DEFENDANT: Yes.

THE COURT: Okay.

THE DEFENDANT: With them with the masks off, I can hear it fine.

THE COURT: Okay, But - ­

THE DEFENDANT: With the mask, it's - - it sounds muffled.

THE COURT: You can hear something. You just can't hear it clearly.

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THE DEFENDANT: Well, I can hear it if they got the masks off, okay."

T115:8-24. The court wrapped up that area of inquiry by stating "I wanted to make sure

you're able to hear what's going on" to which the Defendant responded "yeah." T116:7­

9. The Defendant made no further note of any issue regarding his ability to hear the

proceedings prior to the verdict being announced. The Defendant made no request of

any kind of the court related to his ability to hear the proceedings.

The limitations on his ability to hear is couched by the Defendant in terms of his

ability to participate in the trial. He equates portions that he now claims he could not

hear clearly to being absent from the trial. "So far as the Fourteenth Amendment is

concerned, the presence of a defendant is a condition of due process to the extent that a

fair and just hearing would be thwarted by his absence, and to that extent only." State v.

Fernald, 248 A.2d 754, 759 (Me. 1968)(Quoting, Snyder v. Massachusetts, 291 U.S. 97 (1934)).

An inability to clearly hear something is immediately apparent and therefore not

only discoverable before the verdict, but known. The Defendant affirmatively assured

the court during the trial when the issue was addressed that he could adequately hear,

understand, and follow the proceedings. The Defendant, individual or through counsel,

did not request any further accommodation (i.e. read-back, recess, opportunity to again

question any of the State's witnesses). There was no credible evidence presented that his

ability to communicate with and assist his counsel was in any way hindered.

The court finds that the Defendant has failed to put forth sufficient credible

evidence that any difficulty in hearing that the Defendant might have experienced during

the trial in any way denied him the substance of a fair trial.

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Due to the foregoing, the Defendant's motion for new trial is DENIED.

The entry shall be:

For the foregoing reasons, the Defendant's motion for new trial is denied.

Dated:April -2__, 2022
Justice, Maine Superior Court

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