State v. Tarbox

158 A.3d 957

STATE of Maine

v.Nathan P. TARBOX

Docket: Yor–16–125

Supreme Judicial Court of Maine.

Argued: February 8, 2017

Decided: April 18, 2017

Corrected: April 20, 2017

Jack Hunt, Esq. (orally), Kennebunk, for appellant Nathan P. Tarbox

Kathryn Loftus Slattery, District Attorney, Anne Marie Pazar, Asst. Dist. Atty., and Thomas R. Miscio, Asst. Dist. Atty. (orally), Prosecutorial District 1, Alfred, for appellee State of Maine

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

ALEXANDER, J.

[¶ 1] Nathan P. Tarbox appeals from a judgment of conviction entered by the trial court (York County, Douglas , J. ) after a jury found him guilty of domestic violence assault (Class C), 17–A M.R.S. §§ 207–A(1)(A), 1252(4–A) (2016), and obstructing the report of a crime or injury (Class D), 17–A M.R.S. § 758(1)(A) (2016). Tarbox contends that the trial court erred by not sua sponte declaring a mistrial when the prosecutor commented on Tarbox's right not to testify during the State's rebuttal closing argument. In addition, Tarbox argues that the court erred by denying his motions for a mistrial after the jury heard prejudicial statements during the victim's testimony. We affirm the judgment.

I. CASE HISTORY

[¶ 2] On June 2, 2014, Nathan P. Tarbox was indicted for crimes he allegedly committed against the mother of his child. The indictment charged Tarbox with domestic violence assault (Class C), 17–A M.R.S. §§ 207–A(1)(A), 1252(4–A), domestic violence assault (Class D), 17–A M.R.S. § 207–A(1)(A), and obstructing the report of a crime or injury (Class D), 17–A M.R.S. § 758(1)(A). Prior to trial, the State dismissed the Class D charge of domestic violence assault.

[¶ 3] The court held a jury trial on November 23, 2015. Evidence presented at trial showed that only Tarbox and the victim were in the room where the incident occurred. Tarbox did not testify. The State's evidence consisted of photographs of the victim's injuries and testimony of the victim and Tarbox's roommate, who testified that he heard Tarbox and the victim argue but did not witness the assault. During the State's direct examination of the victim, when asked why she did not immediately go home or call the police after the assault, she testified: "Because he runs from the police." Tarbox objected and moved for a mistrial, arguing that the victim's response was highly prejudicial because it indicated that Tarbox is a "known character" and a "criminal." The court denied the motion for a mistrial but sustained the objection and instructed the jury to disregard the statement.

[¶ 4] Tarbox began his cross-examination of the victim by questioning her about her child custody arrangement with Tarbox and whether there was a parental rights order in place on the date the crimes were alleged to have been committed. Tarbox further asked whether she filed a parental rights and responsibilities action in the District Court after she filed the police report. The victim testified that there was no court order defining the parties' parental rights on the date of the incident or when she filed the police report.

[¶ 5] During the State's redirect examination, the prosecutor asked the victim when she subsequently filed the parental rights action. In a lengthy and nonresponsive answer, the victim indicated that she filed the parental rights action after speaking with an advocate at a domestic violence program and obtaining a protection from abuse order. Tarbox objected on the basis that the testimony was unfairly prejudicial and renewed his motion for a mistrial. The court took the motion for a mistrial under advisement, and, at Tarbox's request, delayed giving the jury a curative instruction. After the close of evidence, the court denied the motion and reviewed a proposed curative instruction with Tarbox, which Tarbox approved. The curative instruction was later given during the charge to the jury.

[¶ 6] Although Tarbox did not testify, he presented testimony from his grandmother about her interactions with the victim around the time of the alleged crimes.

[¶ 7] After the close of evidence, the prosecution and defense presented brief closing arguments to the jury, neither of which drew any objections. We discuss the parties' closing arguments in more detail below. The jury convicted Tarbox of both counts, and the court sentenced him to three years' incarceration with all but nine months suspended and three years' probation, plus fees required by statute. Tarbox timely appealed.

II. LEGAL ANALYSIS

A. Prosecutorial Misconduct

[¶ 8] Tarbox contends that the court erred by not sua sponte declaring a mistrial when the prosecutor improperly drew the jury's attention to Tarbox's decision not to testify.

[¶ 9] In the State's rebuttal to Tarbox's closing argument, the prosecutor stated:

[Y]ou heard [the victim] testify. That's the evidence that you heard. [Tarbox's roommate] didn't see anything. [A defense witness who testified] wasn't there. [The victim] testified. She has, based on the evidence, no reason to make this up. That's not before you. You heard her testify about exactly what happened. She testified [credibly]. Not only did she testify credibly and it is sufficient, her testimony is sufficient beyond a reasonable doubt that these events took place. You have got photographs to corroborate exactly what she said. And you have got photographs and credible testimony upon which to base your decision and nothing, nothing to contest that information .

The burden is always on the State and I'm definitely not making the argument that the defendant had to present any evidence because he does not ever. But you're supposed to make your decision based on the evidence that was presented to you, not wild speculation about some motive to make something up, because you don't have it.

(Emphasis added.) Tarbox—who did not testify at trial—did not object to these statements made by the prosecutor.

[¶ 10] The Fifth Amendment to the U.S. Constitution and article I, section 6 of the Maine Constitution provide a criminal defendant with an absolute right not to testify in his own defense at trial. State v. Roberts , 2008 ME 112, ¶ 45, 951 A.2d 803. To protect this right, a prosecutor is prohibited from commenting on the defendant's silence. Id.

[¶ 11] Here, in the State's rebuttal, the prosecutor highlighted evidence that Tarbox and the victim were the only persons present when the crimes were alleged to have occurred. The prosecutor went on to assert that the victim's testimony was "credible." With this combination of assertions, the prosecutor's argument to the jury portrayed Tarbox as the only witness who could have refuted the victim's testimony. Thus, the prosecutor's statement to the jurors that they had heard "nothing to contest" the State's case was, at the very least, an ambiguous, indirect reference to Tarbox's election not to testify, and, therefore, was improper.¹

[¶ 12] We have explained that when a defendant preserves a challenge to a prosecutorial comment about his or her choice not to testify, we will analyze the content of the offending statement to determine the standard of review on appeal. See State v. Tibbetts , 299 A.2d 883, 889 (Me. 1973) ; see also State v. Turner , 433 A.2d 397, 400–01 (Me. 1981). Such a statement is prejudicial as a matter of law if it unambiguously and unequivocally comments on the defendant's silence at trial or suggests to the jurors "that they must accept the State's evidence as true because the defendant has not denied it as a witness." Turner , 433 A.2d at 400. If the prosecutor's statement is ambiguous because "the jury could construe [it] as a remark on the defendant's failure to testify," the State must demonstrate beyond a reasonable doubt that the misconduct, when "viewed in the context of the entire record," did not affect the jury's guilty verdict. State v. Lyons , 1998 ME 225, ¶¶ 6–8, 718 A.2d 1102.

[¶ 13] We have held, however, that this differentiated analysis used to determine the standard of review does not apply where—as here—the error is not preserved. In State v. Clarke , 1999 ME 141, ¶ 23, 738 A.2d 1233, we stated that "there is no good reason for departing from the obvious error analysis when the defendant fails to object to an improper prosecutorial comment which calls attention to the defendant's failure to testify at trial. The Tibbetts analysis is applicable only in cases in which an objection has been made and the harmless error standard of review is appropriate."See also Roberts , 2008 ME 112, ¶ 46, 951 A.2d 803. "Obvious error," including as applicable in the context of the type of prosecutorial misconduct at issue here, means "error that is so highly prejudicial that it taints the proceedings and virtually deprives the defendant of a fair trial." Clarke , 1999 ME 141, ¶ 24, 738 A.2d 1233. In cases involving unpreserved claims of error, the defendant bears the burden of persuasion to demonstrate that the prejudicial character of the error is sufficient to warrant setting aside the verdict. State v. Dolloff , 2012 ME 130, ¶ 39, 58 A.3d 1032. This assignment of the burden to the defendant

encourage[s] the defendant to bring objections to the trial court's attention promptly so that any prejudice can be remedied during the proceedings, or in cases where prejudice cannot be remedied, a mistrial can quickly be ordered. Once a jury has been given a case and has done its work in deliberating and deciding on guilt or innocence, serious and manifest injustice must be present before we will set such a verdict aside; we will not do so lightly.

Id.

[¶ 14] Because Tarbox did not object to the prosecutor's statement at trial, we need not determine where the State's improper statement falls on the continuum of misconduct described in Tibbetts and subsequent cases. Rather, we look to the record as a whole to determine whether Tarbox has demonstrated prejudice of a magnitude that virtually deprived him of a fair trial. We conclude that...