State of Maine v. Sharon Carrillo , 2021 ME 18 ( 2021 )


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  • MAINE SUPREME JUDICIAL COURT                                                 Reporter of Decisions
    Decision: 
    2021 ME 18
    Docket:   Wal-20-103
    Argued:   November 17, 2020
    Decided:  April 1, 2021
    Panel:       GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.
    Majority:    GORMAN, HUMPHREY, HORTON, and CONNORS, JJ.
    Dissent:     JABAR, J.
    STATE OF MAINE
    v.
    SHARON CARRILLO
    GORMAN, J.
    [¶1] On February 25, 2018, ten-year-old Marissa Kennedy died after
    enduring months of physical abuse by her mother, Sharon Carrillo,1 and
    Carrillo’s husband, Julio Carrillo. In December of 2019, a jury found Carrillo
    guilty of the depraved indifference murder, 17-A M.R.S. § 201(1)(B) (2020), of
    her daughter, and the court (Waldo County, R. Murray, J.) later entered a
    judgment of conviction on the verdict, sentencing Carrillo to forty-eight years
    in prison.
    1  Sharon Carrillo has since changed her name to Sharon Ann Kennedy, but we continue to refer to
    her as Sharon Carrillo because that was her name at the time of the events at issue and during the
    trial proceedings.
    2
    [¶2] In this appeal from her conviction and her sentence, Carrillo
    challenges the court’s denial of her motion to suppress statements she made to
    law enforcement, the jury instructions, the court’s denial of her motion for a
    mistrial, and the court’s calculation of both the basic and maximum sentence.
    We affirm the judgment and the sentence.
    I. BACKGROUND
    [¶3] Viewing the evidence in the light most favorable to the State, the
    jury rationally could have found the following facts beyond a reasonable doubt.
    See State v. Ouellette, 
    2019 ME 75
    , ¶ 11, 
    208 A.3d 399
    . Marissa died as a result
    of heart failure associated with battered child syndrome after suffering months
    of physical abuse. On the day of Marissa’s death, and again the next day, Carrillo
    confessed to police that she had participated in the abuse that caused her child’s
    death. Carrillo was arrested on February 26, 2018, and, in March of 2018, a
    grand jury for Waldo County indicted her for depraved indifference murder,
    17-A M.R.S. § 201(1)(B), a charge to which Carrillo pleaded not guilty.
    [¶4] Carrillo later moved to suppress the statements that she had made
    to law enforcement officers on February 25 and 26, 2018, on the ground that
    she did not make those statements voluntarily. During the two-day testimonial
    hearing held on that motion, the State presented testimony from the law
    3
    enforcement officer who first responded to the Carrillo home on February 25,
    2018; the detectives who questioned Carrillo; and a neuropsychologist who
    evaluated Carrillo’s ability to voluntarily, knowingly, and intelligently waive
    her Miranda rights. Carrillo testified and also presented testimony from a
    clinical psychologist who had been asked to evaluate her for criminal
    responsibility and a forensic psychologist who had been asked to testify about
    how Carrillo’s vulnerability to influence by her husband and the detectives
    played a role in her confessing. After considering all of the evidence and
    arguments presented, the court found the following facts, which are supported
    by competent evidence in the suppression record.
    [¶5] On February 25, 2018, Carrillo’s husband called 9-1-1 to report that
    Marissa Kennedy had been found bleeding and barely breathing in the
    basement of the Carrillo home in Stockton Springs. Law enforcement officers
    responding to the call found the child already dead. After some nonsubstantive
    conversations, detectives asked Carrillo and her husband to meet them at a
    nearby public safety building in order to discuss the circumstances of Marissa’s
    death; Carrillo and her husband agreed and followed the detectives in a
    separate car. At the public safety building, the detectives conducted three
    4
    separate interviews: one with Carrillo, a second with her husband, and then the
    third again with Carrillo.
    [¶6] The first interview with Carrillo lasted around two hours and was
    conducted in a room with the door closed but not locked. At the outset of the
    first interview, Carrillo was informed of her Miranda rights, acknowledged that
    she understood those rights, and then agreed to answer questions. Carrillo
    remained calm during the interview and did not appear confused. When asked
    to explain what had happened, she “described Julio bringing Marissa upstairs
    from the basement, after which Marissa started spitting up blood from her
    mouth.” Carrillo made no inculpatory statements during the first interview and
    responded in the affirmative when asked whether she felt safe around her
    husband.
    [¶7]    During his interview with the detectives, Carrillo’s husband
    presented a very different version of events. He reported that he and Carrillo
    had engaged in regular physical abuse of Marissa. After hearing from Carrillo’s
    husband, the detectives brought Carrillo back to the interview room.
    [¶8] The second interview with Carrillo lasted approximately an hour.
    She was given a second Miranda warning and again agreed to talk to the
    detectives. During the first portion of this interview, the detectives told her that
    5
    her husband had admitted to a series of beatings. Carrillo initially continued to
    deny any involvement in Marissa’s death but soon described actions that she
    and her husband had taken, implicating both of them in Marissa’s death.
    Although many of Carrillo’s responses during the second interview simply
    confirmed what detectives said, she was able to answer open-ended questions
    with additional detail. For example, Carrillo admitted that the beatings, which
    sometimes involved the use of a belt, had begun approximately three months
    earlier.   At one point during this interview, Carrillo gave the unsolicited
    response, “I feel terrible . . . I killed my own child.” At no time between the first
    and second interviews were Carrillo and her husband alone together.
    [¶9] The next day, Carrillo and her husband agreed to be interviewed by
    the Maine State Police Major Crimes Unit at the barracks in Bangor. At the start
    of that interview, Carrillo was again provided with a Miranda warning and
    accurately described what she believed each section of the warning meant. In
    this interview, which lasted less than three hours, Carrillo again made
    numerous incriminating statements about her role in the abuse of Marissa.
    [¶10] In discussing the interrogations and the confessions, the court
    found that the tone of the interviews was “generally calm and conversational,”
    that Carrillo responded cogently to questioning, and that she became
    6
    emotionally upset at times but not “to the point that her emotional stability
    appeared to be in question.”       The court also found that none of the
    interrogations was overly long, and there was no evidence of trickery, threats,
    or promises by the detectives who interviewed her. Despite the testimony
    suggesting that Carrillo’s confessions had resulted from her “acquiescent
    response style” and cognitive limitations, the court found that Carrillo “had
    cognitive limitations but was not intellectually disabled” and exhibited no signs
    that she suffered from major mental illness. Based on these findings and its
    review of all of the evidence and arguments presented, the court found beyond
    a reasonable doubt that Carrillo’s statements to police were voluntary, and it
    denied Carrillo’s motion to suppress those statements. See State v. Hunt,
    
    2016 ME 172
    , ¶ 17, 
    151 A.3d 911
    .
    [¶11] The court conducted a nine-day jury trial in December of 2019.
    Among the defense witnesses called by Carrillo was psychologist Sarah Miller,
    Ph.D., the director of the State Forensic Service. During her direct examination
    of Miller, Carrillo focused on the psychologist’s assessment of the likelihood
    that Carrillo’s confessions had been false. During the State’s cross-examination
    of Miller, the following exchange occurred regarding inculpatory statements
    7
    that Carrillo had allegedly made to her prison cellmate, Shawna Gatto, which
    Gatto then reported to authorities:
    Q:    And you’re aware that Shawna Gatto told the police that
    Sharon Carrillo, shortly after she was placed under arrest,
    that she participated in the abuse of Marissa Kennedy?
    A:    I recall listening to the interview with Shawna Gatto. That’s
    not the part that stands out the most. I’m sorry, could you
    repeat the --
    Q:    That Sharon Carrillo told Shawna Gatto shortly after she was
    arrested that she participated in the -- I believe the report
    said sexual and physical abuse of Marissa Kennedy?
    A:    I don’t recall that specifically, but there were generally
    discussions of that nature, yes.
    Carrillo objected and moved for a mistrial on grounds that the State had elicited
    inadmissible hearsay evidence and that the State also acted in bad faith by
    doing so because “there’s no good faith reason to believe that what Shawna
    Gatto provided is true or even credible.” The court sustained the objection but
    denied Carrillo’s motion for a mistrial, opting instead to instruct the jury, “[Y]ou
    may recall there was an objection raised as it related to a question or question
    or two regarding a purported statement by Shawna Gatto that related to a
    statement allegedly made -- she made involving a statement allegedly made by
    the defendant to her. That question and those answers are being stricken and
    you are being specifically instructed to disregard that question and any such
    8
    answer by the witness that related to that topic and to give it no weight
    whatsoever.” While giving its final jury instructions the next day, the court
    again instructed, “Where there’s been an objection which I sustained and
    ordered you to disregard particular testimony or questions associated with
    that, that testimony and the questions are no longer evidence and you can give
    it no weight at all.”
    [¶12] Among the instructions that Carrillo later requested that the court
    provide to the jury was one regarding the justification of duress, see 17-A M.R.S.
    § 103-A (2020), and another stating that a victim of domestic abuse cannot be
    an accomplice to the same course of conduct that led to her abuse,
    see 17-A M.R.S. § 57(5) (2020). The court declined to instruct the jury on either
    principle.
    [¶13] The jury found Carrillo guilty of depraved indifference murder, and
    the court entered a judgment on the verdict, sentencing Carrillo to forty-eight
    years in prison and ordering her to pay $6,100 in restitution. Carrillo appealed
    from her conviction and from the sentence, and the Sentence Review Panel
    granted her application for review of her sentence. See 15 M.R.S. §§ 2115,
    2151-2157 (2020); M.R. App. P. 2B(b)(1), 20; State v. Carrillo, No. SRP-20-104
    (Me. Sent. Rev. Panel Apr. 28, 2020).
    9
    II. DISCUSSION
    A.    Motion to Suppress
    [¶14]   Carrillo first challenges the court’s denial of her motion to
    suppress the statements that she made to investigators on the day of and the
    day after Marissa’s death. “A confession cannot be admitted in evidence unless
    the confession was given voluntarily . . . .” State v. Kittredge, 
    2014 ME 90
    , ¶ 24,
    
    97 A.3d 106
    . When, as here, a defendant seeks to exclude incriminating
    statements as involuntary, it is the State’s burden to establish beyond a
    reasonable doubt the voluntariness of those statements. Hunt, 
    2016 ME 172
    ,
    ¶ 17, 
    151 A.3d 911
    . “[A] confession is voluntary if it results from the free choice
    of a rational mind, if it is not a product of coercive police conduct, and if under
    all of the circumstances its admission would be fundamentally fair.” Id. ¶ 21
    (alteration omitted) (quotation marks omitted). We review the court’s factual
    findings in the suppression order for clear error, and we review de novo the
    court’s ultimate determination of voluntariness. Id. ¶ 16.
    [¶15] Carrillo relies primarily on Hunt, 
    2016 ME 172
    , 
    151 A.3d 911
    , to
    argue that, due to her low IQ combined with the detectives’ coercive
    questioning techniques, her confessions were not made voluntarily. In Hunt,
    we acknowledged that some individuals may be particularly susceptible to
    10
    coercive police tactics. Id. ¶¶ 37-38. Contrary to Carrillo’s suggestion, Hunt
    does not stand for the proposition that a low IQ alone, without evidence of
    police coercion or misconduct, renders a confession involuntary.                             Cf. id.
    ¶¶ 36-43. Cognitive ability is but one of the factors courts must consider in
    determining whether a confession was voluntary. Id. ¶¶ 36-37. We discussed
    the issue of coercive questioning in Hunt because such coercive practices were
    used to question the defendant in that case. Id. ¶¶ 4-6, 40.
    [¶16] Here, in contrast, the suppression court found that Carrillo had
    cognitive limitations but that law enforcement used no coercive police tactics
    in questioning Carrillo—no trickery, threats, promises, or inducements.
    Although the detectives did use leading questions and did exhort Carrillo to “tell
    the truth,” the court found that there had been no use of any objectionable
    practices that undermined the fundamental fairness of the criminal justice
    system.2      See id. ¶¶ 16, 20.          The court’s factual findings underlying its
    determination of voluntariness are supported by competent evidence in the
    2 We are also not persuaded by Carrillo’s suggestion that her experience as a victim of domestic
    violence precludes the court’s finding that her statements were voluntary. Although evidence that a
    defendant had been the victim of domestic violence may suggest to, or even convince a court that, a
    confession is not voluntary, the court here was not convinced by Carrillo’s assertions, and we do not
    reweigh that determination. See State v. Hunt, 
    2016 ME 172
    , ¶¶ 16, 22, 
    151 A.3d 911
    .
    11
    suppression record, and we discern no error in the court’s application of the
    law to those facts. See id. ¶ 16.
    B.    Motion for a Mistrial
    [¶17] While cross-examining Miller, the State asked about inculpatory
    statements that Carrillo had purportedly made to Gatto. We agree with Carrillo
    and the trial court that that evidence was inadmissible hearsay. See M.R. Evid.
    801, 802; State v. Tieman, 
    2019 ME 60
    , ¶ 12, 
    207 A.3d 618
    . Carrillo argues,
    however, that exclusion of the evidence and the curative instruction were not
    sufficient and that therefore the court erred by denying her request for a
    mistrial.
    [¶18] A mistrial is intended to address circumstances in which “the trial
    is unable to continue with a fair result and only a new trial will satisfy the
    interests of justice.” State v. Logan, 
    2014 ME 92
    , ¶ 14, 
    97 A.3d 121
     (quotation
    marks omitted); see State v. Frisbee, 
    2016 ME 83
    , ¶ 29, 
    140 A.3d 1230
    (“Ultimately, the decision on whether to grant a defendant’s motion for a
    mistrial comes back to the core principles of fairness and justice; the relevant
    question for the trial court is whether the trial court is confident that the trial
    can proceed to a fair and just verdict in the context of the proceedings before
    it.”). In examining the effect of the trial event at issue, a court must consider
    12
    “the totality of the circumstances, including the severity of the misconduct, the
    prosecutor’s purpose in making the statement (i.e., whether the statement was
    willful or inadvertent), the weight of the evidence supporting the verdict, jury
    instructions, and curative instructions.” State v. Dolloff, 
    2012 ME 130
    , ¶ 33,
    
    58 A.3d 1032
     (quotation marks omitted). Because of its significant effect on the
    proceedings, “[a] motion for a mistrial should be denied except in . . . rare
    circumstance[s],” that is, “only in the event of exceptionally prejudicial
    circumstances or prosecutorial bad faith.” Logan, 
    2014 ME 92
    , ¶ 14, 
    97 A.3d 121
     (quotation marks omitted).
    [¶19] Our review of a trial court’s denial of a motion for a mistrial is
    highly deferential. State v. Cochran, 
    2000 ME 78
    , ¶ 28, 
    749 A.2d 1274
    ; see State
    v. Hinds, 
    485 A.2d 231
    , 235 (Me. 1984) (“In deciding whether an improper line
    of questioning requires a mistrial, . . . a trial judge has broad discretion.”). “The
    trial court’s determination of whether exposure to potentially prejudicial
    extraneous evidence would incurably taint the jury verdict or whether a
    curative instruction would adequately protect against consideration of the
    matter stands unless clearly erroneous.” Logan, 
    2014 ME 92
    , ¶ 14, 
    97 A.3d 121
    (alterations omitted) (quotation marks omitted). We review the court’s denial
    13
    of a motion for mistrial only for an abuse of the court’s substantial discretion.
    Cochran, 
    2000 ME 78
    , ¶ 28, 
    749 A.2d 1274
    .
    [¶20] Carrillo contends that the elicitation of evidence from Miller that
    Carrillo had confessed to someone other than law enforcement was too highly
    prejudicial for the trial to have continued. Throughout this case, Carrillo has
    argued that her confessions should be seen as unreliable or invalid because
    they resulted from her cognitive limitations, her fear of her husband, and her
    suggestibility or acquiescence to authority figures like law enforcement
    officers. She maintains that the suggestion that she made the same confession
    to someone who was not an authority figure and at a time when she no longer
    needed to fear her husband “struck to the very heart of the case against [her].”
    In addition, Carrillo contends that this tactic exhibited bad faith by the
    prosecutor.
    [¶21]    The State offered plausible—but ultimately unpersuasive—
    arguments regarding the admissibility of that evidence, including that it was
    cumulative of other evidence admitted at trial and that the inquiry to Miller was
    intended to cause the witness to acknowledge that she had reviewed evidence
    that suggested that Carrillo’s confessions to law enforcement officers were not
    false. See State v. Allen, 
    2006 ME 20
    , ¶ 24, 
    892 A.2d 447
    ; In re Soriah B., 
    2010 ME 14
    130, ¶ 18, 
    8 A.3d 1256
    ; M.R. Evid. 703. Whatever the prosecutor’s motive or
    understanding in the moment the question was asked, the trial court found that
    it was not the result of bad faith by the State, and we have no reason to second
    guess that determination.
    [¶22] Carrillo has also overstated the harm to her defense effort. The
    State elicited this inadmissible hearsay by asking two questions of one of the
    forty-three witnesses who testified during the nine days of trial. As the trial
    court found, Miller’s responses to the questions were “at best vague.” The brief
    testimony from Miller regarding Gatto’s report of Carrillo’s confession was also
    not the only basis on which the jury could determine that Carrillo’s confessions
    to law enforcement were in fact credible. With regard to her claim that they
    were false confessions brought about by her domestic violence victimization,
    for example, there was evidence that Carrillo confessed to the detectives
    outside her husband’s presence, that her husband had no opportunity during
    the course of Carrillo’s interviews to instruct Carrillo on what to say, that
    Carrillo herself did not appear injured on the day of the child’s death or in
    photographs taken during the months that the child was being abused, that
    Carrillo did not appear to be afraid of her husband and spoke positively about
    15
    her relationship with him, and that Carrillo had denied being a victim of
    domestic violence.3
    [¶23] With regard to Carrillo’s claims that she was overly suggestible or
    acquiescent to questioning by law enforcement officers, there was evidence
    that she denied some acts and admitted others about which the detectives
    asked her, she corrected detectives when their information was not correct, she
    provided information that the detectives did not suggest, and she offered
    details that the detectives did not already know. For example, Carrillo admitted
    to hitting Marissa with a fist, slapping her, punching her, and striking her with
    a belt, but denied having kicked her or hit her with a mop. Carrillo was also the
    first to disclose to detectives how long the abuse had been happening, she was
    the one who led detectives to where the belt that was used to beat the child was
    kept, and she led detectives in a demonstration of how some of the abuse
    occurred. Carrillo also described her own personal motivations for abusing the
    child.
    3 Of course, we cannot say whether this evidence was credible or what weight it should have been
    given, as both were for the jury’s determination. See State v. Crossman, 
    2002 ME 28
    , ¶ 10, 
    790 A.2d 603
     (“The fact-finder is also permitted . . . to believe some parts of witness testimony to the exclusion
    of others, and to selectively accept or reject testimony and to combine such testimony in any way.”
    (quotation marks omitted)). The point is simply that there was a variety of evidence that could have
    informed a finding that Carrillo’s confessions to law enforcement were truthful, aside from Miller’s
    brief and vague answers to the State’s impermissible questions.
    16
    [¶24] In addition, contrary to Carrillo’s contentions, her defense strategy
    during the trial was not limited to challenging the reliability of her own
    confessions; she also argued that there was no physical evidence connecting
    her to Marissa’s abuse or death, no eyewitnesses to her abusing or raising her
    voice to the child, and no photos or videos that showed her committing any such
    abuse. Furthermore, Carrillo’s confessions to law enforcement were not the
    only evidence of her involvement in the abuse leading to Marissa’s death; the
    horrific nature of the injuries that Marissa sustained over a lengthy period of
    time—while in Carrillo’s care, and even in Carrillo’s presence—alone could
    have created a reasonable inference of Carrillo’s involvement in some of those
    acts. See State v. Crossman, 
    2002 ME 28
    , ¶ 10, 
    790 A.2d 603
     (stating that the
    fact-finder may “draw any reasonable inference that logically flows from the
    testimony or proved physical facts” (quotation marks omitted)).
    [¶25] Moreover, we decline Carrillo’s suggestion that we should place so
    little faith in our jurors. Jurors are presumed to follow instructions, including
    curative instructions to ignore references to inadmissible evidence. Dolloff,
    
    2012 ME 130
    , ¶ 55, 
    58 A.3d 1032
    .           Here, the jurors were instructed
    immediately after the bench conference regarding the cross-examination of
    Miller that Miller’s answers to the State’s questions had been stricken from the
    17
    record, that they must disregard those questions and answers, and that they
    must give that portion of the testimony “no weight whatsoever.” Then, during
    the final jury instructions given the next day, the court again informed the
    jurors to disregard any questions or testimony that they had been instructed to
    disregard and to give such evidence “no weight at all.” We have routinely held
    that such curative instructions provided by the trial court are sufficient to
    overcome even significant prejudice from the presentation of inadmissible
    evidence. See State v. Nobles, 
    2018 ME 26
    , ¶¶ 18-19, 
    179 A.3d 910
    ; see also State
    v. Tarbox, 
    2017 ME 71
    , ¶ 19, 
    158 A.3d 957
    ; State v. Begin, 
    2015 ME 86
    , ¶¶ 27-28,
    
    120 A.3d 97
    ; Allen, 
    2006 ME 20
    , ¶¶ 23-24, 
    892 A.2d 447
    ; State v. Thompson,
    
    535 A.2d 440
    , 441 (Me. 1988).
    [¶26] The court determined that there was a good-faith basis for the
    State’s question to Miller and that a curative instruction could remedy
    whatever damage to the fairness of the trial might have resulted. We discern
    no error or abuse of discretion in the court’s determination that the trial could
    proceed to a fair and just verdict. See Logan, 
    2014 ME 92
    , ¶ 14, 
    97 A.3d 121
    ;
    Cochran, 
    2000 ME 78
    , ¶ 28, 
    749 A.2d 1274
    .
    18
    C.    Jury Instructions
    [¶27] Carrillo next contends that the court erred by declining her
    requests for jury instructions regarding accomplice liability and duress. We
    review for prejudicial error the trial court’s denial of a request for jury
    instructions. State v. Doyon, 
    1999 ME 185
    , ¶ 7, 
    745 A.2d 365
    . A party can
    demonstrate that the court erred by failing to give a requested instruction only
    when the instruction “(1) states the law correctly; (2) is generated by the
    evidence in the case; (3) is not misleading or confusing; and (4) is not otherwise
    sufficiently covered in the court’s instructions.” State v. Gauthier, 
    2007 ME 156
    ,
    ¶ 15, 
    939 A.2d 77
    .
    1.    Accomplice Liability
    [¶28] At trial, the State asked the jurors to consider whether it had
    proved Carrillo guilty of the murder of her daughter either as the primary
    perpetrator of the murder or as an accomplice to her husband’s commission of
    the murder. Carrillo argues that the court committed prejudicial error by
    declining to give the following requested jury instruction: “The defendant is not
    an accomplice in a crime committed by another person if the defendant was the
    victim of that crime.”
    19
    [¶29] Title 17-A M.R.S. § 57(5)(A), on which Carrillo exclusively relies for
    her proposed instruction, states, “Unless otherwise expressly provided, a
    person is not an accomplice in a crime committed by another person if . . . [t]he
    person is the victim of that crime.” Had the court granted her requested
    instruction, Carrillo would have relied on it to attempt to persuade the jurors
    that because she was a victim of abuse by her husband, she could not also be
    considered an abuser of the child.
    [¶30] We reject Carrillo’s sophistic interpretation of section 57(5)(A).
    Carrillo’s interpretation of section 57(5)(A) would require us to conclude that
    a victim of abuse by an aggressor cannot be held responsible for her own acts
    in abusing a third person. The plain language of the statute does not support
    such an interpretation. See State v. McLaughlin, 
    2018 ME 97
    , ¶ 9, 
    189 A.3d 262
    (stating that “[w]e review questions of statutory interpretation de novo” and
    that we must interpret those statutes to avoid producing absurd or illogical
    results) (quotation marks omitted)); State v. Stevens, 
    2007 ME 5
    , ¶ 8, 
    912 A.2d 1229
     (“The first step in statutory interpretation requires an examination of the
    plain meaning of the statutory language in the context of the whole statutory
    scheme.” (alteration omitted) (quotation marks omitted)).
    20
    [¶31] Moreover, we note that section 57(5)(A) was adopted from the
    Model Penal Code, which explains its applicability using, as examples, “[t]he
    businessman who yields to the extortion of a racketeer [or] the parent who
    pays ransom to the kidnapper.” Model Penal Code & Commentaries § 2.06 cmt.
    9(a) at 323-34 (Am. Law Inst. 1985); see State v. Crocker, 
    435 A.2d 58
    , 66
    (Me. 1981) (noting the Maine Legislature’s employment of Model Penal Code
    language in Maine’s criminal statutes). Although we have never had occasion
    to discuss section 57(5)(A), we could find no—and Carrillo has not identified
    any—cases from other jurisdictions in which similar statutory language has
    been held to absolve an abused person for his or her assault or murder of a third
    person. A person may not avoid accountability for her own criminal acts
    because she may have been the victim of similar criminal acts perpetrated by
    another person unless she establishes that she committed her offenses under
    duress, which we discuss below. Infra ¶¶ 32-37. Because Carrillo’s proposed
    instruction does not accurately reflect the law,4 we conclude that the court
    properly denied that instruction. See Gauthier, 
    2007 ME 156
    , ¶ 15, 
    939 A.2d 77
    .
    Obviously, the evidence also did not generate any suggestion that Carrillo—who is still alive—
    4
    was the victim of depraved indifference murder, the crime with which she was charged.
    See 17-A M.R.S. § 201(1)(B) (2020); State v. Gauthier, 
    2007 ME 156
    , ¶ 15, 
    939 A.2d 77
    . Moreover,
    even if we accepted Carrillo’s interpretation of the statute to refer to a defendant having been
    subjected to the same “course of conduct” as the victim—of which the language of section 57 contains
    no mention—viewing the evidence most favorably to Carrillo, there was no evidence generated in
    21
    2.      Duress
    [¶32] Next, Carrillo contends that the court erred by determining that
    the defense of duress was not generated by the evidence and by denying her
    request for a jury instruction regarding duress.5 “To determine whether the
    defense is generated, we review the record in the light most favorable to the
    defendant to determine if it would have allowed the jury to find facts to make
    duress a reasonable hypothesis.” State v. Sexton, 
    2017 ME 65
    , ¶ 19, 
    159 A.3d 335
     (quotation marks omitted). We review any factual findings of the court for
    the record that Carrillo was subjected to anything like the same course of conduct, that is, the physical
    abuse, as her daughter. See State v. Sexton, 
    2017 ME 65
    , ¶ 19, 
    159 A.3d 335
    .
    5 Carrillo requested the duress instruction contained in Alexander, Maine Jury Instruction Manual
    § 6-57 at 6-115 (2020-2021 ed. 2020), which states,
    Under certain circumstances, a person may be excused from criminal
    responsibility for acts committed under duress. A person is not criminally
    responsible if he is compelled to do an act by threat of imminent death or serious
    bodily injury to himself [or another person] or by direct physical force.
    However, duress exists only if the force or threat [or circumstances] are such as
    would have prevented a reasonable person in the defendant’s situation from resisting
    or escaping from the force or threats.
    Because the evidence generates an issue of whether the defendant was acting
    under duress, the State must prove beyond a reasonable doubt either (1) that the
    defendant was not acting under duress, or (2) that the force or threat [or
    circumstances] claimed to have created the duress were not such as would have
    prevented a reasonable person in the defendant’s situation from resisting or escaping
    from such force or threats [or overcoming the circumstances].
    (Alterations in original.)
    22
    clear error, and we review de novo the trial court’s decisions of law. State v.
    Fletcher, 
    2015 ME 114
    , ¶ 12, 
    122 A.3d 966
    .
    [¶33] The defense of duress is as set out by statute:
    1. It is a defense that, when a person engages in conduct that
    would otherwise constitute a crime, the person is compelled to do
    so by threat of imminent death or serious bodily injury to that
    person or another person or because that person was compelled to
    do so by force.
    2. For purposes of this section, compulsion exists only if the
    force, threat or circumstances are such as would have prevented a
    reasonable person in the defendant’s situation from resisting the
    pressure.
    3. The defense set forth in this section is not available:
    A. To a person who intentionally or knowingly committed
    the homicide for which the person is being tried;
    B. To a person who recklessly placed that person in a
    situation in which it was reasonably probable that the person
    would be subjected to duress; or
    C. To a person who with criminal negligence placed that
    person in a situation in which it was reasonably probable
    that the person would be subjected to duress, whenever
    criminal negligence suffices to establish culpability for the
    offense charged.
    17-A M.R.S. § 103-A.
    [¶34] Carrillo contends that, viewed in the light most favorable to her,
    there was sufficient evidence presented at trial to generate a duress defense,
    23
    namely, that her husband subjected her to the same type of abuse as that
    inflicted on the child; that she was intimidated and dominated by her husband,
    did not possess her own means of transportation or communication, and was
    rarely outside her husband’s presence; that her husband exhibited an abnormal
    amount of control over her; and that she was particularly susceptible to
    manipulation by others. We disagree.
    [¶35] We have made clear that “[w]hen the basis for a duress defense is
    a threat, that threat must be real and specific, and the specific harm that is
    feared must be imminent.” State v. Gagnier, 
    2015 ME 115
    , ¶ 16, 
    123 A.3d 207
    (quotation marks omitted). “Further, the effect of the threat must be viewed
    objectively, such that under section 103-A(2), it would have prevented a
    reasonable person in the defendant’s situation from resisting the pressure
    arising from the threat.” Id. ¶ 16 (quotation marks omitted). Thus, “[a] veiled
    threat of future unspecified harm is not sufficient to raise the defense of
    duress,” State v. Tomah, 
    1999 ME 109
    , ¶ 19, 
    736 A.2d 1047
     (quotation marks
    omitted), nor is the feared harm “imminent” when “the threatened person has
    the opportunity to escape that threatened harm or to seek help or to report the
    threat to the authorities,” Gagnier, 
    2015 ME 115
    , ¶ 16, 
    123 A.3d 207
    (alterations omitted) (quotation marks omitted).
    24
    [¶36] In Gagnier, the defendant “presented evidence of long-standing
    abuse that [her husband] perpetrated against her” and argued that “[her
    husband] created a context in which her apprehension of danger was
    heightened and that she felt compelled to comply with [his] instruction.” Id.
    ¶¶ 2-12, 20. Assuming that evidence to be true, we considered whether a
    duress jury instruction was generated when her husband directed her to take
    certain illegal actions on his behalf, some of which occurred while he was
    incarcerated. Id. ¶¶ 2, 7-11, 13-14. While acknowledging the evidence of a
    history of abuse and intimidation, we concluded that the defendant failed to
    present any evidence that she engaged in any criminal acts as a result of any
    immediate apprehension of harm or danger, i.e., that “she was faced with an
    actual threat of imminent harm originating with [her abuser], which irresistibly
    caused her to [commit the crime.].” Id. ¶ 20. We therefore held that such
    evidence was insufficient to generate a duress instruction, and we affirmed the
    trial court’s decision denying the request for such an instruction. Id. ¶ 27.
    [¶37] Here, as in Gagnier, the court determined that, although there was
    evidence presented at the trial from which the jury reasonably could believe
    that Carrillo was a victim of physical abuse, psychological abuse, and
    controlling behavior by her husband, there was no evidence that Carrillo was
    25
    subjected to any specific threats of imminent harm or force by which Carrillo
    was compelled to commit the acts that caused Marissa’s death. Rather, even
    when viewed in the light most favorable to Carrillo, the evidence, at most,
    demonstrates the same type of generalized abusive atmosphere that we
    determined to be insufficient to generate a duress instruction in Gagnier. See id.
    ¶ 20. Given the absence of evidence of specific imminent harm or evidence of
    compulsion by force, the court properly declined to instruct the jury on the
    defense of duress. See 17-A M.R.S. § 103-A(1).
    D.     Sentence
    [¶38] Finally, we address Carrillo’s challenge to her sentence. “A person
    convicted of the crime of murder shall be sentenced to imprisonment for life or
    for any term of years that is not less than 25.” 17-A M.R.S. § 1251 (2017).6 In
    fashioning a murder sentence within that range, a court is required to complete
    two steps: “First, the court determines the basic term of imprisonment based
    on an objective consideration of the particular nature and seriousness of the
    crime. Second, the court determines the maximum period of incarceration
    6 Title 17-A M.R.S. § 1251 (2017) has since been repealed and replaced, but the new sentencing
    statute contains the same requirements. P.L. 2019, ch. 113, §§ A-1, A-2 (emergency, effective May 16,
    2019) (codified at 17-A M.R.S. § 1603 (2020)); see State v. De St. Croix, 
    2020 ME 142
    , ¶ 6 n.3, 
    243 A.3d 880
     (noting that a person convicted of a crime “must be punished pursuant to the law in effect at the
    time of the offense” rather than at the time of sentencing (quotation marks omitted)).
    26
    based on all other relevant sentencing factors, both aggravating and mitigating,
    appropriate to that case, including the character of the offender and the
    offender’s criminal history, the effect of the offense on the victim and the
    protection of the public interest.” State v. De St. Croix, 
    2020 ME 142
    , ¶ 5,
    
    243 A.3d 880
     (citations omitted) (alteration omitted) (quotation marks
    omitted); see 17-A M.R.S. § 1252-C (2017).7
    [¶39] As mentioned above, supra ¶ 28, the State prosecuted Carrillo
    simultaneously under two theories—as an active participant in her daughter’s
    murder and, alternatively, as an accomplice to the child’s murder by her
    husband.8 In its sentencing analysis, the court noted that there was ample
    evidence presented at the trial to support either theory, and the court therefore
    determined that, for sentencing purposes, Carrillo “was an active participant in
    the depraved indifference murder of Marissa Kennedy.” In analyzing the nature
    7 Title 17-A M.R.S. § 1252-C (2017) has since been repealed and replaced; the two versions of the
    sentencing statute contain the same requirements. P.L. 2019, ch. 113, §§ A-1, A-2 (emergency,
    effective May 16, 2019) (codified at 17-A M.R.S. § 1602 (2020)).
    8“[I]f a single crime can be committed by multiple means, the jury need not be unanimous in
    finding which of those means supports its general guilty verdict.” State v. Nguyen, 
    2010 ME 14
    , ¶ 15,
    
    989 A.2d 712
    . Thus, the jurors in Carrillo’s trial need not have agreed as to whether she acted as an
    accomplice or principal in the child’s death. See 
    id.
     (stating that “an accomplice is guilty of the crime
    as if he acted as a principal, and a guilty verdict rendered on either theory is thus indistinguishable
    and each is independently sufficient to support a conviction”); 17-A M.R.S. § 57(1), (2)(C), (3)(A)
    (2020). Carrillo does not challenge the sufficiency of the evidence supporting her conviction
    according to either of the State’s theories.
    27
    and seriousness of the crime, the court described the almost daily brutal
    beatings that the child—only ten years old—suffered at Carrillo’s hands over a
    period of months, the dozens of injuries the child sustained, and the humiliation
    she experienced, much of which Carrillo had described in her own words.
    During that time, the child endured broken bones; blunt trauma;
    hemorrhaging; lacerations and abrasions, including to her internal organs;
    infections; traumatic lesions; intense pain; chronic stress; hair loss; and,
    ultimately, heart failure. The court then accounted for Carrillo’s participation
    in Marissa’s torture as comparatively less egregious than her husband’s, noted
    that Carrillo did not use a particular weapon that her husband had used, did not
    kick the child, and demonstrated less planning and preparation for these acts—
    and less involvement in the cover-up for them—than did her husband. The
    court also considered the range of sentences imposed in ten comparable cases.
    Based on this analysis, the court declined to impose a life sentence and set the
    basic term of incarceration at fifty years.
    [¶40] In step two of the sentencing, the court considered, as aggravating
    factors, the effect of Marissa’s death on her extended family and Marissa’s
    suffering.   The court noted that Marissa “suffered significantly and was
    subjectively aware of that suffering,” including by predicting her own death,
    28
    and that Carrillo herself described “the screaming that resulted from Marissa
    on the occasions of these multiple beatings.” As mitigating factors, the court
    noted Carrillo’s lack of any criminal record, the significant degree of family
    support that Carrillo enjoys, Carrillo’s “limited intellectual capacity and
    functioning,” and the low likelihood that she would reoffend.         The court
    concluded that the applicable mitigating factors “somewhat outweigh the
    aggravating factors” and, on that basis, reduced Carrillo’s maximum sentence
    to forty-eight years in prison. Carrillo challenges both steps of her sentencing.
    1.    Basic Sentence
    [¶41] Carrillo first contends that, by setting her basic sentence of
    incarceration at fifty years, the court determined that she was an active
    participant in the murder, whereas the jury could have found her guilty based
    solely on her participation as an accomplice; in doing so, Carrillo argues, the
    court usurped the role of the jury, in violation of her Sixth Amendment right to
    have a jury make all findings underlying her conviction. See U.S. Const. amend.
    VI; State v. Schofield, 
    2005 ME 82
    , ¶¶ 11-12, 22, 
    895 A.2d 927
    . We review the
    basic sentence set by the court de novo for a misapplication of legal principles.
    De St. Croix, 
    2020 ME 142
    , ¶ 5, 
    243 A.3d 880
    .
    29
    [¶42] As we recently noted in De St. Croix, a jury determines, beyond a
    reasonable doubt, whether the State has proved each of the elements of a crime
    charged, but “the sentencing court—rather than the jury—makes . . . factual
    findings for sentencing purposes by a preponderance of the evidence based on
    whatever information the court deems reliable.” Id. ¶ 11. Although the Sixth
    Amendment “encompasses a right to have a fact-finder of [the defendant’s]
    choice, judge or jury, determine beyond a reasonable doubt any specific finding
    of fact that would result in a sentence enhancement into a new statutory range,”
    Libby v. State, 
    2007 ME 80
    , ¶ 7, 
    926 A.2d 724
     (alteration omitted) (quotation
    marks omitted), convictions for murder in Maine, as either a principal or an
    accomplice, all fall within the same range for sentencing purposes, 17-A M.R.S.
    § 1251; see 17-A M.R.S. § 1603(1) (2020).
    [¶43] Here, whether Carrillo acted as a principal or an accomplice in
    Marissa’s murder neither makes any difference to her conviction nor works any
    change to the statutory sentencing range applicable to that conviction. Being
    an “active participant” is not an element of the depraved indifference murder
    with which Carrillo was charged and of which the jury found her guilty,9 and
    9  That said, each juror might have found beyond a reasonable doubt that Carrillo did act as
    principal rather than accomplice, and there was sufficient evidence presented at the trial to support
    such findings.
    30
    the court was bound to sentence Carrillo to twenty-five years to life, whether
    Carrillo was a principal or an accomplice.         See 17-A M.R.S. § 201(1)(B);
    17-A M.R.S. § 1251; De St. Croix, 
    2020 ME 142
    , ¶ 11 n.5, 
    243 A.3d 880
    ; State v.
    Nguyen, 
    2010 ME 14
    , ¶ 15, 
    989 A.2d 712
     (“Pursuant to section 57, an
    accomplice is guilty of the crime as if he acted as a principal, and a guilty verdict
    rendered on either theory is thus indistinguishable and each is independently
    sufficient to support a conviction.”); Libby, 
    2007 ME 80
    , ¶ 11, 
    926 A.2d 724
    (“Maine law prescribes a single, finite range of sentences in murder cases,
    within which a court may impose an appropriate sentence without making any
    additional specific factual findings.”); supra n.8. Thus, the Sixth Amendment is
    not implicated in the court’s finding that Carrillo was an active participant in
    the child’s murder.
    [¶44] Rather, it was the court’s obligation to make its own findings
    relevant to the sentence, by a preponderance of the evidence, based on
    whatever information the court deemed reliable. See De St. Croix, 
    2020 ME 142
    ,
    ¶ 11, 
    243 A.3d 880
     (“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.”
    (quotation marks omitted)). The court’s finding for sentencing purposes that
    31
    Carrillo was an active participant in her child’s murder is amply supported by
    evidence presented to the court, and the court misapplied no legal principles in
    making and relying on that finding in fashioning Carrillo’s basic sentence.
    See id. ¶ 5.
    2.      Maximum Sentence
    [¶45] Carrillo next argues that the court erred by failing to adequately
    consider her domestic violence victimization as a mitigating factor in arriving
    at her maximum sentence. The court specifically stated that there was evidence
    of domestic violence in Carrillo’s relationship with her husband, but also stated
    that “that evidence particularly with respect to the domestic violence
    component was not persuasive in regard to any argument that this defendant
    was committing the crimes she was committing against Marissa as a result of
    the physical domestic violence which may have been inflicted upon her at some
    times by Julio Carrillo.”   The court instead weighed that evidence in its
    consideration of Carrillo’s limited intellectual capacity and functioning, which
    the court did apply as a mitigating factor. Contrary to Carrillo’s argument, the
    court acted well within its substantial discretion in declining to consider the
    evidence of a history of domestic violence as a separate mitigating factor.
    See De St. Croix, 
    2020 ME 142
    , ¶¶ 5, 16, 
    243 A.3d 880
    ; State v. Freeman,
    32
    
    2014 ME 35
    , ¶ 20, 
    87 A.3d 719
    ; State v. Robbins, 
    2010 ME 62
    , ¶ 12, 
    999 A.2d 936
    ; Schofield, 
    2006 ME 101
    , ¶ 15, 
    904 A.2d 409
    ; State v. Cookson, 
    2003 ME 136
    ,
    ¶ 42, 
    837 A.2d 101
    ; State v. Shortsleeves, 
    580 A.2d 145
    , 150-51 (Me. 1990).
    [¶46] In sum, the court misapplied no legal principles in setting Carrillo’s
    basic sentence at fifty years in prison, and it acted well within its discretion in
    applying and weighing the aggravating and mitigating factors in arriving at
    Carrillo’s maximum sentence of forty-eight years in prison. See De St. Croix,
    
    2020 ME 142
    , ¶ 5, 
    243 A.3d 880
    .
    The entry is:
    Judgment and sentence affirmed.
    JABAR, J., dissenting.
    [¶47] I respectfully dissent because I believe that Carrillo was denied a
    fair trial as a result of exceptionally prejudicial testimony elicited by the
    prosecution during the cross examination of the director of the State Forensic
    Service at the end of a nine-day jury trial.10
    10I agree with the Court’s ruling on the motion to suppress and, since I believe that Carrillo is
    entitled to a new trial, I do not address the other issues that the Court discusses.
    33
    A.        Mistrial
    [¶48] Carrillo contends that the trial court erred when it denied her
    motion for a mistrial.11 The motion was made in response to the following
    exchange between the prosecutor and the director of the State Forensic Service
    regarding an alleged confession that Carrillo made to someone other than law
    enforcement.
    PROSECUTOR:          And you’re aware that Shawna Gatto told the
    police that Sharon Carrillo, shortly after she was
    placed under arrest, that she participated in the
    abuse of [the child]?
    MILLER:              I recall listening to the interview with Shawna
    Gatto. That’s not the part that stands out the
    most. I’m sorry, could you repeat the –
    PROSECUTOR:          That Sharon Carrillo told Shawna Gatto shortly
    after she was arrested that she participated in
    the I believe the report said sexual and physical
    abuse of [the child]?
    MILLER:              I don’t recall that specifically, but there were
    generally discussions of that nature, yes.
    [¶49] “We review a decision denying a motion for a mistrial for abuse of
    discretion.” State v. Cochran, 
    2000 ME 78
    , ¶ 28, 
    749 A.2d 1274
    . “We will
    The State contends that there was no prejudice to Carrillo because the testimony was merely
    11
    cumulative of evidence that had already been admitted. See State v. Allen, 
    2006 ME 20
    , ¶ 24, 
    892 A.2d 447
    .
    34
    overrule the denial of a mistrial only in the event of exceptionally prejudicial
    circumstances or prosecutorial bad faith.” State v. Logan, 
    2014 ME 92
    , ¶ 14, 
    97 A.3d 121
     (quotation marks omitted). “A motion for a mistrial should be denied
    except in the rare circumstance that the trial is unable to continue with a fair
    result and only a new trial will satisfy the interests of justice.” 
    Id.
     (quotation
    marks omitted). “Ultimately, the decision on whether to grant a defendant’s
    motion for a mistrial comes back to the core principles of fairness and justice;
    the relevant question for the trial court is whether the trial court is confident
    that the trial can proceed to a fair and just verdict in the context of the
    proceedings before it.” State v. Frisbee, 
    2016 ME 83
    , ¶ 29, 
    140 A.3d 1230
    .
    [¶50] Since I agree with the trial court’s finding that there was no
    evidence of prosecutorial bad faith, I will address only whether the leading
    questions     and   resulting   answers    created    exceptionally   prejudicial
    circumstances sufficient to warrant a mistrial.
    [¶51]    In determining whether the jury’s hearing about an alleged
    confession made to someone other than law enforcement was exceptionally
    prejudicial, the revelation to the jury must be considered in the context of the
    trial as a whole.     Carrillo’s defense was predicated almost entirely on
    discrediting the confessions that she made to law enforcement. From the very
    35
    beginning, Carrillo’s defense was centered on suppressing the confessions that
    she made to law enforcement, and then, upon losing the motion to suppress,
    convincing the jury that the confessions were false. In his opening statement
    and closing argument to the jury, Carrillo’s attorney spent almost all of his time
    arguing that her confession to law enforcement was a false confession. In his
    opening statement, he told the jury that the defense would be presenting a
    psychologist to explain how a defendant could be pressured by law
    enforcement into falsely admitting to criminal conduct.
    [¶52] Carrillo’s attorneys presented two expert witnesses who testified
    about the concept of false confessions—Dr. Michael O’Connell, a forensic
    psychologist who specializes in false confessions, and Sarah Miller, the director
    of the State Forensic Service. Dr. O’Connell testified about his evaluation of
    Carrillo’s condition and the role that her mental condition played relative to her
    confessions. Dr. O’Connell interviewed Carrillo, reviewed her medical records,
    administered psychological tests to her, and reviewed the four videos of her
    interviews with law enforcement. As a result of his evaluation, he diagnosed
    her with three disorders listed in the Diagnostic and Statistical Manual of
    36
    Mental Disorders.12           He opined that Carrillo was suffering from a
    “neurodevelopmental           disorder,”       “major      depressive       disorder”       and
    “post-traumatic stress disorder.”
    [¶53] Dr. O’Connell explained the phenomena of false confessions and
    how Carrillo is at a high risk for giving a false confession. He testified that
    Carrillo exhibited several individual risk factors, including suggestibility, low
    intellectual functioning, and depression. He also identified situational risk
    factors, including her fear of, and the extent to which she felt controlled by, her
    domestically violent spouse and the use of coercion by the detectives during
    interrogation. Dr. O’Connell opined that “if we think about the individual risk
    factors, [and the] situational risk factors, I thought compared to the average
    individual she would be at risk for making a false confession.”
    [¶54]   The evidence of domestic abuse was a significant factor in
    Dr. O’Connell’s testimony. He testified that in his opinion, there was evidence
    “consistent with [the] idea that [Carrillo] was involved in a highly abusive,
    domestically violent relationship.” Dr. O’Connell further testified that Carrillo’s
    experience with domestic violence may have been a factor in her confession
    The Diagnostic and Statistical Manual of Mental Disorders is used by mental health providers
    12
    and examiners to diagnose individuals with mental disorders.
    37
    because “she is fearful of [Julio], she has been controlled by him, and . . . she
    knows that they had spoken to Julio before speaking to her and [that is] who
    she’s concerned about.” Dr. O’Connell testified that in his opinion the domestic
    violence was the “the primary situational risk factor,” and that “the detectives,
    maybe even not intentionally, leveraged that [by] referencing what Julio had
    said to them.”
    [¶55] Carrillo also called, as an expert witness, the director of the State
    Forensic Service, Dr. Sarah Miller. Dr. Miller has a Ph.D. in clinical psychology
    and is board certified in forensic psychology. Dr. Miller conducted a criminal
    responsibility evaluation of Carrillo at the request of the State. Her evaluation
    of Carrillo included a review of Carrillo’s medical and school records, including
    records from Child Protective Services. In addition to reviewing records,
    Dr. Miller spent six hours with Carrillo and administered several psychological
    tests. Finally, she reviewed Dr. O’Connell’s testimony, and indicated that she
    agreed with his conclusion that Carrillo was particularly at risk for making a
    false confession. Dr. Miller also independently noted some concerns about the
    possibility that what Carrillo told the detectives may have been a false
    confession. She further noted that Carrillo had an “acquiescent response style”
    and that someone like Carrillo would generally be more “likely to acquiesce to
    38
    others, particularly authority figures.” She testified that there is “a large body
    of research that actually supports the idea that false confessions are more
    common than the average lay person would believe.” Dr. Miller opined that it
    is a reasonable hypothesis that Carrillo’s confession was a false confession.
    [¶56] It was during Dr. Miller’s cross examination that the prosecution
    asked her—and the jury first heard—about the alleged confession that Carrillo
    made, after her arrest, to a person other than law enforcement. This revelation
    came at the end of the testimony of the last of forty-three witnesses over a
    nine-day period. This exchange was the last thing that the jury heard before
    closing arguments and instructions by the court.
    [¶57] Carrillo’s confession, as law enforcement acknowledged, was the
    only direct evidence of her involvement in her daughter’s death. There was no
    DNA evidence, no eyewitness testimony, and no other corroborating evidence
    establishing Carrillo’s conduct.13
    [¶58]      The critical question is whether these statements were so
    prejudicial, in the overall context of the trial, that the curative instruction
    13 The Court states that the horrific nature of the injuries that the child suffered in Carrillo’s care
    “could have created a reasonable inference of Carrillo’s involvement in some of those acts.” Court’s
    Opinion ¶ 24. The Court, however, points to no direct evidence to support Carrillo’s involvement,
    and at the time of the child’s death, the child was also under the care of her father, Julio, who
    confessed to the murder.
    39
    provided by the judge was insufficient to provide Carrillo with a fair trial. See
    Frisbee, 
    2016 ME 83
    , ¶ 29, 
    140 A.3d 1230
    .
    [¶59] Included as part of the prosecutor’s questions regarding Carrillo’s
    alleged confession, was a mention of an admission not only to the physical
    abuse but also a highly inflammatory reference to sexual abuse, which was not
    an issue in the case. This revelation of an alleged confession to sexual abuse,
    made for the first time at the end of the trial, is by itself exceptionally
    prejudicial. Furthermore, during the trial there was no evidence of any sexual
    abuse perpetrated by Carrillo against her ten-year-old daughter.
    [¶60] No matter what the trial judge said to the jury in the way of a
    curative instruction, he could not unring the bell or erase what the jury heard.
    It would be extremely difficult to ignore this exchange, particularly because it
    involved revelations following leading questions made by an assistant attorney
    general to the director of the State Forensic Service. Furthermore, in her
    answer to the prosecutor’s leading questions, Dr. Miller indicated that she
    listened to the interview with Gatto, who indicated that Carrillo confessed to
    physical and sexual abuse; this was a reference to much more than hearing a
    casual statement made by a third party.
    40
    [¶61] The primary focus of the defense’s case from beginning to end was
    that Carrillo’s confession was a false confession.      The testimony of both
    psychologists, Dr. O’Connell and Dr. Miller, stressed the significance of coercive
    interrogation by authorities and how someone with Carrillo’s individual and
    situational risk factors would be subject to suggestibility by strong authority
    figures, such as law enforcement. A confession to another woman, who was not
    a member of law enforcement, is exceptionally damaging to this defense and
    blows a hole in the expert opinions supporting Carrillo’s argument that law
    enforcement coerced her into giving false confessions. It is apparent that the
    prosecutor’s questions to Miller were an attempt to discredit the defense
    theory that Carrillo made a false confession to law enforcement.              The
    prosecutor told the trial court that the alleged confession “goes to the basis of
    the opinion.” If the prosecutor wanted to use the alleged confession to discredit
    the expert’s opinion, then he should have asked Miller a hypothetical question
    as to whether a confession to someone other than a law enforcement officer
    would change her opinion that it was a reasonable hypothesis that Carrillo’s
    confession was a false confession. The prosecutor would then be in a position
    to call Gatto in rebuttal to testify to the alleged confession. The prosecutor’s
    41
    improper attempt to discredit the opinion of an expert witness put before the
    jury evidence that was clearly inadmissible.
    [¶62] Of course, if the State thought that the alleged confession by
    Carrillo to Gatto was significant, they could have called Gatto as a witness at
    trial, where she would have been subject to cross examination. Gatto’s direct
    testimony as to Carrillo’s confession would be admissible, both as direct
    evidence against Carrillo and as a rebuttal to the expert witness’s testimony
    presented by the defense. Because the prosecutor did not call Gatto as a
    witness, the questions and resulting answers were improper and exceptionally
    prejudicial. Although there is no evidence that the prosecutor was acting in bad
    faith, he was certainly negligent in his attempt to discredit an expert’s opinion
    by allowing this inadmissible evidence to be revealed to the jury. He should
    have known that this evidence of an alleged confession was explosive evidence
    and that it should have been brought to the trial court’s attention prior to the
    questioning.
    [¶63] In conclusion, the jury heard exceptionally prejudicial testimony
    that directly undermined the primary theory of Carrillo’s defense. See State v.
    Goodrich, 
    432 A.2d 413
    , 418-419 (Me. 1981). Furthermore, the reference to
    Carrillo’s alleged confession of sexual abuse perpetrated against her
    42
    ten-year-old daughter is, on its own, exceptionally prejudicial. The issue before
    us is whether Carrillo received a fair trial, not whether she is guilty of the crime.
    Given the exceptionally prejudicial nature and timing of the testimony, I believe
    that Carrillo did not receive a fair trial.
    [¶64] Because I believe that the court abused its discretion in declining
    to grant a mistrial, I would vacate and remand for a new trial.
    Laura P. Shaw, Esq., and Christopher K. MacLean, Esq. (orally), Camden Law
    LLP, Camden, for Appellant Sharon Carrillo
    Aaron M. Frey, Attorney General, and Leanne Robbin, Asst. Atty. Gen. (orally),
    Office of the Attorney General, Augusta, for appellee State of Maine
    Waldo County Unified Criminal Docket docket number CR-2018-146
    FOR CLERK REFERENCE ONLY
    

Document Info

Citation Numbers: 2021 ME 18

Filed Date: 4/1/2021

Precedential Status: Precedential

Modified Date: 4/1/2021

Authorities (25)

State of Maine v. John De St. Croix , 2020 ME 142 ( 2020 )

State v. Thompson , 1988 Me. LEXIS 20 ( 1988 )

State v. Crossman , 2002 Me. LEXIS 28 ( 2002 )

State v. Stevens , 2007 Me. LEXIS 7 ( 2007 )

State v. Tomah , 1999 Me. 109 ( 1999 )

State of Maine v. Luc W. Tieman , 2019 ME 60 ( 2019 )

State v. Doyon , 1999 Me. LEXIS 209 ( 1999 )

State v. Nguyen , 2010 Me. LEXIS 14 ( 2010 )

State v. Goodrich , 1981 Me. LEXIS 880 ( 1981 )

State v. Shortsleeves , 1990 Me. LEXIS 229 ( 1990 )

State of Maine v. Stanley Fletcher , 2015 Me. LEXIS 124 ( 2015 )

State v. Allen , 2006 Me. LEXIS 19 ( 2006 )

State of Maine v. Timothy M. Hunt , 2016 Me. LEXIS 194 ( 2016 )

State v. Hinds , 1984 Me. LEXIS 848 ( 1984 )

State v. Gauthier , 2007 Me. LEXIS 160 ( 2007 )

In Re Soriah B. , 2010 Me. LEXIS 137 ( 2010 )

State of Maine v. Kenneth Frisbee , 2016 Me. LEXIS 95 ( 2016 )

State v. Cochran , 2000 Me. LEXIS 80 ( 2000 )

State of Maine v. Nicholas Sexton , 2017 Me. LEXIS 68 ( 2017 )

State of Maine v. Karl v. Kittredge , 2014 Me. LEXIS 98 ( 2014 )

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