State of Maine v. Shannon Bean , 2013 Me. LEXIS 90 ( 2013 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2013 ME 91
Docket: Yor-13-75
Argued: September 12, 2013
Decided: October 31, 2013
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and
JABAR, JJ.
STATE OF MAINE
v.
SHANNON BEAN
MEAD, J.
[¶1] Shannon Bean appeals from a judgment entered by the trial court
(O’Neil, J.) following a jury verdict convicting her of domestic violence assault
(Class D), 17-A M.R.S. § 207-A(1)(A) (2012). Bean contends that the State’s
closing argument contained statements that impermissibly referred to her decision
not to testify in her own defense, requiring her conviction to be vacated. Because
we conclude that the prosecutor’s statements during closing argument do not
constitute misconduct, we affirm the judgment.
I. BACKGROUND
[¶2] The following facts are established in the record. Bean lives in an
apartment with her two children and her mother, Linda McCafferty, in
Old Orchard Beach. On September 2, 2012, Bean and McCafferty became
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embroiled in an argument that escalated to the point where Bean started pushing
McCafferty. After being pushed against a railing and scraping her leg in the
process, McCafferty went inside the apartment and locked the door. Bean
unlocked the door using her own key, entered the apartment, and engaged in a
physical altercation with McCafferty.
[¶3] Bean did not testify at her trial. However, her attorney clearly placed
the issues of self-defense and witness credibility before the jury during opening
statements. In his closing argument, the prosecutor said, “[Y]ou didn’t hear any
evidence until [Bean’s friend] took the stand that [Bean] had been injured.” Bean
objected and moved for a mistrial on grounds that the prosecutor’s statement drew
impermissible attention to the fact that she did not testify. The trial court denied
her motion, but acceded to Bean’s request for a curative instruction. The court
instructed the jurors that (1) they were the ultimate deciders of the evidence and
counsels’ arguments did not constitute evidence; (2) a defendant is protected by the
presumption of innocence; and (3) a defendant has no duty to produce evidence to
negate guilt.
[¶4] The prosecutor continued his closing argument and Bean objected to
the following statements on the ground that they drew attention to her decision not
to testify:
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[T]he only evidence you have received through one witness is [Bean’s
friend] who testified that . . . one or two days later, she saw [Bean]
and had observed injury to her[;]
[N]o one testified at all that [McCafferty] had anything to drink or
was any sort of intoxicated that night at all[;]
[I]n this case the only evidence that you’ve heard at all which would
give any rise to deciding that [Bean] was using self-defense to defend
herself when she attacked her mom was [McCafferty]’s statement that
[Bean] said at one point, Leon, come help me, she is beating me or
words to that [e]ffect. That’s the only evidence you have got that
anyone besides [Bean] was the primary aggressor, the initial
aggressor.
The court overruled each objection.
II. DISCUSSION
[¶5] Bean contends that the prosecutor’s comments at closing impermissibly
directed the jury’s attention to her decision not to testify. The privilege not to
testify is “guaranteed . . . by the Fifth Amendment of the United States
Constitution and secured to a defendant in Maine by Article 1 § 6 of the Maine
Constitution, as implemented in 15 M.R.S.A. § 1315.” State v. Tibbetts,
299 A.2d 883, 887 (Me. 1973).
[¶6] In State v. Dolloff, we outlined the analysis for reviewing claims of
error resulting from alleged prosecutorial misconduct in the form of statements to
the jury when, as here, the defendant objected to the statements. 2012 ME 130,
¶¶ 31-34, 40 & n.12, 58 A.3d 1032. Dolloff requires that we first review the record
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to determine whether there was actual misconduct. Id. ¶ 32. Only after this initial
determination do we reach the question of whether the court’s response to the
alleged misconduct is harmless error or, as Bean urges, error that affects the
defendant’s substantial rights and requires a new trial. See id. ¶ 33.
[¶7] A prosecutor’s statement is impermissible when it is a direct,
unambiguous comment on a defendant’s failure to testify, or when it indirectly or
ambiguously calls attention to a defendant’s failure to testify. Tibbetts, 299 A.2d
at 887-88. Statements “that single[] out the defendant as the absent witness who
might rebut the prosecution’s evidence” are equally impermissible. Id. at 888
(quotation marks omitted).
[¶8] In contrast, statements that point to inconsistent defense theories, see
State v. Roberts, 2008 ME 112, ¶¶ 44, 47, 951 A.2d 803, and statements
concerning the sources of the defendant’s version of events when the defendant did
not testify, State v. Berkley, 567 A.2d 915, 919-20 (Me. 1989), do not constitute
misconduct.
[¶9] Here, the prosecutor’s closing argument drew the jury’s attention to
(1) the scant evidence of injury to Bean, (2) the complete lack of evidence showing
McCafferty was intoxicated, and (3) the absence of evidence suggesting that
McCafferty had been the aggressor other than McCafferty’s testimony about
Bean’s statement. The prosecutor’s statements were accurate recitations of the
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state of the evidence and did not expressly or implicitly comment on Bean’s failure
to testify or suggest that the evidence must be accepted because it was unrebutted.
As such, these statements do not constitute misconduct, and we affirm the
judgment of the trial court.
The entry is:
Judgment affirmed.
On the briefs:
Lauren Wille, Esq., DeGrinney Law Offices, Portland, for appellant
Shannon Bean
Kathryn Slattery, District Attorney, and Anne Marie Pazar, Esq.,
Prosecutorial District #1, Alfred, for appellee State of Maine
At oral argument:
Lauren Wille, Esq., for appellant Shannon Bean
Anne Marie Pazar, Esq., for appellee State of Maine
York County Superior Court docket number CR-2012-2095
FOR CLERK REFERENCE ONLY