State v. Libby

410 A.2d 562, 1980 Me. LEXIS 502

• Court: Supreme Judicial Court of Maine
• Decided: February 5, 1980
• Status: Published

Opinions

GLASSMAN, Justice.

Following a consolidated jury trial in the Superior Court, Aroostook County, each defendant was convicted of one count of arson in violation of 17-A M.R.S.A. § 802(1)(A) and one count of criminal mischief in violation of 17-A M.R.S.A. § 806(1)(A). Both defendants appealed, contending that the attorney for the State improperly commented on their failure to testify. We set aside the judgments.

During his final argument to the jury, the attorney for the State made the following statement:

Now, the State does have the burden of proof, and we have proved that .Harley Libby’s gun was down at that camp. While the defendants don’t have to prove anything at all, I think you are entitled to hear from them, or at least Mr. Libby’s counsel, how that could occur. What was the gun doing down there? What’s the explanation for it being there? The obvious explanation is that Mr. Libby took it down there and used it to shoot up the truck. The same gun that he used to shoot into a camp and later on burn[ed] down. If there is another explanation for it, I would be interested in hearing it.

The United States Constitution,¹ the Maine Constitution² and the Maine statutes ³ guarantee that a defendant may decline to testify in a criminal proceeding. The United States Supreme Court has held that the fifth amendment to the federal Constitution, applicable to the states through the fourteenth amendment, prohibits comment by a prosecutor on a defendant’s failure to testify. Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965). The constitutional privilege against self-incrimination holds a special place in the public policy and jurisprudence of the State of Maine. State v. Collins, Me., 297 A.2d 620, 626 (1972). Against this background, in State v. Tibbetts, Me., 299 A.2d 883, 888 (1973), this Court held

that precedent and the Maine Statute, as well as the Maine and United States Constitutions, prohibit either direct or equivocal prosecutorial comment on the defendant’s failure to testify. Such a constitutionally impermissible comment will necessarily result in the granting of a mistrial unless under appropriate standards the comment can be deemed harmless error.

We then concluded that in two situations prosecutorial comment, as a matter of law, can never be deemed harmless:

1. A direct, non-ambiguous and unequivocal prosecutorial comment on the failure of a criminal defendant to become a witness.

2. An indirect prosecutorial comment which, without equivocation or ambiguity, suggests that a jury must accept as true the State’s evidence because it is undenied by a criminal defendant as a witness.

Id. at 889.

Defendants concede that the statement here involved does not fall within the first category enumerated above. Nevertheless, the prosecutor’s statement was an indirect comment on the failure of the defendants to testify. Rather than a specific reference to the lack of testimony by the defendants, the prosecutor’s statement, “I think you are entitled to hear from them,” indirectly drew the jury’s attention to the absence of testimony by the defendants. The suggestion as to the use the jury might make of this absence of testimony becomes clear upon examination of the entire argument and the incomplete record which we have before us. Apparently, the primary evidence identifying the defendants as the perpetrators of the crimes charged was the testimony of Brian Donahue. He claimed to be a participant in the crimes and identified the two defendants as other participants. Donahue described the defendant Libby as using a .22 during the course of committing these crimes. From the prosecutor’s argument it appears that expended .22 caliber cartridge cases were found at the scene of the crime. A firearms expert identified these cartridge cases as having been fired from a gun owned by the defendant Libby. The unmistakable point of the prosecutor’s argument was that if Libby or Yates did not explain how Libby’s gun happened to be at the scene of the crime the jury must accept the only explanation offered — the testimony of the accomplice that Libby and Yates were participants in the crimes. Thus, the indirect comment suggested “without equivocation or ambiguity” that the jury must accept the State’s evidence as true because it was un-denied by Libby and Yates.⁴

In State v. White, Me., 285 A.2d 832, 836 (1972), we held that a presiding Justice must instruct the jury that a defendant’s failure to testify shall not be considered as evidence of his guilt unless the defendant specifically requests that the court make no reference to his failure to testify. This holding recognized that a defendant, as a tactical judgment, may conclude that any reference in the court’s instructions to his failure to testify might unnecessarily direct the jury’s attention to that fact to his prejudice. To avoid prejudice, therefore, the defendant may request that- such instruction not be given. In the instant case, the colloquy between court and counsel reveals that the defendants had made a tactical judgment that they wanted no judicial reference to their failure to testify and had specifically made such a request of the court. Following the prosecutor’s impermissible comment, at the suggestion of the presiding Justice and without waiving their objection to the comment, the defendants changed their tactics and requested that the presiding Justice charge the jury on the right of the defendants to decline to testify. Thus, the prosecutor’s argument not only violated the standards enunciated in State v. Tibbetts, supra, but also deprived the defendants of the tactical advantage of having no reference made to their failure to testify in the court’s charge to the jury.

Because the impermissible comment of the prosecutor is, under Tibbetts, prejudicial error as a matter of law, we set aside the judgments of conviction.

The entry is:

Appeals sustained.

Judgments of conviction set aside.

Remanded to the Superior Court.

POMEROY and ARCHIBALD, JJ., did not sit.

1 . U.S.Const. amend. V.

2 . Me.Const. art. I, § 6.

3 . 15 M.R.S.A. § 1315 provides in pertinent part:

In all criminal trials, the accused shall, at his own request but not otherwise, be a competent witness. . . . The fact that he does not testify in his own behalf shall not be taken as evidence of his guilt.

4 . Although not directly relevant, we feel constrained to note the discussion between court and counsel during the argument on the defendants’ motion for mistrial since it reveals the prosecutor’s attitude and the presiding Justice’s remarkable restraint.

Court: Mr. State’s Attorney do you have anything to say on that?

[Prosecutor]: ■ Bah.

Court: What was that?

[Prosecutor]: My comment was bah.

Court: That’s not a very dignified answer, Mr.