State v. Lyons

718 A.2d 1102, 1998 Me. 225, 1998 Me. LEXIS 246
CourtSupreme Judicial Court of Maine
DecidedOctober 5, 1998
StatusPublished
Cited by5 cases

This text of 718 A.2d 1102 (State v. Lyons) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lyons, 718 A.2d 1102, 1998 Me. 225, 1998 Me. LEXIS 246 (Me. 1998).

Opinion

RUDMAN, Justice.

[¶ 1] Joseph Henry Lyons, III appeals both from the judgment entered in the Superior Court (Cumberland County, Cole. J.) following a jury verdict finding him guilty on two counts of gross sexual assault in violation [1104]*1104of 17-A M.R.S.A. § 253 (1983 & Supp.1997)1 and from the sentences imposed. Lyons contends that the trial court erred by refusing to grant a mistrial in response to the State’s improper closing argument. Although we agree the State’s argument was improper, we conclude that, absent the prosecutor’s allusion to the failure of the defendant to present evidence, it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty. We therefore affirm the conviction and the sentences imposed.2

[¶ 2] The State presented evidence at trial that, if believed, would establish the elements of the crimes charged. Lyons did not testify or present evidence. During closing argument, the State argued:

What motive does [the victim] have to tell you these things except that they are true?
That is the question you have to ask yourself. Do you ascribe to this victim a sinister motive? Is he making it all up for some reason to pin it on [the defendant]? What would that reason be?
Now, your decision in this case has to be based on the evidence in this case. Ask yourself this: What have you been offered in the way of evidence in this ease that suggests to you any other motive than the truth? That’s the decision you will have to make for yourself. That is the question you will ask yourself during your deliberations.

After the State’s closing argument, Lyons moved for a mistrial on the ground that the State had improperly commented upon Lyons’ failure to testify or offer evidence. The State disputed his contentions and replied that Lyons did in fact offer evidence through stipulations and cross-examination.

[¶ 3] The court refused to grant a mistrial. Although the court remarked that the State was on “thin ice,” it ruled that the statement, when viewed in context, did not “suggest or comment on the defense not putting on any testimony or witnesses including the defendant.” The court later instructed the jury on the presumption of innocence and that they should not draw conclusions based on Lyons’ decision not to testify.

[¶ 4] During rebuttal, the State argued: [1105]*1105After the court instructed the jury, Lyons renewed his motion for mistrial based on the State’s rebuttal. The court declined to declare a mistrial on the ground that it did not think the State’s rebuttal comments referred to Lyons’ “failure to testify or present live witnesses.” The State’s argument did not clearly and unequivocally refer to Lyons’ failure to testify or present evidence to challenge the State’s evidence. We conclude, however, that the remarks are ambiguous— subject to more than one interpretation. By including these ambiguous statements, the prosecutor unnecessarily risked our vacating the judgment entered on the jury’s verdict.

[1104]*1104When you look at the evidence in this case, the stipulations entered into by both the defense and the state, all of the evidence in this case, including those stipulations, what evidence do you have that [the victim] has made this up? And what evidence do you have based on his testimony, his demeanor, the items found by the police, and the inherent believability of the sensations that [the victim] described to you that in fact what he told you is in fact what happened?

[1105]*1105[¶ 5] We review claims of improper prosecutorial comment on a criminal defendant’s failure to testify under a “harmless error” standard of review, subject to the analysis we set forth below. See State v. Ingalls, 544 A.2d 1272, 1275-76 (Me.1988). We have held that the Maine and United States Constitutions, Maine statutory law, and precedent “prohibit either direct or equivocal prosecutorial comment on the defendant’s failure to testify.” State v. Libby, 410 A.2d 562, 563 (Me.1980) (citing U.S. Const. amend. V; Me. Const, art. I, § 6; 15 M.R.S.A. § 1315 (1980)).3

[¶ 6] In State v. Tibbetts and its progeny, we identified three types of improper prosecutorial comment on a criminal defendant’s decision not to become a witness: (1) a direct, unambiguous comment on the defendant’s failure to testify; (2) an indirect comment that unambiguously suggests that the jury must accept the State’s evidence as true because the defendant has not denied it as a witness; and (3) an ambiguous comment that the jury could construe as a remark on the defendant’s failure to testify. See State v. Tibbetts, 299 A.2d 883, 889 (Me.1973); State v. Turner, 433 A.2d 397, 400-01 (Me.1981); Ingalls, 544 A.2d at 1275-76.

[¶ 7] Under the Tibbetts rule, an unambiguous comment on a defendant’s failure to testify, whether direct or indirect, constitutes per se reversible error and can never be deemed harmless error, as a matter of law. See Tibbetts, 299 A.2d at 889. On the other hand, an ambiguous comment does not constitute per se reversible error; however, the State has the burden of proving beyond a reasonable doubt that such comment constituted harmless error, when viewed in the context of the entire record. See Ingalls, 544 A.2d at 1276.4 In other words, to determine whether an ambiguous prosecutorial comment constitutes harmless error, we ask whether, “[a]bsent the prosecutor’s allusion to the failure of the defense to proffer evidence to rebut the [State’s evidence, it is] clear beyond a reasonable doubt that the jury would have returned a verdict of guilty.” Id. at 1275 (quoting United States v. Hasting, 461 U.S. 499, 510-11, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983)).

[¶ 8] In applying this harmless error rule for ambiguous comments, we base our judgment on: (1) our “own reading of the record”; and (2) “what seems to [us] to have been the probable impact of the [improper prosecutorial comment] on the minds of an average jury.”5 Ingalls, 544 A.2d at 1276 (quoting Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969)). “[W]e are not required to reverse [1106]*1106merely because it is possible for an appellate court to ‘imagine a single juror whose mind might have been made up because of [that comment] and who otherwise would have remained in doubt and unconvinced.’ ” Id.

[¶ 9] Therefore, our analysis of an improper prosecutorial comment on a criminal defendant’s failure to testify consists of: (1) determining which of the three “Tibbetts categories” the comment falls under; and (2) applying the appropriate prong of the Tibbetts rule to such comment.6 See Tibbetts, 299 A.2d at 889.

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Bluebook (online)
718 A.2d 1102, 1998 Me. 225, 1998 Me. LEXIS 246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lyons-me-1998.