158 A.3d 957
Me.2017Background
- Defendant Nathan P. Tarbox was tried by jury on charges including Class C domestic violence assault and obstructing the report of a crime; one domestic-violence count was dismissed pretrial.
- Only the victim and Tarbox were in the room during the alleged incident; Tarbox did not testify at trial.
- State presented victim testimony, a roommate who heard an argument, and photographs of the victim’s injuries; defense presented a family witness.
- During direct, the victim twice made unsolicited, prejudicial statements: that "he runs from the police" and that she filed a parental-rights action after speaking with a domestic-violence advocate and obtaining a protection-from-abuse order.
- The court sustained objections, struck the statements, delayed and then gave curative instructions (approved by Tarbox); Tarbox moved for mistrial twice and was denied.
- In rebuttal closing, the prosecutor made an ambiguous comment suggesting there was "nothing to contest" the State’s evidence; Tarbox did not object at trial and was convicted. The Superior Court sentence was affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prosecutor’s rebuttal comment impermissibly commented on defendant’s decision not to testify | State argued remark merely highlighted evidence and burden of proof remained with State | Tarbox argued comment was an improper reference to his silence and warranted mistrial | Court: Unpreserved error reviewed for obvious/prejudicial error; single ambiguous comment did not virtually deprive defendant of a fair trial given curative instruction and other evidence; conviction affirmed |
| Whether victim’s remark that defendant "runs from the police" required mistrial | State pointed to isolated nature, curative instruction, and other admissible evidence | Tarbox argued statement implied criminal propensity and was highly prejudicial | Court: Not exceptionally prejudicial; curative instruction adequate; no mistrial required |
| Whether victim’s testimony about obtaining a protection order required mistrial | State said comment was nonresponsive, attenuated, and cured by instruction | Tarbox argued it implied judicial validation of victim’s credibility and prejudiced jury | Court: Too attenuated to be exceptionally prejudicial; struck and cured by instruction; no mistrial |
| Standard and burden when defendant fails to object at trial to comments on silence | State: urged that comment was proper or harmless | Tarbox: contended constitutional right violated despite no trial objection | Court: Where error unpreserved, defendant must show obvious, highly prejudicial error that virtually deprived fair trial; burden on defendant to persuade |
Key Cases Cited
- State v. Roberts, 951 A.2d 803 (Maine 2008) (defendant has absolute right not to testify; prosecutor may not comment on silence)
- State v. Tibbetts, 299 A.2d 883 (Me. 1973) (framework for analyzing comments on defendant's silence when preserved)
- State v. Turner, 433 A.2d 397 (Me. 1981) (statement is prejudicial as a matter of law if it unambiguously comments on defendant's silence)
- State v. Lyons, 718 A.2d 1102 (Me. 1998) (ambiguous comments require State to prove harmlessness beyond reasonable doubt when preserved)
- State v. Clarke, 738 A.2d 1233 (Me. 1999) (unpreserved comments on silence reviewed for obvious error that 'virtually' deprives a defendant of a fair trial)
- State v. Dolloff, 58 A.3d 1032 (Me. 2012) (defendant bears burden to show prejudice from unpreserved error; juries presumed to follow curative instructions)