Case Information
*1
MAINE SUPREME JUDICIAL COURT
Reporter of Decisions
Decision:
Docket: Cum-12-427
Argued: September 10, 2013
Decided: March 27, 2014
Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.
STATE OF MAINE
v.
JASON M. LOVEJOY
SAUFLEY, C.J.
[¶1] In this appeal, we consider whether a person’s pre-arrest silence may be offered as evidence of consciousness of guilt in a criminal prosecution without offending the Fifth Amendment of the United States Constitution and article I, section 6 of the Maine Constitution. We also consider allegations of prosecutorial misconduct. Because we conclude that a defendant’s silence following the explicit assertion of the right to consult with counsel cannot be used as evidence of consciousness of guilt and because the prosecutor improperly opined on witness credibility, we vacate the judgments of conviction entered in this case.
[¶2] Jason M. Lovejoy appeals from judgments of conviction of two counts of gross sexual assault (Class A), 17-A M.R.S.A. § 253(1)(B), (4) (Supp. 2000), [1] entered by the court ( Warren, J. ) after a jury trial. In addition to the issues that we address in this opinion, Lovejoy challenges the sufficiency of the evidence to convict him of the crimes, argues that there were other instances of prosecutorial misconduct, and challenges the court’s determination of his sentence. Without further discussion, we conclude that the other challenged prosecutorial conduct did not undermine the fairness of the proceedings and that, in light of the alleged victim’s testimony, Lovejoy’s challenge to the sufficiency of the evidence fails. We do not consider the sentencing issues in this appeal because we vacate the judgments of conviction based on the violation of Lovejoy’s constitutional right to remain silent and the prosecutorial statements in closing arguments that deprived him of a fair trial.
I. BACKGROUND
[¶3] In the fall of 2010, at the age of fifteen, Lovejoy’s daughter told her best friend that her father had sexually assaulted her beginning when she was about five years old. She later informed her mother, and ultimately the Portland Police Department began an investigation. A Portland police detective had one or two telephone conversations with Lovejoy. Lovejoy, who was living in North Carolina at the time, denied the allegations and said that he wanted to talk to a lawyer. He did not return subsequent telephone calls from the police.
new paragraph was added, see P.L. 2003, ch. 711, § B-2 (effective July 30, 2004) (codified at 17-A M.R.S. § 253(1)(B) (2013)).
[¶4] In the fall of 2011, Lovejoy was arrested and charged by indictment with two counts of gross sexual assault (Class A), 17-A M.R.S.A. § 253(1)(B), for conduct occurring between October 1, 2000, and January 1, 2003. After a February 2012 trial resulted in a mistrial, the court held a two-day jury trial the following month. The State called several witnesses, including, among others, Lovejoy’s daughter (the alleged victim), the friend in whom she confided, the alleged victim’s mother, the investigating Portland police detective, and a nurse practitioner at the Spurwink Child Abuse Program. Lovejoy presented testimony from his acquaintances and from his current wife. He did not testify.
[¶5] Lovejoy’s daughter, who was sixteen years old at the time of the trial, testified that, when she was between the ages of about five and eight, Lovejoy would have her sit on his lap while he showed her pornographic pictures and videos on a computer in his bedroom. She testified that he touched her vagina with his fingers and, on multiple occasions, penetrated her vagina and anus with his penis. She also testified about how she disclosed that he had assaulted her. The nurse practitioner who physically examined Lovejoy’s daughter as a teenager testified that she did not find any physical evidence of sexual assault. She also testified, however, that the absence of physical evidence did not rule out the possibility that the alleged assaults had, in fact, occurred.
[¶6] During direct examination of the police detective, the prosecutor questioned the detective about his attempts to contact Lovejoy before Lovejoy’s return to Maine and subsequent arrest. The detective testified that he had one or two telephone conversations with Lovejoy and that he informed Lovejoy of the allegations of sexual assault. When the prosecutor asked how Lovejoy had responded to this information, defense counsel requested a sidebar conference. Counsel asked that the witness be instructed not to mention that Lovejoy “told him he wanted to talk to a lawyer,” but counsel did not explicitly seek to prevent testimony regarding Lovejoy’s refusal to speak with the detective. Thus, the detective was told only to avoid referencing Lovejoy’s request for counsel.
[¶7] After the sidebar conference, the prosecutor asked the detective to describe to the jury Lovejoy’s reaction during the phone conversation. The detective testified that Lovejoy denied the allegations of abuse with a “kind of flat affect” and “no emotion.” [2] The detective then testified that, after this initial conversation, he attempted to contact Lovejoy at least two more times. The prosecutor asked the detective whether he had received any return calls, and the detective responded that he had not. The prosecutor asked, “Was this odd or unusual in your mind?” The court sustained Lovejoy’s objection to this question. [¶8] During her closing argument, the prosecutor commented on Lovejoy’s silence in response to police phone calls. She asked the jury to “[c]onsider what we call the defendant’s consciousness of guilt,” and referenced the fact that, despite the detective’s phone calls and messages, Lovejoy “never kept in contact” and “never chose to call” or come “up to Maine to clear up the charges in person.”
[¶9] The prosecutor also stated, “I would argue to you that [the victim] was an entirely credible witness” and further argued, “I would like you to consider the testimony of all of the witnesses, the State’s and the defendant’s. All were consistent in their testimony. They were all credible. ” (Emphasis added.) [3]
[¶10] After the prosecutor concluded her closing argument, Lovejoy requested a sidebar conference and moved for mistrial because of the statements concerning the victim’s credibility. The court agreed that the prosecutor had improperly expressed an opinion supporting the victim’s credibility but denied the motion for a mistrial, indicating that it would provide a curative instruction at the end of closing arguments.
[¶11] After defense counsel argued, “[t]his case is going to hinge on whether or not you believe [the victim],” the prosecutor, in her rebuttal argument, again asserted the victim’s credibility. Specifically, she argued that the victim’s testimony that she told Lovejoy to stop sexually abusing her at a certain age was “entirely credible.”
[¶12] The court provided instructions to the jury, including the following: In particular, let me remind you that the opening statements and the closing arguments of the attorneys are not evidence . . . . [T]o the extent you are hearing arguments from the attorneys that include their personal opinions, you should disregard that entirely. . . . [Y]ou should remember that it’s not the attorney’s opinion, it is your own evaluation of the evidence that . . . you need to make. You have to make your own decisions as to credibility . . . .
The court also instructed the jury not to consider Lovejoy’s exercise of the right not to testify as evidence of his guilt. The jury returned a verdict finding Lovejoy guilty of both counts of gross sexual assault.
[¶13] The court held a sentencing hearing on August 10 and 24, 2012, and on August 24, 2012, the court imposed the sentence. After determining a basic sentence of fifteen years, see 17-A M.R.S. § 1252-C(1) (2013), the court, applying 17-A M.R.S. § 1252-C(2) (2013), determined a maximum period of imprisonment of twenty years, relying, in part, on the aggravating factor of certain uncharged conduct by the defendant concerning abuse of his younger daughter and his half-sister. The court imposed a final sentence of twenty years with sixteen years unsuspended “in light of the seriousness” and “gravity of the offense.” See 17-A M.R.S. § 1252-C(3) (2013).
[¶14] Concerning the appropriate term of probation, the court, applying 17-A M.R.S.A. § 1202(1-A) (Supp. 2000) [4] and 17-A M.R.S.A. § 257 (Supp. 2000), [5] extended the term of Lovejoy’s probation from six years to ten years “based on a finding that his victim was prepubescent.” The court rejected Lovejoy’s argument that, pursuant to Apprendi v. New Jersey , 530 U.S. 466 (2000), and its progeny, the court could not extend the term of his probation in the absence of a jury finding that the victim was prepubescent when the assaults occurred.
[¶15] Pursuant to 15 M.R.S. § 2115 (2013) and M.R. App. P. 2(b)(2)(A), Lovejoy timely appealed from the judgments of conviction. After the Sentence Review Panel granted Lovejoy’s request for leave to appeal, see 15 M.R.S. § 2151 (2013); M.R. App. P. 20, we consolidated his sentence appeal with his appeal from the convictions. We do not, however, reach the contentions raised in his sentence appeal because we vacate the convictions.
II. DISCUSSION
[¶16] The two issues that determine the outcome of this appeal are (A) the admissibility of evidence concerning Lovejoy’s silence when approached by the police before his arrest and (B) the effect of prosecutorial comments regarding D. The offender has been previously convicted of a crime under chapter 11 or previously convicted under the laws of the United States or any other state for conduct substantially similar to that contained in chapter 11.
A court may also utilize any other factor found by that court to increase the risk of repeat offenses by a person convicted of a crime under chapter 11.
17-A M.R.S.A. § 257 (Supp. 2000) (emphasis added).
witness credibility on the fairness of Lovejoy’s trial. We consider each issue separately.
A. Testimony Regarding Pre-Arrest Silence
[¶17] Lovejoy argues that the prosecutor violated the Fifth Amendment of the United States Constitution and article I, section 6 of the Maine Constitution by eliciting testimony that Lovejoy did not return phone calls from police and by arguing to the jury that his failure to explain what happened demonstrated consciousness of guilt. Lovejoy contends that he was deprived of a fair trial and that the prosecution improperly suggested that he had some obligation to negate the victim’s testimony.
[¶18] Pursuant to the United States Constitution, “No person . . . shall be
compelled in any criminal case to be a witness against himself . . . .” U.S. Const.
amend. V. The Maine Constitution contains a similar provision: “The accused
shall not be compelled to furnish or give evidence against himself or herself . . . .”
Me. Const. art. I, § 6. We interpret the Maine Constitution to be coextensive with
the United States Constitution in this context.
See, e.g.
,
State v. Millay
, 2001 ME
177, ¶¶ 14-20,
[¶19] Because Lovejoy did not explicitly object to the testimony and the
prosecutor’s comments concerning his pre-arrest silence, the trial court did not
address the application of the constitutions in this context, and we review for
obvious error.
See
U.C.D.R.P.-Cumberland County 52(b); M.R. Crim. P. 52(b);
State v. Pabon
,
there must be (1) an error, (2) that is plain, and (3) that affects substantial rights. If these conditions are met, we will exercise our discretion to notice an unpreserved error only if we also conclude that (4) the error seriously affects the fairness and integrity or public reputation of judicial proceedings.
Pabon
,
[¶20] Measures that protect the Fifth Amendment right to remain silent exist
in multiple contexts and, in most contexts, include a prohibition against the
prosecution’s reliance on that silence as evidence of guilt.
[6]
For example, there can
be no question that the Fifth Amendment “prevents the prosecution or the court
from commenting on a defendant’s decision not to testify at his criminal trial.”
State v. Patton
,
[¶21] Whether those same Fifth Amendment protections “extend to prevent
the introduction in evidence of a defendant’s pre-arrest, pre-
Miranda
silence in the
State’s case-in-chief,”
Patton
,
[¶22] On this question, we have concluded that individuals are endowed with the Fifth Amendment’s protections against compelled self-incrimination both before and after arrest. See State v. Diaz , 681 A.2d 466, 468 (Me. 1996). We reached this holding in a case in which the defendant’s pre-arrest, noncustodial statement refusing to answer a state trooper’s question was admitted in evidence, and the prosecution referred to the defendant’s refusal to speak in its closing and rebuttal argument. Id. at 468-69. We held that the Fifth Amendment “right to remain silent, unlike the right to counsel, attaches before the institution of formal adversary proceedings” and that the Constitution “clearly requires the exclusion of evidence of the defendant’s failure to answer [the state trooper’s] question.” Id. (quotation marks omitted).
[¶23] In another recent case, the State offered evidence in its case-in-chief that a suspect stated, before arrest and without having received Miranda warnings, that he needed to speak with counsel and, after making that statement, remained silent. Patton , 2012 ME 101, ¶¶ 12, 15-16, 50 A.3d 544. The State conceded error, and we reviewed the error to determine whether it was harmless. Id. ¶ 16. In that review, we concluded that the error was harmless because the evidence presented at trial was strong and “the State did not seek to capitalize on . . . testimony” that the defendant told police he needed to talk to his lawyer. Id. ¶ 18. Apart from the admitted testimony, the State did not refer to the defendant’s expressed desire to speak with his attorney in any other way, “either through its questioning of witnesses or in closing argument.” Id. “[I]t was never suggested to the jury that [the defendant’s] statement to the officer should be viewed as evidence of his guilt.” Id. We explicitly distinguished Diaz , noting that in that case, “the State encouraged the jury to infer guilt from the defendant’s silence because the State referred to the defendant’s failure to answer an officer’s questions both in its closing argument and in rebuttal .” Id. ¶ 18 n.2 (emphasis added). [9]
[¶24] We distinguish the factual context before us from that which arises
when, as in
Salinas
, 570 U.S. ---, 186 L. Ed. 2d 376, a defendant is voluntarily
speaking with law enforcement officers and then simply ceases speaking without
any clear indication of an intention to exercise the right not to be a witness against
himself.
See id.
at 383-89 (plurality opinion) (reasoning that an express invocation
of the right to remain silent is necessary in such circumstances). In contrast to
those facts, Lovejoy specifically terminated communication by first telling the
investigating detective during a telephone conversation that he wanted to speak
with a lawyer and then remaining silent by not returning the detective’s telephone
calls.
See Patton
,
[¶25] Although Lovejoy did not explicitly state that he was also exercising
his right against compelled self-incrimination, we have never required the use of
any specific words for a person to enjoy constitutional protection for his or her
silence.
See id.
;
see also, e.g.
,
Diaz
, 681 A.2d at 467-69 (holding that the
defendant exercised the Fifth Amendment right against self-incrimination when he
said that he did not think he should answer a police officer’s questions). “[N]o
ritualistic formula is necessary in order to invoke the privilege.”
Quinn v. United
States
, 349 U.S. 155, 164 (1955). We do, however, require that the record
389-90 (Thomas, J., concurring) (reasoning that without custody, there is no governmental compulsion to
speak). As we have held, an individual may exercise the right to remain silent before any charges are
pending.
See State v. Diaz
,
demonstrate the defendant’s intention to exercise the constitutional right against compelled self-incrimination. See Diaz , 681 A.2d at 467-69. Thus, in many contexts, a defendant is not deemed to have exercised the constitutionally protected right against compelled self-incrimination by virtue of silence alone. See Salinas , 570 U.S. at ---, 186 L. Ed. 2d at 386 (plurality opinion) (“A witness does not expressly invoke the privilege by standing mute.”).
[¶26] To determine whether a defendant did express the intention to
exercise this Fifth Amendment right, a court must consider the specific
circumstances in which a defendant was questioned and the defendant’s response
to that questioning. Here, Lovejoy terminated a telephone conversation with the
investigating detective upon stating that he wanted to speak with a lawyer
[10]
and
then did not return the detective’s subsequent telephone calls. These facts provide
sufficient information to demonstrate Lovejoy’s invocation of his right against
self-incrimination for purposes of the Fifth Amendment and article I, section 6 of
the Maine Constitution.
See United States v. Okatan
,
[¶27] Although, by agreement, the prosecutor avoided eliciting testimony
about Lovejoy’s statement that he wanted to speak with an attorney, she did elicit
testimony that Lovejoy did not return the detective’s calls. She also argued in her
closing argument that this silence evidenced consciousness of guilt. Because the
prosecutor, as in
Diaz
, sought to capitalize on the improperly admitted testimony
of Lovejoy’s failure to respond to the police detective by arguing that it
demonstrated Lovejoy’s consciousness of guilt, the testimony and argument
constituted a violation of the Fifth Amendment and article I, section 6 of the Maine
Constitution.
See Patton
,
[¶28] In reviewing the admission of the testimony in the context of this trial
for obvious error,
see Pabon
,
[¶29] Finally, because of the improperly admitted evidence and the
subsequent argument that Lovejoy declined to speak with police, we conclude that
“(4) the error seriously affects the fairness and integrity or public reputation of
judicial proceedings.”
Pabon
,
[¶30] Lovejoy argues that the prosecutor committed misconduct by stating that the witnesses were credible and by further commenting on the alleged victim’s credibility even after the court determined that such statements were impermissible.
[¶31] “When an objection has been made to a prosecutor’s statements at trial, we review to determine whether there was actual misconduct and, if so, whether the trial court’s response remedied any prejudice resulting from the misconduct.” Dolloff , 2012 ME 130, ¶ 32, 58 A.3d 1032 (citations omitted). Because Lovejoy objected to the prosecutor’s statements concerning witnesses’ credibility during closing argument, we review for harmless error. See U.C.D.R.P.-Cumberland County 52(a); M.R. Crim. P. 52(a).
[¶32] A prosecutor may not use “the authority or prestige of the
prosecutor’s office to shore up the credibility of a witness, sometimes called
‘vouching.’”
Dolloff
,
III. CONCLUSION
[¶33] Because Lovejoy’s pre-arrest silence was used against him as
evidence of consciousness of guilt in violation of the United States and Maine
Constitutions, and because the prosecutor improperly vouched for the credibility of
the witnesses, Lovejoy did not receive a fair trial. The two identified defects in
Lovejoy’s trial require us to vacate his convictions and remand this matter to the
trial court for further proceedings. Accordingly, the issues raised in Lovejoy’s
sentence appeal are moot, and we do not discuss them further.
See State v. York
,
The entry is:
Judgments of conviction vacated. Remanded for further proceedings consistent with this opinion.
On the briefs:
Jeremy Pratt, Esq., Camden, for appellant Jason Lovejoy Stephanie Anderson, District Attorney, and Deborah A. Chmielewski, Asst. Dist. Atty., Prosecutorial District No. Two, Portland, for appellee State of Maine
At oral argument:
Jeremy Pratt, Esq., for appellant Jason Lovejoy
Deborah A. Chmielewski, Asst. Dist. Atty., for appellee State of Maine Cumberland County Unified Criminal Docket docket number CR-2011-5953 F OR CLERK REFERENCE ONLY
Notes
[1] Section 253(1)(B) has since been amended to move information regarding the class of the crime from subsection (4) into subsection (1)(B), see P.L. 2001, ch. 383, §§ 14, 18 (effective Jan. 31, 2003) (codified as subsequently amended at 17-A M.R.S. § 253(1)(B) (2013)), and to modify the syntax when a
[2] There was no objection to this testimony, nor was there error in its admission. See Miranda v. Arizona , 384 U.S. 436, 478 (1966) (“Volunteered statements of any kind are not barred by the Fifth Amendment . . . .”).
[3] The March 2012 trial occurred before we extensively discussed prosecutorial limits in
State v.
Dolloff
,
[4] This statute has since been amended. See P.L. 2009, ch. 608, § 8 (effective July 12, 2010) (codified at 17-A M.R.S. § 1202(1-A) (2013)). At the relevant time, the statute provided: § 1202. Period of probation; modification and discharge 1. A person convicted of a Class A crime may be placed on probation for a period not to exceed 6 years ; for a Class B or Class C crime, for a period of probation not to exceed 4 years; and for Class D and Class E crimes, for a period not to exceed one year. 1-A. Notwithstanding subsection 1: A. The period of probation for a person convicted under chapter 11 or section 854, excluding subsection 1, paragraph A, subparagraph (1), may be extended by up to 4 years for a Class A crime , by up to 2 years for a Class B or Class C crime and by up to one year for a Class D or Class E crime if the court finds that the additional time is needed to provide sex-offender treatment to the person or to protect the public from the person because, based on one or more of the factors in section 257, the court determines that the person is a high-risk sex offender ; and B. The period of probation for a person sentenced as a dangerous sexual offender pursuant to section 1252, subsection 4-B is any term of years. 17-A M.R.S.A. § 1202 (Supp. 2000) (emphasis added).
[5] This statute has since been amended. See P.L. 2007, ch. 476, § 3 (effective June 30, 2008) (codified at 17-A M.R.S. § 257 (2013)). At the relevant time, the statute provided: § 257. Factors aiding in predicting high-risk sex offenders for sentencing purposes 1. In assessing for sentencing purposes the risk of repeat offenses by a person convicted of a crime under chapter 11, a court shall treat each of the following factors, if present, as increasing that risk: A. The victim of the crime is prepubescent ; B. The victim of the crime is the same gender as the offender; C. The victim of the crime is a total stranger to the offender; and
[6]
Nontestimonial
actions such as flight, hiding, or resisting arrest may be admissible as evidence of
consciousness of guilt.
See United States v. Francois
,
[7] In
Salinas v. Texas
, 570 U.S. ---,
[8] The Supreme Court has held that “the use of prearrest silence to
impeach a defendant’s credibility
does
not
violate the Constitution.”
Jenkins v. Anderson
,
[9] As is clear from these two cases, the enterprise of determining whether
the fact of the person’s
silence
is admissible in a criminal trial as evidence of guilt differs from the consideration of whether a
confession
is admissible when it was obtained through police questioning after an individual has
attempted to invoke the right to remain silent or has ambiguously referred to that right.
See, e.g.
,
State v.
King
, 1998 ME 60, ¶¶ 7, 9, 708 A.2d 1014. Specifically, we are determining not whether the police
violated a constitutional right by continuing questioning but rather whether the prosecutor violated a
constitutional right by offering a person’s silence as evidence of his guilt.
Also inapplicable when assessing the admissibility of pre-arrest silence is the bright line drawn at the
point of custody. Courts determine the moment at which custody began for purposes of identifying the
point after which law enforcement had the responsibility to
advise
the individual of his or her rights.
See
Miranda
,
[10] The record here contains no admitted evidence regarding the content of Lovejoy’s statement to the detective. Rather, because the State and Lovejoy agreed that that statement was inadmissible, the record contains only the uncontested assertion by Lovejoy’s counsel at sidebar that Lovejoy had stated to the detective that he wanted to talk to a lawyer. Because the State does not challenge the factual representation made by Lovejoy’s counsel, we accept as fact that Lovejoy made this statement to the detective.