Lead Opinion
[¶ 1] Samadi M. Hassan appeals from a judgment of conviction for aggravated assault (Class B), 17-A M.R.S. § 208(1)(B) (2012), criminal threatening with a dangerous weapon (Class C), 17-A M.R.S. §§ 209(1), 1252(4) (2012), criminal restraint (Class D), 17-A M.R.S. § 302(1)(B)(1) (2012), and violation of a condition of release (Class E), 15 M.R.S. § 1092(1)(A) (2012), entered in the Unified Criminal Docket (Moskowitz, J.) following a jury trial. Hassan challenges the admission of evidence related to the events that preceded his arrest, as well as testimony regarding the methods the police used to compile a photographic array that was shown to the victim. He also contends that the prosecutor’s closing argument contained statements about the victim’s credibility that constituted prosecutorial misconduct and deprived him of a fair trial. We affirm the judgment.
I. BACKGROUND
[¶ 2] “The following facts, viewed in the light most favorable to the State, rationally support the verdict.” State v. Dolloff,
[¶ 3] At around 12:00 a.m. on July 1, 2011, the victim went to a Riverton Park apartment to purchase marijuana. She arrived to find a small party at the apartment, with at least six or seven people in attendance. One of the men at the party began pulling the victim’s headscarf, which she wore for religious reasons, as well as her hair. The victim told the man to stop, but he proceeded to roughly pull the scarf until it came off the victim’s head.
[¶ 4] The victim threatened to call the police if the man persisted. In response, a group of men and women pinned her to the ground and began kicking and hitting her. The victim was eventually able to stand up, and at some point a man in a red shirt began waving a knife at her. The victim was attempting to hold the man back when the knife struck her index finger, causing a laceration that went all the way to the bone.
[¶ 5] The victim repeatedly asked to be allowed to go home, but the man refused to let her leave. Sometime around 6 or 7 a.m., the man allowed the victim to go outside to smoke a cigarette, at which point she fled to a convenience store located near the apartment. Once at the convenience store, the victim called 911 and reported that she had been assaulted and that she was bleeding.
[¶ 6] The police arrived to find the victim upset and shaking. The victim told police that while she was waiting for them to arrive, her aggressor had arrived at the convenience store in a blue Dodge with a Maine license plate.
B. Events Preceding Hassan’s Arrest
[¶7] Once at the apartment building, the police set up a perimeter around the building and then knocked on the door. After receiving no response, they attempted to look into the windows of the apartment, but the curtains and blinds were drawn. Officers could see shadows and movements through the windows of the apartment and believed that there might be a firearm inside. They evacuated other apartments in the building and sought a search warrant.
[¶ 8] Timothy Farris, a senior lead officer and crisis negotiator for the Portland Police Department, arrived at the apartment at approximately 7 a.m. Farris maintained an office in Riverton Park and was familiar with Hassan. Farris received information that Hassan was the man whom the victim had identified at the convenience store as her attacker. Farris called Hassan’s cell phone number and spoke with him briefly. Hassan agreed to come out with the other people in the apartment but would not reveal the names of the people inside the apartment or say how many people were inside. After no one exited the apartment, Farris approached the residence in an armored police vehicle. Using the vehicle’s public address system, he spoke to the apartment’s occupants. Farris testified that those inside the building responded by taunting, yelling, and giving “the middle finger a few times.”
[¶ 9] At approximately 1 p.m., Farris and another officer, dressed in protective gear, approached the apartment and attempted face-to-face negotiations. Farris spoke with the people that were in the apartment, including Hassan, for about one hour until, finally, the occupants peacefully exited the building. Hassan was taken into custody. The police eventually obtained a search warrant, and in the apartment they discovered a headscarf, some white T-shirts, two knives, and a red T-shirt with red stains.
[¶ 10] Meanwhile, the victim went to the police station, where she was shown a photographic array of fifty-four men fitting the general description of her attacker. After looking through each page of the array, the victim identified a photograph of Samadi Hassan as depicting the man who threatened her with a knife and cut her.
[¶ 11] In November 2011, a grand jury indicted Hassan for one count of aggravated assault (Class B), 17-A M.R.S. § 208(1)(B); one count of criminal threatening with a dangerous weapon (Class C), 17-A M.R.S. §§ 209(1), 1252(4); one count of criminal restraint (Class D), 17-A M.R.S. § 302(1)(B)(1); and one count of violation of condition of release (Class E), 15 M.R.S. § 1092(1)(A).
C. Hassan’s Motion in Limine
[¶ 12] Prior to trial, Hassan filed a motion in limine, which sought to exclude several strands of evidence, two of which are particularly relevant to the disposition of this appeal. First, Hassan challenged the admission of evidence relating to the events that occurred between the time the police showed up at the apartment and the time that the occupants finally emerged from the apartment. Hassan contended that the evidence was not relevant, and that even if it was relevant, its probative value was outweighed by its highly prejudicial nature. Second, Hassan argued that the court should exclude the State’s anticipated trial testimony that the photographic array shown to the victim “exclusively contained photographs of men who the police believe are associated with criminal activity.” The State agreed that at trial it would elicit testimony only on “the photographic lineup process” but not “where the photographs came from,” and the court denied Hassan’s motion.
D. Trial
[¶ 13] A jury trial was held on February 14, 2012. During opening statements, the prosecutor told the jury that she expected the evidence to show, among other things, that Hassan was involved in what she characterized as “a police standoff for several hours.” Hassan renewed his objection to this evidence, which was overruled. Following the objection, Farris testified in detail as to the events that occurred between when the police arrived at the apartment and when the occupants exited from the apartment. Hassan did not object to any of the specific testimony offered by Farris at trial.
[¶ 14] The State also called the victim to the stand, and she identified Hassan as the man who had attacked her with the knife and had refused to let her leave the apartment. The victim also testified that her attacker wore the red shirt seized by the police, that the headscarf discovered at the apartment was the one she was wearing the night of the crime, and that the
[¶ 15] The State also introduced evidence that the victim identified Hassan as her attacker from the photographic array. A police detective testified, without objection from Hassan, regarding the three types of photographic arrays that the police typically use and how the police compile the photographs in the array. The detective stated that the police showed the victim the type of array that typically includes both arrest photographs and other types of photographs such as yearbook pictures and Department of Motor Vehicle (DMV) photographs. The detective did not specify the source of the photograph of Hassan that was used in the photographic array, nor did the jury view the photographic array or Hassan’s photograph from the array.
[¶ 16] The defense, meanwhile, focused on the victim’s credibility. During opening statements, defense counsel stated that the victim “has told inconsistent stories to different parties,” and suggested that the jury “pay close attention to credibility, believability and truthfulness.” On cross-examination of the victim, Hassan focused on inconsistencies between the victim’s testimony and statements she made or allegedly made the morning of the crime. During closing arguments, defense counsel again focused on the victim’s credibility, stating, “I would submit to you, the jury, that we really can’t believe much [of] what comes out of [the victim].”
[¶ 17] During her closing argument, the prosecutor reviewed the evidence presented in the case and asserted that the jury should find the victim credible because the evidentiary photographs and the medical records corroborated the victim’s testimony. The prosecutor then addressed the inconsistencies in the victim’s story that the defense had identified and stated, “I would suggest to you that her testimony was entirely credible given what she had gone through that night and that you should believe her.”
[¶ 18] At the close of trial, the court instructed the jury that “the opening statements and the closing arguments of the attorneys are not evidence.” After deliberating for less than two hours, the jury returned a verdict finding Hassan guilty on the charges of aggravated assault, criminal threatening, and criminal restraint, and the court entered a finding of guilty on the charge of violation of condition of release.
II. DISCUSSION
[¶ 19] Hassan asserts three grounds for appeal: (A) the court erred by admitting evidence of the so-called “standoff’ preceding Hassan’s arrest; (B) the court erred by admitting the officer’s testimony regarding how the police compiled the photographic array; and (C) he was denied a fair trial because of prosecutorial misconduct during the State’s closing argument. We consider each contention in turn.
[¶ 20] Hassan contends that the court erred in admitting testimonial evidence pertaining to the so-called “standoff’—that is, the events that transpired between when the police arrived at Riverside Park and when the occupants acceded to the police requests to exit the building. Specifically, Hassan argues that (1) the evidence was irrelevant because the State offered no evidence that Hassan knew that the police were there to arrest him for the assault of the victim; and (2) even if the evidence was relevant, it was unfairly prejudicial.
1. Relevance
[¶ 21] We review a trial court’s ruling on evidentiary relevance for clear error. Dolloff,
[¶ 22] Here, the testimonial and physical evidence that linked Hassan to the assault of the victim was substantial, and a fact-finder could reasonably infer from the victim’s testimony that Hassan knew that the police were at the apartment to question and possibly arrest him for assaulting the victim several hours earlier. Accordingly, evidence of Hassan’s failure to exit the apartment during the several hours in which the police were waiting outside was probative of his consciousness of guilt, see id,., and could aid the fact-finder in concluding that he had committed the crimes with which he was charged. As such, the evidence was relevant. See M.R. Evid. 401.
2. Danger of Unfair Prejudice
[¶ 23] Hassan next argues that the danger of unfair prejudice outweighed the probative value of admitting evidence of the events preceding his arrest and that the standoff evidence should have been excluded pursuant to M.R. Evid. 403. We disagree for two reasons.
[¶ 24] First, the court acted well within its discretion in denying the motion in limine and Hassan’s general objection made prior to Officer Farris’s testimony. Hassan did not make an offer of proof, introduce voir dire testimony, or otherwise identify the details of the standoff that he sought to exclude. Because the weighing of the probative value of evidence against the danger of unfair prejudice required by M.R. Evid. 403 is fact-intensive, the court did not abuse its discretion in denying Hassan’s motion and general objection. See State v. Patterson,
[¶ 25] Second, because Hassan did not object to the evidence as it was elicited at trial, our review of his challenge to the evidence that was admitted as being excessive, unexpectedly inflammatory, or beyond what was anticipated through the discussion of the motion in limine is limited
[¶26] A court may exclude evidence “if its probative value is substantially outweighed by the danger of unfair prejudice.” M.R. Evid. 403.
[¶ 27] The balance in this case favored the admission of the evidence. Details of the events preceding Hassan’s arrest were probative of his guilty conscience, but were not inherently inflammatory or abhorrent such that they would create an undue risk that the jury would reach a verdict based on emotion or any other improper ground. We see no basis to conclude that the admission of evidence of the events preceding Hassan’s arrest resulted in a “manifest injustice,” and we thus find no obvious error. See Pabon,
B. Photographic Array
[¶ 28] Hassan asserts that the police officer’s testimony concerning the process by which the police assembled the photographic array constituted impermissible character evidence in violation of M.R. Evid. 404(b) because it suggested that he had an arrest record.
[¶ 30] We have previously concluded that the admission of evidence of a photographic array containing a defendant’s mug shot violated Rule 404(b) because it implied to the jury that the defendant had a prior criminal record, yet served no purpose within the context of the trial. State v. Robbins,
[¶ 31] The officer testified that although in some cases he used mug shots to assemble photographic arrays, in this case, he assembled the photographic array using photographs from a variety of sources, including mug shots, yearbook pictures, and DMV photographs. He did not testify as to the source of Hassan’s photograph, nor did he imply that it was a mug shot. In addition, neither the photographic array nor Hassan’s picture in the array was received in evidence or shown to the jury. As such, the officer’s testimony did not create the kind of prejudice we identified in Robbins. Further, the State elicited the officer’s testimony to demonstrate the reliability of the procedures employed in this case and therefore offered the evidence for a purpose other than to establish Hassan’s character. Thus, the court did not err in allowing the testimony. See Turner,
C. Prosecutorial Misconduct
[¶ 32] Hassan argues that during closing argument, the prosecutor improperly vouched for the victim’s credibility as a witness by arguing: “I would suggest to you that her testimony was entirely credible given what she had gone through that night and that you should believe her.” Because Hassan did not preserve the issue by objecting to the prosecutor’s closing argument, our review is for obvious error. See U.C.D.R.P.-Cumberland County 52(b); M.R.Crim. P. 52(b); M.R. Evid. 103(e); Dolloff,
[¶ 33] A lawyer shall not “state a personal opinion as to ... the credibility of a witness.” M.R. Prof. Conduct 3.4(e); see also State v. Williams,
[¶ 34] Here, the prosecutor suggested to the jury — by the use of the phrase “I would suggest” — that the victim was credible and should be believed. Specifically, the prosecutor explained that although the defense identified inconsistencies in the victim’s story, these inconsistencies did not bear on the victim’s credibility because misstatements by the victim during the morning of her attack were understandable “given what [the victim] had gone through that night.” The prosecutor’s “suggestion” was, in effect, an appeal to the jury’s common sense, based on facts in evidence, as to why the jury ought to find the victim credible. Viewed in context, the prosecutor’s statement was not witness-vouching nor otherwise improper. See Perez-Ruiz,
The entry is:
Judgment affirmed.
Notes
. When the victim received medical treatment later that morning, medical staff also noted slight swelling on her left temple and "superficial abrasions to her left neck.”
. Police later located the vehicle at Riverton Park.
. Hassan’s only objection was a hearsay objection to Farris's testimony about what Has-san said during the standoff.
. Hassan waived his right to a jury trial on the charge that he violated a condition of release.
. The dissent contends that Hassan's motion in limine seeking to keep out any evidence related to the subject of the standoff and his general renewal of that objection prior to Officer Farris’s testimony were sufficient to preserve the issue for harmless error review. We agree. However, the dissenting opinion also treats the motion in limine and the renewed objection as having preserved for harmless error review the testimony concerning the details of the standoff although Hassan did not object to any of the prosecutor’s questions, aside from one hearsay objection. Has-san’s failure to object deprived the court of the opportunity to decide whether any of the details should have been excluded under a M.R. Evid. 403 analysis. See State v. Dolloff,
. Pursuant to Rule 403, a court may also exclude evidence if its probative value is outweighed by “confusion of the issues” or "needless presentation of cumulative evidence.” M.R. Evid. 403. Hassan does not present either issue as a ground for appeal. We note, however, that the admission of the evidence of the events preceding Hassan’s arrest, although detailed, does not constitute obvious error pursuant to these provisions of Rule 403. Considering the admitted evidence in the context of the trial as a whole, we find no sound basis to conclude that but for the admission of the evidence, there is a reasonable probability that the outcome of Hassan’s trial would have been different. See State v. Pabon,
Dissenting Opinion
dissenting.
[¶ 35] I respectfully dissent because, while each of the trial court’s errors may not by itself have affected Hassan’s “substantial rights,” see U.C.D.R.P.-Cumberland County 52(a); M.R.Crim. P. 52(a), when considered together, the errors deprived Hassan of a fair trial.
[¶ 36] The three errors alleged by Has-san are all connected to issues of Hassan’s reputation and credibility. First, over Hassan’s objection, the court allowed testimony by police officers regarding prejudicial details of his arrest, including particulars of a standoff with police, the police’s familiarity with Hassan, and the possible presence of a firearm in the barricaded apartment. Second, the court allowed testimony by a police officer concerning the photographic array presented to the victim, suggesting that Hassan was involved in past criminal conduct. Third, and without objection, the prosecutor committed misconduct by personally vouching for the credibility of the victim: that misconduct went unaddressed by the court.
A. The Cumulative Error Doctrine
[¶ 37] The general rule is that “the Constitution entitles a criminal defendant to a fair trial, not a perfect one.” Delaware v. Van Arsdall,
[¶ 38] The United States Court of Appeals for the First Circuit explained the test for assessing the effect of cumulative errors as follows:
Of necessity, claims under the cumulative error doctrine are sui generis. A reviewing tribunal must consider eachsuch claim against the background of the case as a whole, paying particular weight to factors such as the nature and number of the errors committed; their interrelationship, if any, and combined effect; how the district court dealt with the errors as they arose (including the efficacy — or lack of efficacy — of any remedial efforts); and the strength of the government’s case. The run of the trial may also be important; a handful of miscues, in combination, may often pack a greater punch in a short trial than in a much longer trial.
Sepulveda, 15 F.Sd at 1196 (citation omitted). The analysis “focuses on ‘the underlying fairness of the trial.’ ” United States v. Meserve,
[¶ 39] Although we have not explicitly adopted the federal cumulative error analysis, we have recognized that individual errors, when taken together, can deprive a defendant of a fair trial. See, e.g., State v. Dolloff,
B. Application of the Cumulative Error Doctrine
1. Claims of Error Analyzed Individually
a. Police Standoff
[¶ 40] We review a trial court’s ruling on evidentiary relevance for clear error, see Dolloff,
[¶ 41] Relevant evidence may be excluded if a court determines that “its probative value is substantially outweighed by the danger of unfair prejudice.” M.R.
[¶42] The prosecutor referenced the police standoff in her opening statement, telling the jury that they “may ... have heard about [the standoff],” lasting for “several hours,” “when it happened.” In questioning Officer Farris, the prosecutor asked the officer whether the standoff was “like TV” where police have “weapons trained on” the apartment, to which Farris replied, “At times we did.” Testimony of the police standoff included mention of (1) a SWAT team and a “Special Reaction Team” with a crises hostage negotiator, (2) an armored personnel carrier, (3) ballistic helmets and “very, very heavy vests to stop rifle penetration” worn by police, (4) “victims or hostages” possibly located in the apartment, and (5) concern that Has-san might have been holding a firearm while speaking with Farris. Farris testified that he was familiar with Hassan, had his cell phone number, and called Hassan by his street name, “BK,” during negotiations.
[¶ 43] This evidence strongly suggested that Hassan was a very dangerous person and that extreme measures had to be taken by police to secure his arrest. I agree with the Court’s opinion that Hassan’s refusal to exit the building surrounded by police may be relevant insofar as it is probative of his consciousness of guilt. Court’s Opinion ¶¶ 21-22; see State v. Hayes,
[¶ 44] Extensive testimony concerning the circumstance of Hassan’s arrest constituted “propensity evidence” that generalizes “a defendant’s [other] bad act[s] into bad character and tak[es] that as raising the odds that he did the ... bad act now charged.” Old Chief v. United States,
[¶ 45] The court could have allowed the admission of evidence of his refusal to
[¶ 46] Therefore, the trial court abused its discretion by allowing extensive, unfairly prejudicial testimony concerning the police standoff. See M.R. Evid. 403; Old Chief,
b. Photographic Array
[¶ 47] Generally, a trial court’s decision to admit evidence under Maine Rule of Evidence 404(b) is reviewed for clear error, and a decision under Rule 403 is reviewed for abuse of discretion. State v. Turner,
[¶ 48] Despite the court’s understanding that the State would only tangentially introduce evidence regarding the photographic array, Dunham testified extensively as to the manner in which police assembled photographic arrays. Explaining the past and current methods used by police, he stated that arrays are “typically” composed of “arrest photographs,” strongly suggesting that Hassan was among a group of persons involved in past criminal conduct. This testimony was irrelevant, prejudicial, and served only to establish that Hassan had a criminal character and “acted in conformity” with that character on the night the victim was assaulted. See M.R. Evid. 404(b); State v. Pierce,
[¶ 49] Maine Rule of Evidence 404(b) prohibits admission of evidence of past
[¶ 50] The court erred in allowing Dun-ham’s testimony concerning the manner in which police assembled the photographic array used to identify Hassan. Because the cumulative effect of the errors denied Hassan a fair trial, it is unnecessary to determine under the obvious error analysis whether this error, standing alone, affected Hassan’s substantial rights. See U.C.D.R.P.-Cumberland County 52(b); M.R.Crim. P. 52(b).
c. Prosecutorial Misconduct
[¶ 51] A lawyer may not “state a personal opinion as to ... the credibility of a witness.” M.R. Prof. Conduct 3.4(e); see also State v. Williams,
[¶ 52] The prosecutor engaged in misconduct when she interjected her personal opinion about the victim’s credibility into her closing argument. The Court cites as the only instance of prosecutorial misconduct, not objected to by the defendant at trial, the prosecutor’s statement during closing arguments, “I would suggest to you that [the victim’s] testimony was entirely credible given what she had gone through that night and that you should believe her.” However, the prosecutor also clearly interjected her own opinion when she said that the victim “was pretty forthright and honest, I think you would agree with me.” (Emphasis added); see M.R. Prof. Conduct 3.4(e); see also Dolloff,
[¶ 53] The context in which the prosecutor’s statements took place is also important. See State v. Dolloff,
[¶ 54] Thus, the prosecutor’s improper vouching for the victim, considered in the context of a trial focused on the credibility of the victim and tainted by errors that undermined Hassan’s character, constituted prosecutorial misconduct that was not adequately addressed by the court. Because the cumulative effect of the errors denied Hassan a fair trial, it is unneces
2. Errors Analyzed Cumulatively
[¶ 55] To vacate a judgment of conviction based on cumulative error, an appellate court must conclude that:
(1) Errors occurred;
(2) Those errors, analyzed individually, were either harmless or did not result in manifest injustice; and
(3) Considered together, those errors resulted in the defendant receiving an unfair trial.
See U.C.D.R.P.-Cumberland County 52; M.R.Crim. P. 52; United States v. Bayard,
[¶ 56] Although individually the errors may not have deprived Hassan of a fair trial, when viewed together their cumulative effect is far more disconcerting. First, all of the errors were interrelated, concerning issues of credibility and the character of both the victim and Hassan. See Sepulveda,
[¶ 57] Moreover, the court admitted substantial evidence offered by the State supporting the inference that Hassan was a dangerous person with a criminal history. The evidence surrounding the photographic array suggested that Hassan had been involved in prior criminal conduct, while the evidence surrounding the police standoff suggested that he was dangerous and unstable.
[¶ 58] This evidence significantly impacted the jury’s perception of Hassan’s character. Because of the danger associated with this type of propensity evidence, the admission of other prior bad acts or criminal history in a criminal trial is inherently prejudicial. See State v. DeMass,
[¶ 59] Second, the court did not take sufficient remedial steps to negate the prejudicial effect of the errors. See Sepulveda,
[¶ 60] Third, this was a short, one-day trial, where errors “may often pack a greater punch ... than in a much longer trial.” See Sepulveda,
[¶ 61] Finally, only the victim’s testimony and out-of-court identification linked Hassan to the charges of assault, criminal
[¶ 62] Given these weaknesses in the State’s case, the short duration of the trial, the interrelationship of the errors, and the overall prejudicial effect of the errors on credibility, the risk of jurors being influenced by the improper evidence and argument is directly related to the outcome of the trial. These errors, when considered together and applying the cumulative error doctrine, deprived Hassan of a fair trial. I would vacate the judgment of conviction and remand the case to the trial court for a new trial.
. The record demonstrates that Hassan did, in fact, challenge the testimony at issue, first through a pre-trial motion in limine, and second by renewing his objection at an appropriate point in the trial prior to the testimony of Officer Farris. See State v. Dolloff,
"An issue is deemed to be raised or preserved if there is a sufficient basis in the record to alert the trial court ... and any opposing party to the existence of that issue,” Alexander, Maine Appellate Practice § 402(a) at 243 (4th ed.2013) (quotation marks omitted), and "a motion in limine may preserve a Rule 403 objection to the admission of evidence when the court's ruling on the motion is unequivocally final.” State v. Allen,