State v. Begin
| Decision Date | 16 July 2015 |
| Docket Number | Docket No. And–14–308. |
| Citation | 120 A.3d 97,2015 ME 86 |
| Parties | STATE of Maine v. Nicholas BEGIN. |
| Court | Maine Supreme Court |
Verne E. Paradie, Jr., Esq. (orally), Lewiston, for appellant Nicholas Begin.
Andrew P. Matulis, Asst. Dist. Atty. (orally), Androscoggin County District Attorney's Office, Auburn, for appellee State of Maine.
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
[¶ 1] Nicholas Begin appeals from a judgment of conviction of assault on an officer (Class C), 17–A M.R.S. § 752–A(1)(A) (2014) ; violation of a protective order (Class D), 19–A M.R.S. § 4011(1)(A) (2014) ; and refusing to submit to arrest (Class D), 17–A M.R.S. § 751–B(1)(B) (2014), entered by the Superior Court (Warren, J. ) after a jury trial. Begin contends that the court erred or abused its discretion by (1) admitting testimony about the violent details of a prior unrelated incident, (2) permitting the State to introduce evidence that Begin contacted a witness in violation of a protection order and his bail conditions, (3) excluding from evidence certain recorded telephone conversations after the State introduced limited portions of those recordings, and (4) denying Begin's motion for a mistrial after the State made certain remarks in its opening statement that Begin argues constituted prosecutorial misconduct. We affirm.
[¶ 2] “Viewing the evidence in the light most favorable to the State, the jury could rationally have found the following facts beyond a reasonable doubt.” State v. Haag, 2012 ME 94, ¶ 2, 48 A.3d 207. On April 19, 2013, officer Matthew Vierling of the Lewiston Police Department (LPD) was assigned to serve Nicholas Begin with a protection order identifying an individual named “Ashley” as the protected party and prohibiting Begin from entering Ashley's residence at 227 Bartlett Street. Before Vierling had served the order, Ashley called the LPD and reported that Begin had been harassing her. Vierling met Ashley, who told him that he might find Begin at 227 Bartlett Street. Vierling and Ashley then both went to that address.
[¶ 3] As Vierling approached the residence's side door, Begin stepped out. Vierling told Ashley to go wait at the front of the house. Begin, who seemed agitated, told Vierling to speak with his landlord and tried to hand Vierling his cellular telephone. Vierling read the protection order aloud and explained that Begin could not go back inside the house. Begin then turned and ran back inside the house. Vierling ordered Begin to stop and followed him through the door into the garage that made up the first floor of the building.
[¶ 4] As Begin ran up an interior staircase, Vierling grabbed hold of his arm. Begin struck Vierling with his elbow, and Vierling held Begin from behind and tried to drag him back outside. At one point, Begin appeared to reach for a screwdriver that was on a nearby workbench and Vierling, fearing that Begin would use the screwdriver as a weapon, placed Begin in a chokehold. Begin also pulled at Vierling's handgun, which was in a holster secured to Vierling's waist. Vierling was eventually able to pull Begin outside, and the two continued to struggle until other officers arrived and placed Begin under arrest.
[¶ 5] Begin was charged with assault on an officer, violation of a protective order, and refusing to submit to arrest.1 He pleaded not guilty to all charges, and a jury trial commenced on April 17, 2014.
[¶ 6] Before opening statements, the trial court instructed the jury as to the presumption of innocence and burden of proof, and reminded the jury that “you and you alone are the ultimate decision-makers.” Then, in its opening statement, the State said: Begin immediately moved for a mistrial. The court denied the motion, but told Begin's counsel that he could address the issue in his opening.
[¶ 7] In his opening statement, Begin's counsel said: “The things that I tell you and [the State] tell[s] you during opening statements and closing statements [are] not the evidence,” and, Begin's counsel also stated that, although Vierling could have pursued “alternative means,” he “decided to initiate contact” with Begin, and that “what you're going to have to decide ... is whether or not that initial use of force was justified by ... Vierling.”
[¶ 8] During direct examination, Vierling testified that one reason he would not let someone upon whom he was serving a protection order go into a residence unescorted was “[f]or fear that they would obtain a firearm ... for instance, the Webster Street shooting that we had several years ago.” He did not elaborate on the “Webster Street shooting” at that time. On cross-examination, Vierling testified that he did not know whether Begin had access to a gun. He also acknowledged that the person protected by the order, Ashley, was not inside the house when Begin tried to re-enter, and that he was familiar with Maine law and LPD policies regarding the use of nondeadly force by law enforcement. See 17–A M.R.S. § 107(1) (2014).
[¶ 9] Then, on redirect, the State asked Vierling about “the Webster Street incident.” The court overruled Begin's subsequent objection “in light of examination,” and Vierling testified as follows:
A number of years ago we had an officer serve a protection order to a gentleman who was cooperative at the time. The officer went inside the apartment with the gentleman so that [he] could say goodbye to his children. The plaintiff in the protection order was out front and ... that gentleman proceeded to pick up a high caliber rifle, aim it out the window, shot her and killed her ... and then he took his own life with his children there.
Vierling explained that this incident was on his mind during his encounter with Begin. In light of this testimony Begin again moved for a mistrial, and again the court denied his motion.
[¶ 10] During voir dire of Ashley, the State elicited testimony that Begin had met with her several times after the incident in violation of a protection order. Ashley testified that she and Begin had talked about the case and her testimony and had also reviewed the police reports together. After voir dire, the court ruled, over Begin's objection, that it would allow the State to elicit testimony that Begin had been in contact with Ashley in violation of a protection order and his bail conditions, as such contact was relevant to both Ashley's and Begin's credibility. In their later testimonies, Ashley and Begin each admitted to the unlawful contact.
[¶ 11] During direct and cross-examination, Begin testified to the following:
[¶ 12] During its cross-examination of Begin, the State introduced recorded portions of phone calls between Begin and his mother that occurred while Begin was in jail awaiting trial. The substance of the recordings was limited to show that (1) Begin was aware of the protection order before Vierling served him, (2) Begin knew that the order required him to leave the house, and (3) Begin was upset when the order was served.
[¶ 13] Begin then sought to introduce other portions of those same recordings. After listening to the proffered evidence, the court limited the portions that Begin could introduce to those that tended to place in context what the State had introduced. The court excluded other portions, in which Begin described his account of his altercation with Vierling.
[¶ 14] In its closing argument, the State told the members of the jury, “You're here today to decide whose version you believe ... You should compare these versions, think of what makes sense to you and then find the defendant guilty on all counts.” The court then instructed the jurors that: (1) it was their job to determine the facts from the evidence; (2) the attorneys' opening and closing statements were not evidence; (3) the presumption of innocence is itself sufficient to acquit unless they were satisfied that the State had proven guilt beyond a reasonable doubt; and (4) they would be “doing justice” if they applied the law to the facts in a dispassionate, analytical, and businesslike way. At Begin's request, the court further instructed that any evidence of other criminal actions or violations of law could only be used for evaluating credibility, and not for proof of Begin's guilt.
[¶ 15] The jury found Begin guilty of all three counts and the court sentenced him to four and one-half years' imprisonment with all but fourteen months suspended and a two-year period of probation on the assault on an officer charge, and to concurrent thirty-day jail terms on each of the remaining counts. Begin appeals.
[¶ 16] We reject and do not discuss further Begin's argument that the court abused its discretion by excluding from evidence the recorded telephone conversations that did not serve to place into context the recordings that the State had introduced. See M.R. Evid. 106 ;2 State v....
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...evidence and did not accompany his exhortations to convict with references to doing justice or fulfilling a civic duty. See id. ; State v. Begin , 2015 ME 86, ¶ 27, 120 A.3d 97.[¶22] White's arguments as to the remainder of the comments to which he objected, however, bear discussion, as dis......
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