State v. Comer

• Decision Date: 29 June 1994
• Citation: 644 A.2d 7
• Parties: STATE of Maine, v. Martin J. COMER.
• Court: Maine Supreme Court

Page 7

644 A.2d 7

STATE of Maine, v. Martin J. COMER.

Supreme Judicial Court of Maine.

Argued May 13, 1994.

Decided June 29, 1994.

R. Christopher Almy, Dist. Atty., Jeffrey Silverstein (orally), Asst. Dist. Atty., Bangor, for state.

John Bunker (orally), Paine, Lynch & Harris, P.A., Bangor, for defendant.

Before WATHEN, C.J., and GLASSMAN, CLIFFORD, RUDMAN and DANA, JJ.

WATHEN, Chief Justice.

Defendant Martin Comer appeals from a judgment entered in the Superior Court (Penobscot County, Kravchuk, J.) following a jury verdict finding him guilty of five counts of gross sexual misconduct and five counts of unlawful sexual contact. 17-A M.R.S.A. §§ 253, 255 (Supp.1993). Defendant contends that the State was guilty of misconduct during closing argument. We hold that the prosecutor's remarks concerning witness credibility do not constitute obvious error, and we affirm the judgment.

The evidence presented at trial may be summarized as follows: In 1986 defendant began dating the victim's mother and became a father-figure to the then seven-year-old victim. Thereafter the victim and his mother moved to New Hampshire to live with defendant. When he was eight, the victim told police officers that defendant had sexually abused him, but later recanted the allegations. The victim and his mother moved to Texas and then returned to Maine in 1988 to again live with defendant.

In 1989, the victim appeared at two civil hearings in New Hampshire and testified under oath that defendant had not abused him. In May of 1990, after receiving counselling and viewing a film describing sexual abuse that encouraged children to report it, the victim immediately reported that he had been sexually abused by defendant. He testified at trial that, during 1988 and 1989, defendant had performed oral and anal sex on him and had masturbated him on numerous occasions. He explained that he earlier had denied the abuse because, until he viewed the film, he did not understand that the sexual acts were wrong. He testified that the defendant, whom he considered a father-figure, had told him that everyone did those acts.

Defendant did not testify at trial. During final argument, the State commented on the veracity of the victim, ¹ and defense counsel did not object. The jury convicted defendant on all counts, and he appeals.

Defendant argues that the State's closing argument was improper because the prosecutor commented on witness credibility. Because he failed to object at trial, we review for obvious error. Obvious error is error so highly prejudicial that it taints the proceedings and virtually deprives defendant of a fair trial. State v. True, 438 A.2d 460, 468 (Me.1981). Our rules clearly provide that "a lawyer shall not [a]ssert a personal opinion ... as to the credibility of a witness ...; but a lawyer may argue, on the lawyer's analysis of the evidence, for any position or conclusion with respect to matters stated therein[.]" M.Bar.R. 3.7(e)(2)(v). This proscription applies with particular force to the statements of a prosecutor. A prosecutor is more than an advocate; a prosecutor stands before the jury, cloaked with the authority of the State, and is duty-bound to see that justice is done. State v. Smith, 456 A.2d 16, 18 (Me.1983). Although unable to assert personal opinion, a prosecutor may attack credibility by analyzing the evidence and highlighting absurdities or discrepancies in a witness's testimony. Id. at 17.

We have found prosecutors' statements of personal opinion particularly troubling when the comments concern a defendant's credibility and the case is a close one. See, e.g., id. at 19; State v. Tripp, 634 A.2d 1318, 1320 (Me.1994). In Smith, the prosecutor, during closing argument, repeatedly asserted his personal opinion that the defendant had lied while testifying. Smith, 456 A.2d at 17. The prosecutor commented that "[the defendant] gets caught lying and he can't even admit it" and "[y]ou people [the jury] are smarter than that, to let him [defendant] come in here and tell you he was telling the truth because he wasn't." Id. In response to defendant's objection, the court found that the remarks were appropriate and refused to give a curative instruction. We found reversible error because we were unable to conclude that it was highly probable that the jury's verdict was unaffected by the improper comments. Id. at 19.

Tripp, the only case thus far to involve obvious error, also presented a close case that turned on whether the jury believed the victim or the defendant. The victim testified to instances of sexual abuse by his father, the defendant. Defendant, in turn, testified that the victim's testimony was not true. During cross-examination, the State repeatedly and pointedly asked defendant whether the victim had lied. Tripp, 634 A.2d at 1319. Although defense counsel failed to object, we found the questions constituted obvious error because they elicited improper lay opinion concerning witness credibility. Id. at 1319-1320. The error in that case was compounded by the State's closing argument "that [the] nine-year old boy ... told you the truth. He told you what happened to him. He told you what his father did to him." Id. at 1321. "[I]t does all come down to [the victim] and Linwood Tripp, Sr., because one of them wasn't telling the truth. One of them was lying here to all of us." Id. Through those comments, the State clearly implied its opinion that the victim told the truth and the defendant lied. We concluded that "[i]n a close case such as we have here, this constitutes serious obvious error and requires reversal." Id.

In the present case, the State did not ask any improper questions concerning witness credibility, and defendant was not compelled to accuse the victim of being a liar. Furthermore, defendant did not testify, and the prosecutor's closing remarks did not assert that defendant had lied. Rather, the prosecutor began by suggesting, quite properly, that the jury could infer "from the evidence" that the victim's previous testimony in New Hampshire was the...