State v. Lipscombe

• Citation: 2023 ME 70
• Docket Number: Ken-23-21
• Decision Date: 09 November 2023
• Parties: STATE OF MAINE v. JARAE LIPSCOMBE
• Court: Supreme Judicial Court of Maine (US)

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2023 ME 70

STATE OF MAINE
v.
JARAE LIPSCOMBE

No. Ken-23-21

Supreme Court of Maine

November 9, 2023

Argued: September 13, 2023

Rory A. McNamara, Esq. (orally), Drake Law LLC, York, for appellant Jarae Lipscombe

Maeghan Maloney, District Attorney, Michael H. Madigan, Asst. Dist. Atty. (orally), and Mariah Wood, Stud. Atty., Prosecutorial District IV, Augusta, for appellee State of Maine

Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.

HORTON, J.

[¶1] Jarae Lipscombe appeals from a judgment of conviction of hindering apprehension or prosecution (Class B), 17-A M.R.S. § 753(1-B)(B)(1) (2023), entered by the trial court (Kennebec County, Stokes, J.) after a jury trial. He argues that (A) the court committed obvious error in allowing prosecutorial argument about the lack of evidence of certain witnesses' motives to lie and in instructing jurors that they could consider whether there was evidence that a witness had a motive to lie, and (B) the court abused its discretion in denying Lipscombe's motion to voir dire the jurors after learning that one witness said, "[G]ood luck," to the jurors while leaving the courtroom. We affirm the judgment.

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I. BACKGROUND

[¶2] On October 5, 2021, the State of Maine charged Lipscombe by complaint with hindering apprehension or prosecution (Class B), 17-A M.R.S. § 753(1-B)(B)(1), based on allegations that he used deception to prevent or delay the discovery or apprehension of his brother in connection with the killing of a man in Waterville. A grand jury indicted him on that charge on February 24, 2022.

[¶3] After Lipscombe pleaded not guilty, the court held a jury trial on October 31 and November 1 and 2, 2022. The State offered evidence that on June 6, 2020, Lipscombe had given the police a false description of a person running out of an apartment where a man had been shot and killed. There was also testimony that when Lipscombe gave the description, he knew that the police investigating the crime were seeking that person. Two witnesses authenticated, and the State played, video footage from security cameras in the vicinity of the crime shortly after it occurred showing a man who looked like Lipscombe's brother and did not fit the description Lipscombe had given. An officer testified that he had encountered a man who was in the vicinity of the crime but did not detain him because he did not match the description that

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Lipscombe had provided. That man did match the later-obtained description of Lipscombe's brother.

[¶4] Another witness testified that a man he later learned was Lipscombe's brother approached him in the same vicinity, gave a false name, asked to use his phone for an emergency, and rode off in a vehicle with someone who had come to get him. A friend of Lipscombe's then testified that at Lipscombe's request, he had picked up Lipscombe's brother and allowed the brother to stay with him overnight on the night of June 6, 2020. The State's final witness testified that Lipscombe had told her that his brother had shot a person and that Lipscombe had given the police a false description of the man who had fled the scene of the shooting.

[¶5] After the State rested, Lipscombe unsuccessfully moved for a judgment of acquittal and presented no evidence. During the State's closing argument, the prosecutor argued as follows:

So, the Court is going to give you some suggestions about how you can evaluate different witnesses that you heard testify You can consider all or none of them, that will be part of the jury instructions, but when it comes to [the witness who allowed Lipscombe's brother to use his phone] you might consider this. Whether a witness, or whether there has been any evidence to suggest that a witness had motive, or lack of motive to exaggerate or lie. There is no such evidence for [this witness]. He is a true interloper in these events, just like [the witnesses who authenticated the video footage], he had no possible motive to try

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to deceive you here, but [Lipscombe's brother] never would have made it past Columbia Road if [Lipscombe] hadn't misdescribed him delaying his apprehension.

Lipscombe raised no objection. The court later instructed the jury about how to consider witnesses' credibility:

You may consider whether the witnesses['] testimony was corroborated, which means supported, or contradicted by other testimony or by the exhibits. You may consider how well each witness has remembered what took place during the time periods in question. You may consider whether a witness had a good opportunity to make the observations he or she says were made. You may consider whether a witness appeared to be biased in favor of or against the State or the defendant. You may consider whether there has been any evidence introduced of any motive or lack of motive for a witness to exaggerate or lie.

(Emphasis added.) Lipscombe again raised no objection. The court also instructed, "The law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence whatsoever. . . . [T]he burden of proof in this case is entirely on the State. The defendant does not have to prove anything. . . . Throughout the trial the defendant is favored with a presumption of innocence . . . ."

[¶6] The jury returned a verdict finding Lipscombe guilty. After discharging the jury, the court went to the jury room, in keeping with its usual practice, to thank the jurors off the record for their service and to accept questions and feedback about the trial. While speaking with jurors, the court

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learned that several jurors had heard one of the State's witnesses-the friend of Lipscombe who had sheltered Lipscombe's brother on the night of the killing-mutter, "[G]ood luck," after his testimony as he was leaving the witness stand. The court promptly met with counsel in chambers on the record and disclosed what it had learned, indicating that the foreperson had said, "[I]t was insubstantial to us, so that's why I didn't mention anything." The court indicated that "not everyone heard it, pretty much the foreperson, the person next to him, I think maybe the one next to her, the first three in the row there, he muttered something under his breath, they thought it was good luck." When asked by defense counsel, the court confirmed that the jurors "thought it was being directed at them." The court said, "I know who [the jurors] are, we have the list of jurors if we ever-if there is anything you wanted to pursue." Defense counsel said he would "need to think about it," and when the court replied, "I don't know what that means, frankly," counsel said, "I can't imagine the voir dire would go anywhere."

[¶7] Three days later, Lipscombe filed a motion to voir dire the jurors to "determine the impact of this comment on [the jury's] verdict and deliberations." He filed an additional motion on December 14, 2022, seeking to "determine the impact" of the witness's comment. He argued that the statement

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was extraneous information that would be prejudicial to the extent that the jury considered it in its deliberations. The State then moved to preclude juror testimony under Rule 606(b) of the Maine Rules of Evidence on the ground that the in-court utterance did not convey "information" within the meaning of the rule's narrow exception and that the jurors had merely observed a witness in court.

[¶8] Before Lipscombe's sentencing hearing on January 12, 2023, the court announced its ruling on Lipscombe's two motions and the motion filed by the State. The court denied Lipscombe's motion for voir dire of the jurors and granted the State's motion to preclude juror testimony. The court reasoned that it would not speculate what muttering "good luck" meant, and determined that the witness did not, through his comment, convey extraneous, prejudicial information to the jurors.

[¶9] The court then held the sentencing hearing and entered a judgment sentencing Lipscombe to five years in prison, with all but three years suspended and with three years of probation. The order also made him responsible for paying thirty-five dollars to the Victims' Compensation Fund. Lipscombe timely appealed. See 15 M.R.S. § 2115 (2023); M.R. App. P. 2B(b)(1).

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II. DISCUSSION

[¶10] Lipscombe challenges (A) the court's inaction regarding the prosecutor's argument and its jury instructions about witnesses' motives to lie, and (B) the court's denial of Lipscombe's motion to voir dire the jurors after they delivered their verdict. We consider each of his arguments in turn.

A. Closing Argument and Jury Instruction Regarding Evidence of Motive to Lie

[¶11] Lipscombe argues that the court committed obvious error in allowing a closing argument that implied that Lipscombe had a burden of proving that the State's witnesses had a motive to lie and delivering jury instructions that made the same implication. As Lipscombe recognizes, because Lipscombe did not object to the prosecutor's argument or the court's instruction during trial, we review for obvious error. See State v. Warner, 2023 ME 55, ¶ 13, 301 A.3d 763; M.R.U. Crim. P. 52(b). "To show obvious error, there must be (1) an error, (2) that is plain, and (3) that affects substantial rights." Id. (quotation marks omitted). "[E]ven if those three conditions are met, we will set aside a jury's verdict only if we conclude that (4) the error seriously affects the fairness and integrity or public reputation of judicial proceedings." Id. (quotation marks omitted). A statement that does not prompt an objection will rarely be found to have affected substantial rights because there is seldom, in

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such circumstances, "a reasonable probability that it affected the outcome of the proceeding." Id. (quotation marks omitted).

1. Prosecutorial Error

[¶12] We refer to "prosecutorial error" rather than...