State v. Lovejoy

• Decision Date: 27 March 2014
• Docket Number: Docket No. Cum–12–427.
• Citation: 2014 ME 48,89 A.3d 1066
• Parties: STATE of Maine v. Jason M. LOVEJOY.
• Court: Maine Supreme Court

89 A.3d 1066

2014 ME 48

STATE of Maine

v.Jason M. LOVEJOY.

Docket No. Cum–12–427.

Supreme Judicial Court of Maine.

Argued: Sept. 10, 2013.

Decided: March 27, 2014.

Jeremy Pratt, Esq., Camden, orally and on the brief, for appellant Jason Lovejoy.

Stephanie Anderson, District Attorney, and Deborah A. Chmielewski, Asst. Dist. Atty. (orally), Prosecutorial District No. Two, Portland, on the briefs, for appellee State of Maine.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

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.

[¶ 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, see17–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.” See17–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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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, see15 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 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...