State v. Tarbox
Decision Date | 18 April 2017 |
Docket Number | Docket: Yor–16–125 |
Citation | 158 A.3d 957 |
Parties | STATE of Maine v. Nathan P. TARBOX |
Court | Maine Supreme Court |
Jack Hunt, Esq. (orally), Kennebunk, for appellant Nathan P. Tarbox
Kathryn Loftus Slattery, District Attorney, Anne Marie Pazar, Asst. Dist. Atty., and Thomas R. Miscio, Asst. Dist. Atty. (orally), Prosecutorial District 1, Alfred, for appellee State of Maine
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
[¶ 1] Nathan P. Tarbox appeals from a judgment of conviction entered by the trial court (York County, Douglas , J. ) after a jury found him guilty of domestic violence assault (Class C), 17–A M.R.S. §§ 207–A(1)(A), 1252(4–A) (2016), and obstructing the report of a crime or injury (Class D), 17–A M.R.S. § 758(1)(A) (2016). Tarbox contends that the trial court erred by not sua sponte declaring a mistrial when the prosecutor commented on Tarbox's right not to testify during the State's rebuttal closing argument. In addition, Tarbox argues that the court erred by denying his motions for a mistrial after the jury heard prejudicial statements during the victim's testimony. We affirm the judgment.
[¶ 2] On June 2, 2014, Nathan P. Tarbox was indicted for crimes he allegedly committed against the mother of his child. The indictment charged Tarbox with domestic violence assault (Class C), 17–A M.R.S. §§ 207–A(1)(A), 1252(4–A), domestic violence assault (Class D), 17–A M.R.S. § 207–A(1)(A), and obstructing the report of a crime or injury (Class D), 17–A M.R.S. § 758(1)(A). Prior to trial, the State dismissed the Class D charge of domestic violence assault.
[¶ 3] The court held a jury trial on November 23, 2015. Evidence presented at trial showed that only Tarbox and the victim were in the room where the incident occurred. Tarbox did not testify. The State's evidence consisted of photographs of the victim's injuries and testimony of the victim and Tarbox's roommate, who testified that he heard Tarbox and the victim argue but did not witness the assault. During the State's direct examination of the victim, when asked why she did not immediately go home or call the police after the assault, she testified: "Because he runs from the police." Tarbox objected and moved for a mistrial, arguing that the victim's response was highly prejudicial because it indicated that Tarbox is a "known character" and a "criminal." The court denied the motion for a mistrial but sustained the objection and instructed the jury to disregard the statement.
[¶ 4] Tarbox began his cross-examination of the victim by questioning her about her child custody arrangement with Tarbox and whether there was a parental rights order in place on the date the crimes were alleged to have been committed. Tarbox further asked whether she filed a parental rights and responsibilities action in the District Court after she filed the police report. The victim testified that there was no court order defining the parties' parental rights on the date of the incident or when she filed the police report.
[¶ 5] During the State's redirect examination, the prosecutor asked the victim when she subsequently filed the parental rights action. In a lengthy and nonresponsive answer, the victim indicated that she filed the parental rights action after speaking with an advocate at a domestic violence program and obtaining a protection from abuse order. Tarbox objected on the basis that the testimony was unfairly prejudicial and renewed his motion for a mistrial. The court took the motion for a mistrial under advisement, and, at Tarbox's request, delayed giving the jury a curative instruction. After the close of evidence, the court denied the motion and reviewed a proposed curative instruction with Tarbox, which Tarbox approved. The curative instruction was later given during the charge to the jury.
[¶ 6] Although Tarbox did not testify, he presented testimony from his grandmother about her interactions with the victim around the time of the alleged crimes.
[¶ 7] After the close of evidence, the prosecution and defense presented brief closing arguments to the jury, neither of which drew any objections. We discuss the parties' closing arguments in more detail below. The jury convicted Tarbox of both counts, and the court sentenced him to three years' incarceration with all but nine months suspended and three years' probation, plus fees required by statute. Tarbox timely appealed.
[¶ 8] Tarbox contends that the court erred by not sua sponte declaring a mistrial when the prosecutor improperly drew the jury's attention to Tarbox's decision not to testify.
[¶ 9] In the State's rebuttal to Tarbox's closing argument, the prosecutor stated:
(Emphasis added.) Tarbox—who did not testify at trial—did not object to these statements made by the prosecutor.
[¶ 10] The Fifth Amendment to the U.S. Constitution and article I, section 6 of the Maine Constitution provide a criminal defendant with an absolute right not to testify in his own defense at trial. State v. Roberts , 2008 ME 112, ¶ 45, 951 A.2d 803. To protect this right, a prosecutor is prohibited from commenting on the defendant's silence. Id.
[¶ 11] Here, in the State's rebuttal, the prosecutor highlighted evidence that Tarbox and the victim were the only persons present when the crimes were alleged to have occurred. The prosecutor went on to assert that the victim's testimony was "credible." With this combination of assertions, the prosecutor's argument to the jury portrayed Tarbox as the only witness who could have refuted the victim's testimony. Thus, the prosecutor's statement to the jurors that they had heard "nothing to contest" the State's case was, at the very least, an ambiguous, indirect reference to Tarbox's election not to testify, and, therefore, was improper.1
[¶ 12] We have explained that when a defendant preserves a challenge to a prosecutorial comment about his or her choice not to testify, we will analyze the content of the offending statement to determine the standard of review on appeal. See State v. Tibbetts , 299 A.2d 883, 889 (Me. 1973) ; see also State v. Turner , 433 A.2d 397, 400–01 (Me. 1981). Such a statement is prejudicial as a matter of law if it unambiguously and unequivocally comments on the defendant's silence at trial or suggests to the jurors "that they must accept the State's evidence as true because the defendant has not denied it as a witness." Turner , 433 A.2d at 400. If the prosecutor's statement is ambiguous because "the jury could construe [it] as a remark on the defendant's failure to testify," the State must demonstrate beyond a reasonable doubt that the misconduct, when "viewed in the context of the entire record," did not affect the jury's guilty verdict. State v. Lyons , 1998 ME 225, ¶¶ 6–8, 718 A.2d 1102.
[¶ 14] Because Tarbox did not object to the prosecutor's statement at trial, we need not determine where the State's improper statement falls on the continuum of misconduct described in Tibbetts and subsequent cases. Rather, we look to the record as a whole to determine whether Tarbox has demonstrated prejudice of a magnitude that virtually deprived him of a fair trial. We conclude that...
To continue reading
Request your trial-
State v. White
...6 of the Maine Constitution provide a criminal defendant with the absolute right not to testify in his own defense at trial. State v. Tarbox , 2017 ME 71, ¶ 10, 158 A.3d 957. To safeguard this right, prosecutors are prohibited from commenting on a defendant's silence or his decision not to ......
-
State v. Carrillo
...prejudice from the presentation of inadmissible evidence. See State v. Nobles, 2018 ME 26, ¶¶ 18-19, 179 A.3d 910 ; see also State v. Tarbox, 2017 ME 71, ¶ 19, 158 A.3d 957 ; State v. Begin, 2015 ME 86, ¶¶ 27-28, 120 A.3d 97 ; Allen, 2006 ME 20, ¶¶ 23-24, 892 A.2d 447 ; State v. Thompson, 5......
-
State v. White
...provide a criminal defendant with the absolute right not to testify in his own defense at trial. State v. Tarbox, 2017 ME 71,¶ 10,158 A.3d 957. To safeguard this prosecutors are prohibited from commenting on a defendants silence or his decision not to testify. Id. Even ambiguous and indirec......
-
State v. White
...provide a criminal defendant with the absolute right not to testify in his own defense at trial. State v. Tarbox, 2017 ME 71,¶ 10,158 A.3d 957. To safeguard this prosecutors are prohibited from commenting on a defendants silence or his decision not to testify. Id. Even ambiguous and indirec......