MAINE SUPREME JUDICIAL COURT                                                     Reporter of Decisions
Decision: 2014 ME 48
Docket:   Cum-12-427
Argued:   September 10, 2013
Decided:  March 27, 2014

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

                                      STATE OF MAINE

                                                  v.

                                     JASON M. LOVEJOY

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



   1
      Section 253(1)(B) has since been amended to move information regarding the class of the crime
from subsection (4) into subsection (1)(B), see P.L. 2001, ch. 383, §§ 14, 18 (effective Jan. 31, 2003)
(codified as subsequently amended at 17-A M.R.S. § 253(1)(B) (2013)), and to modify the syntax when a
2

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.
new paragraph was added, see P.L. 2003, ch. 711, § B-2 (effective July 30, 2004) (codified at 17-A
M.R.S. § 253(1)(B) (2013)).
                                                                                 3

      [¶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.
4

        [¶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.

    2
     There was no objection to this testimony, nor was there error in its admission. See Miranda v.
Arizona, 384 U.S. 436, 478 (1966) (“Volunteered statements of any kind are not barred by the Fifth
Amendment . . . .”).
                                                                                                 5

       [¶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


   3
     The March 2012 trial occurred before we extensively discussed prosecutorial limits in State v.
Dolloff, 2012 ME 130, 58 A.3d 1032, in November 2012.
6

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, see 17-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.” See 17-A

M.R.S. § 1252-C(3) (2013).
                                                                                                        7

        [¶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


   4
      This statute has since been amended. See P.L. 2009, ch. 608, § 8 (effective July 12, 2010) (codified
at 17-A M.R.S. § 1202(1-A) (2013)). At the relevant time, the statute provided:

        § 1202. Period of probation; modification and discharge

            1. A person convicted of a Class A crime may be placed on probation for a period not
        to exceed 6 years; for a Class B or Class C crime, for a period of probation not to exceed
        4 years; and for Class D and Class E crimes, for a period not to exceed one year.

            1-A. Notwithstanding subsection 1:

                A. The period of probation for a person convicted under chapter 11 or section
                854, excluding subsection 1, paragraph A, subparagraph (1), may be extended by
                up to 4 years for a Class A crime, by up to 2 years for a Class B or Class C crime
                and by up to one year for a Class D or Class E crime if the court finds that the
                additional time is needed to provide sex-offender treatment to the person or to
                protect the public from the person because, based on one or more of the factors
                in section 257, the court determines that the person is a high-risk sex offender;
                and

                B. The period of probation for a person sentenced as a dangerous sexual offender
                pursuant to section 1252, subsection 4-B is any term of years.

17-A M.R.S.A. § 1202 (Supp. 2000) (emphasis added).
   5
      This statute has since been amended. See P.L. 2007, ch. 476, § 3 (effective June 30, 2008) (codified
at 17-A M.R.S. § 257 (2013)). At the relevant time, the statute provided:

        § 257. Factors aiding in predicting high-risk sex offenders for sentencing purposes

            1. In assessing for sentencing purposes the risk of repeat offenses by a person
        convicted of a crime under chapter 11, a court shall treat each of the following factors, if
        present, as increasing that risk:

                A. The victim of the crime is prepubescent;

                B. The victim of the crime is the same gender as the offender;

                C. The victim of the crime is a total stranger to the offender; and
8

“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

(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, see 15 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




               D. The offender has been previously convicted of a crime under chapter 11 or
               previously convicted under the laws of the United States or any other state for
               conduct substantially similar to that contained in chapter 11.

       A court may also utilize any other factor found by that court to increase the risk of repeat
       offenses by a person convicted of a crime under chapter 11.

17-A M.R.S.A. § 257 (Supp. 2000) (emphasis added).
                                                                                    9

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 the Maine Constitution by

eliciting testimony that Lovejoy did not return phone calls from police and by

arguing to the jury that his failure to explain what happened demonstrated

consciousness of guilt. Lovejoy contends that he was deprived of a fair trial and

that the prosecution improperly suggested that he had some obligation to negate

the victim’s testimony.

      [¶18] Pursuant to the United States Constitution, “No person . . . shall be

compelled in any criminal case to be a witness against himself . . . .” U.S. Const.

amend. V. The Maine Constitution contains a similar provision: “The accused

shall not be compelled to furnish or give evidence against himself or herself . . . .”

Me. Const. art. I, § 6. We interpret the Maine Constitution to be coextensive with

the United States Constitution in this context. See, e.g., State v. Millay, 2001 ME

177, ¶¶ 14-20, 787 A.2d 129.

      [¶19] Because Lovejoy did not explicitly object to the testimony and the

prosecutor’s comments concerning his pre-arrest silence, the trial court did not

address the application of the constitutions in this context, and we review for
10

obvious error. See U.C.D.R.P.-Cumberland County 52(b); M.R. Crim. P. 52(b);

State v. Pabon, 2011 ME 100, ¶ 18, 28 A.3d 1147. For us to vacate a conviction

based on the obvious error standard of review,

         there must be (1) an error, (2) that is plain, and (3) that affects
         substantial rights. If these conditions are met, we will exercise our
         discretion to notice an unpreserved error only if we also conclude that
         (4) the error seriously affects the fairness and integrity or public
         reputation of judicial proceedings.

Pabon, 2011 ME 100, ¶ 29, 28 A.3d 1147. An error is plain if it is so clear under

current law that the trial court can be expected to address it, even absent the

defendant’s timely objection to it. State v. Dolloff, 2012 ME 130, ¶ 36, 58 A.3d

1032.      An error affects the defendant’s substantial rights “if the error was

sufficiently prejudicial to have affected the outcome of the proceeding.” Id. ¶ 37

(quotation marks omitted).

         [¶20] Measures that protect the Fifth Amendment right to remain silent exist

in multiple contexts and, in most contexts, include a prohibition against the

prosecution’s reliance on that silence as evidence of guilt. 6 For example, there can

be no question that the Fifth Amendment “prevents the prosecution or the court

from commenting on a defendant’s decision not to testify at his criminal trial.”

     6
     Nontestimonial actions such as flight, hiding, or resisting arrest may be admissible as evidence of
consciousness of guilt. See United States v. Francois, 715 F.3d 21, 32 (1st Cir. 2013) (citing cases); see
also Doe v. United States, 487 U.S. 201, 207 (1988) (stating that the Fifth Amendment protects a person
from being incriminated by his or her own compelled testimonial communications); cf. State v. Hassan,
2013 ME 98, ¶¶ 20-27, 82 A.3d 86 (upholding the admission of evidence related to a police standoff as
evidence of consciousness of guilt).
                                                                                                        11

State v. Patton, 2012 ME 101, ¶ 15, 50 A.3d 544 (citing Griffin v. California, 380

U.S. 609, 615 (1965)). Similarly, a defendant’s post-arrest, in-custody,

unambiguous assertion of a decision not to speak to law enforcement must be

scrupulously honored and cannot be used against the defendant at trial. See Doyle

v. Ohio, 426 U.S. 610, 617-19 (1976); Miranda v. Arizona, 384 U.S. 436, 467-79

(1966); State v. Grant, 2008 ME 14, ¶¶ 20, 38, 939 A.2d 93.

        [¶21] Whether those same Fifth Amendment protections “extend to prevent

the introduction in evidence of a defendant’s pre-arrest, pre-Miranda silence in the

State’s case-in-chief,” Patton, 2012 ME 101, ¶ 15, 50 A.3d 544, has not yet been

decided by the United States Supreme Court, see Salinas v. Texas, 570 U.S. ---,

186 L. Ed. 2d 376 (2013).7 The federal circuits are divided on the question of

whether the Fifth Amendment prevents the prosecution from using a defendant’s

noncustodial, pre-arrest silence in its case-in-chief.8 Compare Combs v. Coyle,

205 F.3d 269, 283 (6th Cir. 2000) (holding that evidence of pre-arrest silence may

not be admitted in a criminal trial as evidence of the defendant’s guilt); United
   7
      In Salinas v. Texas, 570 U.S. ---, 186 L. Ed. 2d 376 (2013), the United States Supreme Court found
it unnecessary to resolve the issue that we address today. There, the plurality reasoned that the evidence
of silence could be admitted as evidence of guilt because Salinas did not explicitly invoke his privilege
against self-incrimination when he ceased answering questions posed by police. Id. at 383-89 (plurality
opinion). The concurring opinion condoned the State’s use of the evidence because it reasoned that the
privilege against self-incrimination does not apply when a defendant is not in custody and is therefore not
compelled to incriminate himself or herself. Id. at 389-90 (Thomas, J., concurring).
   8
      The Supreme Court has held that “the use of prearrest silence to impeach a defendant’s credibility
does not violate the Constitution.” Jenkins v. Anderson, 447 U.S. 231, 240-41 (1980) (emphasis added).
Here, Lovejoy did not testify, and we do not address how the holding of Jenkins might be applied in
different circumstances.
12

States v. Burson, 952 F.2d 1196, 1200-01 (10th Cir. 1991) (same), with United

States v. Oplinger, 150 F.3d 1061, 1066-67 (9th Cir. 1998) (holding that a

defendant’s pre-arrest, pre-Miranda silence may be used as substantive evidence of

guilt), overruled in part on other grounds by United States v. Contreras, 593 F.3d

1135 (9th Cir. 2010); United States v. Zanabria, 74 F.3d 590, 593 (5th Cir. 1996)

(same).

      [¶22] On this question, we have concluded that individuals are endowed

with the Fifth Amendment’s protections against compelled self-incrimination both

before and after arrest. See State v. Diaz, 681 A.2d 466, 468 (Me. 1996). We

reached this holding in a case in which the defendant’s pre-arrest, noncustodial

statement refusing to answer a state trooper’s question was admitted in evidence,

and the prosecution referred to the defendant’s refusal to speak in its closing and

rebuttal argument. Id. at 468-69. We held that the Fifth Amendment “right to

remain silent, unlike the right to counsel, attaches before the institution of formal

adversary proceedings” and that the Constitution “clearly requires the exclusion of

evidence of the defendant’s failure to answer [the state trooper’s] question.” Id.

(quotation marks omitted).

      [¶23] In another recent case, the State offered evidence in its case-in-chief

that a suspect stated, before arrest and without having received Miranda warnings,

that he needed to speak with counsel and, after making that statement, remained
                                                                                                          13

silent. Patton, 2012 ME 101, ¶¶ 12, 15-16, 50 A.3d 544. The State conceded

error, and we reviewed the error to determine whether it was harmless. Id. ¶ 16. In

that review, we concluded that the error was harmless because the evidence

presented at trial was strong and “the State did not seek to capitalize on . . .

testimony” that the defendant told police he needed to talk to his lawyer. Id. ¶ 18.

Apart from the admitted testimony, the State did not refer to the defendant’s

expressed desire to speak with his attorney in any other way, “either through its

questioning of witnesses or in closing argument.” Id. “[I]t was never suggested to

the jury that [the defendant’s] statement to the officer should be viewed as

evidence of his guilt.” Id. We explicitly distinguished Diaz, noting that in that

case, “the State encouraged the jury to infer guilt from the defendant’s silence

because the State referred to the defendant’s failure to answer an officer’s

questions both in its closing argument and in rebuttal.” Id. ¶ 18 n.2 (emphasis

added).9


   9
      As is clear from these two cases, the enterprise of determining whether the fact of the person’s
silence is admissible in a criminal trial as evidence of guilt differs from the consideration of whether a
confession is admissible when it was obtained through police questioning after an individual has
attempted to invoke the right to remain silent or has ambiguously referred to that right. See, e.g., State v.
King, 1998 ME 60, ¶¶ 7, 9, 708 A.2d 1014. Specifically, we are determining not whether the police
violated a constitutional right by continuing questioning but rather whether the prosecutor violated a
constitutional right by offering a person’s silence as evidence of his guilt.

   Also inapplicable when assessing the admissibility of pre-arrest silence is the bright line drawn at the
point of custody. Courts determine the moment at which custody began for purposes of identifying the
point after which law enforcement had the responsibility to advise the individual of his or her rights. See
Miranda, 384 U.S. at 444. The point at which a person is in custody should not, however, be confused
with the point at which the right to remain silent attaches. Cf. Salinas, 570 U.S. ---, 186 L. Ed. 2d at
14

       [¶24] We distinguish the factual context before us from that which arises

when, as in Salinas, 570 U.S. ---, 186 L. Ed. 2d 376, a defendant is voluntarily

speaking with law enforcement officers and then simply ceases speaking without

any clear indication of an intention to exercise the right not to be a witness against

himself. See id. at 383-89 (plurality opinion) (reasoning that an express invocation

of the right to remain silent is necessary in such circumstances). In contrast to

those facts, Lovejoy specifically terminated communication by first telling the

investigating detective during a telephone conversation that he wanted to speak

with a lawyer and then remaining silent by not returning the detective’s telephone

calls. See Patton, 2012 ME 101, ¶ 15, 50 A.3d 544.

       [¶25] Although Lovejoy did not explicitly state that he was also exercising

his right against compelled self-incrimination, we have never required the use of

any specific words for a person to enjoy constitutional protection for his or her

silence.    See id.; see also, e.g., Diaz, 681 A.2d at 467-69 (holding that the

defendant exercised the Fifth Amendment right against self-incrimination when he

said that he did not think he should answer a police officer’s questions). “[N]o

ritualistic formula is necessary in order to invoke the privilege.” Quinn v. United

States, 349 U.S. 155, 164 (1955).               We do, however, require that the record


389-90 (Thomas, J., concurring) (reasoning that without custody, there is no governmental compulsion to
speak). As we have held, an individual may exercise the right to remain silent before any charges are
pending. See State v. Diaz, 681 A.2d 466, 468-69 (Me. 1996).
                                                                                                     15

demonstrate the defendant’s intention to exercise the constitutional right against

compelled self-incrimination. See Diaz, 681 A.2d at 467-69. Thus, in many

contexts, a defendant is not deemed to have exercised the constitutionally protected

right against compelled self-incrimination by virtue of silence alone. See Salinas,

570 U.S. at ---, 186 L. Ed. 2d at 386 (plurality opinion) (“A witness does not

expressly invoke the privilege by standing mute.”).

        [¶26]     To determine whether a defendant did express the intention to

exercise this Fifth Amendment right, a court must consider the specific

circumstances in which a defendant was questioned and the defendant’s response

to that questioning. Here, Lovejoy terminated a telephone conversation with the

investigating detective upon stating that he wanted to speak with a lawyer10 and

then did not return the detective’s subsequent telephone calls. These facts provide

sufficient information to demonstrate Lovejoy’s invocation of his right against

self-incrimination for purposes of the Fifth Amendment and article I, section 6 of

the Maine Constitution. See United States v. Okatan, 728 F.3d 111, 115, 119 (2d

Cir. 2013) (holding, after Salinas was decided, that a request for a lawyer in

response to noncustodial questioning constitutes an invocation of the privilege

   10
      The record here contains no admitted evidence regarding the content of Lovejoy’s statement to the
detective. Rather, because the State and Lovejoy agreed that that statement was inadmissible, the record
contains only the uncontested assertion by Lovejoy’s counsel at sidebar that Lovejoy had stated to the
detective that he wanted to talk to a lawyer. Because the State does not challenge the factual
representation made by Lovejoy’s counsel, we accept as fact that Lovejoy made this statement to the
detective.
16

against self-incrimination); Patton, 2012 ME 101, ¶ 15, 50 A.3d 544 (holding,

before Salinas was decided, that a noncustodial request to speak with counsel,

before Miranda warnings were given, constituted an assertion of the Fifth

Amendment right against compelled self-incrimination).

      [¶27] Although, by agreement, the prosecutor avoided eliciting testimony

about Lovejoy’s statement that he wanted to speak with an attorney, she did elicit

testimony that Lovejoy did not return the detective’s calls. She also argued in her

closing argument that this silence evidenced consciousness of guilt. Because the

prosecutor, as in Diaz, sought to capitalize on the improperly admitted testimony

of Lovejoy’s failure to respond to the police detective by arguing that it

demonstrated Lovejoy’s consciousness of guilt, the testimony and argument

constituted a violation of the Fifth Amendment and article I, section 6 of the Maine

Constitution. See Patton, 2012 ME 101, ¶ 18 n.2, 50 A.3d 544; Diaz, 681 A.2d at

468-69; see also State v. Glover, 2014 ME 49, ¶ 11, --- A.3d --- (noting that the

“probative value of a defendant’s exercise of a constitutional right is minimal at

best”).

      [¶28] In reviewing the admission of the testimony in the context of this trial

for obvious error, see Pabon, 2011 ME 100, ¶ 18, 28 A.3d 1147, we conclude that

there is “(1) an error, (2) that is plain,” id. ¶ 29, given our holding in Diaz, 681

A.2d at 468-69. See also Dolloff, 2012 ME 130, ¶ 36, 58 A.3d 1032. We further
                                                                                    17

conclude that the error (3) “affects substantial rights,” Pabon, 2011 ME 100, ¶ 29,

28 A.3d 1147, because the evidence not only was offered at trial but also was

emphasized in closing arguments in a case in which there was no physical evidence

linking Lovejoy to the crime and the verdict turned entirely on the credibility of the

witnesses. In such circumstances, the error was sufficiently prejudicial that it

could have affected the outcome of the proceeding. Cf. Dolloff, 2012 ME 130,

¶ 53, 58 A.3d 1032.

      [¶29]    Finally, because of the improperly admitted evidence and the

subsequent argument that Lovejoy declined to speak with police, we conclude that

“(4) the error seriously affects the fairness and integrity or public reputation of

judicial proceedings.” Pabon, 2011 ME 100, ¶ 29, 28 A.3d 1147; see also id. ¶ 27

(explaining that if a defendant claims a constitutional error, the appellate discretion

afforded by the fourth criterion of obvious error review—whether the error

seriously affects the fairness and integrity or public reputation of judicial

proceedings—“is considerably reduced”). We reach this conclusion because the

prosecutor argued to the jury that Lovejoy’s silence should be considered as

substantive evidence of his guilt, and although the court instructed that the jury

should not hold against Lovejoy his decision not to testify, it made no similar

instruction regarding his pre-arrest silence. See Diaz, 681 A.2d at 469. We cannot

affirm a conviction that so evidently depended on the jury’s determinations of
18

credibility when the prosecution offered evidence and argument that the

defendant’s decision not to speak to the police constituted evidence of his guilt.

B.    Prosecutorial Misconduct

      [¶30] Lovejoy argues that the prosecutor committed misconduct by stating

that the witnesses were credible and by further commenting on the alleged victim’s

credibility even after the court determined that such statements were

impermissible.

      [¶31] “When an objection has been made to a prosecutor’s statements at

trial, we review to determine whether there was actual misconduct and, if so,

whether the trial court’s response remedied any prejudice resulting from the

misconduct.” Dolloff, 2012 ME 130, ¶ 32, 58 A.3d 1032 (citations omitted).

Because Lovejoy objected to the prosecutor’s statements concerning witnesses’

credibility during closing argument, we review for harmless error.                   See

U.C.D.R.P.-Cumberland County 52(a); M.R. Crim. P. 52(a).

      [¶32]      A prosecutor may not use “the authority or prestige of the

prosecutor’s office to shore up the credibility of a witness, sometimes called

‘vouching.’” Dolloff, 2012 ME 130, ¶ 42, 58 A.3d 1032 (citing State v. Williams,

2012 ME 63, ¶ 46, 52 A.3d 911). In response to Lovejoy’s objection, the court

told counsel that, after the closing arguments, the court would issue a curative

instruction to the jury making clear that the jury should disregard the attorneys’
                                                                                19

expressed opinions about the credibility of witnesses.          Unfortunately, the

prosecutor again commented that the victim’s testimony was credible during the

rebuttal argument. Such repeated vouching for witness credibility, even after being

warned not to, when considered in combination with references to Lovejoy’s

pre-arrest silence, cannot be regarded as harmless error.

                                 III. CONCLUSION

      [¶33]    Because Lovejoy’s pre-arrest silence was used against him as

evidence of consciousness of guilt in violation of the United States and Maine

Constitutions, and because the prosecutor improperly vouched for the credibility of

the witnesses, Lovejoy did not receive a fair trial. The two identified defects in

Lovejoy’s trial require us to vacate his convictions and remand this matter to the

trial court for further proceedings. Accordingly, the issues raised in Lovejoy’s

sentence appeal are moot, and we do not discuss them further. See State v. York,

1999 ME 100, ¶ 5, 732 A.2d 859 (stating that “we decline to decide issues which

by virtue of valid and recognizable supervening circumstances have lost their

controversial vitality” (quotation marks omitted)).

      The entry is:

                      Judgments of conviction vacated. Remanded for
                      further proceedings consistent with this opinion.
20

On the briefs:

        Jeremy Pratt, Esq., Camden, for appellant Jason Lovejoy

        Stephanie Anderson, District Attorney, and Deborah A. Chmielewski, Asst.
        Dist. Atty., Prosecutorial District No. Two, Portland, for appellee State of
        Maine


At oral argument:

        Jeremy Pratt, Esq., for appellant Jason Lovejoy

        Deborah A. Chmielewski, Asst. Dist. Atty., for appellee State of Maine


Cumberland County Unified Criminal Docket docket number CR-2011-5953
FOR CLERK REFERENCE ONLY
