MAINE SUPREME JUDICIAL COURT                                         Reporter of Decisions
Decision: 2015 ME 167
Docket:   Cum-14-496
Argued:   November 5, 2015
Decided:  December 31, 2015

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


                                   STATE OF MAINE

                                            v.

                               ANTHONY W. PRATT JR.

MEAD, J.

         [¶1]    Anthony W. Pratt Jr. appeals from a judgment of conviction for

murder, 17-A M.R.S. § 201(1)(A) (2014), entered by the trial court

(Cumberland County, Warren, J.) following a jury trial. Pratt contends that the

court erred in admitting in evidence an audio recording of his interview with a

police detective, and in admitting evidence that Pratt had assaulted the victim hours

before she was killed. We affirm the judgment.

                                   I. BACKGROUND

         [¶2] The jury could have found the following facts, which we view in the

light most favorable to the jury’s verdict. See Reardon v. Larkin, 2010 ME 86, ¶ 4,

3 A.3d 376. At the end of the summer of 2012, the victim, Margarita Scott, was

involved in a romantic relationship with Anthony Pratt Jr., who was also selling

her drugs.        Margarita shared an apartment in Westbrook with her husband,
2

Cary Scott. Pratt lived in Portland with Christopher Jennings, Jennings’s wife

Tunile, and the couple’s children.      Margarita spent time at both locations.

Eventually she agreed to marry Pratt and accepted an engagement ring from him.

Pratt was unhappy, however, that Margarita continued to wear Cary’s ring as well

as his, and he was angry that she continued to spend time with Cary at the marital

apartment.

      [¶3] Margarita spent the night of November 9, 2012, at the apartment she

shared with Cary. At about 10:30 a.m. the next day, after Cary had gone to work,

Pratt, who was upset that Margarita had not stayed with him the previous evening,

took a cab to the Scotts’ Westbrook apartment. A neighbor who lived in the

apartment directly below the Scotts saw Pratt arrive in a taxi and pound on

Margarita’s door; the neighbor said that when Margarita opened the door Pratt

“either pushed her or grabbed her by the hair and [they] ended up going down the

[whole flight of] stairs.” The neighbor said that “the whole time that the beating

was occurring,” he heard Pratt saying that “[h]e believe[d] that she was fucking her

husband.” Pratt and Margarita ended up in the driveway, where the neighbor saw

“[Pratt] proceeding to kick her, punch her and complain to her that she was fucking

her husband.” When the beating continued, the neighbor called the police. Pratt

and Margarita went back upstairs to the apartment.       The neighbor never saw

Margarita again.
                                                                                 3

      [¶4] Cary returned to the apartment for lunch because Pratt had called him

several times that morning to see if he wanted to buy drugs, and Cary suspected

that Pratt actually wanted to know his whereabouts. He arrived to find Margarita

“disheveled” with a bruise under her right eye and marks on her face. Shortly

thereafter a Westbrook police officer came to the door. Pratt was in the apartment,

but Margarita had hidden him in a closet. The officer testified to Margarita’s

“upset . . . crying” demeanor and to observing similar injuries.      When Cary

returned to work he was still upset, so he left work and returned home

unexpectedly. Pratt was there and said that he had come to help Margarita after

she had been assaulted.

      [¶5] Cary drove Pratt and Margarita to a store in Portland, where he was to

wait for Margarita to get some clothes at the Jennings’s apartment and then return.

When she did not come back after an hour or two, Cary left and went home.

Tunile Jennings testified that Pratt and Margarita returned to the apartment

between 2:00 and 3:00 p.m., and that Pratt was wearing women’s clothing and a

wig, apparently as a disguise. Margarita told Tunile that Pratt had dragged her

down some stairs, punched her in the face, and choked her. Tunile saw that

Margarita’s ear was swollen and her eye was very red; Margarita said that she was

in a lot of pain, her ears were ringing, and that “her body was sore because he

dragged her.”
4

         [¶6] At 8:00 p.m. Margarita called Cary to say that she had taken their truck

but would have it back by 2:00 a.m. for him to go to work. She never did return

the truck, and Cary never saw or spoke to her again. That night, Margarita gave

Christopher and Tunile a ride to the Old Port in her truck so that the couple could

celebrate Christopher’s birthday; Pratt stayed at the apartment to babysit the

children. At 1:00 a.m. on November 11, Tunile used a borrowed phone to call the

apartment; she had left her own phone at the apartment with Pratt. She spoke to

Margarita to tell her that she did not have to pick them up as planned. Between

1:30 and 2:00 a.m., Tunile called her phone again and this time spoke to Pratt.

When Tunile and Christopher returned home shortly after 3:00 a.m., Pratt was on

the couch and Margarita was gone. Neither Christopher nor Tunile saw Margarita

again.

         [¶7] At about 6:00 a.m. that same day, Pratt woke Christopher to say that he

needed to go home to New York to care for his grandfather. He had not previously

said anything about his grandfather having problems. Pratt boarded a bus that

afternoon and did not return. Two months later, on January 17, 2013, a friend of

Cary Scott found Cary’s missing truck in a motel parking lot. Cary discovered

Margarita’s body in the back seat. The medical examiner testified that she died

from a gunshot to the neck, and said that there was nothing inconsistent with a date

of death of November 11, 2012.          The State presented incriminating forensic
                                                                                  5

evidence, including evidence from which the jury could conclude that Pratt once

had possession of the gun that killed Margarita.

      [¶8]    Detective Richard Vogel of the Portland Police Department

interviewed Pratt twice, once in Portland and later at a New York Police

Department stationhouse. In the second interview, Vogel told Pratt several times

that he thought Pratt was lying, and that his story would not “fly.”         At the

conclusion of the second interview, Pratt was arrested and charged with Margarita

Scott’s murder.

      [¶9]   In May 2013 the Cumberland County Grand Jury returned an

indictment charging Pratt with murder, 17-A M.R.S. § 201(1)(A). Pratt moved

in limine to exclude evidence of the November 10, 2012, assault on Margarita in

Westbrook. The State filed a related motion to allow evidence of the relationship

between Pratt and Margarita. The court ruled that “the prior relationship . . . it’s

coming in to some degree.”

      [¶10] A ten-day trial ended on October 9, 2014, when the jury returned a

verdict of guilty. At a sentencing hearing, the court sentenced Pratt to forty-two

years’ imprisonment and to pay $4,000 in restitution. Pratt appealed the resulting

judgment and filed an application for leave to appeal from sentence, which the

Sentence Review Panel denied.
6

                                       II. DISCUSSION

A.       The Recorded Interview

         [¶11] The court allowed the State to admit in evidence and play for the jury

the recorded New York interview.              Pratt contends that the court should have

excluded Vogel’s questions and statements because their admission (1) violated

M.R. Evid. 802 and 403, (2) allowed improper prosecutorial vouching, and

(3) resulted in prejudice that was not cured by the court’s limiting instruction.

         1.    Rules 802 and 403

         [¶12] The court allowed the jury to hear Vogel’s statements over Pratt’s

objection.     Pratt first argues that Vogel’s statements constitute inadmissible

hearsay pursuant to M.R. Evid. 8021 because “[t]here is . . . no ‘context’ exception

to the hearsay rule.” In State v. Mannion, we considered the same argument under

the same circumstances presented here. 637 A.2d 452, 455-56 (Me. 1994). We

concluded that hearsay rules did not foreclose admission of statements made by an

officer during a taped interrogation of the defendant because “the statements of the

officer were not offered for the truth of the matter asserted.”                      Id. at 456.

Accordingly, “the admission of the statements of the officer to show context, not to

prove their truth, was within the court’s discretion.” Id.
     1
     Maine Rule of Evidence 802 (Tower 2014) provided: “Hearsay is not admissible except as provided
by law or by these rules.” The Restyled Maine Rules of Evidence did not take effect until
January 1, 2015, after the trial had been completed. 2014 Me. Rules 15 (effective Jan. 1, 2015).
                                                                                                        7

         [¶13] The court’s decision to admit the recording pursuant to Rule 4032 is

likewise reviewed for an abuse of discretion. Steadman v. Pagels, 2015 ME 122,

¶ 18, --- A.3d ---. Although the recording was adverse to Pratt’s cause, it was also

probative concerning the central issue at trial—whether it was Pratt or someone

else who murdered the victim. From the interview, the jury could conclude that

Pratt’s responses to questions were inconsistent and that some of his actions were

insufficiently explained; if it did so, the jury would logically consider the next

question: why Pratt answered and behaved that way if he had not committed the

crime.

         [¶14] Rule 403 does not provide for the exclusion of relevant evidence

simply because it is adverse; rather, it operates to exclude relevant evidence when

it is unfairly prejudicial because the prejudice resulting from its admission

substantially outweighs its probative value. M.R. Evid. 403. The court did not err

in determining that that was not the case here.

         2.     Vouching

         [¶15] Pratt contends that because Vogel was the lead detective in the case,

sat at the State’s counsel table at trial, and was referred to by the prosecutor during

his opening statement as one of the people responsible for proving the State’s case,
   2
     The rule in effect at the time of trial provided: “Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.” M.R. Evid. 403 (Tower 2014).
8

Vogel’s assertion during the recorded interview that Pratt was lying was the

equivalent of the prosecutor telling the jury at trial that Pratt was a liar. We have

said that “it is improper for a prosecutor to express an opinion on the credibility of

a defendant. This is particularly true because prosecutors are cloaked with the

authority of the State, and [are] duty-bound to see that justice is done.” State v.

Schmidt, 2008 ME 151, ¶ 16, 957 A.2d 80 (alteration in original) (citation and

quotation marks omitted).

      [¶16] Pratt’s argument, for which he cites no authority from any state or

federal court, is not persuasive. A police officer heard on a recording telling a

suspect that he believes the suspect is lying is fundamentally different from a

prosecutor telling a jury that a witness lied. The use of a recorded police interview

is not an expression of the prosecutor’s personal opinion, and therefore does not

constitute improper vouching by the State’s attorney, because jurors know that the

roles of a police officer and a prosecutor are not the same, and they are capable of

discerning the difference between the two. See State v. Lowe, 2015 ME 124, ¶ 33,

124 A.3d 156 (stating that jurors are “charged with the responsibility of drawing

on their common sense and life experiences”).
                                                                                  9

      3.      Limiting Instruction

      [¶17] Subject to his objection to Vogel’s statements being played to the jury

at all, Pratt agreed with a limiting instruction that the court gave before the jury

heard the recorded interview. The court instructed the jury that

      during the course of questioning Mr. Pratt, Detective Vogel and
      possibly Detective Rybeck make various statements about the facts as
      Detective Vogel understood them or as he stated he understood them.
      And his statements . . . are hearsay and cannot be considered by you
      as evidence of any of the factual assertions Detective Vogel made or
      as to any factual statements that are contained in Detective Vogel’s
      questions. However, Detective Vogel’s statements and questions may
      be considered as part of the interview of Mr. Pratt. The statements
      made by Mr. Pratt in that interview are evidence and you can consider
      Mr. Vogel’s statements and questions to the extent that they give
      meaning to Mr. Pratt’s statements and answers or to the extent they
      allow you to understand Mr. Pratt’s answers.

      [¶18]    Pratt now contends that the limiting instruction was insufficient.

Because Pratt agreed with the instruction he now challenges, we review the

instruction for obvious error. See State v. Whiting, 538 A.2d 300, 302 (Me. 1988).

We defer to a trial court’s determination that an instruction will cure a potential

problem, and “presume that the jury followed the court’s instruction.” State v.

Wyman, 2015 ME 1, ¶ 24, 107 A.3d 641.            Here, where the language of the

instruction correctly stated the law that the jury is presumed to have followed—

“you can consider Mr. Vogel’s statements and questions to the extent that they

give meaning to Mr. Pratt’s statements and answers or to the extent they allow you
10

to understand Mr. Pratt’s answers,” see Mannion, 637 A.2d at 456—the record

reveals no error, much less obvious error.

B.       Evidence of the Prior Assault

         [¶19] The jury heard evidence from which it could find that Pratt assaulted

the victim approximately fifteen hours before she was killed.                          Pratt moved

in limine, pursuant to M.R. Evid. 404(b)3 and 403, to exclude statements that the

victim made about the assault, and to limit, but not exclude altogether, other

evidence concerning the assault, saying,

         In this case, although evidence of the prior domestic violence is
         admissible insofar as it is relevant to motive or intent, the Court
         should carefully circumscribe the admission of such evidence. . . .
         [T]he Court should limit such evidence as much as possible.

         [¶20] Pratt reiterated that position at the motion hearing, and elaborated on

it. As to the victim’s statements, he “concede[d] . . . that a few of these statements

may be admissible as statements of existing . . . physical condition,” specifically

her statements “complaining of having a hard time hearing out of her right ear and

of leg pain. She also complained about her left ear . . . [and] that her right hand

had been scratched already but that the discoloration was new.” As to evidence

concerning the prior assault generally, Pratt told the court that



     3
     The rule in effect at the time of trial provided: “Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that the person acted in conformity
therewith.” M.R. Evid. 404(b) (Tower 2014).
                                                                                       11

      [w]e do concede that some of that evidence is relevant to motive and
      intent but it needs to be carefully limited . . . . We would ask that there
      be a 404 limiting instruction before opening statements . . . . [and]
      also ask for a reiteration of that limiting instruction before any witness
      is going to talk about it. And then, lastly, it should be included in the
      jury instructions.

      [¶21] Although the court expressed concern that an instruction prior to

openings would be confusing because the jury would not know at that point what it

was to disregard, Pratt twice agreed with the outline of the instruction that the court

proposed to give at appropriate points. He also agreed that “two neighbors and one

cop” should be allowed to testify concerning the assault so long as the court did not

allow them to “elaborate ad nauseam on this point.”

      [¶22] Before the Westbrook police officer testified about her contact with

the victim and her observations of the victim’s injuries following the prior assault,

Pratt accepted the court’s offer of a limiting instruction. The court told the jury:

      Mr. Pratt is not charged in this case with assaulting Margarita Scott on
      November 10 and you may not assume or conclude, based on any
      evidence as to any conduct or physical altercation involving the
      defendant that may have occurred on the morning of November 10, as
      evidence that Mr. Pratt had any disposition or propensity to commit
      any acts or any violent acts or any conduct that would tend to show he
      committed the crime here or that necessarily means he committed the
      offense that is charged here and that you need to determine at the
      conclusion of all the evidence. Evidence as to a physical altercation
      between Mr. Pratt and Margarita Scott on the morning of
      November 10 or of any conduct engaged in at that time may be
      considered by you only to the extent that that evidence may shed light
      on whether Mr. Pratt had any motive or intent to commit the crime
      that is charged in this case or to the extent that such evidence may
12

       shed light on the state of Mr. Pratt’s relationship with Margarita Scott
       at the time in question.

In its charge to the jury, the court gave a substantially similar instruction; Pratt did

not object to it.

       [¶23] On appeal, Pratt contends that the court erred in admitting evidence

concerning the prior assault—including the evidence that he agreed at trial was

admissible—because admitting the evidence violated M.R. Evid. 403, and because

the court’s limiting instruction was not sufficient to satisfy Rule 404(b). Although

we generally “review the trial court’s decision to admit [] evidence pursuant to

Rule 404(b) for clear error and its determination pursuant to Rule 403 for an abuse

of discretion,” Steadman, 2015 ME 122, ¶ 18, --- A.3d --- (quotation marks

omitted), here our review is for obvious error because Pratt did not object to

evidence of the prior assault being admitted for a proper purpose, and did not

object to the limiting instruction that the trial court gave to prevent potential

prejudice. See State v. Millay, 2001 ME 177, ¶ 12, 787 A.2d 129.

       1.     Rule 404(b)

       [¶24] The rule in effect at the time of the trial provided: “Evidence of other

crimes, wrongs, or acts is not admissible to prove the character of a person in order

to show that the person acted in conformity therewith.”            M.R. Evid. 404(b)

(Tower 2014). As we have said, evidence of prior bad acts is admissible for
                                                                                                        13

limited purposes other than to prove propensity, in that “Rule 404(b) does not

render inadmissible evidence of other crimes, wrongs, or acts if the evidence is

offered to demonstrate motive, intent, identity, absence of mistake, or the

relationship of the parties.” State v. Barnes, 2004 ME 38, ¶ 5, 845 A.2d 575.

        [¶25] Here, the parties agreed that the only real issue for the jury was the

identity of Margarita Scott’s killer. Evidence that an angry Pratt committed a

serious assault against a woman whom he described as his fiancée hours before she

was killed was relevant, and therefore admissible, concerning each of the proper

purposes identified in Barnes: motive, intent, identity, absence of mistake, and the

relationship of the parties.4 See id.

        2.      Rule 403

        [¶26]     Contrary to Pratt’s contention that “[t]he probative value of the

alleged assault was low to nil,” the State’s theory of the case was that Pratt killed

Margarita because he thought she was “cheating on him” with her husband. The

probative value of evidence from which the jury could conclude that Pratt was

angry enough with Margarita to purposefully and violently assault her hours before

her death is obvious. As with the recording of Pratt’s police interview, evidence of

   4
      Contrary to Pratt’s assertion that the state of the relationship evidence was “simply floating freely
without any nexus to anything at all,” evidence concerning the tumultuous state of Pratt and Margarita’s
relationship on the day before her murder had a clear nexus to the ultimate issue—whether Pratt had the
motive and intent to kill her, and did so. See Field & Murray, Maine Evidence § 404.7 at 150
(6th ed. 2007) (stating that “the court should carefully consider . . . the extent to which proof of the
[parties’] relationship supports inferences relevant to the basic issues in the case”).
14

the close-in-time assault was doubtlessly prejudicial to Pratt’s cause, but it was not

unfairly prejudicial and it was also highly probative concerning the central issue at

trial—whether it was Pratt or someone else who murdered Margarita Scott.

      3.      Limiting Instruction

      [¶27] The danger of unfair prejudice that must be weighed against the

probative value of relevant evidence was, in this case, mitigated by the court’s

careful, twice-repeated limiting instruction. We presume that the jury followed the

trial court’s instruction, which limited its consideration of the prior assault

evidence to a proper purpose under Rule 404(b): “whether Mr. Pratt had any

motive or intent to commit the crime that is charged in this case or [] the extent

[to which] such evidence may shed light on the state of Mr. Pratt’s relationship

with Margarita Scott at the time in question.” See Wyman, 2015 ME 1, ¶ 24,

107 A.3d 641. The record thus reveals no error.

C.    Due Process

      [¶28]    Pratt finally contends that the court’s admission of his recorded

interrogation by Vogel, and of evidence that he assaulted the victim before she was

murdered, either individually or collectively violated his constitutional right to due

process. Pratt is, like any person charged with a crime, guaranteed a fair trial by

the Due Process Clause of the Fourteenth Amendment. See State v. Shulikov,

1998 ME 111, ¶ 10, 712 A.2d 504. “We review [Pratt’s] constitutional arguments
                                                                                     15

for obvious error because he first raised them on appeal.”             State v. Nichols,

2013 ME 71, ¶ 23, 72 A.3d 503. Because the court did not err in admitting the

challenged evidence, there was no violation of Pratt’s due process rights.

        The entry is:

                           Judgment affirmed.



On the briefs:

        Jamesa J. Drake, Esq., Drake Law, LLC, Auburn, for appellant
        Anthony W. Pratt Jr.

        Janet T. Mills, Attorney General, and Donald W. Macomber,
        Asst. Atty. Gen., Office of the Attorney General, Augusta, for
        appellee State of Maine


At oral argument:

        Jamesa J. Drake, Esq., for appellant Anthony W. Pratt Jr.

        Donald W. Macomber, Asst. Atty. Gen., for appellee State of
        Maine



Cumberland County Unified Criminal Docket docket number CR-2013-2065
FOR CLERK REFERENCE ONLY
