MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	 2016	ME	155	
Docket:	   Som-15-492	
Argued:	   September	14,	2016	     	
Decided:	  October	18,	2016	
	
Panel:	    SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                         STATE	OF	MAINE	
                                                	
                                               v.	
                                                	
                                       ANDREW	B.	MADERIOS	
	
	
MEAD,	J.	

         [¶1]	 	 Andrew	 B.	 Maderios	 appeals	 from	 a	 judgment	 of	 conviction	

entered	by	the	trial	court	(Somerset	County,	Mullen,	J.)	after	a	jury	found	him	

guilty	 of	 two	 counts	 of	 aggravated	 assault	 (Class	 B),	 17-A	 M.R.S.	 §	 208(1)(C)	

(2014),1	 and	 two	 counts	 of	 domestic	 violence	 assault	 (Class	 D),	 17-A	 M.R.S.		

§	207-A(1)(A)	(2015).		Maderios	contends	that	the	court	erred	in	(1)	declining	

to	allow	three	of	the	victim’s	former	romantic	partners	to	testify	to	her	alleged	

propensity	 to	 make	 false	 accusations	 when	 relationships	 ended	 against	 her	

wishes;	 (2)	admitting,	 over	 Maderios’s	 best	 evidence	 objection,	 audio	

recordings	and	photographs	made	by	the	victim;	and	(3)	declining	to	order	a	



    1	
     	 Title	 17-A	 M.R.S.	 §	 208(1)(C)	 has	 since	 been	 amended.	 	 P.L.	 2015,	 ch.	 358,	 §	 1	 (effective	
Oct.	15,	2015)	(codified	at	17-A	M.R.S.	§	208(1)(C)	(2015)).	
2	

mistrial	 as	 a	 result	 of	 statements	 made	 by	 the	 prosecutor	 during	 the	 State’s	

closing	and	rebuttal	arguments.		We	affirm	the	judgment.	

                                           I.		BACKGROUND	

	         [¶2]	 	 On	 September	 4,	 2014,	 Maderios	 was	 indicted	 for	 alleged	 crimes	

committed	 against	 the	 victim,	 his	 then-girlfriend.	 	 The	 indictment	 charged	

Maderios	 with	 three	 counts	 of	 aggravated	 assault	 (Class	 B),	 17-A	 M.R.S.	

§	208(1)(C)	 (Counts	 I,	 IV,	 VI);	 one	 count	 of	 aggravated	 assault	 (Class	 B),	

17-A	M.R.S.	§	208(1)(A)	(2014)2	(Count	IX);	four	counts	of	domestic	violence	

assault	 (Class	 D),	 17-A	 M.R.S.	 §	 207-A(1)(A)	 (Counts	 II,	 V,	 VII,	 VIII);	 and	 one	

count	 of	 obstructing	 report	 of	 crime	 or	 injury	 (Class	 D),	 17-A	 M.R.S.		

§	758(1)(A)	(2015)	(Count	III).	

	         [¶3]	 	 Before	 trial,	 Maderios	 moved	 to	 allow	 two	 of	 the	 victim’s	 former	

boyfriends	 and	 her	 ex-husband	 to	 testify	 to	 what	 Maderios	 claimed	 was	 the	

victim’s	 pattern	 of	 making	 false	 accusations	 when	 relationships	 ended	 on	

terms	not	to	her	liking.		He	supported	his	motion	with	a	detailed	offer	of	proof.	




     2	
     	 Title	 17-A	 M.R.S.	 §	 208(1)(A)	 has	 since	 been	 amended.	 	 P.L.	 2015,	 ch.	 358,	 §	 1	 (effective	
Oct.	15,	2015)	(codified	at	17-A	M.R.S.	§	208(1)(A)	(2015)).	
                                                                                                                3	

        [¶4]	 	 Maderios	 also	 moved	 in	 limine,	 relying	 on	 M.R.	 Evid.	 1002,3	 to	

exclude	audio	recordings	of	alleged	assaults	that	the	victim	made	on	her	cell	

phone,	 as	 well	 as	 photographs	 of	 injuries	 allegedly	 resulting	 from	 those	

assaults	 that	 she	 took	 with	 the	 phone,	 all	 of	 which	 were	 later	 transferred	 to	

her	 computer	 before	 the	 phone	 was	 returned	 to	 her	 cell	 phone	 carrier	 and	

became	unavailable	for	trial.		The	State	moved	in	limine,	relying	on	M.R.	Evid.	

1004(a),4	 to	 allow	 the	 evidence,	 asserting	 in	 part	 that	 Maderios	 himself	 had	

deleted	the	recordings	and	photographs	from	the	victim’s	phone	before	it	was	

returned	to	the	carrier.	

        [¶5]	 	 On	 August	 28,	 2015,	 the	 court	 held	 a	 hearing	 on	 the	 pretrial	

motions.	 	 The	 court	 denied	 Maderios’s	 motion	 to	 allow	 the	 testimony	 of	 the	

victim’s	 former	 partners	 on	 the	 ground	 that	 its	 admission	 would	 create	 “a	

classic	 example	 of	 .	 .	 .	 a	 trial	 within	 a	 trial,”5	 and	 was	 therefore	 properly	




   3	 	 Maine	 Rule	 of	 Evidence	 1002,	 the	 “best	 evidence”	 rule,	 provides	 that	 “[a]n	 original	 writing,	

recording,	 or	 photograph	 is	 required	 in	 order	 to	 prove	 its	 content	 unless	 these	 rules	 or	 a	 statute	
provides	otherwise.”	
   	
   4	 	 An	 exception	 to	 the	 best	 evidence	 rule	 provides:	 “An	 original	 is	 not	 required	 and	 other	

evidence	of	the	content	of	a	writing,	recording,	or	photograph	is	admissible	if	.	.	.	[a]ll	the	originals	
are	lost	or	destroyed,	and	not	by	the	proponent	acting	in	bad	faith[.]”		M.R.	Evid.	1004(a).	
   	
   5		The	State	called	two	witnesses	who	testified	at	the	hearing	that	their	dating	relationships	with	

the	victim	ended	without	incident.	
   	
4	

excluded	pursuant	to	M.R.	Evid.	403.6		The	court	further	ruled	that	Maderios’s	

challenge	to	the	audio	recordings	and	photographs	went	to	their	weight,	and	

therefore	they	were	admissible	but	subject	to	Maderios’s	cross-examination	of	

the	victim	at	trial.	

        [¶6]		The	case	went	to	trial	on	August	31-September	4,	2015.		The	audio	

recordings	that	the	victim	made	of	a	January	25,	2014,	incident,	which	was	the	

basis	of	Counts	IV	and	V	of	the	indictment,	and	of	a	March	23,	2014,	incident,	

which	 was	 the	 basis	 of	 Counts	 VI	 and	 VII,	 were	 admitted	 and	 played	 for	 the	

jury.	 	 Several	 photographs	 taken	 by	 the	 victim	 with	 her	 cell	 phone	 showing	

injuries	resulting	from	those	incidents	were	also	admitted.	

        [¶7]		The	jury	returned	verdicts	of	guilty	on	Counts	IV,	V,	VI,	and	VII,	and	

not	 guilty	 on	 the	 remaining	 counts.	 	 At	 the	 sentencing	 hearing	 the	 court	

denied	 Maderios’s	 motion	 for	 a	 new	 trial,	 entered	 judgment	 on	 the	 verdicts,	

and	 imposed	 consecutive	 sentences	 on	 the	 aggravated	 assault	 convictions	

resulting	in	an	aggregate	sentence	of	fifteen	years’	imprisonment,	with	all	but	

three	years	suspended,	and	six	years	of	probation.		On	the	domestic	violence	




   6	 	 The	 rule	 provides:	 “The	 court	 may	 exclude	 relevant	 evidence	 if	 its	 probative	 value	 is	

substantially	outweighed	by	a	danger	of	one	or	more	of	the	following:	unfair	prejudice,	confusing	
the	 issues,	 misleading	 the	 jury,	 undue	 delay,	 wasting	 time,	 or	 needlessly	 presenting	 cumulative	
evidence.”		M.R.	Evid.	403.	
                                                                                          5	

assault	convictions,	the	court	imposed	a	sentence	of	six	months	to	be	served	

concurrently	with	the	other	sentences.		Maderios	appealed.	

                                    II.		DISCUSSION	

A.	    Evidence	of	Prior	Relationships	
	
	      [¶8]	 	 Maderios	 argues	 that	 evidence	 of	 how	 the	 victim	 acted	 in	 prior	

relationships	was	admissible	to	show	that	she	had	motive,	intent,	and	a	plan	

to	 make	 false	 accusations	 against	 him	 when	 their	 relationship	 was	 ending.		

The	trial	court’s	ruling	that	the	evidence	was	not	admissible	is	reviewed	for	an	

abuse	of	discretion.		State	v.	Ericson,	2011	ME	28,	¶	19,	13	A.3d	777.	

       [¶9]	 	 Although	 “[e]vidence	 of	 a	 crime,	 wrong,	 or	 other	 act	 is	 not	

admissible	to	prove	a	person’s	character	in	order	to	show	that	on	a	particular	

occasion	 the	 person	 acted	 in	 accordance	 with	 the	 character,”	 M.R.	 Evid.	

404(b),	we	have	said	that	“evidence	of	prior	bad	acts	is	admissible	for	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.	 Pratt,	 2015	 ME	 167,	 ¶	 24,	 130	 A.3d	 381	

(quotation	 marks	 omitted).	 	 It	 is	 not	 clear	 that	 the	 evidence	 concerning	 the	

victim’s	 prior	 relationships	 proffered	 by	 Maderios	 would	 qualify	 for	
6	

admission	under	one	of	those	exceptions,	or	that	it	would	survive	the	State’s	

challenge	 to	 it	 as	 improper	 character	 evidence.7	 	 We	 need	 not	 reach	 those	

questions,	 however,	 because	 we	 conclude	 that	 the	 court	 did	 not	 err	 by	

excluding	the	evidence	pursuant	to	Rule	403.	

          [¶10]	 	 The	 trial	 court	 is	 “afforded	 wide	 discretion	 to	 make	 Rule	 403	

determinations.”	 	 State	 v.	 Filler,	 2010	 ME	 90,	 ¶	 17,	 3	 A.3d	 365	 (quotation	

marks	 omitted).	 	 Even	 if	 “evidence	 tending	 to	 show	 that	 a	 witness	 has	 a	

motive	for	falsifying	or	exaggerating	trial	testimony	is	relevant	to	credibility,	

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,	 among	 other	 grounds,”	 including	 instances	 where	

“[p]resenting	evidence	related	to	the	truth	or	falsity	of	the	victim’s	allegations	

.	 .	 .	 would	 have	 confused	 the	 issues,	 creating	 a	 trial	 within	 a	 trial	 regarding	

whether	the	victim	or	[another	witness]	was	telling	the	truth.”		Ericson,	2011	

ME	28,	¶	22,	13	A.3d	777	(citations	and	quotation	marks	omitted).	

	         [¶11]	 	 Here,	 for	 several	 reasons,	 the	 court	 did	 not	 abuse	 its	 broad	

discretion	 in	 ruling	 that	 admission	 of	 the	 evidence	 contained	 in	 Maderios’s	

offer	of	proof	would	be	“a	classic	example	of	.	.	.	creating	a	trial	within	a	trial,”	

     7	 	 Maine	 Rule	 of	 Evidence	 608(b)	 provides,	 in	 part,	 that	 “[e]xcept	 for	 a	 criminal	 conviction	 .	 .	 .	

extrinsic	 evidence	 is	 not	 admissible	 to	 prove	 specific	 instances	 of	 a	 witness’s	 conduct	 in	 order	 to	
attack	or	support	the	witness’s	character	for	truthfulness.”	
                                                                                          7	

and	that	“any	probative	value	is	substantially	outweighed	by	confusion	of	the	

issues,	misleading	the	jury	[and]	unfair	prejudice.”	

       [¶12]		First,	unlike	in	Filler,	where	we	concluded	that	it	was	an	abuse	of	

discretion	 to	 limit	 the	 defendant’s	 cross-examination	 of	 his	 accuser	

concerning	evidence	of	contemporaneous	events	relevant	to	her	motivation	to	

fabricate	allegations	of	abuse	against	him,	2010	ME	90,	¶	19,	3	A.3d	365,	here	

Maderios	sought	to	have	third-party	witnesses	testify	concerning	the	victim’s	

alleged	motivation	to	make	accusations	against	those	witnesses—not	against	

Maderios.	 	 Second,	 the	 three	 witnesses	 would	 have	 testified	 about	

relationships	that	had	ended	between	four	and	ten	years	earlier,	lessening	any	

potential	 relevance.	 	 Third,	 resolving	 the	 question	 of	 which	 witnesses	 were	

accurately	describing	the	victim’s	conduct	when	her	prior	relationships	ended	

would,	 as	 demonstrated	 by	 the	 State	 calling	 two	 witnesses	 at	 the	 motion	

hearing	to	contradict	the	three	prospective	witnesses	discussed	in	Maderios’s	

offer	 of	 proof,	 require	 what	 the	 court	 accurately	 described	 as	 “a	 classic	

example	of	.	.	.	a	trial	within	a	trial.”	

       [¶13]	 	 Finally,	 again	 unlike	 the	 situation	 in	 Filler,	 where	 the	 “relevant	

evidence	 would	 have	 required	 only	 a	 few	 minutes	 of	 trial	 time	 to	 be	 fully	

explored,”	id.	¶	20,	here	the	court	was	faced	with	at	least	five	witnesses,	apart	
8	

from	 the	 principal	 parties,	 who	 would	 contradict	 each	 other	 concerning	 the	

victim’s	alleged	character	trait	for	vindictiveness	and	her	propensity	to	make	

false	 allegations	 in	 the	 face	 of	 a	 failing	 relationship.	 	 That	 prospect	 posed	 an	

obvious	 danger	 of	 “confusing	 the	 issues”	 for	 the	 jury,	 M.R.	 Evid.	 403,	 which	

was	 not	 tasked	 with	 determining	 which	 of	 those	 witnesses	 were	 credible	

concerning	 the	 victim’s	 character,	 but	 rather	 with	 the	 central	 question	 of	

whether	Maderios	had	assaulted	the	victim	as	alleged	in	the	indictment.	

        [¶14]		For	these	reasons,	the	court	did	not	abuse	its	“wide	discretion,”	

Filler,	2010	ME	90,	¶	17,	3	A.3d	365,	in	excluding	the	prospective	testimony	of	

the	 witnesses	 discussed	 in	 Maderios’s	 offer	 of	 proof	 pursuant	 to	 M.R.	 Evid.	

403.	

B.	     Best	Evidence	Rule	

	       [¶15]	 	 Maderios	 next	 contends	 that	 the	 court	 abused	 its	 discretion	 in	

denying	 his	 motion	 to	 exclude	 the	 audio	 recordings	 and	 photographs	 on	 the	

ground	 that	 their	 admission	 violated	 the	 “best	 evidence”	 rule,	 which	 states	

that	 “[a]n	 original	 writing,	 recording,	 or	 photograph	 is	 required	 in	 order	 to	

prove	 its	 content	 unless	 these	 rules	 or	 a	 statute	 provides	 otherwise.”	 	 M.R.	

Evid.	 1002;	 see	 LDC	 Gen.	 Contracting	 v.	 LeBlanc,	 2006	 ME	 106,	 ¶	 8,	 907	 A.2d	

802	 (“It	 is	 within	 the	 discretion	 of	 the	 trial	 judge	 to	 decide	 whether	 an	
                                                                                            9	

exception	to	the	best	evidence	rule	applies	in	a	given	instance.		His	decision	is	

reviewable	only	for	an	abuse	of	that	discretion.”	(quotation	marks	omitted)).	

	      [¶16]		The	record	reveals	no	error	in	the	court’s	decision.		By	rule,	“[a]n	

original	 is	 not	 required	 and	 other	 evidence	 of	 the	 content	 of	 a	 writing,	

recording,	 or	 photograph	 is	 admissible	 if	 .	 .	 .	 [a]ll	 the	 originals	 are	 lost	 or	

destroyed,	and	not	by	the	proponent	acting	in	bad	faith.”		M.R.	Evid.	1004(a).		

The	victim	testified	at	the	motion	hearing	that	she	made	audio	recordings	of	

the	 January	25,	 2014,	 and	 March	 23,	 2014,	 incidents	 on	 her	 cell	 phone,	 and	

that	in	June	she	transferred	the	recordings	and	photographs	to	her	computer	

after	she	began	having	trouble	with	the	phone	and	her	cell	carrier	advised	her	

to	 do	 so.	 	 Subsequently,	 on	 July	 4,	 2014,	 Maderios	 returned	 home	 from	 a	

vacation	 and,	 during	 an	 argument	 with	 the	 victim,	 he	 deleted	 the	 recordings	

and	photographs	from	her	phone.		The	victim	testified	that	she	did	not	tamper	

with	 or	 alter	 the	 recordings	 or	 photographs	 after	 they	 were	 copied	 to	 her	

computer,	 and	 that	 the	 copies	 she	 gave	 the	 State	 were	 fair	 and	 accurate	

representations	of	what	had	occurred.		The	phone	was	eventually	returned	to	

the	cell	carrier	so	that	she	could	get	a	replacement.	

       [¶17]	 	 The	 court	 found	 that	 “the	 State	 has	 negated	 bad	 faith	 to	 the	

extent	it’s	alleged.”		That	finding	is	supported	by	the	victim’s	testimony	at	the	
10	

hearing.		Accordingly,	Rule	1004(a)	was	satisfied,	and	the	court’s	decision	to	

admit	 the	 evidence	 over	 Maderios’s	 best	 evidence	 objection,	 subject	 to	 the	

jury’s	 evaluation	 of	 its	 weight	 at	 trial,	 was	 not	 an	 abuse	 of	 the	 court’s	

discretion.	

      [¶18]		Furthermore,	when	Maderios	testified	at	trial	he	did	not	dispute	

the	 accuracy	 of	 the	 recordings;	 rather,	 he	 said	 that	 he	 was	 not	 touching	 the	

victim	 when	 she	 made	 gagging	 noises	 and	 said	 “you	 strangled	 me,”	 “ow,	 ow,	

ow,”	 etc.—in	 other	 words,	 Maderios	 said	 that	 what	 the	 jury	 heard	 on	 the	

recordings	 was	 the	 victim’s	 attempt	 to	 make	 it	 sound	 as	 if	 an	 assault	 were	

occurring.		We	have	said	that	“[a]ny	deviation	from	the	best	evidence	rule	is	

harmless	error,	unless	an	actual	dispute	exists	as	to	the	terms	of	the	document	

at	issue.”		LDC	Gen.	Contracting,	2006	ME	106,	¶	8,	907	A.2d	802.		Here	it	was	

not	the	contents	of	the	recordings	that	were	at	issue,	but	their	context.	

C.	   Prosecutorial	Misconduct	

	     [¶19]		Maderios	finally	asserts	that	statements	made	by	the	prosecutor	

during	the	State’s	closing	and	rebuttal	arguments	constituted	misconduct	and	

required	the	court	to	declare	a	mistrial.		Before	closing	arguments	began,	the	

court	 reminded	 the	 attorneys	 of	 our	 review	 in	 State	 v.	 Dolloff,	 2012	ME	130,	

¶¶	42-43,	58	A.3d	1032,	of	conduct	that	may	be	regarded	as	improper.	
                                                                                        11	

	     [¶20]	 	 Despite	 the	 trial	 court’s	 sound,	 timely	 guidance,	 the	 prosecutor	

made	 statements	 that	 could	 be	 characterized	 as	 giving	 her	 personal	 opinion	

concerning	the	evidence	and/or	vouching	for	the	credibility	of	witnesses.		The	

court	 responded	 with	 immediate,	 correct,	 and	 strongly-worded	 curative	

instructions,	 however,	 that	 the	 jury	 is	 presumed	 to	 have	 followed.	 	 Id.	 ¶	 72.		

In	Dolloff,	we	said	that	

       [w]hen	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.	 	 We	
       generally	 defer	 to	 the	 determination	 of	 a	 presiding	 Justice,	 who	
       has	 the	 immediate	 feel	 of	 what	 is	 transpiring,	 that	 a	 curative	
       instruction	 will	 adequately	 protect	 against	 the	 jury’s	 giving	
       consideration	 to	 matters	 which	 have	 been	 heard	 but	 have	 been	
       stricken	 as	 evidence.	 	 Any	 concern	 created	 by	 improper	
       statements	made	by	a	prosecutor	is	likely	to	be	cured	by	a	prompt	
       and	 appropriate	 curative	 instruction,	 especially	 when	 such	 an	
       instruction	 is	 specifically	 addressed	 to	 the	 prosecutor’s	
       misconduct.		Finally,	we	determine	whether,	if	error	exists,	it	was	
       harmless.	 	 Only	 where	 there	 are	 exceptionally	 prejudicial	
       circumstances	 or	 prosecutorial	 bad	 faith	 will	 a	 curative	
       instruction	be	deemed	inadequate	to	eliminate	prejudice.	
       	
Id.	¶	32	(citations,	footnote,	and	quotation	marks	omitted).	

	     [¶21]		Here	the	court	declined	to	grant	a	mistrial,	ruling,	“I	don’t	find	the	

[p]rosecutor’s	 conduct	 was	 deliberate,	 and	 I	 don’t	 think	 it	 is	 likely	 any	

prejudice	 could	 survive	 the	 instruction	 or	 could	 [a]ffect	 the	 outcome	 of	 the	

case.”	 	 On	 this	 record,	 where	 the	 court	 found	 that	 exceptionally	 prejudicial	
12	

circumstances	or	prosecutorial	bad	faith	were	not	present,	its	decision	not	to	

grant	 a	 mistrial	 was	 within	 its	 discretion.8	 	 See	 State	 v.	 Frisbee,	 2016	ME	83,		

¶	28,	140	A.3d	1230	(“[W]e	review	the	trial	court’s	decision	on	whether	or	not	

to	grant	a	mistrial	under	the	familiar	standard	of	abuse	of	discretion.”).	

         The	entry	is:	

                            Judgment	affirmed.	
	
	     	     	     	     	       	
	
On	the	briefs:	
	
      Leonard	 I.	 Sharon,	 Esq.,	 Leonard	 I.	 Sharon,	 Esq.,	 P.C.,	
      Auburn,	 and	 Elliott	 L.	 Epstein,	 Esq.,	 Andrucki	 and	 King,	
      Lewiston,	for	appellant	Andrew	B.	Maderios	
      	
      Maeghan	 Maloney,	 District	 Attorney,	 Prosecutorial	 District	
      IV,	Skowhegan,	for	appellee	State	of	Maine	
	
At	oral	argument:	
	
      Leonard	I.	Sharon,	Esq.,	for	appellant	Andrew	B.	Maderios	
      	
      Maeghan	 Maloney,	 District	 Attorney,	 for	 appellee	 State	 of	
      Maine	
	
	
Somerset	County	Unified	Criminal	Docket	docket	number	CR-2014-987	
FOR	CLERK	REFERENCE	ONLY	



   8		 We	 remind	 the	 bar	 that	 we	 review	 closely	 instances	 of	 misconduct	 of	 the	 kind	 that	 we	
discussed	at	length	in	State	v.	Dolloff,	2012	ME	130,	58	A.3d	1032.		Had	the	trial	court	in	this	case	
not	diligently	and	proactively	protected	Maderios’s	right	to	a	fair	trial,	our	result	might	have	been	
different.		Protecting	a	defendant’s	right	to	a	fair	trial	is	the	responsibility	of	attorneys	as	well	as	the	
court,	 and	 a	 court’s	 curative	 instruction	 must	 not	 be	 relied	 on	 as	 a	 way	 to	 inject,	 strategically	 or	
carelessly,	improper	comments	that	we	have	repeatedly	cautioned	attorneys	not	to	make.	
