MAINE SUPREME JUDICIAL COURT                                         Reporter of Decisions
Decision: 2019 ME 171
Docket:   Wal-19-101
Argued:   November 4, 2019
Decided:  December 23, 2019

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



                                  STATE OF MAINE

                                           v.

                                 ANDREW M. SOUSA


HJELM, J.

         [¶1] Andrew M. Sousa appeals from a judgment convicting him of

robbery and unlawful possession of scheduled drugs, entered by the trial court

(Waldo County, R. Murray, J.) after a jury trial. Sousa asserts that the court erred

by overruling his objection to an aspect of the State’s closing argument that, he

contends, improperly suggested that he had the burden of proof. Sousa also

argues that he was denied a fair trial because the court failed to address sua

sponte the State’s alleged misstatement of evidence in its rebuttal argument.

We affirm the judgment.
2

                               I. BACKGROUND

      [¶2] We draw the following account of the case from the procedural

record and the evidence seen in the light most favorable to the State, see State

v. Pelletier, 2019 ME 112, ¶ 2, 212 A.3d 325.

      [¶3] On April 9, 2018, Sousa walked into a pharmacy in Unity. His

clothing was entirely black, and his head was mostly concealed; only his eyes

and hands were exposed. Sousa went to the counter and showed the clerk a

note, which directed her to “give [him] all the oxycodone.” Despite Sousa’s

effort to conceal his identity, the clerk was able to recognize him because he

was a long-time customer there. Because of the manner of Sousa’s dress, his

demand for the drugs, and the way he looked at her while keeping one hand in

his pocket, the clerk was fearful that if she did not comply, he would react

violently. The clerk talked with the pharmacist, who filled a bag with well over

one thousand oxycodone pills, and either the clerk or the pharmacist then gave

the bag to Sousa. Sousa, who said nothing during the episode, walked out of the

pharmacy. The pharmacist activated a distress alarm, and the police responded

to the scene. The incident in the pharmacy was recorded by the store’s

surveillance camera. Law enforcement officials went on the lookout for Sousa
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until, nine days later, officers arrested him in the vicinity of an encampment in

the woods. When he was arrested, he was in possession of nearly 800 pills.

         [¶4] Several days after the incident, before he was arrested, the State

filed a criminal complaint charging Sousa with robbery (Class B), 17-A M.R.S.

§ 651(1)(B)(2)(2018).            Sousa was later indicted for that crime and an

additional offense, unlawful possession of scheduled drugs (Class D),

17-A M.R.S. § 1107-A(1)(C) (2018). Sousa pleaded not guilty to both charges,

and the court held a two-day jury trial in February of 2019. At trial, the

recording from the store’s surveillance camera was shown to the jury, and the

parties stipulated that Sousa was the person who committed the act in the

pharmacy. The contested issues were whether the State proved that Sousa had

placed the clerk in “fear of the imminent use of force” and, if so, whether he did

so “intentionally or knowingly.” See 17-A M.R.S. § 651(1)(B)(2).1


  1   Title 17-A M.R.S. § 651(1)(B)(2) (2018) provides:

           A person is guilty of robbery if the person commits or attempts to commit theft
         and at the time of the person’s actions:

  ....
            B. The actor threatens to use force against any person present or otherwise
         intentionally or knowingly places any person present in fear of the imminent use of
         force with the intent:

  ....

            (2) To compel the person in control of the property to give it up or to engage in
         other conduct that aids in the taking or carrying away of the property.
4

      [¶5] To support his contention that he did not act with the culpable state

of mind necessary to commit the crime of robbery, see 17-A M.R.S. § 38 (2018)

(stating that “[e]vidence of an abnormal condition of the mind may raise a

reasonable doubt as to the existence of a required culpable state of mind”),

Sousa presented the testimony of a clinical neuropsychologist who testified

that Sousa had been diagnosed with an unspecified schizophrenia spectrum

disorder.    During Sousa’s questioning, the witness testified about the

interrelationship between Sousa’s mental illness and the emotional and

physical pain that was affecting Sousa around the time of the incident:

      Q: Do you have an expert perspective on the question of [Sousa’s]
      state of mind at the time that he went into the pharmacy as it bears
      on this case?

      ....

      A. Essentially as I reviewed everything and obtained all this
      information, it struck me that Mr. Sousa was able to act in [a] goal
      directed manner at that time as far as he had a goal to get
      medications, he was in severe agony, severe pain, and he wanted to
      get pain medications. He described how he had been living in very
      dire straits, essentially, and put in circumstances which increased
      his pain, his stress, and his general level of emotional difficulty.
      . . . So I think there was a very strong psychological component as
      well to his pain which worsened the whole situation, including
      some of it being related to his various delusions or ideas about
      where some of that pain came from. He was extremely frustrated,
      very angry about his situation, and essentially very desperate. At
      the time I believe that he, again, was just looking to have a basic
      need met. He was in severe pain, severe agony, and wanted some
                                                                              5

      relief, and I think that was about the extent of his thought process
      at that time.

      Q: Do you believe that this combination of factors likely had a
      negative impact on [Sousa’s] ability to know the effect that his
      actions would have on other people?

      A. I do. I think given all of those facts and the severe state he was
      in at that time that, again, he was essentially seeing his immediate
      needs.

      [¶6] During the State’s cross-examination, the expert testified that

Sousa’s mental illness did not prevent him from having a “general” awareness

that taking the pills was wrong. Also during cross-examination, the expert was

asked whether Sousa was experiencing delusions when he entered the

pharmacy:

      Q: In your conversation with Mr. Sousa and your evaluation of him,
      did you see any indication that he was experiencing any kind of
      delusion or anything of that nature when he went into the
      pharmacy . . . ?

      A. [T]here was still [an] indication that he was holding beliefs
      about some of the sources of his pain. Again, that he had been
      tortured or poisoned or had other reasons to have that pain. He did
      not express any delusions, for example, about the pharmacy or
      about persons there or about . . . what would occur if he were to
      take those pills. They . . . were not delusions of that sort.

      Q. So he was clear about what he was doing based on your meeting
      with him and your conversation with him?

      A. I’d say yes, he knew that he was going to a pharmacy to get pills.
6


        [¶7] Later in the trial, during the State’s rebuttal closing argument, the

prosecutor addressed the neuropsychologist’s testimony and told the jury:

        There’s no evidence, for example, that Mr. Sousa was experiencing
        any form of delusion at the time he went into the pharmacy on
        April 9 . . . . He knew what he was doing. He knew he was wearing
        a mask. He knew he was confronting people. He knew he was—

At that point, Sousa objected on the ground that the State’s argument

improperly shifted the burden of proof to Sousa because it suggested that Sousa

had an obligation to provide evidence that he was delusional at the time of the

incident.      The court overruled the objection, explaining that the State’s

argument did not have that effect. The court also stated that, as part of its final

instructions, it would instruct the jury that the burden of proof rests solely with

the State. The court did exactly that.2

        [¶8]    The jury found Sousa guilty of both counts.                      The court later

sentenced Sousa to four years in prison for robbery and, for the drug charge,

six months to be served concurrently. Sousa filed a timely appeal from the

resulting judgment. See 15 M.R.S. § 2115 (2018); M.R. App. P. 2B(b)(1).




    2The court instructed the jury, “[T]he burden of proof is entirely on the State. The defendant does
not have to prove anything.” The court then instructed the jury on the presumption of innocence.
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                                     II. DISCUSSION

         [¶9] We address Sousa’s two contentions on appeal in turn.

A.       Shifting the Burden of Proof

         [¶10] Sousa first argues the State committed prosecutorial misconduct

during its closing argument by telling the jury that there was “no evidence” that

Sousa was experiencing delusions when he entered the pharmacy. This, Sousa

contends, implied to the jury that the burden of proof rested on him. Sousa

further contends that this statement improperly suggested that the State had

met its burden of proof because Sousa did not present evidence that delusions

prevented him from “intentionally or knowingly” acting. See 17-A M.R.S.

§ 651(1)(B)(2). From this, Sousa asserts that the court erred by overruling his

objection to the State’s argument.3

         [¶11] “When examining instances of alleged prosecutorial misconduct,

we first determine whether the misconduct occurred and, if it did, view the

comments of the prosecutor as a whole, looking at the incidents of misconduct

both in isolation and in the aggregate.” State v. Clark, 2008 ME 136, ¶ 7, 954

A.2d 1066 (quotation marks omitted). Where misconduct has occurred and the

issue was preserved, we review the record for harmless error and “affirm the


     Sousa did not ask that the court impose any particular form of relief to cure the claimed
     3

misconduct. Rather, he merely objected.
8

conviction if it is highly probable that the jury’s determination of guilt was

unaffected by the prosecutor’s comments.” State v. Cheney, 2012 ME 119, ¶ 34,

55 A.3d 473 (quotation marks omitted).

      [¶12] Simply put, there was no misconduct here. The prosecutor’s

argument to the jury did not suggest that Sousa carried any burden of proof.

Rather, the prosecutor merely described and analyzed the evidence presented

through Sousa’s expert witness. In doing so, the State did not suggest to the

jury, as Sousa contends, that he had an obligation to prove that he was

experiencing delusions when entering the pharmacy. Furthermore, the court

informed the jury generally during its instructions that Sousa had no burden of

proof whatsoever. The court also properly instructed the jury on the particular

legal significance of evidence of Sousa’s mental health, telling the jury that it

could consider evidence of Sousa’s abnormal state of mind to determine

whether it “raise[d] a reasonable doubt as to the existence of a required

culpable state of mind.” See 17-A M.R.S. § 38; State v. Griffin, 2017 ME 79, ¶ 12,

159 A.3d 1240; State v. Murphy, 496 A.2d 623, 632 (Me. 1985).

      [¶13] Because there was no prosecutorial misconduct, the trial court did

not err by overruling Sousa’s objection, and in any event Sousa’s concern that
                                                                               9

the jury misapprehended the State’s argument was ameliorated by the court’s

correct and thorough instructions on the burden of proof.

B.    Misstatement of Evidence

      [¶14] Sousa also contends that the State misstated evidence during its

rebuttal closing by arguing that there was “no evidence” that Sousa was

experiencing delusions at the time of the alleged robbery. Sousa contends that

this was an incorrect characterization of the evidence because the

neuropsychologist did testify that Sousa was then experiencing some measure

of delusional thinking.

      [¶15] Although Sousa objected to that part of the State’s summation

based on his contention that it improperly shifted the burden of proof, he did

not object to the prosecutor’s description of the evidence itself. Therefore, we

review this contention for obvious error. State v. Gould, 2012 ME 60, ¶ 16, 43

A.3d 952. To show obvious error, there must be “(1) an error, (2) that is plain,

and (3) that affects substantial rights.” State v. Dolloff, 2012 ME 130, ¶ 35, 58

A.3d 1032 (quotation marks omitted). “[I]f these three conditions are met, we

will set aside a jury’s verdict only if we conclude that (4) the error seriously

affects the fairness and integrity or public reputation of judicial proceedings.”

Id. (quotation marks omitted). “When a prosecutor’s statement is not sufficient
10

to draw an objection, particularly when viewed in the overall context of the

trial, that statement will rarely be found to have created a reasonable

probability that it affected the outcome of the proceeding.” Id. ¶ 38.

      [¶16] “When prosecutorial misconduct is alleged, we assess whether

there was actual misconduct and, if so, whether the court’s response was

sufficient to remedy any resulting prejudice.” State v. Ayotte, 2019 ME 61, ¶ 12,

207 A.3d 614. “The mere existence of a misstatement by a prosecutor at trial,

or the occasional verbal misstep, will not necessarily constitute misconduct

when viewed in the context of the proceedings.” Dolloff, 2012 ME 130, ¶ 44, 58

A.3d 1032.

      [¶17] Here, the State did not materially misrepresent the evidence when

it argued that there was “no evidence” that Sousa was experiencing delusions

during the robbery. Sousa’s expert witness testified that, in his opinion, Sousa

had no delusions about matters that were central to the incident: the pharmacy,

the people who were present, and the consequences of stealing prescription

drugs. As the neuropsychologist stated directly, “[Sousa] knew that he was

going to a pharmacy to get pills.”       According to the expert, Sousa also

appreciated the wrongfulness of his conduct.
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      [¶18] The neuropsychologist did describe a more attenuated connection

between Sousa’s mental illness and the incident at the pharmacy. The witness

explained that Sousa had been experiencing considerable physical pain, which

had a heightened effect on him because he attributed the pain to extrinsic

sources that reflected a delusional thought process. To seek relief from the

pain, Sousa decided to go to the pharmacy to obtain drugs. According to the

expert, Sousa could not see past “his own immediate needs” and therefore was

unable to appreciate the effect of his actions on others.

      [¶19] To this limited extent, there was evidence that Sousa’s delusions

played some role in the alleged robbery. Given the expert’s more central

testimony, however, that Sousa understood the nature of his conduct and

appreciated many of the circumstances bearing directly on the incident, any

mischaracterization of the evidence as containing “no evidence” of delusional

thinking at the time of the incident was not of such a magnitude to have

required the court to intervene sua sponte. Thus, the court committed no

obvious error.

      The entry is:

                  Judgment affirmed.
12

Harris A. Mattson, Esq. (orally), Silverstein Law, P.A., Bangor, for appellant
Andrew M. Sousa

William B. Entwisle, Esq. (orally), Prosecutorial District No. VI, Belfast, for
appellee State of Maine

Waldo County Unified Criminal Docket docket number CR-2018-292
FOR CLERK REFERENCE ONLY
