MAINE SUPREME JUDICIAL COURT                                             Reporter of Decisions
Decision: 2019 ME 169
Docket:   Pen-18-401
Argued:   November 5, 2019
Decided:  December 19, 2019

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



                                      STATE OF MAINE

                                               v.

                                    ANTOINNE BETHEA


ALEXANDER, J.

         [¶1]     Antoinne Bethea appeals from a judgment of conviction of

manslaughter (Class A), 17-A M.R.S. § 203(1)(A) (2018), entered by the trial

court (Penobscot County, A. Murray, J.) following a jury trial on an indictment

for murder, 17-A M.R.S. § 201(1)(A) (2018). Bethea asserts that the trial court

(1) erred in its conduct of voir dire by crafting race-related questions for

potential jurors but not using questions proposed by Bethea; (2) abused its

discretion by admitting a photograph of the victim with his son; and (3) abused

its discretion by only giving a curative instruction after the prosecutor

misstated the evidence during closing arguments. We affirm the judgment.
2

                               I. CASE HISTORY

A.    Facts

      [¶2] Viewing the evidence in the light most favorable to the State, the

jury could have found the following facts beyond a reasonable doubt. See State

v. Nobles, 2018 ME 26, ¶ 2, 179 A.3d 910.

      [¶3] On Easter weekend 2017, the victim and a friend traveled to Bangor.

The victim’s eight-year-old son lived in Bangor with his mother—the victim’s

ex-wife—and Bethea. While they were together that weekend, the son told his

father that Bethea had been cooking “white stuff” in the apartment and that the

white stuff gave him a headache. The victim’s friend understood the “white

stuff” to be crack cocaine.

      [¶4] After hearing this story from his son, the victim sent several text

messages to his ex-wife.       Bethea interpreted those text messages as

threatening. Bethea and the victim’s ex-wife drove to her father’s home, where

Bethea retrieved a handgun he had kept hidden there. When Bethea and the

victim’s ex-wife returned to their apartment, they saw the victim and his friend

standing in the driveway. The victim and his friend were waiting for the

victim’s son to change his clothes inside. Bethea and the victim spoke briefly
                                                                              3

before Bethea entered the apartment. Bethea testified that he showed his

handgun to the victim’s friend as he walked up the stairs to his apartment.

      [¶5] Shortly after Bethea returned outside, he started a fight with the

victim. During the fight, the victim’s friend saw Bethea reach for his handgun.

The friend then jumped on Bethea, and the three fell to the ground. While they

were on the ground, Bethea discharged his firearm twice. The shots struck the

victim, causing his death.

      [¶6] Bethea quickly left the scene and cut off his dreadlocks. Bethea also

gave an acquaintance an object wrapped in a sock, which the acquaintance

buried in the woods. The object inside the sock was the handgun used in the

shooting, which law enforcement eventually recovered.

B.    Procedural History

      [¶7] On April 18, 2017, Bethea was charged by criminal complaint with

murder. See 17-A M.R.S. § 201(1)(A). He was arrested in Ohio on May 21, 2017.

Following his arrest, Bethea was indicted and, on arraignment, pleaded not

guilty. A jury trial was held in August 2018.

      [¶8] The court used a written questionnaire as part of its voir dire of

potential jurors. Following best practice, see State v. Roby, 2017 ME 207,

¶ 3 n.2, 171 A.3d 1157, the court and counsel initially met more than a week
4

prior to the start of jury selection for an extensive discussion of proposals for

the written questionnaire. The day before the start of jury selection, the court

and the parties met again to finalize the questionnaire. At these conferences,

Bethea proposed that the court include in the written questionnaire certain

questions designed to identify possible racial biases held by potential jurors.

Bethea also proposed that each question have answer choices of “YES,” “NO,” or

“NOT SURE.” The questions proposed by Bethea included the following:

      18. Do you believe or feel African-American men are more likely
      to commit crimes when they come to Maine than people of other
      races visiting Maine?

      21. Have you ever experienced or witness[ed] anyone being
      treated badly because of his or her race?

      22. Have you ever had any positive or negative interactions with
      a person of another race?

      23. Do you have any negative views of people of the
      African-American race?

      24. Have you, or any of your family members or close friends[,]
      ever used derogatory words to describe a person of another race,
      such as [the N-word] in referring to African-Americans?

      [¶9]    In response to Bethea’s request, the court amended its

questionnaire to include two additional questions. With the amendments, the

questionnaire used by the court, with answer choices of only “YES” or “NO,”

asked the following questions about race:
                                                                                5

      22. Would the fact that Mr. Bethea is an African-American/black
      male from New Haven, Connecticut have any effect on your ability
      to be a fair and impartial juror?

      23. Would the fact that the deceased . . . was an
      African-American/black male from New Orleans, Louisiana have
      any effect on your ability to be a fair and impartial juror?

      24. There may be additional evidence that other people involved
      in this case are African American/black and/or from out of state.
      Would any of these facts have any effect on your ability to be a fair
      and impartial juror?

      25. Do you have any negative views or have you had any negative
      experiences with people who are African-American/black?

      26. If you answered “yes” to question 25 above, would that affect
      your ability to be fair and impartial if you are selected as a juror in
      this case?

      [¶10] Prior to individual voir dire, the court excluded any potential juror

whose answers to these questions indicated that he or she might not be

impartial on race-related issues. During individual voir dire, the court asked

each potential juror to explain in more detail his or her affirmative responses

to other questions on the questionnaire. The court permitted the attorneys for

the State and for Bethea to ask follow-up questions to the potential jurors.

During oral argument on this appeal, Bethea’s counsel indicated that the court

did not restrict the scope of the follow-up questions that could be asked or

prohibit the attorneys from asking any particular question.
6

C.       Issues Arising at Trial

         [¶11] Before trial, the State informed the court of its intent to offer three

photographs depicting the victim and the victim’s son. Bethea objected on

relevancy and Rule 403 grounds, and the court ruled that the State could select

one photograph to admit.1 When the victim’s son testified, the State moved to

admit en masse the State’s Exhibits 1 through 55, one of which was the

photograph at issue. The court asked Bethea if he objected to any of the offered

exhibits. Bethea responded that he had no objection. The State showed the

photograph to the victim’s son, who identified himself and his father as the two

individuals shown. Following this use of the photograph, it was not displayed

or referenced again during the trial. On appeal, Bethea contends that the

photograph was irrelevant to any issue at trial and, alternatively, that the court

abused its discretion in admitting the photograph over his Rule 403 objection.

         [¶12] During the State’s rebuttal in closing argument, the prosecutor

said: “[The victim’s friend] testified last week that the defendant went up the

stairs, and when he went up the stairs, he showed the gun.” In fact, it was




     1The State argues that the admitted photograph was probative to substantiate the victim’s
friend’s testimony that he and the victim visited Maine to spend Easter with the victim’s son. The
State contends that this fact was material to counter Bethea’s suggestion that the two traveled to
Maine only to sell drugs—which would have damaged the friend’s credibility as a witness.
                                                                                                   7

Bethea himself, not the friend, who testified that Bethea showed the friend a

gun.2 In making the statement at issue, the prosecutor appeared to be drawing

parallels between the friend’s and Bethea’s testimony in an effort to convince

the jury that, even if it believed Bethea’s testimony, it should also believe the

testimony of the friend.            Bethea objected, pointing out the prosecutor’s

misstatement. Bethea argues that the prosecutor impermissibly enhanced the

credibility of the victim’s friend by downplaying an apparent inconsistency in

the friend’s testimony.

       [¶13] Following Bethea’s objection, as part of its overall instructions, the

court instructed the jury as follows:

       [T]he opening statements and the closing arguments of the
       attorneys are not evidence. In their arguments, they have
       suggested to you particular ways that you might want to analyze
       the evidence, and they have argued various conclusions and
       inferences that you might want to draw from the evidence. But the
       opening statements and the closing statements themselves are not
       evidence.

       If, once you begin your deliberations, your memory of the evidence
       is different from their memory, it is your memory that controls.
       And I understand that counsel in this case may disagree about what
       the other one may have said to you in closing arguments. So, again,
       I want to emphasize for you that it is your memory that controls—

   2 The defense also impeached the friend’s testimony that Bethea had not shown him the gun by
introducing the friend’s prior inconsistent statement made to a law enforcement officer shortly after
the shooting. The friend told the police officer that Bethea had shown him the gun prior to the
physical altercation.
8

       your memory of the evidence that controls your decision in this
       case.

       [¶14] By its verdict at the end of the seven-day trial, the jury acquitted

Bethea of murder but found him guilty of the lesser-included offense of

manslaughter. The court sentenced Bethea to twenty-six years’ imprisonment

with all but eighteen years suspended, followed by four years of probation.

Bethea timely appealed the resulting judgment. See M.R. App. P. 2B(b)(1).

                                      II. LEGAL ANALYSIS

A.     Voir Dire

       [¶15] Bethea asserts that the trial court’s conduct of voir dire was not

sufficient to identify racial bias among potential jurors and that he was

therefore denied his constitutional right to a fair trial.3 Specifically, Bethea

contends that the court abused its discretion in declining to include on the juror

questionnaire the five questions he requested because (1) the State presented

evidence related to his dreadlocks and (2) Bethea testified that he attempted to


   3 Bethea also argues that the trial court abused its discretion in declining to include an answer

choice of “not sure” for the questions on the juror questionnaire. The trial court is not required to
allow a “not sure” answer or any other third choice for answers to jury questionnaires. See State v.
Burton, 2018 ME 162, ¶¶ 18-19, 198 A.3d 195 (holding that a trial court did not abuse its discretion
by declining to provide an answer choice of “not sure” in addition to “yes” and “no” on a juror
questionnaire); State v. Roby, 2017 ME 207, ¶¶ 3, 10-14, 171 A.3d 1157 (explaining that the trial court
properly declined to use a questionnaire that asked if jurors “strongly agree,” “agree,” “disagree,” or
“strongly disagree” with certain policy propositions); see also State v. Collin, 1999 ME 187, ¶ 8, 741
A.2d 1074 (explaining that the court is not required to “voir dire the jury in the exact manner
requested by” a party).
                                                                               9

elude law enforcement—even though he believed the shooting was justified—

because he was afraid that, as a black man, he would not be treated fairly by the

police. According to Bethea, these facts made race a key issue at trial such that

the court’s voir dire process was constitutionally deficient.

      [¶16] We review the trial court’s conduct of voir dire for an abuse of

discretion, affording the trial court “considerable discretion over the conduct

and scope of juror voir dire.” Roby, 2017 ME 207, ¶ 12, 171 A.3d 1157. “[T]he

purpose of voir dire is to detect bias and prejudice in prospective jurors, thus

ensuring that a defendant will be tried by as fair and impartial a jury as

possible.” Id. ¶ 11 (quoting State v. Lowry, 2003 ME 38, ¶ 7, 819 A.2d 331). The

trial court is not required to conduct voir dire precisely in the manner

requested by a defendant so long as the voir dire process is “sufficient to

disclose facts that would reveal juror bias.”       Lowry, 2003 ME 38, ¶ 11,

819 A.2d 331; see State v. Collin, 1999 ME 187, ¶ 8, 741 A.2d 1074.

      [¶17] The court’s conduct of voir dire here was “sufficient to disclose

facts that would reveal” racial bias among potential jurors. Lowry, 2003 ME 38,

¶ 11, 819 A.2d 331. The juror questionnaire included five questions designed

to uncover racial bias. These questions overlapped significantly with those

proposed by Bethea. Question 25, which the court added in response to
10

Bethea’s request for additional inquiry on racial prejudice, is essentially a

combination of Bethea’s proposed questions 22 and 23. Similarly, the court’s

question 22 covers the same ground as Bethea’s proposed question 18; both

probed the potential jurors’ respective abilities to be impartial when deciding

the guilt or innocence of a black man from out of state. The court did not abuse

its discretion in declining to word its questions precisely as Bethea requested.

See Roby, 2017 ME 207, ¶ 13, 171 A.3d 1157; Collin, 1999 ME 187, ¶ 8,

741 A.2d 1074.

        [¶18] The trial court’s decision to not ask Bethea’s proposed questions

21 and 24 was appropriate because the court’s voir dire process, taken as a

whole, adequately probed potential jurors for racial biases.          “The key

consideration on review is not whether any particular question was asked—or

who asked it—but whether the voir dire questions, taken as a whole,

(a) adequately explore the potential that jurors may have knowledge, bias or

predisposition that could compromise their objectivity and qualifications for

hearing the case, and (b) encourage and permit jurors to give honest responses

to such questions.” Maine Jury Instruction Manual § 2-4G at 2-17 (2018-2019

ed.).
                                                                               11

      [¶19] Here, the court included five questions related to race on the

questionnaire, incorporating some of Bethea’s suggestions; excused any juror

whose answers to those questions suggested any racial bias; and permitted

Bethea to ask follow-up questions to potential jurors during individual voir

dire. The trial court thus thoroughly probed the issue of racial bias and acted

within its discretion in its conduct of voir dire. See Collin, 1999 ME 187, ¶ 8,

741 A.2d 1074 (permitting the use of “voir dire queries which addressed

potential juror bias more generally than the defendant wished”); Roby,

2017 ME 207, ¶ 13, 171 A.3d 1157 (holding that a trial court did not abuse its

discretion where the court’s conduct of voir dire “addressed virtually all of [the

defendant’s] concerns”).

B.    Photograph of Victim with Son

      [¶20] Bethea next argues that the court erred or abused its discretion in

admitting a photograph of the victim and his son while the victim was alive.

Bethea contends that the photograph served only to garner sympathy for the

victim and therefore was irrelevant and unfairly prejudicial.

      [¶21] Because the issue was addressed before trial, we consider Bethea’s

objection to the photograph properly preserved here, even though he offered

no objection when the photograph was admitted together with the State’s other
12

exhibits. See M.R. Evid. 103(e) (“A pretrial objection to or proffer of evidence

must be timely renewed at trial unless the court states on the record, or the

context clearly demonstrates, that a ruling on the objection or proffer is final.”);

State v. Thomes, 1997 ME 146, ¶¶ 6-7, 697 A.2d 1262; Field & Murray,

Maine Evidence § 103.7 at 28-29 (6th ed. 2007).

           [¶22] A photograph is admissible if (1) it is an accurate depiction;4 (2) it

is relevant; and (3) its probative value is not substantially outweighed by its

prejudicial effect. See State v. Allen, 2006 ME 21, ¶ 10, 892 A.2d 456. Evidence

is relevant if it has “any tendency to make a fact more or less probable than it

would be without the evidence; and . . . [t]he fact is of consequence in

determining the action.” M.R. Evid. 401. We review a ruling on relevancy for

clear error. See State v. Michaud, 2017 ME 170, ¶ 8, 168 A.3d 802. A trial court

has discretion to exclude relevant evidence “if its probative value is

substantially outweighed by a danger of . . . unfair prejudice.” M.R. Evid. 403;

see Michaud, 2017 ME 170, ¶ 8, 168 A.3d 802.

           [¶23] As part of his trial strategy, Bethea suggested that the victim and

his friend had come to Maine not to visit the victim’s son but to engage in illegal

drug dealing. The photograph showed the victim with his son on the weekend


     4   Bethea does not challenge the accuracy of the photograph.
                                                                                  13

in question. This fact was relevant to negate Bethea’s suggestion that the victim

and his friend came to Maine only to sell drugs. Bethea has not demonstrated

that the trial court clearly erred in admitting the photograph to show the

relationship between the victim and his son.

      [¶24] We likewise conclude that the court acted within its discretion in

overruling Bethea’s Rule 403 objection.         The photograph did not play a

significant role at trial. It was shown to the victim’s son on the first day of trial

and never seen or referenced again. The trial court reasonably determined that,

in the context of a seven-day trial, the photograph would have little or no

prejudicial effect. Bethea has failed to demonstrate that the court’s decision

was an abuse of discretion.

C.    Prosecutor’s Misstatement

      [¶25] Bethea argues that the State committed prosecutorial misconduct

when the prosecutor recited a fact not in evidence during closing rebuttal

argument.    Bethea objected to the prosecutor’s misstatement.           “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
14

court’s response remedied any prejudice resulting from the misconduct . . . .”5

State v. Dolloff, 2012 ME 130, ¶ 32, 58 A.3d 1032 (citations omitted). When the

State makes a misstatement or commits misconduct at trial and the defendant

objects, the State carries the burden of persuasion on appeal. See id. ¶ 34.

         [¶26] In reviewing a judgment entered after a jury’s verdict, we generally

defer to the determination of the trial judge, “who has the immediate feel of

what is transpiring, that a curative instruction will adequately protect against”

the jury’s consideration of a misstatement by the prosecutor. Id. ¶ 32. “Only

where there are exceptionally prejudicial circumstances or prosecutorial bad

faith will a curative instruction be deemed inadequate to eliminate prejudice.”

Id. (quoting State v. Bennett, 658 A.2d 1058, 1063 (Me. 1995)); see State v.

Winslow, 2007 ME 124, ¶ 24, 930 A.2d 1080.

         [¶27] Any prejudice to Bethea caused by the prosecutor’s misstatement

was remedied by the trial court’s appropriate curative instruction, which

emphasized the jury’s responsibility to rely on its own recollection of the

evidence. See State v. Scott, 2019 ME 105, ¶ 34, 211 A.3d 205 (holding that a

similar curative instruction was sufficient to remedy any prejudice to the



     The State concedes that, during its closing rebuttal argument, the prosecutor was mistaken on
     5

the relevant fact and thus recited a fact not in evidence.
                                                                               15

defendant from a prosecutor’s minor misstatement). We presume the jury

followed this instruction. See State v. Tarbox, 2017 ME 71, ¶ 18, 158 A.3d 957.

      [¶28] There is no indication that the prosecutor misstated the evidence

in bad faith.   Nor did the prosecutor’s misstatement create the sort of

“exceptionally prejudicial circumstances” that could not be remedied by a

curative instruction. Winslow, 2007 ME 124, ¶ 24, 930 A.2d 1080. When

making the statement at issue, the prosecutor was explaining to the jury that

the friend’s testimony was mostly consistent with Bethea’s. The prosecutor

detailed six other facts to which both the friend and Bethea testified. Therefore,

even without the statement at issue, the prosecutor’s point still stood that the

friend and Bethea gave corroborative testimony in several important respects.

For these reasons, the trial court’s curative instruction adequately remedied

any prejudice to Bethea.

      The entry is:

                  Judgment affirmed.
16

Jeremy Pratt, Esq. (orally), and Ellen Simmons, Esq., Camden, for appellant
Antoinne Bethea

Aaron M. Frey, Attorney General, and Donald W. Macomber, Asst. Atty. Gen.
(orally), Office of the Attorney General, Augusta, for appellee State of Maine


Penobscot County Unified Criminal Docket docket number CR-2017-1381
FOR CLERK REFERENCE ONLY
