MAINE SUPREME JUDICIAL COURT                                     Reporter of Decisions
Decision: 2013 ME 91
Docket:   Yor-13-75
Argued:   September 12, 2013
Decided:  October 31, 2013

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


                                STATE OF MAINE

                                         v.

                                SHANNON BEAN

MEAD, J.

         [¶1] Shannon Bean appeals from a judgment entered by the trial court

(O’Neil, J.) following a jury verdict convicting her of domestic violence assault

(Class D), 17-A M.R.S. § 207-A(1)(A) (2012). Bean contends that the State’s

closing argument contained statements that impermissibly referred to her decision

not to testify in her own defense, requiring her conviction to be vacated. Because

we conclude that the prosecutor’s statements during closing argument do not

constitute misconduct, we affirm the judgment.

                                I. BACKGROUND

         [¶2] The following facts are established in the record. Bean lives in an

apartment with her two children and her mother, Linda McCafferty, in

Old Orchard Beach.       On September 2, 2012, Bean and McCafferty became
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embroiled in an argument that escalated to the point where Bean started pushing

McCafferty. After being pushed against a railing and scraping her leg in the

process, McCafferty went inside the apartment and locked the door.            Bean

unlocked the door using her own key, entered the apartment, and engaged in a

physical altercation with McCafferty.

       [¶3] Bean did not testify at her trial. However, her attorney clearly placed

the issues of self-defense and witness credibility before the jury during opening

statements. In his closing argument, the prosecutor said, “[Y]ou didn’t hear any

evidence until [Bean’s friend] took the stand that [Bean] had been injured.” Bean

objected and moved for a mistrial on grounds that the prosecutor’s statement drew

impermissible attention to the fact that she did not testify. The trial court denied

her motion, but acceded to Bean’s request for a curative instruction. The court

instructed the jurors that (1) they were the ultimate deciders of the evidence and

counsels’ arguments did not constitute evidence; (2) a defendant is protected by the

presumption of innocence; and (3) a defendant has no duty to produce evidence to

negate guilt.

       [¶4] The prosecutor continued his closing argument and Bean objected to

the following statements on the ground that they drew attention to her decision not

to testify:
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      [T]he only evidence you have received through one witness is [Bean’s
      friend] who testified that . . . one or two days later, she saw [Bean]
      and had observed injury to her[;]

      [N]o one testified at all that [McCafferty] had anything to drink or
      was any sort of intoxicated that night at all[;]

      [I]n this case the only evidence that you’ve heard at all which would
      give any rise to deciding that [Bean] was using self-defense to defend
      herself when she attacked her mom was [McCafferty]’s statement that
      [Bean] said at one point, Leon, come help me, she is beating me or
      words to that [e]ffect. That’s the only evidence you have got that
      anyone besides [Bean] was the primary aggressor, the initial
      aggressor.

The court overruled each objection.

                                II. DISCUSSION

      [¶5] Bean contends that the prosecutor’s comments at closing impermissibly

directed the jury’s attention to her decision not to testify. The privilege not to

testify is “guaranteed . . . by the Fifth Amendment of the United States

Constitution and secured to a defendant in Maine by Article 1 § 6 of the Maine

Constitution, as implemented in 15 M.R.S.A. § 1315.”            State v. Tibbetts,

299 A.2d 883, 887 (Me. 1973).

      [¶6] In State v. Dolloff, we outlined the analysis for reviewing claims of

error resulting from alleged prosecutorial misconduct in the form of statements to

the jury when, as here, the defendant objected to the statements. 2012 ME 130,

¶¶ 31-34, 40 & n.12, 58 A.3d 1032. Dolloff requires that we first review the record
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to determine whether there was actual misconduct. Id. ¶ 32. Only after this initial

determination do we reach the question of whether the court’s response to the

alleged misconduct is harmless error or, as Bean urges, error that affects the

defendant’s substantial rights and requires a new trial. See id. ¶ 33.

      [¶7]    A prosecutor’s statement is impermissible when it is a direct,

unambiguous comment on a defendant’s failure to testify, or when it indirectly or

ambiguously calls attention to a defendant’s failure to testify. Tibbetts, 299 A.2d

at 887-88. Statements “that single[] out the defendant as the absent witness who

might rebut the prosecution’s evidence” are equally impermissible. Id. at 888

(quotation marks omitted).

      [¶8] In contrast, statements that point to inconsistent defense theories, see

State v. Roberts, 2008 ME 112, ¶¶ 44, 47, 951 A.2d 803, and statements

concerning the sources of the defendant’s version of events when the defendant did

not testify, State v. Berkley, 567 A.2d 915, 919-20 (Me. 1989), do not constitute

misconduct.

      [¶9] Here, the prosecutor’s closing argument drew the jury’s attention to

(1) the scant evidence of injury to Bean, (2) the complete lack of evidence showing

McCafferty was intoxicated, and (3) the absence of evidence suggesting that

McCafferty had been the aggressor other than McCafferty’s testimony about

Bean’s statement. The prosecutor’s statements were accurate recitations of the
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state of the evidence and did not expressly or implicitly comment on Bean’s failure

to testify or suggest that the evidence must be accepted because it was unrebutted.

As such, these statements do not constitute misconduct, and we affirm the

judgment of the trial court.

        The entry is:

                           Judgment affirmed.



On the briefs:

        Lauren Wille, Esq., DeGrinney Law Offices, Portland, for appellant
        Shannon Bean

        Kathryn Slattery, District Attorney, and Anne Marie Pazar, Esq.,
        Prosecutorial District #1, Alfred, for appellee State of Maine


At oral argument:

        Lauren Wille, Esq., for appellant Shannon Bean

        Anne Marie Pazar, Esq., for appellee State of Maine



York County Superior Court docket number CR-2012-2095
FOR CLERK REFERENCE ONLY
