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State v. Lyons
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 225
Docket: 	Cum-97-53
Argued:	September 11, 1998
Decided:	October 5, 1998

Panel: 		WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, and ALEXANDER, JJ.

STATE OF MAINE v. JOSEPH HENRY LYONS, III

RUDMAN, J.

	[¶1]  Joseph Henry Lyons, III appeals both from the judgment entered
in the Superior Court (Cumberland County, Cole, J.) following a jury verdict
finding him guilty on two counts of gross sexual assault in violation of 17-A
M.R.S.A. § 253 (1983 & Supp. 1997){1} and from the sentences imposed. 
Lyons contends that the trial court erred by refusing to grant a mistrial in
response to the State's improper closing argument.  Although we agree the
State's argument was improper, we conclude that, absent the prosecutor's
allusion to the failure of the defendant to present evidence, it is clear
beyond a reasonable doubt that the jury would have returned a verdict of
guilty.  We therefore affirm the conviction and the sentences imposed.{2}
	[¶2]  	The State presented evidence at trial that, if believed, would
establish the elements of the crimes charged.  Lyons did not testify or
present evidence.  During closing argument, the State argued:
	What motive does [the victim] have to tell you these things
	except that they are true?
		That is the question you have to ask yourself.  Do you
	ascribe to this victim a sinister motive?  Is he making it all
	up for some reason to pin it on [the defendant]?  What
	would that reason be?
		Now, your decision in this case has to be based on
	the evidence in this case.  Ask yourself this: What have you
	been offered in the way of evidence in this case that
	suggests to you any other motive than the truth?  That's
	the decision you will have to make for yourself.  That is the
	question you will ask yourself during your deliberations.

After the State's closing argument, Lyons moved for a mistrial on the ground
that the State had improperly commented upon Lyons' failure to testify or
offer evidence.  The State disputed his contentions and replied that Lyons
did in fact offer evidence through stipulations and cross-examination.
	[¶3]  The court refused to grant a mistrial.  Although the court
remarked that the State was on "thin ice," it ruled that the statement, when
viewed in context, did not "suggest or comment on the defense not putting
on any testimony or witnesses including the defendant."  The court later
instructed the jury on the presumption of innocence and that they should
not draw conclusions based on Lyons' decision not to testify.
	[¶4]  During rebuttal, the State argued:
When you look at the evidence in this case, the
stipulations entered into by both the defense and the
state, all of the evidence in this case, including those
stipulations, what evidence do you have that [the
victim] has made this up?  And what evidence do you
have based on his testimony, his demeanor, the
items found by the police, and the inherent
believability of the sensations that [the victim]
described to you that in fact what he told you is in
fact what happened?

After the court instructed the jury, Lyons renewed his motion for mistrial
based on the State's rebuttal.  The court declined to declare a mistrial on
the ground that it did not think the State's rebuttal comments referred to
Lyons' "failure to testify or present live witnesses."  The State's argument
did not clearly and unequivocally refer to Lyons' failure to testify or present
evidence to challenge the State's evidence.  We conclude, however, that the
remarks are ambiguous--subject to more than one interpretation.  By
including these ambiguous statements, the prosecutor unnecessarily risked
our vacating the judgment entered on the jury's verdict. 
	[¶5]  We review claims of improper prosecutorial comment on a
criminal defendant's failure to testify under a "harmless error" standard of
review, subject to the analysis we set forth below.  See State v. Ingalls, 544
A.2d 1272, 1275-76 (Me. 1988).  We have held that the Maine and United
States Constitutions, Maine statutory law, and precedent "prohibit either
direct or equivocal prosecutorial comment on the defendant's failure to
testify."  State v. Libby, 410 A.2d 562, 563 (Me. 1980) (citing U.S. Const.
amend. V; Me. Const. art. I, § 6; 15 M.R.S.A. § 1315 (1980)).{3}   
	[¶6]	In State v. Tibbetts and its progeny, we identified three types of
improper prosecutorial comment on a criminal defendant's decision not to
become a witness: (1) a direct, unambiguous comment on the defendant's
failure to testify; (2) an indirect comment that unambiguously suggests that
the jury must accept the State's evidence as true because the defendant has
not denied it as a witness; and (3) an ambiguous comment that the jury
could construe as a remark on the defendant's failure to testify.  See State v.
Tibbetts, 299 A.2d 883, 889 (Me. 1973); State v. Turner, 433 A.2d 397,
400-01 (Me. 1981); Ingalls, 544 A.2d at 1275-76.
	[¶7]	Under the Tibbetts rule, an unambiguous comment on a
defendant's failure to testify, whether direct or indirect, constitutes per se
reversible error and can never be deemed harmless error, as a matter of law. 
See Tibbetts, 299 A.2d at 889.  On the other hand, an ambiguous comment
does not constitute per se reversible error; however, the State has the
burden of proving beyond a reasonable doubt that such comment constituted
harmless error, when viewed in the context of the entire record.  See
Ingalls, 544 A.2d at 1276.{4}  In other words, to determine whether an
ambiguous prosecutorial comment constitutes harmless error, we ask
whether, "[a]bsent the prosecutor's allusion to the failure of the defense to
proffer evidence to rebut the [State's evidence, it is] clear beyond a
reasonable doubt that the jury would have returned a verdict of guilty."  Id. at
1275 (quoting United States v. Hasting, 461 U.S. 499, 510-11 (1983)).
	[¶8]	In applying this harmless error rule for ambiguous comments,
we base our judgment on: (1) our "own reading of the record"; and (2)
"what seems to [us] to have been the probable impact of the [improper
prosecutorial comment] on the minds of an average jury."{5}  Ingalls, 544 A.2d
at 1276 (quoting Harrington v. California, 395 U.S. 250, 254 (1969)).  "[W]e
are not required to reverse merely because it is possible for an appellate
court to 'imagine a single juror whose mind might have been made up
because of [that comment] and who otherwise would have remained in doubt
and unconvinced.'"  Id.  
	[¶9]	Therefore, our analysis of an improper prosecutorial comment
on a criminal defendant's failure to testify consists of: (1) determining which
of the three "Tibbetts categories" the comment falls under; and (2) applying
the appropriate prong of the Tibbetts rule to such comment.{6}  See Tibbetts,
299 A.2d at 889.  A court applying this Tibbetts analysis must view the
prosecutorial comment in the context of the entire record.  See Ingalls, 544
A.2d at 1276. 
	[¶10]	Lyons conceded that the State's comment did not fall under the
first Tibbetts category, because the statement was not a direct, unambiguous
comment on his failure to testify.
	[¶11]	However, Lyons contends that the State's comment fell under
the second Tibbetts category because it was an indirect comment that
unambiguously suggested that the jury must accept the State's evidence as
true since Lyons did not testify in his own defense.  Hence, Lyons argues,
the State's comment constituted per se reversible error under the second
prong of the Tibbetts rule.  When viewed in context, the State's comment
neither unambiguously nor indirectly refers to Lyons' failure to testify. 
Although Lyons could have presented more evidence by testifying, the
prosecutorial comment referred specifically to the trial evidence, including
the State's evidence and the defense evidence consisting of stipulations and
cross-examination testimony.  Therefore, viewed in context, the State's
remark was not an indirect yet unambiguous comment on Lyons' failure to
testify and no prejudicial error occurred as a matter of law. 
	[¶12]	We conclude, however, that the State's comment is ambiguous,
and falls under the third Tibbetts category.  The State thus has the burden of
proving beyond a reasonable doubt that the ambiguous comment constituted
harmless error, in light of the entire record.  See Ingalls, 544 A.2d at 1276. 
Therefore, under the third Tibbetts prong (as Ingalls reformulated it), the
State's comment constitutes prejudicial error if the State fails to prove
beyond a reasonable doubt that the jury would have returned a guilty verdict
absent the comment.  Id. at 1275.
	[¶13]	Looking at the entire record, we conclude that the State's
comment was "harmless in its probable impact," because it simply refuted
Lyons' assertions that the victim had a motive to lie and suggested that the
evidence failed to support an inference that the victim testified untruthfully. 
Ingalls, 544 A.2d at 1276.  In light of the substantial evidence pointing to
Lyons' guilt, it is clear beyond a reasonable doubt that, absent the comment,
an average jury would have found every element of the crimes charged and
returned a guilty verdict.  See id.   
	The complete absence of evidence tending to show that
	[defendant] could not have committed the crime, the
	meager amount of evidence which, if believed, would tend
	to show that it was unlikely that he did so when viewed
	against the evidence pointing toward guilt . . . satisfy us
	beyond a reasonable doubt that the prosecutor's ill-advised
	comment was, in fact, harmless.

Ingalls, 544 A.2d at 1276 (quoting State v. Inman, 350 A.2d 582, 595 (Me.
1976)).  What we said in Ingalls is equally applicable here.  Even if a jury
could reasonably construe the State's ambiguous comment to refer to Lyons'
failure to testify, it is clear beyond a reasonable doubt that an average jury
unexposed to the comment would still have returned a guilty verdict.  See
Id. at 1275.  Therefore, the State's improper ambiguous comment
constituted harmless error.
	[¶14]  The balance of Lyons' contentions are without merit.
	The entry is:
Judgments of conviction affirmed; sentences
affirmed.
                                                               

Attorneys for State: Stephanie Anderson, District Attorney Julia A. Sheridan, Asst. Dist. Atty., (orally) 142 Federal Street Portland, ME 04101 Attorney for defendant: Peter E. Rodway, Esq., (orally) P O Box 874 Portland, ME 04104-0874
FOOTNOTES******************************** {1} . 17-A M.R.S.A. § 253 provides in pertinent part: § 253. Gross sexual assault 1. A person is guilty of gross sexual assault if that person engages in a sexual act with another person and: . . . . B. The other person, not the actor's spouse, has not in fact attained the age of 14 years. . . . . H. The other person has not in fact attained the age of 18 years and the actor is a parent, stepparent, foster parent, guardian or other similar person responsible for the long-term care and welfare of that other person; . . . . 17-A M.R.S.A. § 253 (1983 & Supp. 1997). Section 251 of Title 17-A defines the term "sexual act" as follows: C. "Sexual act" means: (1) Any act between 2 persons involving direct physical contact between the genitals of one and the mouth or anus of the other, or direct physical contact between the genitals of one and the genitals of the other; (2) Any act between a person and an animal being used by another person which act involves direct physical contact between the genitals of one and the mouth or anus of the other, or direct physical contact between the genitals of one and the genitals of the other; or (3) Any act involving direct physical contact between the genitals or anus of one and an instrument or device manipulated by another person when that act is done for the purpose of arousing or gratifying sexual desire or for the purpose of causing bodily injury or offensive physical contact. A sexual act may be proved without allegation or proof of penetration. 17-A M.R.S.A. § 251.1.C (1983 & Supp. 1997). {2} . Lyons was sentenced to a concurrent term of fifteen years in the Department of Corrections with all but ten years suspended and six years of probation. {3} . 15 M.R.S.A. § 1315 (1980) provides, in relevant part: "In all criminal trials, the accused shall, at his own request but not otherwise, be a competent witness. . . . The fact that he does not testify in his own behalf shall not be taken as evidence of his guilt." {4} . In Ingalls, we reformulated the third prong of the Tibbetts rule, which addresses "ambiguous" prosecutorial comments, and we stated: Although in Tibbetts we articulated the standard as whether beyond a reasonable doubt the evidence would not support acquittal, it is now apparent from Supreme Court cases decided in the 15 years after Tibbetts that the appropriate focus is whether on the record before us the prosecutorial comment through error was harmless beyond a reasonable doubt. Ingalls, 544 A.2d at 1276. We further noted the goal of conserving judicial resources by limiting appellate review to prejudicial error "without becoming mired in harmless error." Id. at 1276 (citing United States v. Hasting, 461 U.S. 499, 509 (1983); R. Traynor, The Riddle of Harmless Error 81 (1970)). {5} . Our inquiry extends "not to the effect of the error on the actual jury or to the reasonably possible effect of the error on an average jury, but to its probable impact on [an average] jury." Ingalls, 544 A.2d at 1276 (quoting R. Traynor, The Riddle of Harmless Error 45). {6} . In other words, under the first prong of the Tibbetts rule, direct and unambiguous comments constitute per se reversible error. See Tibbetts, 299 A.2d at 889; Turner, 433 A.2d at 400; Ingalls, 544 A.2d at 1276. Under the second Tibbetts prong, indirect yet unambiguous comments also constitute per se reversible error. See id. Under the third prong, ambiguous comments constitute reversible error unless the State meets its burden of proving harmless error beyond a reasonable doubt. See id.