Argued May 13, 2015.
On the briefs and at oral argument: Verne E. Paradie, Jr., Esq., Lewiston, for appellant Nicholas Begin.
Andrew P. Matulis, Asst. Dist. Atty., Androscoggin County District Attorney's Office, Auburn, for appellee State of Maine.
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
[¶1] Nicholas Begin appeals from a judgment of conviction of assault on an officer (Class C), 17-A M.R.S. § 752-A(1)(A) (2014); violation of a protective order (Class D), 19-A M.R.S. § 4011(1)(A) (2014); and refusing to submit to arrest (Class D), 17-A M.R.S. § 751-B(1)(B) (2014), entered by the Superior Court ( Warren, J. ) after a jury trial. Begin contends that the court erred or abused its discretion by (1) admitting testimony about the violent details of a prior unrelated incident, (2) permitting the State to introduce evidence that Begin contacted a witness in violation of a protection order and his bail conditions, (3) excluding from evidence certain recorded telephone conversations after the State introduced limited portions of those recordings, and (4) denying Begin's motion for a mistrial after the State made certain remarks in its opening statement that Begin argues constituted prosecutorial misconduct. We affirm.
[¶2] " Viewing the evidence in the light most favorable to the State, the jury could rationally have found the following facts beyond a reasonable doubt." State v. Haag, 2012 ME 94,
¶ 2, 48 A.3d 207. On April 19, 2013, officer Matthew Vierling of the Lewiston Police Department (LPD) was assigned to serve Nicholas Begin with a protection order identifying an individual named " Ashley" as the protected party and prohibiting Begin from entering Ashley's residence at 227 Bartlett Street. Before Vierling had served the order, Ashley called the LPD and reported that Begin had been harassing her. Vierling met Ashley, who told him that he might find Begin at 227 Bartlett Street. Vierling and Ashley then both went to that address.
[¶3] As Vierling approached the residence's side door, Begin stepped out. Vierling told Ashley to go wait at the front of the house. Begin, who seemed agitated, told Vierling to speak with his landlord and tried to hand Vierling his cellular telephone. Vierling read the protection order aloud and explained that Begin could not go back inside the house. Begin then turned and ran back inside the house. Vierling ordered Begin to stop and followed him through the door into the garage that made up the first floor of the building.
[¶4] As Begin ran up an interior staircase, Vierling grabbed hold of his arm. Begin struck Vierling with his elbow, and Vierling held Begin from behind and tried to drag him back outside. At one point, Begin appeared to reach for a screwdriver that was on a nearby workbench and Vierling, fearing that Begin would use the screwdriver as a weapon, placed Begin in a chokehold. Begin also pulled at Vierling's handgun, which was in a holster secured to Vierling's waist. Vierling was eventually able to pull Begin outside, and the two continued to struggle until other officers arrived and placed Begin under arrest.
[¶5] Begin was charged with assault on an officer, violation of a protective order, and refusing to submit to arrest. He pleaded not guilty to all charges, and a jury trial commenced on April 17, 2014.
[¶6] Before opening statements, the trial court instructed the jury as to the presumption of innocence and burden of proof, and reminded the jury that " you and you alone are the ultimate decision-makers." Then, in its opening statement, the State said: " This case today is about you. It's about whether you as the jury are going to hold Mr. Begin accountable for violating that protective order, for refusing to submit to arrest and for assaulting a police officer." Begin immediately moved for a mistrial. The court denied the motion, but told Begin's counsel that he could address the issue in his opening.
[¶7] In his opening statement, Begin's counsel said: " The things that I tell you and [the State] tell[s] you during opening statements and closing statements [are] not the evidence," and, " You're not allowed to use emotion or sympathy in reaching your decision. . . . Your job is to apply the facts and the law . . . in determining whether Mr. Begin assaulted Mr. Vierling on the day in question." Begin's counsel also stated that, although Vierling could have pursued " alternative means," he " decided to initiate contact" with Begin, and that " what you're going to have to ...