Argued: April 9, 2019
C. Cohen, Esq. (orally), West Rockport, for appellant
M. Frey, Attorney General, and Donald W. Macomber, Asst.
Atty. Gen. (orally), Office of the Attorney General, Augusta,
for appellee State of Maine
SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, HJELM, and
Victoria Scott appeals from a judgment of conviction for
manslaughter (Class A), 17-A M.R.S. § 203(1)(A) (2018),
entered in the trial court (Waldo County, R. Murray,
J.) after a jury trial. Scott challenges (1) testimony
from two witnesses, (2) statements made by the State during
its closing argument, (3) the sufficiency of the evidence,
(4) the court's denial of her motion for voir dire and a
new trial based on allegations of juror misconduct, and (5)
her sentence. We affirm the judgment.
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.
On February 8, 2017, Victoria Scott and a friend were at a
house in Waldo, where they were staying to help care for the
homeowner as she recovered from a serious illness. Scott had
been drinking vodka and smoking marijuana and had recently
taken prescription pain killers and anti-anxiety medication.
Sometime around 5:00 p.m., the victim arrived at the house.
The victim was a close friend of the homeowner and stayed at
her house regularly enough that he had a key to it; he was
well-acquainted with both Scott and the friend. The victim
entered the house through the basement door and came upstairs
into the living room where the homeowner was sitting. He and
the homeowner had a discussion about Scott and the friend,
during which he made derogatory statements about them and
expressed concern that they were taking advantage of the
homeowner. In the course of the conversation, the victim
became upset and told the homeowner that he had to leave
because he did not want to see Scott and the friend.
Scott and the friend had been in a bedroom listening to the
victim's conversation with the homeowner and came out
when they heard him leave by the basement stairs. Appearing
upset and angry, Scott asked the homeowner whether she had
heard what the victim said about her correctly. Scott-who was
wearing pajama pants and a long-sleeved shirt-then ran back
to the bedroom, put on a coat, and quickly went outside to
confront the victim.
Once outside, Scott saw the victim walking away from the
house and down the long driveway with his back to her. Scott
called after the victim, "what the f- is your
problem?" The victim turned around abruptly, grabbed
Scott by the arms, and shook her while swearing at her. When
he released her, she fell backward on the ground. The victim
turned to continue walking down the driveway. At that point,
Scott acknowledged that she could have safely returned to the
house while the victim was walking away, but instead she got
up and followed him further down the driveway. Catching up to
the victim, Scott touched his elbow and asked him again,
"what the f- is your problem?" and, "[w]hy
would you do that to me?" Later, she told a detective
that she was like a "pit bull... with a bone" and
that she could not let the victim go without an explanation.
At some point during this confrontation, Scott pulled out a
knife and stabbed the victim. The two had a physical
altercation on the snow-covered ground by a log at the edge
of the driveway, during which Scott stabbed the victim
repeatedly in the back of his left thigh and
calf. Scott eventually got up from the ground
and ran back into the house.
Once inside, Scott-who was covered with blood-told the friend
and the homeowner that the victim had attacked her and that
she had stabbed him in self-defense. The homeowner called her
niece-who lived down the road and was friendly with the
victim-and asked her to come to the house to help break up a
fight. While Scott cleaned herself up, she asked the friend
to retrieve the eyeglasses she lost during her altercation
with the victim.
The friend went downstairs to go out into the driveway but
encountered the victim in the basement. Because the basement
was dark, the friend failed to notice the extent of the
victim's injuries or how much blood there was on the
basement floor. Acting on the information Scott had given
him, the friend threw the victim to the floor and told him
"you can't attack girls, you know, it's not
cool." The victim did not get up from the floor
right away, and the friend thought he was dazed from the
fall; feeling bad, the friend helped the victim up and walked
him out of the basement to the homeowner's truck, which
was parked in the driveway. The victim sat in the passenger
seat of the truck and the friend said to him, "[you]
can't be here right now." The friend then found
Scott's glasses further down the driveway and returned to
the house. When he walked by the truck, he saw the victim
conscious and seated in the passenger seat.
The homeowner's niece arrived at the house shortly
thereafter. Upon her arrival, she noticed blood in the
driveway and saw a leg sticking out from an open door of the
homeowner's truck. When she got closer to the truck, she
recognized the victim and saw that he was not breathing, his
eyes were rolled up in his head, and he was covered in blood.
The niece-who had some medical training-tapped the victim on
the shoulder and checked his pulse; finding no signs of life,
she called 9-1-1 and pulled the victim from the truck to
perform CPR. She did not stop her resuscitation efforts until
police officers and paramedics arrived and took over. At
approximately 6:39 p.m., a paramedic pronounced the victim
Scott came out of the house when the police arrived; she had
changed out of her pajama pants and was wearing a pair of
ripped jeans. She told a police officer that she had acted in
self-defense and turned over her knife. Because she was
bleeding from a wound on her thigh and appeared to suffer a
stress-induced seizure, a second ambulance was called to
treat Scott. When the second ambulance arrived, a paramedic
attended to Scott at the scene. She told the paramedic that
the victim had punched her in the face and choked her, but
the paramedic saw no visible signs of injury other than the
thigh wound. Scott was subsequently transported to Waldo
County General Hospital via ambulance.
When Scott arrived at the hospital, she told the emergency
room doctor that she had been strangled and hit her head on
the bumper of the truck in the driveway. The doctor examined
her and found no visible signs of trauma other than a
laceration on her right thigh. CT scans of Scott's neck,
head, abdomen, and pelvis revealed no bleeding or other
abnormalities. A toxicology screen showed
tetrahydrocannabinol (THC), oxycodone, and benzodiazepine in
Scott's system. Scott's blood alcohol level was .126
when it was tested at approximately 8:30 p.m. The emergency
room doctor sutured the laceration on Scott's thigh and
discharged her from the hospital at approximately 12:30 a.m.
on February 9, 2017.
After leaving the hospital, Scott returned to the house in
Waldo with a detective to participate in a video-recorded
walkthrough. She then spoke with the same detective in
several follow-up interviews over the next few days. Although
Scott maintained that she had acted in self-defense, she made
several inconsistent statements and did not have any bruising
or visible signs of injury other than the cut on her leg.
In May 2017, Scott was indicted by a Waldo County grand jury
and charged with one count of manslaughter (Class A), 17-A
M.R.S. §§ 203(1)(A), 1252(4) (2018). After a
five-day jury trial in April 2018, the jury returned a guilty
verdict. Shortly thereafter, Scott filed a motion for a new
trial, alleging that a juror had engaged in misconduct that
compromised the integrity of the trial and asking the court
to question the juror and order a new trial. See
M.R.U. Crim. P. 33. The State opposed the motion and,
following a hearing on the matter, the court denied it.
Scott also filed a motion for a presentence psychological
evaluation, which was granted. After Scott was evaluated, a
presentence psychological evaluation report and a later
addendum were filed with the court. The sentencing hearing
was ultimately held in August 2018, at which time the court
entered a judgment of conviction and sentenced Scott to
sixteen years of imprisonment, with all but eleven years
suspended, and four years of probation. It also ordered Scott
to pay $5, 531.60 in restitution to the Victims'
Scott timely appealed from the judgment of conviction.
See 15 M.R.S. § 2115 (2018); M.R. App. P.
Scott first asserts that testimony from two of the
State's witnesses unfairly prejudiced the jury and
deprived her of a fair trial. We address the challenged
testimony of each witness in turn.
Scott filed a pretrial motion in limine seeking to bar the
State from introducing evidence regarding two other alleged
stabbings. The court granted the motion. During Scott's
cross-examination of the homeowner at trial, the homeowner
obliquely referenced one of the incidents in a nonresponsive
[Defense Counsel:] OkayLet's switch gears a little bit
here. You gave several statements to the police, do you
remember that? Two that night and one probably a little
later in the morning; do you recall?
[The homeowner:] No, I recall somebody come up to my
brother's a couple of times, and I had to give my shoes
up, and / told them that my son was stabbed by her.
(Emphasis added.) Scott did not object to the testimony,
expressly declined a curative instruction in a strategic
attempt to avoid highlighting the statement, and did not move
for a mistrial. She now contends on appeal that the
homeowner's testimony "irretrievably tainted the
jury's view of [her] and every piece of evidence, and
thus requires ... a new trial."
Although Scott argues that the admission of the
homeowner's statement was an obvious error that affected
her substantial rights, we have previously cautioned
that" [w] e do not review alleged errors that resulted
from a party's trial strategy," State v.
Rega, 2005 ME 5, ¶ 17, 863 A.2d 917, because
"[o]bvious error review provides no invitation to change
trial and instruction request strategy when the results of
the original strategy turn out less favorably than hoped
for," State v. Cleaves, 2005 ME 67, ¶ 13,
874 A.2d 872.
By expressly declining a curative instruction for strategic
reasons and not otherwise moving for a mistrial, Scott failed
to preserve for appellate review the admissibility of the
homeowner's statement or any potential prejudice flowing
therefrom. See Rega, 2005 ME 5, ¶ 17, 863 A.2d
917; Maine Appellate Practice § 403(a) at 314
(5th ed. 2018) ("IT]he Court will not undertake an
obvious error review when a litigant affirmatively approves
or consents to a court action.").
During Scott's cross-examination of the Maine State
Police detective who had interviewed her after the incident,
Scott asked the detective, "But you can't talk to
[the victim] anyway, right?" The detective responded,
"No, she killed him." Although the detective's
answer was responsive to the question, Scott immediately
requested a sidebar at which she objected, saying, "I
object, Your Honor. That's what this trial is here for to
decide if she's responsible for his death or not. And it
is wholly objectionable that he has made that pronouncement.
I'd like that stricken from the record." The court
agreed to strike, and instructed the jury, "Men and
women of the jury, the last portion of the last response by
the witness to the effect where the witness said she killed
him was not responsive to the question and I'd ask you to
disregard that portion of the response." Scott did not
move for a mistrial.
Scott contends on appeal that the court's curative
instruction was inadequate because the statement could not
"be erased from the jurors' minds." We note
first-and Scott conceded the same at oral argument-that there
was no dispute at trial that Scott stabbed the victim
repeatedly and that he died from the resulting wounds. Thus,
we are not persuaded that the detective's statement that
Scott killed the victim was unfairly prejudicial.
Even accepting Scott's argument that she was unfairly
prejudiced, we have consistently held that a "trial
court's determination of whether exposure to potentially
prejudicial extraneous evidence would incurably taint the
jury verdict or whether a curative instruction would
adequately protect against consideration of the matter stands
unless clearly erroneous." State v. Nelson,
2010 ME 40, ¶ 6, 994 A.2d 808; see also State v.
Ardolino, 1997 ME 141, ¶ 18, 697 A.2d 73 ("We
... must presume that the jury heeds the [trial] court's
instruction[s]."). Pursuant to that standard of review,
we discern no error in the court's decision to issue a
curative instruction-as Scott requested- directing
the jury to disregard the statement. See State v.
Conner, 434 A.2d 509, 511 (Me. 1981) (holding that a
defendant acquiesces in the curative approach used by the
trial court when she neither asks for a mistrial nor argues
"that it would expect too much of human nature to
believe the jurors could forget or disregard" the
stricken statement). B. Allegations of Prosecutorial
Scott next asserts that the prosecutor made several
statements during his closing argument that constituted
prosecutorial misconduct and compromised the integrity of the
trial. She contends,
He argued two theories that had not been supported by
evidence during trial, and misrepresented two pieces of
testimony to support these arguments. The first unsupported
argument was that [Scott] had stabbed [the victim] while they
were both standing. The second unsupported argument was that
[Scott] did not have her jeans on while she was outside, only
her pajama pants. ...