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State v. Robbins

Supreme Court of Maine

August 20, 2019


          Argued: March 4, 2019

          Luke S. Rioux, Esq. (orally), Rioux, Donahue, Chmelecki & Peltier, Portland, for appellant Peter L. Robbins.

          Kathryn L. Slattery, District Attorney, and Thaddeus W. West, Asst. Dist. Atty. (orally), Prosecutorial District #1, Alfred, for appellee State of Maine.


          MEAD, J.

         [¶1] Peter L. Robbins appeals from a judgment of conviction for unlawful sexual touching (Class D), 17-A M.R.S. § 260(1) (C) (2018), and assault (Class D), 17-A M.R.S. § 207(1)(A) (2018), entered by the trial court (York County, Driscoll, J.) following a jury trial. Robbins contends that the court erred in several of its evidentiary rulings, including allowing the State to cross-examine him concerning prior probation violations, declining to allow him to refresh a witness's recollection with a document that the witness had not authored, and barring him from eliciting testimony from a witness concerning the victim's reputation for truthfulness. We agree with Robbins that the court erred in allowing the State to introduce improper character evidence through its inquiry into multiple violations of his unrelated federal probation, and we conclude that the prejudice he suffered as a result of that error, when combined with the effect of prosecutorial misconduct committed during the State's cross-examination of him, deprived Robbins of a fair trial. Accordingly, we vacate the judgment.

         I. BACKGROUND

         [¶2] Viewing the evidence in the light most favorable to the State, the jury rationally could have found beyond a reasonable doubt that on December 12, 2008, Robbins, then age thirty-two, touched the then-twelve-year-old victim's genitals over her clothing and made her touch his genitals over his clothing while the victim was spending the night with Robbins's niece. See State v. Perkins, 2019 ME 6, ¶ 3, 199 A.3d 1174. The next morning the victim's parents took her to the police station to make a report.

         [¶3] Robbins was summonsed for assault (Class D), 17-A M.R.S. § 207(1)(A), and ordered to make a court appearance on February 5, 2009. That appearance was continued when Robbins wrote to the court to advise it that he was in the custody of federal probation authorities, probation having been imposed as a result of his 2004 federal conviction for bank robbery. Robbins was eventually arraigned on the assault charge and pleaded not guilty; the matter was then transferred to the Superior Court for a jury trial.[1]

         [¶4] In July 2009, Robbins was indicted on the original assault charge and an additional charge of unlawful sexual touching (Class D), 17-A M.R.S. § 260(1)(C). After counsel entered an appearance, Robbins failed to appear for arraignment on the indictment on September 18, 2009, and the court [Brennan, J.) issued a warrant for his arrest. The warrant remained outstanding until Robbins returned from Italy, where he had lived for seven years beginning in September 2009. In April 2017, Robbins, then living in Colorado, filed a motion to vacate the warrant, which the court [O'Neil, J.) denied. After arraignment on the 2009 indictment was continued several times, Robbins appeared for arraignment in February 2018, pleaded not guilty, and was released on an unsecured bond [Fritzsche, J.).

         [¶5] At a trial held on June 25-26, 2018, the jury returned verdicts of guilty on both counts; the court then entered a judgment and commitment imposing a sentence often months' imprisonment for unlawful sexual touching and a concurrent thirty-day jail term and a $300 fine for assault. Robbins appealed, and the sentence was stayed pending our decision.


         A. Prosecutorial Misconduct

         [¶6] Although the issue was not preserved at trial or raised on appeal, we examine the State's cross-examination of Robbins to determine whether prosecutorial misconduct occurred, and, if so, whether it contributed to Robbins being deprived of a fair trial. See M.R.U. Crim. P. 52(b); State v. Dolloff, 2012 ME 130, ¶ 76, 58 A.3d 1032 ("Our ultimate task in reviewing for . . . obvious error is to determine whether [the defendant] received a fair trial.").

         [¶7] During Robbins's cross-examination concerning the federal probation violations, the following exchange occurred:

PROSECUTOR: The rules [against drinking while on probation] didn't apply?
ROBBINS: I tend to think that because alcohol is legal, it was kind of like bending the rules.
Q: But the rules told you, you couldn't drink.
A: But I don't understand what this has to do with anything.
Q: It has to do with whether or not anybody should believe a word you're saying in this courtroom today.
A: No-well, that's completely different. It's a different-it was a different case; it was a different time in my life.
Q: A different time in your life?
A: Yes. I was very depressed from losing-
Q: This is November of 2008, you were sexually assaulting this girl December 2008.
A: Allegedly-allegedly.
Q: No, no there is no-
A: Yes.
Q: -allegedly here.
A: It is allegedly.
Q: There is testimony on the record to that effect, sir.
A: I'm sorry, when's my lawyer going to speak up, please? What's going on here. This is crazy.
PROSECUTOR: I don't have anything further.
COURT: Thank you. PROSECUTOR: I'm done with him.

(Emphasis added).

         [¶8] Defense counsel did not object, and the court took no action in response to that exchange. Accordingly, our review is for obvious error. State v. Hassan, 2013 ME 98, ¶ 32, 82 A.3d 86; Dolloff 2012 ME 130, ¶ 35, 58A, 3d1032; see M.R.U. Crim. P. 52(b); M.R. Evid. 103(d). Applying that standard of review, we will not vacate Robbins's conviction unless "there is (1) an error, (2) that is plain, and (3) that affects substantial rights. Even if these three conditions are met, we will set aside [the] jury's verdict only if we conclude that (4) the error seriously affects the fairness and integrity or public reputation of judicial proceedings." Dolloff, 2012 ME 130, ¶ 35, 58 A.3d 1032 (citations and quotation marks omitted). We will not set a jury verdict aside "lightly," and so an error leading to that result must work a "serious and manifest injustice." Id. ¶ 39.

         [¶9] We conclude that a plain error occurred here. The only evidence from which the jury could find that Robbins committed the crimes charged came from the testimony of the victim-her credibility was the heart of the State's case. The prosecutor's questions to Robbins-presented in the form of assertions-explicitly conveyed his personal opinion to the jury that the victim had told the truth, and that the jury did not need to decide that question for itself: "[Y]ou were sexually assaulting this girl [in] December 2008[T]here is no ... allegedly here.... There is testimony on the record to that effect See State v. Williams, 2012 ME 63, ¶ 46, 52 A.3d 911 ("At trial, an attorney is prohibited from commenting on his or her personal opinion as to the credibility of a witness.").

         [¶10] In Dolloff, we said that "[i]njecting personal opinion regarding the ... credibility of.. . [a] witness[]," or "vouching" for a witness by "[u]sing the authority or prestige of the prosecutor's office," "will almost always be placed into the category of misconduct." 2012 ME 130, ¶ 42, 58 A.3d 1032 (quotation marks omitted); see id. ¶ 36 ("An error is plain if the error is so clear... that the trial judge and prosecutor were derelict in countenancing it, even absent the defendant's timely assistance in detecting it." (alteration, citation, and quotation marks omitted)).

         [¶11] The third element of the obvious error test requires us to determine if there is "a reasonable probability that the error affected [Robbins's] substantial rights. An error affects a criminal defendant's substantial rights if the error was sufficiently prejudicial to have affected the outcome of the proceeding." Id. ¶ 37 (alteration, citation, and quotation marks omitted); see State v. Pillsbury, 2017 ME 92, ¶ 18, 161 A.3d 690. We do so being mindful that "[w]hen a prosecutor's statement is not sufficient to draw an objection, particularly when viewed in the overall context of the trial, that statement will rarely be found to have created a reasonable probability that it affected the outcome of the proceeding." Dolloff, 2012 ME 130, ¶ 38, 58A, 3d1032.

         [¶12] Here, the jury could have reasonably understood the prosecutor to say that the ultimate issue had been settled and the jury's core function performed when he stated to Robbins as fact that "you were sexually assaulting this girl [in] December 2008[T]here is no... allegedly here." That statement on its face is, of course, patently wrong-it is elemental that the State's accusation that Robbins had sexually assaulted the victim was an allegation unless and until the jury assessed the victim's credibility and decided for itself that the State had proved the truth of its charge beyond a reasonable doubt. See United States v. Sarault, 975 F.2d 17, 21 n.5 (1st Cir. 1992) ("One of the most fundamental tenets of our system of justice is the presumption of innocence."); Alexander, Maine Jury Instruction Manual § 6-7 at 6-14 (2018-2019 ed.).

         [¶13] In obscuring the presumption of innocence by framing Robbins's guilt as a fact rather than as an open question for the jury to decide, thereby shifting the burden of proof to Robbins on the ultimate issue-in effect requiring Robbins to prove that the prosecutor's assertion was false-the prosecutor committed, and the court failed to correct, an error that had a "reasonable probability" of being "sufficiently prejudicial to have affected the outcome of the proceeding." Dolloff, 2012 ME 130, ¶ 37, 58 A.3d 1032 (quotation marks omitted); see id. ¶ 42 (stating that "[s]hifting the burden of proof on an issue to the defendant" "will almost always be ... 'misconduct'").

         [¶14] Because the first three elements of the obvious error test are satisfied, we must decide finally whether the error "seriously affect[ed] the fairness and integrity or public reputation" of the trial. Id. ¶ 35 (quotation marks omitted). In this unusual situation, Robbins, confronted by a prosecutor stating as fact that he had committed the crime for which he was on trial, implored his lawyer to become involved. His lawyer did not, nor did the court. From this, the jury may have concluded that no one participating in the trial apart from Robbins himself disagreed that the truth of the victim's testimony- and thus Robbins's guilt-had been established. That possibility was not purely theoretical, given that during its deliberations the jury sent out a note asking the court to "reinstruct the jury that 100 percent positive is not the requirement to convict." It is possible that the jury decided that because the prosecutor, "cloaked with the authority of the State," State v. Pratt, 2015 ME 167, ¶ 15, 130 A.3d 381, told them that Robbins was guilty, and no one other than Robbins objected to or corrected that statement, then the jury should reach the same conclusion.

         [¶15] That potential impression was reinforced during the State's closing argument, when the prosecutor said "let's talk about what we know" and recited the victim's testimony, ending the recitation with, "Now that's the story. That's the evidence. That's the testimony." In concluding his argument, the prosecutor did what we have cautioned prosecutors not to do, urging the jury that "[the victim] can't do any more than what she's done. You're the only ones that can do something. Find him guilty." See Dolloff, 2012 ME 130, ¶ 68, 58 A.3d 1032 ("In exhorting the jury to convict, which is not, standing alone, misconduct, references to doing justice by conviction should be avoided.").

         [¶16] Although our review for obvious error is exacting when a jury has rendered a verdict, see State v. Hall, 2017 ME 210, ¶ 27, 172 A.3d 467, we conclude on this record that prosecutorial misconduct plainly occurred, the misconduct affected Robbins's substantial rights, and the error seriously ...

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