Opinion
CR-16-3S56
02-03-2017
STATE OF MAINE v. MICHAEL STROM, Defendant
ORDER ON PENDING MOTIONS
Nancy Mills, Justice
Before the court is defendant's request that the mistrial, granted after the jury found the defendant guilty of operating under the influence, be with prejudice. The court considers defendant's request as a motion to dismiss the complaint based on double jeopardy grounds. The Stale has filed a motion for reconsideration of the granting of the mistrial.
Background
Defendant's defense and closing argument focused on a mistake in the test results assigned to defendant and his friend and the fact that the State had not proved the charge beyond a reasonable doubt, (Closing Tr. 24, 8-9, ) In rebuttal, the Slate argued: "I suggest to you that I want you to ask yourselves, what possible motivation would two sworn law enforcement officers have to-to lie, to not tell the truth. There's no motivation. If they were caught lying, that would probably be the end of their careers. They've told you they've been officers for a long time." (Rebuttal Tr. 2.) After the rebuttal argument, the court, at sidebar, raised the issue of the inappropriatcness of the prosecutor's argument and the fact that one of the officers, during argument, shook his head yes and no while the prosecutor argued. (Rebuttal Tr. 5-G; Discussion Tr. 6-7.) The officer was seated on the bench beside the prosecutor's table. The court has an obligation to address comments and behavior the court believes are objectionable. See State v.s Fahnley, 2015 ME 82 ¶ 39, 119 A.3d 727.
The circumstances of this case are troubling. The State does not acknowledge two instances of inappropriate conduct on the part of the State during trial. Instead, the State has filed a motion for reconsideration. The State argues that the rebuttal comments were appropriate, the comments apparently did not "bother" defense counsel because he did not object, and no evidence has been offered to show the jury saw the inappropriate behavior the part of the officer. (Discussion Tr. 2-3, 5-6; Mot. for Reeons. 1-3.) None of these arguments has merit.
The court, nevertheless, adheres to the rule that a "motion by the defendant for mistrial ... is ordinarily assumed to remove any barrier to reprosecution, even if the defendant's motion is necessitated by prosecutorial or judicial error" State v. Chase, 2000 ME 114, ¶ 6, 754 A .2d 961. "[P]rosecutorial misconduct must rise to an egregious level for double jeopardy to bar a retrial." State v. Johnson, 2014 ME 68 ¶ 13, 92 A.3d 351.
The entry is
State's Motion for Reconsideration is DENIED.
Defendant's Motion to Dismiss the Complaint is DENIED.