“I Think”

The Maine Supreme Judicial Court affirmed a domestic violence conviction, finding error that did not merit reversal in the prosecutor’s closing argument

Although not every use of the phrase “I think” constitutes prosecutorial error, see Dolloff, 2012 ME 130, ¶ 57 n.16, 58 A.3d 1032, here, as the State conceded at oral argument, the prosecutor’s use of the phrase in this case was error. The prosecutor referred to his use of the phrase “I think” as minimally registering on a scale of transgression. We disagree.

The prosecutor’s personal opinion never bears on or is relevant to the jury’s determination. Here, the prosecutor stated that he did not think the police officer lied and that “[w]e all say things that we wish we hadn’t, and we all regret things that we did do. But to call it lying is, I think, a bridge too far.” This is nothing more than an impermissible personal opinion regarding the credibility of a State’s witness and is only one example of the prosecutor’s problematic use of the phrase “I think” and expressions of personal opinion. See supra ¶¶ 10-11. Indeed, the transparently inappropriate language used by the prosecutor prompted the trial court sua sponte to instruct the jury as to which arguments were improper and immaterial to their consideration of the issues.

Gervais’s counsel did not object to the State’s closing or move for a mistrial after the court gave its curative instruction. We therefore review the issue for obvious error, and in light of the trial court’s timely curative instruction, we do not find that the error reached such a magnitude. See State v. Greene, 512 A.2d 330, 334 (Me. 1986) (concluding that when the presiding justice, sua sponte, instructs the jury that what lawyers said in argument was not evidence and later instructs the jurors to view the evidence objectively and at no time did the defendant move for a mistrial, such inaction fails to preserve the errors for appellate review).

The entry is: Judgment affirmed.

Facts

These charges stemmed from an incident at Gervais’s apartment where he and the victim engaged in an argument during which Gervais threw a bong onto a glass coffee table, causing both to shatter. Gervais then grabbed the chair on which the victim was sitting and pushed her over backward, causing a glass entertainment center behind her to shatter. Gervais’s brother, who lived in the apartment below, came up to investigate the disturbance, and after he intervened between Gervais and the victim, Gervais assaulted him and smashed the victim’s phone. The victim ran outside and tried to drive away in her car, but Gervais followed her and climbed into the passenger seat, locking all the doors. As she began to drive, a police officer arrived. After speaking with Gervais and the victim, the officer placed Gervais under arrest. Gervais was later released on personal recognizance, conditioned upon him committing no new crimes and having no contact with the victim

(Mike Frisch)