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State v. Chase6/19/2000
ce of his misconduct." United States v. Gary, 74 F.3d 304, 315 (1st Cir. 1996) (internal quotations omitted) (citing United States v. Wallach, 979 F.2d 912, 916 (2nd Cir. 1992), cert. denied, 508 U.S. 939 (1993)) (emphasis added); Kennedy, 456 U.S. at 679; United States v. Cartagena-Carrasquillo, 70 F.3d 706, 714-15 (1st Cir. 1995).
We will not upset a trial court's factual determination that there was no intentional prosecutorial misconduct unless the finding is clearly erroneous. State v. Chapman, 496 A.2d 297, 301 (Me. 1985). In the present case, the trial court, which was in the best position to view the course in which the trial was moving and the conduct of counsel, stated that it understood what the prosecutor was attempting to do when he made the improper statement. The court also felt compelled to state more than once its belief that the improper statement was made inadvertently and was in no way an attempt to purposely interfere with Chase's right to have her case tried before that tribunal.
Later, at the hearing on Chase's motion to dismiss, both parties recognized the statement as a "rookie" error. Moreover, the court's order includes a factual finding, which Chase in her brief expressly states she does not challenge, that the remark was "inadvertent and not intentional." Thus, there is no question that the inappropriate comment was made inadvertently and did not constitute intentional prosecutorial misconduct that was intended to force a mistrial and prevent an impending acquittal. See Gary, 74 F.3d at 315; see also, e.g., Chapman, 496 A.2d at 300 (retrial not barred where prosecutor inquired of medical expert as to cause of victim's death where two defense objections had been sustained on the ground of improper foundation); State v. Tibbetts, 299 A.2d 883, 890 (Me. 1973) (retrial ordered where prosecutor had impermissibly commented during closing argument on defendant's failure to testify).
The entry is:
Judgment affirmed.
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