MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2016 ME 42 Docket: Ken

- 15

- 137 Argued : February 10, 2016 Decided: March 22, 2016
Panel: SAUFLEY, C.J., and ALEXANDER , MEAD, GORMAN, JABAR , HJELM, and HUMPHREY , JJ.

STATE OF MAINE

v. BETHMARIE RETAMOZZO

HUMPHREY , J. [¶1] Bethmarie Retamozzo appeals from a judgment of conviction for two counts of criminal restraint by a parent (Class C) , 17

- A M.R.S. § 303(1)(A) (2015) , entered in the Superior Court (Kennebec County, Horton, J. ) following a on e - day jury trial. She argues that the court erred by failing to declare a mistrial on its own
initiative after Retamozzo’s mother testified that she had visited Retamozzo in jail. Discerning no er ror or prejudice to Retamozzo, we affirm the conviction.
I . BACKGROUND [ ¶2 ] Viewed in the light most favorable to the State, the record establishes the following facts. See State v. Cote , 2015 ME 78, ¶ 2, 118 A.3d 805. At the time of the incident leading to Retamozzo’s arrest, her mother had full guardianship of2 two of Retamozzo’s children , both under the age of sixteen , and Retamozzo ha d rights of supervised contact. [¶3 ] On August 15, 2013, Retamozzo called her mother and asked for permission to take the children to the Skowhegan Fair. The mother agreed

. Retamozzo also contacted the court

- designated visit supervisor and asked if she would be willing to supervise a visit at a local park

–– not at the Skowhegan Fair

— that same day. Retamozzo and the supervisor met at a local business , then drove together to R etamozzo’s mother’s house in the supervisor’s vehicle to pick up the
children

. When they arrived , Retamozzo’s mother told Retamozzo to return the
childr en later that afternoon. Retamozzo’s mother also noted that the supervisor did not have enough child c ar seats i n her vehicle, so Retamozzo, the supervisor , and the children returned to the local business to get Retamozzo’s vehicle, which was equi pped with additional car seats. Retamozzo and the children transferred to
Retamozzo’s vehicle. The supervisor drove separately to the local park and waited
for Retamozzo and the childr en, but they never showed up. [¶4 ] Retamozzo’s mother calle d the police later that evening and a nation wide alert was issued. Two days later, Retam ozzo and the children were
locat ed at a highway rest stop in South Caroli na. Retamozzo was subsequently charged with two counts of criminal restraint by a parent.3 [¶ 5 ] At the jury trial, during direct examination of Retamozzo’s mother, the following exchange occurred:
State: When was the next time that you sa w the children [after Retamozzo picked them up at Retamozzo’s mother’s house]? Mother: After I notified the police, they were working on finding them, and when they located them I drove down to the Carolinas to get them. State: Okay. And when you got there did you pick [the children] up? Mother: Yes. St ate: And did you see Bethmarie Retamozzo when you were in South Carolina? Mother: I visited her in jail. (E mphasis added .) Retamozzo’s attorney did not object to this test imony , and the questioning moved on to o ther topics. After deliberation , the jury returned a verdict of guilty on both counts. 1
II. DISCUSSION [¶6 ] Retamozzo’s sole argument on appeal is that the court erred by failing
to declare a mistrial su a sponte a fter her mother testified ab out visiting Retamozzo in jail. Retamozzo c ontends that the testimony “threatened to undermine the fairness of the fact finding process” by creating an impression in the minds of the jurors of her guilt. As Retamozzo concedes, the issu e was not preserved; therefore
we review for obvious error. See State v. Chasse , 2000 ME 90, ¶ 12, 750 A.2d 586 (reviewing a trial court’s failure to declare a mistrial sua sponte for obvious error);

1 Retamozzo was sentenced to two and a half years of imprisonment, with all but five months suspended, followed by two years of probation.4 State v. Pabon , 2011 ME 100, ¶ 29, 28 A.3d 114 7 (stating that obvious error is error that is plain, that affects substantial rights, and that s eriously affects the
fairness and integrity of judicial proceedings); M.R. Crim. P. 52(b). [¶7 ] We find Ret amozzo’s argument unpersuasive for several reason s. First, her reliance on Estelle v. Williams is misplaced. 425 U.S. 501 (1 976). In
Estelle , the U.S. Supreme Court declared that compelling a defend ant to stand trial in “identifiable prison clothes ” viola tes the right to a fair trial. 425 U.S. at 512

. Howev er, the Supreme Court also held that a defendant must raise an objection to standing trial in prison attire with the trial court

. Id. at 512

- 13; see also Chasse , 2000 ME 90, ¶ 12, 750 A.2d 586 (“We cannot say that the court committed
obvious error by not declaring a mistrial on its own initiative because of Chasse being clad in prison clothes given that he did not object or seek a mistrial.”)

. [¶8 ] Second, Retamozzo’s mother’s brief statement at trial (“I visited her in jail”) likely did not have any effect , let alone a prejudicial effect , on Retamozzo’s right to a fair trial. The case law is clear that when jurors may have learned of the defendant’s incarceration status, t he duration and significance of the information

matters. In Estelle , the Supreme Court stated, “ the constant reminder of the
accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment.” Estelle , 425 U.S. at 504

- 05 (emphasis added). By contrast, we have held that a “ brief and inadverten t exposure to jurors of a defendant in5 handcuffs, without more, is not so inherently prejudicial as to require a mistrial.”
State v. White , 456 A.2d 13, 15 (Me. 1983) (emphasis added)

. In addition, the
First Circuit has held that a witness’s statement th at she saw the defendant in jail
every day did not prejudice the defendant because “[ t ]he possible effect on the jury of [the] fleeting comment regarding [the defendant’s] pre - trial incarceration status is markedly different from that of a defendant wearin g prison clothing throughout
his entire trial.” United States v. Trinidad

- Acosta , 773 F.3d 298, 307 (1st Cir. 2014). Here, Retamozzo’s mother’s statement was more akin to a “fleeting comment” than it was to seeing a defendant in prison clothes throughout a trial. [¶9 ] F inally, it is clear from the record that the State did not improperly attempt to elicit the statement at issue from Retamozzo’s mother and quickly

m oved on to other matters once the statement was made. 2 Because there was no prejudice to R etamozzo from her mother’s brief statement, we affirm the
conviction.

2 In addition, although Retamozzo did not raise th is issue on a ppeal, her trial counsel did not necessarily err by not objecting to Retamozzo’s mother’s testimony at trial. Given the fleeting nature of the mother’s comment regarding Retamozzo’s incarceration status, and the fact that there was no prosecu torial misconduct, it could well have been a reasonable tactical choice by counsel to not emphasize the comment by objecting in front of the jury. See State v. Cheney , 2012 ME 119, ¶ 18 n.2, 55 A.3d 473.6 The entry is: Judgment affirmed.

On the briefs: Jamesa Drake, Esq., Drake Law, LLC, Auburn, for appellant Bethmarie Retamozzo Maeghan Maloney, District Attorney, and Frayla Sc hoenfeld, Asst. Dist. Atty., Prosecutorial District IV, Augusta, f or appellee State of Maine

At oral argument: Jamesa Drake, Esq., for appellant Bethmarie Retamozzo Frayla Schoenfeld, Asst. Dist. Atty., for appellee State of Maine

Kennebec County Sup erior Court docket number CR

- 2013

- 753 F OR C LERK R EFERENCE O NLY