State of Maine v. Dennis W. Lowery

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2025 ME 3
Docket: Cum-23-494
Argued: September 10, 2024
Decided: January 9, 2025

Panel: STANFILL, C.J., and HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.

STATE OF MAINE

v.

DENNIS W. LOWERY

HORTON, J.

[¶1] Dennis W. Lowery appeals from a judgment of conviction of gross

sexual assault (Class B), 17-A M.R.S. § 253(2)(D) (2024), entered by the trial

court (Cumberland County, O’Neil, J.) after a jury found Lowery guilty. He

argues that the court abused its discretion or violated his due process rights in

denying his motions to dismiss and for a new trial, each of which was grounded

on discovery violations, and that the court committed obvious error, in

violation of Lowery’s Fifth Amendment rights, by admitting testimony and

allowing prosecutorial argument that Lowery did not ask why he was being

detained after the police stopped him on the street. We affirm the judgment.
2

I. BACKGROUND

[¶2] Viewing the evidence in the light most favorable to the State, the

jury could rationally have found the following facts beyond a reasonable doubt.

See State v. Brackett, 2023 ME 51, ¶ 9, 300 A.3d 827. On the evening of

December 18, 2021, the victim had consensual sex with a male partner in a

room that she had rented at a Portland inn. They did not use a condom. The

partner left the room and indicated that he might be coming back.

[¶3] Early in the morning on December 19, 2021, a different man, later

identified as Dennis Lowery, rang the doorbell at the inn, and the inn’s night

auditor admitted him. Lowery proceeded directly to the stairs, went up to the

top floor, and entered the victim’s room without her knowledge or permission.

She was sleeping after having taken her prescribed sleep medication. She

awoke to find Lowery on top of her with his penis in her vagina. She screamed

for him to get off her. Lowery got up, dressed, and left the inn.

[¶4] The victim got dressed and went to the lobby. She asked the night

auditor at the inn to call 9-1-1. She provided the police with a description of

the person who had entered her room, and based on that description, an officer

found Lowery outdoors a few blocks away. Later, the victim’s DNA was
3

identified in menstrual blood staining the underwear that Lowery had been

wearing when the police located him.

[¶5] On December 20, the State charged Lowery by complaint with

burglary (Class B), 17-A M.R.S. § 401(1)(B)(4) (2024), and gross sexual assault

(Class B), 17-A M.R.S. § 253(2)(D). The grand jury returned an indictment for

those two counts on February 9, 2022. The court (Mead, J.) held a judicial

settlement conference in April 2023, but no settlement was reached.

[¶6] The State and Lowery each filed a witness list on July 20, 2023. The

State did not list three individuals who had roles in handling physical

evidence—Emma Hewett, Betsy Chapman, and Jamie Beals. The State

“reserve[d] the right to amend [its] witness list at any time upon reasonable

notice to the Defendant and the Court.” Lowery listed Chapman and Beals in

his witness list.

[¶7] On October 2, the first day scheduled for trial, Lowery filed a motion

to dismiss the charges against him on the ground that the State had violated

discovery rules by failing to provide information regarding Hewett, Chapman,

or Beals despite their names appearing in property history reports provided to

Lowery on January 11, 2023. Lowery indicated that Hewett had handled oral,

anal, and genital swabs taken from the alleged victim and the extracts prepared
4

from those swabs. He asserted that Chapman had handled several items,

including both the kit that contained the swabs and the underwear collected

from Lowery, and that Beals had handled the underwear collected from

Lowery. Lowery further asserted that he had not received a resume for the

named Sexual Assault Nurse Examiner who collected samples from the victim

at the hospital after the victim spoke with police. The State indicated that it had

been trying to get her resume for two months.

[¶8] The court held a jury trial from October 2 to 6, 2023. Before bringing

in the jury to hear testimony, the court considered Lowery’s motion to dismiss.

The State indicated that it had not intended to call Hewett or Beals. It had

notified Lowery one day before trial of its intention to call Chapman as a

witness. The court denied Lowery’s motion to dismiss. The court reasoned that

the State had satisfied its obligation to identify the people in the chain of

custody in a timely fashion. As to the nurse whose resume Lowery lacked, the

court authorized voir dire at Lowery’s request.

[¶9] At trial, an officer testified that he located Lowery on

December 19, 2021, as Lowery was walking east on Congress Street away from

the inn, wearing clothes that matched the victim’s description of her assailant’s

clothing. He testified that Lowery walked away down a driveway but paused
5

when he saw the officer. The officer testified that upon stopping Lowery, he

told Lowery that the police were looking into something that had just happened

down the street. According to the officer, Lowery remained quiet and

submitted to a pat-down. The officer testified that he found it “very strange”

that Lowery did not ask why he was being detained. Lowery did not object to

the testimony. The officer further testified that he had Lowery sit in the back

of the police car so that Lowery would stay warm and that, after the officer told

Lowery, five to ten minutes later, that he was taking him to the police station,

Lowery said nothing. The officer testified, “I don’t believe [Lowery] asked me

why or really said anything of note, to be honest.”1 Lowery did not object to

this testimony. On cross-examination, the officer conceded that Lowery had the

right to remain silent when police spoke to him.

[¶10] The jury later heard testimony from the nurse who examined the

victim at the hospital and collected swabs of her body, and from Chapman, the

Portland Police Department’s property and evidence coordinator. Chapman

testified about officers depositing physical evidence, including the swabs of the

victim and Lowery’s underwear, into the evidence locker and removing the

items when they were sent to the Crime Lab.

1 Lowery does not contend that he was under arrest at this time and raises arguments about
“pre-arrest” silence only.
6

[¶11] The State offered testimony from Maine State Police Crime Lab

employees. One of the Crime Lab employees was a forensic chemist who

worked with a forensic technician to administer serological tests of the swabs

from the alleged victim. When the chemist asked to look at her notes to see

which evidence technician worked with her, Lowery objected that he had not

received the notes in discovery. He argued that evidence regarding the testing

should not be admitted because of the asserted discovery violation, that he was

being deprived of the right to confront the evidence technician as a witness, and

that his due process rights were violated. The court overruled the objection but

stated, “[I]f the State can make an effort to make this witness available, the

Court would appreciate that.” The forensic chemist testified that Emma Hewett

had been the technician who assisted her with some of the testing of the oral,

genital, anal, and vaginal cervical swabs, and that Hewett had done the work

without the chemist’s supervision. She testified that she—not Hewett—had

performed all processing and preliminary testing of Lowery’s underwear. The

court indicated that Lowery would have the opportunity to voir dire Hewett if

the State could have her appear the next day.

[¶12] The next day, Hewett was present to testify. The State argued that

the chain of custody was already adequate, that the forensic chemist’s expert
7

opinion was admissible even if the chemist relied on the nonexpert work of

Hewett, and that there was no remaining Confrontation Clause issue because

Hewett was present to testify. The court overruled Lowery’s objection to the

State’s calling Hewett, and Hewett testified about her work in the case

extracting sperm from the swabs received and performing tests of swabs

without analyzing the results. Analysis later revealed that the sperm was not

Lowery’s. The State submitted no evidence that the oral, genital, anal, or

vaginal cervical swabs revealed any DNA from Lowery. The State rested its case

without ever calling Beals as a witness. Lowery presented testimony from one

witness and rested his case after deciding not to testify.

[¶13] During her closing argument, the prosecutor noted that the officer

who found Lowery had said “that it is very unusual that someone gets detained

by police and doesn’t question why or ask any questions of the police at all.”

She further argued that during the drive to the police station, Lowery “didn’t

ask any questions about why he was being brought to the police station.” She

argued, “He didn’t question his detention and I submit to you that’s because he

knew why he was being detained.” Lowery did not object to this argument.

[¶14] The following day, the jury returned a verdict finding Lowery

guilty of both burglary and gross sexual assault. Lowery moved for a judgment
8

of acquittal or for a new trial. Among other arguments, Lowery contended that

the charges should have been dismissed with prejudice for discovery violations

by the State, especially because the State could have provided discovery during

Lowery’s incarceration, which had begun nearly two years before trial, on

December 19, 2021.

[¶15] After accepting additional memoranda and then hearing oral

argument on November 17, 2023, the court concluded that no discovery

violation rose to such a level that dismissal or a new trial was required. The

court denied the motion for a judgment of acquittal as to gross sexual assault.

It entered a judgment of acquittal as to the burglary charge, however, on

grounds not at issue here.2

[¶16] The court held a sentencing hearing the same day and on

November 28, 2023, entered a judgment sentencing Lowery to seven years in

prison followed by six years of supervised release. Lowery timely appealed.3

See 15 M.R.S. § 2115 (2024); M.R. App. P. 2B(b)(2).

2 The court entered the judgment of acquittal because the indictment alleged that Lowery
intended to commit a “sexual assault”—not the statutory crime of “gross sexual assault”—and the
court concluded that it had therefore improperly instructed the jury as to gross sexual assault for
purposes of the burglary charge.

3 Although Lowery also sought sentence review, the Sentence Review Panel denied his application

to allow a sentence appeal. State v. Lowery, No. SRP-23-493 (Me. Sent. Rev. Panel Apr. 22, 2024).
9

II. DISCUSSION

[¶17] On appeal, Lowery challenges (A) the court’s handling of the State’s

alleged discovery violations and (B) the court’s admission of evidence, and

allowance of argument, regarding Lowery’s pre-arrest silence. We consider

each issue in turn.

A. Alleged Discovery Violations

[¶18] Rule 16 of the Maine Rules of Unified Criminal Procedure governs

discovery in criminal cases. That rule requires the attorney for the State to

provide to the defendant “[t]he names, dates of birth, and . . . the addresses of

the witnesses whom the State intends to call in any proceeding.”

M.R.U. Crim. P. 16(a)(2)(H). The information must ordinarily be provided at

arraignment, but “[i]f additional material that would have been furnished to the

defendant as automatic discovery comes within the possession or control of the

attorney for the State after” that time, “the attorney for the State shall so inform

the defendant within 14 days thereafter.” M.R.U. Crim. P. 16(b)(4), (5). The

court has several options available in the event that the State does not comply

with these provisions; it “may take appropriate action, which may include, but

is not limited to, one or more of the following: requiring the attorney for the

State to comply; granting the defendant additional time or a continuance;
10

relieving the defendant from making a disclosure required by Rule 16A;

prohibiting the attorney for the State from introducing specified evidence; and

dismissing charges with or without prejudice.” M.R.U. Crim. P. 16(e).

[¶19] The underlying purposes of the discovery rule are to “enhance[e]

the quality of the pretrial preparation of both the prosecution and defense and

diminish[] the element of unfair surprise at trial, all to the end of making the

result of criminal trials depend on the merits of the case rather than on the

demerits of lawyer performance on one side or the other.” State v. Thurlow,

414 A.2d 1241, 1244 (Me. 1980); see also State v. Poulin, 2016 ME 110, ¶ 29,

144 A.3d 574. Sanctions for mistakes made in discovery “should be tailored to

the individual circumstances of each case, with a focus on fairness and justice.”

State v. Reed-Hansen, 2019 ME 58, ¶ 10, 207 A.3d 191.

[¶20] Lowery argues that the court abused its discretion and violated his

due process rights in denying his motion to dismiss when the State had not

timely listed Hewett, Chapman, or Beals as witnesses or disclosed information

about them and the nurse before trial as required by Rule 16 of the Maine Rules

of Unified Criminal Procedure. He contends that the disclosure of witnesses

and information about them was necessary for him to prepare for trial and

participate meaningfully in the judicial settlement conference. Lowery also
11

argues, on the same basis, that the court abused its discretion in denying his

motion for a new trial.

1. Admission of Testimony of Witnesses Not Listed

[¶21] We review for an abuse of discretion the admissibility of testimony

from witnesses who were not timely designated. See State v. Cushing, 602 A.2d

1169, 1170 (Me. 1992). “Allowing an unlisted witness to testify . . . is within the

discretion of the trial court and such action will not be deemed an abuse of

judicial discretion in the absence of a showing of surprise or prejudice.” State

v. Tullo, 366 A.2d 843, 849 (Me. 1976).

[¶22] “[P]arties are obligated to reveal the names of all potential

witnesses that could be reasonably anticipated, prior to voir dire, regardless of

whether counsel plans to call the witness as part of their case in chief or in

rebuttal.” State v. Gagne, 2017 ME 63, ¶ 38, 159 A.3d 316. A trial court does

not abuse its discretion in allowing testimony when the defendant was aware,

from reviewing disclosed materials, of the witness’s role in the case. Cushing,

602 A.2d at 1170. A trial court may, however, take steps to ensure the fairness

of the proceeding by providing an opportunity for witness voir dire, with

cross-examination, or by granting a continuance to allow for additional

preparation time. See State v. White, 460 A.2d 1017, 1022 (Me. 1983).
12

[¶23] Applying these standards, the court did not abuse its discretion

here. Lowery was aware of the roles of Beals, Chapman, and Hewett. Beals did

not testify. Chapman testified only about how the items were placed into and

removed from the evidence locker at the Portland Police Department. See State

v. Coleman, 2018 ME 41, ¶ 31, 181 A.3d 689 (“A chain of custody need not be

ironclad, and a minor break goes to the weight of the evidence rather than its

admissibility.” (alterations and quotation marks omitted)). The State did not

originally intend to call Hewett but did so to ensure that Lowery had the

opportunity to cross-examine her after the chemist’s testimony about her role.

Hewett testified only that she had conducted tests of evidence for others to

analyze,4 and the State offered no evidence that the items that she ran tests on

revealed Lowery’s DNA. Given the court’s allowance of voir dire of Hewett,

see White, 460 A.2d at 1022, and Lowery’s inclusion of Chapman in his own

4 The court had already admitted evidence of the testing from the forensic chemist because an
expert may, in forming an expert opinion, rely on “facts or data in the case that the expert has been
made aware of,” including facts or data upon which “experts in the particular field would reasonably
rely . . . in forming an opinion on the subject.” M.R. Evid. 703; see also State v. Abdullahi, 2023 ME 41,
¶¶ 24-25, 298 A.3d 815 (distinguishing between expert and lay witnesses). Because Hewett
appeared at trial, we need not consider whether, under the Confrontation Clause, a lab technician—
as opposed to a lab analyst—must be produced as a witness for the analysis of forensic testing to be
admissible. Cf. Smith v. Arizona, 602 U.S. 779. 802-03 (2024) (“A State may not introduce the
testimonial out-of-court statements of a forensic analyst at trial, unless she is unavailable and the
defendant has had a prior chance to cross-examine her. Neither may the State introduce those
statements through a surrogate analyst who did not participate in their creation.” (citations
omitted)).
13

witness list, the court did not abuse its discretion in admitting the testimony of

Chapman and Hewett.

2. Motions to Dismiss and for a New Trial

[¶24] “We review for an abuse of discretion a trial court’s sanction for a

discovery violation,” including the decision whether to dismiss criminal

charges for the violation. State v. Page, 2023 ME 73, ¶¶ 7-8, 14, 306 A.3d 142

(quotation marks omitted). The denial of a motion for a new trial is reviewed

for an abuse of discretion, with any findings underlying the decision reviewed

for clear error. State v. Daluz, 2016 ME 102, ¶ 44, 143 A.3d 800.

[¶25] “For a jury verdict to be overturned on appeal based on an alleged

discovery violation, the alleged violation must have prejudiced the defendant

to the extent that it deprived [the defendant] of a fair trial.” State v. McBreairty,

2016 ME 61, ¶ 19, 137 A.3d 1012; see also Page, 2023 ME 73, ¶ 14, 306 A.3d

142. When the trial court has imposed a sanction for a discovery violation, we

“look for a prejudicial effect on the defendant as a result of the discovery

violation, as mitigated—or not—by the trial court’s ruling.” Page, 2023 ME 73,

¶ 14, 306 A.3d 142 (quotation marks omitted). “When a defendant contends

that a discovery violation and the court’s response to it violated [the

defendant’s] right to a fair trial, we review the trial court’s procedural rulings
14

to determine whether the process struck a balance between competing

concerns that was fundamentally fair.” Id. (quotation marks omitted). “Unless

a defendant has demonstrated that he was in fact prejudiced by the discovery

violation despite the court’s effort to nullify or minimize the consequences and

that the prejudice rose to the level of depriving him of a fair trial, a trial court’s

decision not to impose sanctions for discovery violations cannot be

characterized as either an abuse of discretion or an error of law.” State v.

Sanborn, 644 A.2d 475, 479 (Me. 1994).

[¶26] Here, the alleged discovery violations either were not violations at

all or were not of sufficient gravity to undermine the fairness of the proceeding

and require a new trial given the court’s handling of the affected testimony.

Lowery asserts that he was entitled to the resumes of Chapman and of the

Sexual Assault Nurse Examiner as part of automatic discovery. As we have

explained regarding resumes,

Maine Rule of Unified Criminal Procedure 16 requires the
State to produce, through automatic discovery, “[a]ny reports or
statements of experts, made in connection with the particular case,
including results of physical or mental examinations and of
scientific tests, experiments, or comparisons.” M.R.U.
Crim. P. 16(a)(2)(G). . . . The defendant may make a written request
of the State for materials beyond those required to be produced as
part of automatic discovery. M.R.U. Crim. P. 16(c)(1). If the State
objects to that request, the defendant can file a motion asking the
15

court to order the State to provide the additional discovery. M.R.U.
Crim. P. 16(d)(2).

State v. Green, 2024 ME 44, ¶ 11, 315 A.3d 755. Absent a specific request for

supplemental discovery and a motion to compel discovery in advance of trial, a

failure to produce a resume is not a discovery violation. Id. ¶ 13. Furthermore,

at trial, the court authorized voir dire of the nurse who examined the victim.

[¶27] Lowery also argues that the State’s failure to disclose the forensic

chemist’s lab notes before trial deprived him of the right to a fair trial. Whether

or not the State was required to disclose those notes, there is nothing in the

record to suggest that the lack of disclosure affected the fairness of the

proceedings. The court exercised its discretion to authorize Lowery to demand

voir dire of Hewett, who had been mentioned in the notes but was already

known to Lowery.5

[¶28] Finally, although in other circumstances late-disclosed

information about witnesses could affect the fairness of a judicial settlement

conference, nothing in the record here suggests that any lack of information

rendered counsel unprepared “to engage in meaningful discussion regarding

5 With respect to Lowery’s claims that the State failed to provide information regarding Beals, the

State neither listed nor called Beals as a witness, and Beals appears from the Portland Police
Department’s evidence log to have handled evidence only after it had been tested.
16

all aspects of the case with a view toward reaching an appropriate resolution,”

M.R.U. Crim. P. 18(b), in April 2023 before either party had filed a witness list.

[¶29] The court did not err or abuse its discretion—or deprive Lowery

of his due process right to a fair trial—in authorizing witness voir dire but

denying Lowery’s motion to dismiss or his motion for a new trial on the basis

of discovery violations.6 Page, 2023 ME 73, ¶ 14, 306 A.3d 142.

B. The Fifth Amendment and the Right to Remain Silent

[¶30] Lowery contends that the court committed obvious error in

admitting evidence that Lowery remained silent and did not ask questions

when approached by police. He argues that his “pre-arrest silence was made

an indicator of guilt” in violation of the Fifth Amendment.7

Nor has Lowery demonstrated a violation of the dictates of Brady v. Maryland, 373 U.S. 83, 87
6

(1963). He has not shown that the State withheld evidence that was favorable to him. See State v.
Nisbet, 2018 ME 113, ¶ 29, 191 A.3d 359. Lowery already knew that the swab tests did not reveal the
presence of his DNA; he just did not know that Hewett was the person who conducted the tests. Beals
did not testify and in any event handled evidence only after its testing.

7 Although Lowery includes a footnote indicating that the Maine Constitution provides more

protection than its federal counterpart with respect to the privilege against self-incrimination, the
argument in the body of his brief focuses exclusively on Fifth Amendment law, and Lowery does not
seek the application of the primacy approach to constitutional analysis. Any argument under the
Maine Constitution is, therefore, unpreserved. See State v. Norris, 2023 ME 60, ¶¶ 33-37, 302 A.3d 1;
see also State v. Lepenn, 2023 ME 22, ¶ 1 n.3, 295 A.3d 139 (declining to review an issue that received
only cursory mention in a footnote). He also did not preserve at trial an argument that the Maine
Constitution requires courts to consider the fact that a Black man confronted by police may remain
silent out of fear. Cf. State v. Fleming, 2020 ME 120, ¶ 17 & n.9, 239 A.3d 648. He argues only that the
combination of race-based fear and the comments he made after he arrived at the police station made
it “ambiguous as to what he was stating to police about his detention and silence.” Because our
decision turns on whether Lowery invoked the right to remain silent before arriving at the police
station, we are not persuaded by this argument.
17

[¶31] Because Lowery did not object to the admission of evidence of his

pre-arrest silence or to prosecutorial argument concerning that silence, we

review for obvious error whether the court erred in admitting that evidence

and allowing prosecutorial argument. See State v. Lovejoy, 2014 ME 48, ¶ 19,

89 A.3d 1066; State v. Tripp, 2024 ME 12, ¶ 21, 314 A.3d 101. To vacate a

conviction under the obvious error standard of review, there must be a plain

error that affects substantial rights, and “the error must seriously affect the

fairness and integrity or public reputation of judicial proceedings.” Tripp, 2024

ME 12, ¶ 21, 314 A.3d 101 (alterations and quotation marks omitted). A

defendant who challenges alleged prosecutorial error on appeal but who did

not object to the error at trial carries a significant burden; “when 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.”

Id. (alteration and quotation marks omitted).

[¶32] The Supreme Court of the United States has held that the

admission of evidence of pre-arrest silence against a defendant who does not
18

testify8 does not violate the Fifth Amendment when a defendant answers

several questions from law enforcement officers and then becomes silent.

Salinas v. Texas, 570 U.S. 178, 182, 186 (2013). The Supreme Court’s opinion in

Salinas “appears to have created a new question regarding the sufficiency of

invocation of the right under the Fifth Amendment.” Commonwealth v. Molina,

104 A.3d 430, 441 (Pa. 2014).

[¶33] We recently opined that for evidence of pre-arrest silence to be

excluded under the Fifth Amendment, a defendant must have invoked the right

to remain silent. See Tripp, 2024 ME 12, ¶¶ 22-23, 314 A.3d 101 (holding that

the defendant had not invoked the right to remain silent when he “was not in

custody, and beyond remaining silent . . . did not expressly state nor otherwise

manifest his intention to exercise the constitutional right against

self-incrimination”). “Although we have never required the use of any specific

words for a person to enjoy constitutional protection for his or her silence, we

do require that the record demonstrate the defendant’s intention to exercise

Evidence of a testifying defendant’s pre-arrest silence may be used, without violating the Fifth
8

Amendment, to impeach the defendant’s credibility. See State v. Nobles, 2018 ME 26, ¶ 25, 179 A.3d
910.
19

the constitutional right against compelled self-incrimination.”9 Id. ¶ 22

(quotation marks omitted).

[¶34] For example, a person who is not in custody may invoke the right

to remain silent by indicating a desire to speak with a lawyer and then refusing

to speak with law enforcement officers. Lovejoy, 2014 ME 48, ¶¶ 24-29, 89 A.3d

1066. In many pre-arrest contexts, however, “a defendant is not deemed to

have exercised the constitutionally protected right against compelled

self-incrimination by virtue of silence alone.” Tripp, 2024 ME 12, ¶ 22, 314 A.3d

101 (quotation marks omitted); see also Salinas, 570 U.S. at 186 (“[A] defendant

normally does not invoke the privilege by remaining silent.”).

[¶35] Here, Lowery’s silence preceded any questioning about what had

happened—the officer testified only about Lowery’s silence when the officer

informed him that the police were looking into a nearby incident and when the

officer told Lowery that the officer was taking him to the police station. Lowery

was not asked any questions and did not indicate any intention to invoke his

privilege by words or actions. See Tripp, 2024 ME 12, ¶ 23, 314 A.3d 101

9 Lowery’s references in his brief to cases in which the defendant invoked the privilege are
therefore inapposite. See, e.g., Combs v. Coyle, 205 F.3d 269, 286 (6th Cir. 2000) (“In the instant case,
Combs clearly invoked the privilege against self-incrimination by telling the officer to talk to his
lawyer, thus conveying his desire to remain silent without a lawyer present.”); Coppola v. Powell,
878 F.2d 1562, 1567 (1st Cir. 1989) (holding that the defendant invoked the privilege by saying, “Let
me tell you something. I’m not one of your country bumpkins. I grew up on the streets of Providence,
Rhode Island and if you think I’m going to confess to you, you’re crazy.” (quotation marks omitted)).
20

(holding that the Fifth Amendment is not violated when a person does not

“expressly state nor otherwise manifest [the] intention to exercise the

constitutional right against self-incrimination” before arrest). Thus, the court’s

admission of that evidence did not amount to a Fifth Amendment violation.

See id. Without error, there is no obvious error. See id. ¶ 21. For the same

reasons, there was no prosecutorial error when the prosecutor elicited

testimony about Lowery’s pre-arrest silence and then commented on it in her

closing argument. See id.

[¶36] That said, however, the probative value of Lowery’s pre-arrest

silence was limited at best. A person may be silent while detained for different

reasons, including that the person is hesitant to question the police. Had

Lowery invoked Rule 403 of the Maine Rules of Evidence and argued that the

probative value of evidence of his silence was substantially outweighed by the

danger of unfair prejudice due to jury speculation about his reason for

remaining silent, the court might well have excluded the evidence. See M.R.

Evid. 403; cf. State v. Hoggins, 718 So. 2d 761, 766-67 & nn.8, 10 (Fla. 1998)

(summarizing states’ holdings regarding the admissibility of pre-arrest silence

given the limited probative value of such evidence); Grier v. State, 718 A.2d 211,

217 (Md. 1998) (stating that although evidence of silence is “generally
21

inadmissible because ‘[i]n most circumstances silence is so ambiguous that it is

of little probative force,’” it may be admitted “if it is in response to an assertion

which the party would, under all circumstances, naturally be expected to deny”

(quoting United States v. Hale, 422 U.S. 171, 176 (1975))). The admissibility

under Rule 403 of a defendant’s pre-arrest silence is an issue that, in another

case, we might be called upon to address, but here, because it was not preserved

in the trial or on appeal, the issue is not before us.

The entry is:

Judgment affirmed.

Jeremy Pratt, Esq. (orally), and Ellen Simmons, Esq., Camden, for appellant
Dennis W. Lowery

Jacqueline Sartoris, District Attorney, and Molly Butler Bailey, Asst. Dist. Atty.
(orally), Prosecutorial District No. Two, Portland, for appellee State of Maine

Cumberland County Unified Criminal Docket docket number CR-2021-5247
FOR CLERK REFERENCE ONLY