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State v. Napier
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Decision:	1998 ME 8
Docket:	Cum-97-56
Argued:	December 2, 1997 
Decided:	January 8, 1998




	[¶1]  Philip Napier appeals from the judgments entered in the
Superior Court (Cumberland County, Calkins, J.) following a jury verdict
finding him guilty of criminal threatening with a dangerous weapon, 17-A
M.R.S.A. §§ 209, 1242(4) (1983), reckless conduct with a dangerous
weapon, 17-A M.R.S.A. § 211 (1983), and discharging a firearm near a
dwelling, 12 M.R.S.A. § 7406(13) (1994).  Napier contends that his
convictions should be vacated on the following grounds:  (i) testimony by
Napier's expert witness on acceptable police procedures for emergency
police calls involving mentally disturbed individuals was improperly
excluded by the court; and (ii) Napier's conduct did not satisfy the elements
necessary to convict him as a matter of law of reckless conduct with a
dangerous weapon.  We disagree and affirm the judgments.	
	[¶2]  After the Windham police received a number of telephone calls
from neighbors of Philip Napier reporting that Napier was firing a weapon
from his home, Officer Richard Ramsdell (Richard) was dispatched to
Napier's residence to investigate.  Richard parked his cruiser in Napier's
driveway, cautiously approached Napier's residence on foot, gun holstered,
and searched Napier's yard to determine if Napier was outside.  Richard
then waited for backup to arrive before he approached the house itself. 
After Sergeant Ronald Ramsdell (Ronald), Richard's brother, arrived,
Richard walked to Napier's open front door and at least twice yelled  "Police
department, Phil, are you here?".  Peering into Napier's home, Richard
noticed a rifle lying on a table and a hand holding a gun extending out of a
doorway inside the house.  Richard repeatedly shouted to the individual,
who was Napier, "Police, drop the gun."  Napier then walked toward
Richard with his gun at hip level pointed at Richard.  Richard leapt over a
woodpile located on the porch and Napier peered over the woodpile
pointing his revolver at Richard.  Richard then ran around the corner of
Napier's house, firing a shot in retreat which missed Napier.  When Ronald
observed Napier raise his gun towards Richard he fired at Napier, striking
him.  Wounded by Ronald's fire, Napier retreated into his house where he
was then subdued by the officers. 
	[¶3]  Prior to trial, the court ruled on the parties' motions in limine,
inter alia, excluding the proposed expert testimony of Melvin L. Tucker,
who was offered by Napier to testify as to proper police procedures in
handling emergencies involving mentally disturbed persons.  At the close of
the State's evidence Napier moved for a judgment of acquittal, which the
court denied.  Also denied was his subsequent motion to dismiss counts III
and IV on the ground that threatening with a weapon alone does not
constitute reckless conduct with a dangerous weapon.  In addition, Napier
moved for a finding that the police entry on his property was illegal.  The
court did not rule on this motion but rather submitted the issue of whether
Napier was justified in using deadly force against the officers to the jury. 
The jury found Napier guilty of criminal threatening with a dangerous
weapon, 17-A M.R.S.A. § 209, 1242(4), reckless conduct with a dangerous
weapon, 17-A M.R.S.A. § 211, and discharging a firearm near a dwelling, 12
M.R.S.A. § 7406(13).  This appeal followed.


	[¶4]  Napier claims that the trial court abused its discretion in
excluding the expert testimony of a veteran law enforcement officer on the
subject of appropriate police procedures -- primarily in situations involving
mentally disturbed individuals.  Napier contends that the expert would have
shown that the police officers did not follow proper police procedures, thus
shedding light on whether Napier's conduct was a reasonable response to
the officers' conduct.  Napier claims that the lay juror requires assistance by
an expert to determine what procedures, if any, were properly employed in
this case. 
	[¶5]  An expert opinion must be relevant to an issue in the case.  State
v. Lewis, 584 A.2d 622, 626 (Me. 1990); Field & Murray, Maine Evidence §
702.1 at 337 (4th ed. 1997).  We review a trial court's determination of
relevancy for clear error.  State v. Robinson, 628 A.2d 664, 666 (Me. 1993);
State v. Dechaine, 572 A.2d 130, 133 (Me. 1990). 
	[¶6]  Pursuant to 17-A M.R.S.A. § 108(2)(1), a person is justified in
using deadly force upon another person "[w]hen the person reasonably
believes it necessary and reasonably believes such other person is . . .[a]bout
to use unlawful, deadly force against himself . . . ."  The jury was asked to
consider whether Napier was justified in his use of deadly force when he
exited his home armed with a loaded weapon pointed at an announced
uniformed officer.  Regardless of whether the officers' actions conformed to
proper police procedure, the only issue before the jury was whether a
reasonable person in Napier's position would believe unlawful deadly force
was about to be used against him.  
	[¶7]  Assuming, arguendo, that the police did not follow proper
procedure and Napier thus believed they were unlawful trespassers, the
issue remains whether his reaction was reasonable.  For example, assuming
the officers in this instance should not have had their weapons drawn as
they approached Napier's house, or should not have approached Napier's
house at all, the jury still would consider only the reasonableness of Napier's
reaction to these facts.  The reasonableness of Napier's reaction is not a
function of the officers' technical adherence to proper police procedure. 
Though non-adherence to police procedure may create circumstances
supporting a justification defense, the circumstances, not the non-
adherence to police procedure, supports the defense.  Expert testimony on
proper police procedure is thus irrelevant.  The court did not exceed the
bounds of its discretion in ruling that the testimony of an expert on police
procedure was irrelevant to the issue of Napier's justification defense.

	[¶8]  Finally, Napier claims that merely pointing a weapon in a
threatening manner does not constitute reckless conduct with a dangerous
weapon.  Pursuant to 17-A M.R.S.A. § 211, one is guilty of reckless conduct if
one recklessly creates "a substantial risk of serious bodily injury to another
person." The dispositive question is whether recklessly pointing a gun at
someone can create a substantial risk of serious bodily injury.  
	[¶9]  As the Supreme Court of North Dakota noted in State v. Meier,
422 N.W.2d 381, 385 (N.D. 1988), "the potential for harm exists any time a
firearm is pointed at a person . . . what the [reckless endangerment] statute
does is protect against the risk of such injury or death, and that is the risk
that is to be avoided."  Napier may not have intended to fire his weapon any
more so than the defendant in State v. DeCesere, 406 A.2d 616, 617 (Me.
1979), intended to shatter the police car safety glass when he kicked it. 
Liability for reckless conduct turns on the creation of risk, not actual harm. 
Risk turns on what is possible, not necessarily on what is probable, and in
this case Napier's pointing a loaded gun at a police officer created the risk
that the firearm might be discharged causing grave injury to the responding
	The entry is:
Judgments affirmed.

Attorneys for State: Stephanie Anderson, District Attorney Julia A. Sheridan, Asst. Dist. Atty., (orally) 142 Federal Street Portland, ME 04101 Attorney for defendant: Terri M. Kosoff, Esq., (orally) 277 Main Street Westbrook, ME 04092