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State v. LaPierre dissenting opinion

CALKINS, J., with whom CLIFFORD, J., joins, dissenting.

	[¶25]  I respectfully dissent.  The Court today announces a rule that
requires a trial court, when instructing on a lesser included offense after a
jury has begun deliberations, to state fully all of the elements of the lesser
included offense, and restate the elements of the greater offense.  I do not
dispute the wisdom of advising the trial courts to so instruct in the future.  I
do, however, dispute that the instructions given in this case were so highly
prejudicial, or so tainted the proceeding, that LaPierre was deprived of a fair
trial.  I conclude that the jury instructions given by the court, when viewed
in their entirety, did not confuse the jury and did not lead to a verdict based
on impermissible criteria.
	[¶26]  The trial court's instruction on count I began with an
explanation of the charge against LaPierre, specifically that LaPierre is
alleged to have "intentionally or knowingly trafficked in what he knew or
believed to be a scheduled drug, marijuana, which is in fact a schedule Z
drug, by growing or cultivating more than 500 marijuana plants."  The court
gave the statutory definition of trafficking and next told the jurors that the
State had to prove beyond a reasonable doubt "trafficking by growing or
cultivating more than 500 marijuana plants."  After the court defined
"intentionally" and "knowingly," the court repeated that the State had to
prove that LaPierre was "trafficking by growing or cultivating marijuana" and
that LaPierre "intentionally or knowingly grew it or cultivated it."  The court
then defined "accomplice" and referred to "trafficking, growing or
cultivating marijuana."  The court instructed:  "So, the State has charged
that this defendant either actually trafficked as I've defined it for you or he
was an accomplice of someone who did traffick or grow or cultivate the
marijuana."  When the court instructed on count II, the conspiracy charge, it
said that the State had to prove that LaPierre agreed with Ralph Dumond
and others to grow or cultivate more than 500 marijuana plants.  The court
repeated "grow or cultivate" twice more in the instruction on conspiracy. 
In all, the trial judge referred to "growing and cultivating marijuana" nine
times during the initial instructions on the two counts.  When LaPierre was
asked by the court if he had any objection to these instructions, he said "No
	[¶27]  In the first reinstruction the court used the broad definition of
trafficking to include "sell, barter, trade, grow, cultivate or possess with the
intent to sell, barter, trade, grow or cultivate."  When the trial judge
reinstructed on accomplice liability, however, he reminded the jurors, "I've
defined trafficking as growing or cultivating."  The only objection to this
first reinstruction was to the accomplice portion and the only stated
grounds were that the jury had not asked for a reinstruction on accomplice
liability and the State had not charged accomplice liability.  
	[¶28]  During the conference of counsel immediately before the final
reinstruction, LaPierre objected to instructing on the lesser included
offenses because:  (1) jury deliberations had begun; (2) the court originally
said that it would not give a lesser included offense instruction; and (3) the
evidence did not warrant the instruction.  He did not object to the substance
of the instruction nor did he object on the ground that it was confusing.  
	[¶29]  Although LaPierre now argues that the combined effect of the
original instructions, plus the two reinstructions, made the instructions
ambiguous and led to jury confusion, he did not object to the instructions on
that basis at trial.  We have held that when a party does not call to the
court's attention what he later claims to be error in jury instructions, we
review the claim of error under obvious error standards.  See State v.
Daniels, 663 A.2d 33, 36 (Me. 1995).  Therefore, we do not grant LaPierre
relief unless the error in the instructions is so highly prejudicial to LaPierre
and so taints the proceedings as to virtually deprive him of a fair trial.  See
State v. Varney, 641 A.2d 185, 187 (Me. 1994).
	[¶30]  The Court concludes that the trial court committed reversible
error because when it instructed on the lesser included offenses, it did not
state each element of the lesser offenses and repeat each element of the
greater offense, even though it previously instructed on every element of the
greater offense and previously defined terms applicable to the lesser
offenses.  The judge instructed on the lesser included offenses by telling the
jury that in order to find guilt it had to find the State had proven all of the
elements of trafficking "as I've defined it," and by explaining the number of
plants.  The number of plants is the only element that distinguishes the
lesser included offenses from the greater offense.
	[¶31]  We do not view challenged jury instructions in isolation.  See
State v. Varney, 641 A.2d at 187; State v. Wright, 531 A.2d 1270, 1271 (Me.
1987).  Here, the instructions as a whole include the heavy emphasis on
"growing or cultivating."  It is apparent from the instructions, when viewed
in their entirety, that the court told the jurors that LaPierre was guilty of the
offense of trafficking only if they found that the State had proven beyond a
reasonable doubt that LaPierre knowingly or intentionally grew or cultivated
marijuana, or was the accomplice of someone who grew or cultivated
marijuana.  The court further told the jury that only if it found trafficking
should it go on to determine the number of plants.  I fail to perceive how the
jury could have based its verdict on anything other than a finding that
LaPierre grew or cultivated 500 or more marijuana plants, or was the
accomplice of someone who did.
Attorneys for State: Neale T. Adams, District Attorney John M. Pluto, Deputy. Dist. Atty., (orally) 144 Sweden Street Caribou, ME 04736-2353 Attorney for defendant: Daniel G. Lilley, Esq., (orally) Mark L. Randall, Esq. Law Offices of Daniel G. Lilley, P.A. P O Box 4803 Portland, ME 04112-4803
FOOTNOTES******************************** {1} . Dumond first testified that he guessed the number of plants in one room of the mobile home to be "350, 400 plants." Later in his testimony he said there were "at least 500" and "about 500" plants in the mobile home. {2} . The statute, in effect on April 30, 1998, read as follows: 1. A person is guilty of unlawful trafficking in a scheduled drug if the person intentionally or knowingly trafficks in what the person knows or believes to be a scheduled drug and that is in fact a scheduled drug, . . . . . . . . 2. Violation of this section is: A. A Class B crime if the drug is a schedule W drug, if it is marijuana in a quantity of 20 pounds or more or if it is marijuana and the person grows or cultivates 500 or more plants; B. A Class C crime if the drug is a schedule X drug, if it is marijuana in a quantity of one pound or if it is marijuana and the person grows or cultivates 100 or more plants; C. A Class D crime if the drug is a schedule Y drug or a schedule Z drug. 17-A M.R.S.A. § 1103 (1983 & Supp. 1998). This statute was amended in 1999, to delete the language regarding cultivation of marijuana. See P.L. 1999, ch. 374, §§ 1 & 2. The crime of cultivating marijuana plants is now found at 17-A M.R.S.A. § 1117 (Supp. 1999). Marijuana is defined as a schedule Z drug. See 17-A M.R.S.A. § 1102(4)(B) (1983). The definition of "traffick," in effect on April 30, 1998, included "to grow or cultivate." 17-A M.R.S.A. § 1101(17) (Supp. 1998), amended by P.L. 1999, ch. 374, § 1. {3} . The third instruction stated: The issue of the number of plants cannot come up unless you conclude beyond a reasonable doubt that the defendant has -- that the State has proved to you beyond a reasonable doubt all of the elements of trafficking as I've defined it. And if the State has proved all the elements of trafficking, then the issue of the number of plants may be considered by the jury. The jury is entitled to consider whether the State has proved to you beyond a reasonable doubt that the number of plants is 500 or more. Doesn't have to be an exact number, but it would have to be 500 or more. Or if the State has proved to you beyond a reasonable doubt all of the elements of trafficking, the jury could determine whether or not there are 100 or more plants or less than 100. So if you go to the jury room, obviously if the State has failed to prove any element of the offense of trafficking, the number is irrelevant because he has to be acquitted. But if you find beyond a reasonable doubt that the State has proved trafficking, . . . then you may determine whether or not the State proved beyond a reasonable doubt that there are 500 or more plants, 100 or more plants, or less than 100 plants. So when you go back to the jury room, if you come upstairs and the clerk inquires, how do you find the defendant, guilty, he is charged in the indictment with 500 or more plants. If you determine guilty, I will then inquire, do you find 500 or more plants? And you answer yes or no. 100 or more plants? And you answer yes or no. Or less than 100. Okay? {4} . The jury retired to begin deliberations at 12:13 p.m. At 1:05 the court reconvened to discuss the first note from the jury, and at 1:11 p.m. the jury was brought back into the courtroom for the replaying of the audio tape. The jury left the courtroom at 1:21 p.m. At 2:15 the court received the second note from the jury and brought them into the courtroom at 2:16. The jury was reinstructed and left again at 2:23. At 2:51 the court reconvened to receive the third note, and the jury came back into the courtroom at 3:03, when it was instructed on the lesser included offenses. The jury retired to the jury room at 3:08 p.m. and the court reconvened at 3:25 p.m. to take the verdict. {5} . LaPierre was sentenced to four years incarceration, suspending all but two years, on count I. He was also sentenced to four years of probation and ordered to pay a fine of $16,000, plus surcharges and assessments. He was sentenced to two years incarceration on count II, to be served concurrently with count I. {6} . The court's instruction had told the jurors that they "may determine" whether the State had proven the alternative numbers. {7} . By the time of the final instruction, the jury had heard trafficking defined to include possession with intent to accomplish any acts listed in the statutory definition on at least three occasions. {8} . In McKinney, we state that we: "encourage the trial court not to track the language of a statute in its instructions without careful consideration of the applicability of the language to the issues generated in the case that are being submitted to the jury."

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