State v. Bahre

• Decision Date: 23 February 1983
• Citation: 456 A.2d 860
• Parties: STATE of Maine v. David BAHRE and Frederick H. Lax, III.
• Court: Maine Supreme Court

Page 860

456 A.2d 860

STATE of Maine v. David BAHRE and Frederick H. Lax, III.

Supreme Judicial Court of Maine.

Argued Sept. 21, 1982.

Decided Feb. 23, 1983.

Gene Libby, Dist. Atty., Michael E. Saucier (orally), Asst. Dist. Atty., Alfred, for plaintiff.

Cloutier, Woodman & Cloutier, James F. Cloutier (orally), Portland, for Bahre.

Stanley Greenberg (orally), Portland, for Lax.

Before GODFREY, NICHOLS, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ., and DUFRESNE, A.R.J.

DUFRESNE, Active Retired Justice.

The defendants appeal from their convictions, following a jury trial in Superior Court, York County, of aggravated assault pursuant to 17-A M.R.S.A. § 208. Each advances several points of error allegedly requiring reversal. Defendant Lax complains that the Superior Court committed prejudicial error by 1) permitting the State in rebuttal to argue a concurrent causation theory to the jury without giving any guidance whatsoever thereon for the jury to use in its deliberations, although requested by the State to do so; 2) inadequately instructing the jury on the lesser included offense of simple assault; 3) erroneously instructing the jury on the use of the character evidence submitted by Lax; 4) denying his discovery motion to obtain summaries of the District Attorney's notes of interviews with witnesses; and 5) failing to afford to his counsel an opportunity to object to the Court's charge out of the presence of the jury. Defendant Bahre alleges as prejudicial error that 1) the Superior Court denied his request for jury instructions regarding accomplice liability, while permitting the State to argue a concurrent causation theory to the jury; 2) the Court refused to permit Bahre's counsel to conduct voir dire prior to its determination of the admissibility of Defendant Lax's prior convictions; and 3) the Court rejected his request for jury instructions on the issue of motive. Defendant Bahre also argues that the evidence was insufficient to justify his conviction of aggravated assault. We sustain both appeals.

Factual Background

On the evening of May 24, 1981, Defendants Lax and Bahre were "bar-hopping" with one Gary Gay at Old Orchard Beach. Around 1:00 a.m. on May 25, 1981, the three were purportedly walking on West Grand Avenue going in the direction of Lax's parked car, with Gay and Bahre side-by-side and Lax several steps in front of them.

On the same evening, one William Rosenstock had also been drinking at several bars in Old Orchard Beach. Probably because he had had too much to drink, Rosenstock remembered, so he testified, that he tripped on a curb and fell as he attempted to mount the sidewalk on the corner of the Round-Up, telling an inquiring passerby: "I'm okay."

The two defendants and their companion Gay maintained at trial that for no apparent reason Rosenstock jumped Lax. As they remember it, a struggle ensued. Both Lax and Rosenstock tumbled to the ground, exchanging blows until the police arrived. Bahre asserts that, as he attempted to "break up the fight", someone grabbed his leg and he struggled free and left the immediate area. According to the defendants and their friend Gay, Rosenstock was conscious and striking blows to Lax's body at all times.

Rosenstock, however, testified that he does not recall what happened from the time he tripped on the curb until his arrival at Webber Hospital some time later.

One Richard Smith, owner of Smith's Arcade and a stranger to all participants prior to the incident in question, testified as a prosecution witness that he observed the fight soon after it began. Smith said that Lax grabbed Rosenstock by his lapels, slammed him against a wall, and then threw him to the cement sidewalk, Lax remaining astride the inert Rosenstock when the defendant Bahre kicked Mr. Rosenstock in the head. One Jamie Keer, an acquaintance, so Smith stated, broke up the fight by pulling Lax off Rosenstock and restraining him until the police arrived. In describing the incident, Smith was positive that Rosenstock never offered any resistance and that his arms were at his sides or outstretched at all times.

One Sargeant Chelatte of the Old Orchard Beach police department testified that, as he approached the scene, he saw Lax strike Rosenstock repeatedly with a closed fist while on top of him on the sidewalk. He also said that Rosenstock offered no resistance and appeared unconscious. On checking Rosenstock, the officer observed that he was bleeding quite profusely from the mouth and the side of his face. Shortly thereafter, Officer Charles Granger, the emergency medical technician attached to the department, examined Rosenstock as he lay on his back on the sidewalk and noticed that he was having difficulty breathing. He hyperextended Rosenstock's neck and tilted his head to the side so that some of the blood would drain off and ease the person's breathing.

Shortly after the police were at the site of the fray, emergency medical personnel arrived and ministered to Rosenstock. There was testimony that Rosenstock was indeed unconscious at this point, was bleeding profusely from the face and mouth, was unable to clear his own airway due to his unconscious state, and as a result was choking on his own blood. First aid was undertaken to clear Rosenstock's airway, and, had this not been done, Rosenstock probably would have suffocated, so it was stated.

As a result of his encounter with the defendants, Rosenstock sustained a one inch cut on his lip, requiring five stitches to close and subsequent remedial surgery; a two and one half inch cut behind his ear, requiring eight stitches to close; and injury to his teeth, requiring ongoing care of an orthodontist and restricting his eating habits.

Points of appeal. Defendant Lax

Concurrent causation

Lax complains that the Superior Court Justice wrongly permitted the prosecutor to argue a "concurrent causation" theory to the jury in his closing argument. ¹ Lax charges that the prosecutor misstated the law on concurrent causation, ² and that this misstatement, combined with the trial justice's refusal to instruct the jury on concurrent causation, as requested by the State, resulted in an erroneous understanding of the law of concurrent causation on the part of the jury. Lax claims that this resulted in prejudicial error, because the jury may have convicted him solely on a "concurrent causation" theory because of their misunderstanding of the law. We agree.

Lax's attorney did object to the misstatement at the time of the prosecutor's argument on concurrent causation. This ordinarily would preserve the alleged error for review. However, Lax neither dissented from the trial justice's refusal to give the State's requested instruction on concurrent causation, nor does he argue to this Court that the trial justice should have done so. ³ Cf. State v. Bazinet, 372 A.2d 1036, 1040 (Me.1977) and State v. Hazelton, 330 A.2d 919, 922 (Me.1975). Notwithstanding counsel's position in the matter, in order to maintain the basic integrity of judicial proceedings, we will notice error, if error there be, that works substantial injustice, whether or not it is brought to the attention of the trial or appellate court. M.R.Crim.P. 52(b); ⁴ State v. Rancourt, 435 A.2d 1095, 1102 (Me.1981); State v. Furrow, 424 A.2d 694, 696 (Me.1981). The rule may be called into play, even in the face of affirmative opposition on the part of counsel for the aggrieved accused, in order to avoid depriving the defendant of his constitutional right to a fundamentally fair trial and thus prevent a miscarriage of justice. Cf. State v. Nason, 383 A.2d 35, 36 (Me.1978).

Where the question of a fair and impartial trial is in the balance, be it by reason of improper argument of counsel so highly prejudicial as to inevitably result in injustice or because the instructions are lacking in jury guidance on points so vital to the proper resolution of the issues involved as to otherwise cause verdicts based upon a misconception of the law or on arbitrary guesswork, this Court, as in the case of erroneous instructions where no objection is taken, will and should go beyond the legal technicalities that may be required under other circumstances, so that the accused may be assured of that impartial trial which the Constitution guarantees to him. See State v. Smith, 140 Me. 255, 285, 37 A.2d 246, 259 (1944); State v. Dipietrantonio, 152 Me. 41, 48, 122 A.2d 414, 418 (1956). A verdict based on a misconception of the law is against the law, and to allow it to stand is not justice. State v. Wright, 128 Me. 404, 407, 148 A. 141 (1929).

The prosecutor's closing argument was a patently incomplete statement of the law on concurrent causation. It completely ignored the possibility that the jury might find that Defendant Bahre did kick the victim Rosenstock in the head, and that the kick was clearly sufficient to cause the injuries which constitute aggravated assault, while the blows struck by Lax were clearly insufficient. See 17-A M.R.S.A. § 33. There was testimony that Lax struck Rosenstock only in the face, and that Bahre kicked the victim in the head with great force. Since the jury never received correct instructions on the relevant law from the presiding justice, they may well have found Defendant Lax guilty on just such reasoning as the prosecutor's argument suggested. That is obvious error, as envisioned by Rule 52(b), compelling reversal. The standard for determining manifest or obvious error is whether there exists a "reasonable possibility" that a complete and adequate instruction would have resulted in a different verdict. State v. McDonough, 350 A.2d 556, 564 (Me.1976); State v. McKeough, 300 A.2d 755, 761 (Me.1973). We are satisfied that such is the case here.

In United States v. Bagby, 451 F.2d 920 (9th Cir.1971), as in the instant case, the defendant at trial had predicated his objection to a particular instruction on a different ground than that raised on appeal and had...