State v. Brown

• Decision Date: 22 March 1973
• Citation: 302 A.2d 322
• Parties: STATE of Maine v. Frederick W. BROWN.
• Court: Maine Supreme Court

Page 322

302 A.2d 322

STATE of Maine v. Frederick W. BROWN.

Supreme Judicial Court of Maine.

March 22, 1973.

Joseph E. Brennan, County Atty., Portland, William P. Dubord, Law Student, for plaintiff.

Caroline Glassman, Portland, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE and WERNICK, JJ.

WEATHERBEE, Justice.

The Defendant was adjudged guilty of the offense of assault and battery of a high and aggravated nature (17 M.R.S.A. § 201) after conviction by a jury in Cumberland County. His appeal presents several issues, only one of which requires our examination since it proves dispositive.

There was very little dispute as to the facts of the incident. The jury could have found from the evidence most favorable to the State that the strange drama developed in this manner:

About 11:30-11:45 P.M. on April 10, 1969 a Mr. Wolstenhulme accompanied by a companion, a Mr. Nye, was driving from Portland toward Mr. Wolstenhulme's home on route 302 in South Windham. He had attended to some business in Portland and then had visited a tavern where he had had 'a couple of glasses of beer.' Mr. Wolstenhulme's attention was drawn to a station wagon which followed close to the Wolstenhulme rear bumper for a considerable distance. He pulled his car over to the right and as the station wagon passed him, he thought he recognized the driver as Mr. Frederick W. Brown, Sr., the father of the Defendant. ¹

Mr. Wolstenhulme followed this station wagon past his own home, continuing to follow it as it turned off on the Pope road, and then, 100 to 150 yards farther on, into the Brown driveway. He drove his car up behind and within a foot or two of the rear bumper of the station wagon. Both he and Mr. Nye got out immediately. The night was dark but there was an outside light on or near the Brown residence.

Mr. Wolstenhulme testified that his purpose was just to 'stop and see' Mr. Brown, Sr. He walked up to within 6 to 10 feet of the driver of the station wagon who was just getting out of his vehicle and said 'Do you always drive like that?' ²

The driver of the station wagon was the Defendant, the 28 year old son of the elder Brown, and he was giving his 17 year old brother a ride home from Portland. The Defendant and Mr. Wolstenhulme recognized each other then although they were not well acquainted. As Mr. Wolstenhulme approached, the Defendant backed away and told Mr. Wolstenhulme that he had a gun and would shoot him if he didn't leave. The Defendant was armed with a .22 calibre semi-automatic pistol loaded with 10 cartridges. Mr. Wolstenhulme saw the gun but said 'Go ahead and shoot me', raising his hands and continuing to advance as Defendant retreated before him. The Defendant fired a warning shot directly into the ground. Mr. Wolstenhulme advanced still further toward the Defendant and the Defendant, while continually backing up, then fired four more shots, two of which struck Mr. Wolstenhulme in one thigh and another hit him in the other thigh. Mr. Nye also had moved toward the Defendant from the passenger side of the Wolstenhulme car and the Defendant then told Nye to get back in the car or he would shoot Nye, too. ³

Mr. Wolstenhulme said at the time he was shot he had advanced toward the retreating Defendant from the driver's door of his own car, to the front of his own car, to the station wagon and then the length of the station wagon to its left front fender. The Defendant had retreated from the driver's door of the station wagon to its front and then around the front to the right front fender.

At this point Mrs. Brown, the Defendant's mother, opened a second story window and shouted to Mr. Wolstenhulme and Mr. Nye to leave the Brown property. Mr. Wolstenhulme said 'Let's go, Bob' and they got in Mr. Wolstenhulme's car and drove away. When the last shot was fired Mr. Wolstenhulme had felt warmth on his leg but did not realize until he got into the car that he had been shot. The warmth came from blood from six wounds-three of entrance and three of exit.

Mr. Wolstenhulme was 36 years old, 5 8 tall and weighed 194 pounds. The Defendant was 28 years old, 5 8 tall and weighed 225 pounds.

The Justice's Instructions

Defendant's trial counsel noted no objections to the instructions which the Presiding Justice gave to the jury and made no request for further instructions. The Defendant's Statement of Points on Appeal included:

'The Presiding Justice erred in his charge to the jury with regard to the Defendant's right to repel an attacking trespasser.'

As the Defendant failed to meet this condition precedent to his right to assign complaints concerning the Justice's charge as error on appeal, ⁴ our examination of the record will be confined to a determination of whether the Justice's instruction contained seriously prejudicial errors tending to produce manifest injustice. State v. McKeough, Me., 300 A.2d 755 (Opinion, February 28, 1973); State v. Collins, Me., 297 A.2d 620, 631 (1972).

Whether particular language used by a Justice in instructing a jury can be considered to be seriously prejudicial error tending to produce manifest injustice may depend upon its effect when viewed with the charge as a whole and upon the particular state of the evidence presented concerning the issue involved. State v. McKeough, supra.

The Justice's charge-with the exception of the passage we are about to discuss-was a correct and scholarly explanation of the elements of the crime of assault of a high and aggravated nature, of the theory of self defense and of the limitations on the right to eject trespassers.

The Justice concluded his instruction by advising the jury to take 'these generalities and relate them to the facts at hand'. He then said:

'Let us assume, for example, and I don't wish to have you draw any inferences from the facts that I am making some assumptions. I am just giving them to you to help you in your thinking as to applicability of the law to the situation at hand. Let us assume that this State's witness entered these premises, asked a question with nothing in his hands, with his hands in the air, even though the question was insulting in nature, or even though the entry was that of a trespasser, was peaceably made. Assume those things, under such circumstances one would not have the right to use firearms to eject such a person from the premises. Let us assume again that such a person entered upon the premises and did have some unidentified object in his hands. And let us assume...