State v. Daley

• Decision Date: 09 February 1982
• Citation: 440 A.2d 1053
• Parties: STATE of Maine v. Martin J. DALEY.
• Court: Maine Supreme Court

Page 1053

440 A.2d 1053

STATE of Maine v. Martin J. DALEY.

Supreme Judicial Court of Maine.

Argued Jan. 19, 1982.

Decided Feb. 9, 1982.

Janet T. Mills, Dist. Atty., J. Scott Davis, Asst. Dist. Atty. (orally), South Paris, for plaintiff.

Peter J. Becker, Bridgton (orally), for defendant.

Before McKUSICK, C. J., and GODFREY, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ.

McKUSICK, Chief Justice.

Following a jury trial in Oxford County, defendant was convicted of the Class D crime of assault, 17-A M.R.S.A. § 207 (Supp.1981), and sentenced to 364 days in the Maine State Prison. His appeal challenges the Superior Court justice's instructions to the jury on self-defense. Finding obvious error in that charge, we vacate the judgment of conviction and remand for further proceedings.

The assault at issue was described at trial in markedly different ways by the complainant, Ronald Murray, and defendant. Murray testified that he encountered defendant, a man he knew only casually, at a mutual friend's house on the afternoon of December 7, 1980. Totally without provocation, defendant punched Murray in the face three times, then left. Later that day, defendant apologized to Murray, who thought the incident closed. Soon after apologizing, however, defendant surreptitiously approached Murray on the latter's front porch and punched and kicked him badly, breaking his nose and right wrist and causing other injuries. When defendant finally left, Murray went inside his house grabbed his rifle, and stationed himself on his front porch until a friend convinced him to surrender the gun.

Defendant denied that the first incident occurred at all, and explains the second as self-defense. Defendant says that while he was visiting a neighbor of Murray's, Murray entered and asked him to step outside. The two crossed the street to Murray's house, where Murray jumped onto the front porch, swung around brandishing a rifle, and kicked defendant. Defendant disarmed Murray with a kick to the wrist, then immobilized him with a kick to the face.

In the version of neither defendant nor Murray was any third person involved in the fray. The presiding justice's charge to the jury contained lengthy instructions on the justification of self-defense and the various exceptions to it recognized by the Criminal Code. Included in those instructions was an apparent explanation of 17-A M.R.S.A. § 108(2)(C)(2) (Supp.1981), which has no relevance to the facts of the case where no third person was involved. That particular statutory provision makes the self-defense justification unavailable to a defendant who uses deadly force against a victim in aid of a third person if the defendant knew that the third person "intentionally and unlawfully provoked" the victim into using deadly force. The presiding justice said that a defendant

may not claim self-defense under the circumstances if he knows that the person against whom the unlawful, deadly force is directed intentionally and unlawfully provoked the use of such force. So, if Mr. Daley knew that Mr. Murray intentionally and unlawfully provoked the use of force on his part, he may not then use that force in self-defense.

At first, defense counsel objected to this instruction, but after a brief colloquy with the bench declared, "No objection." Nevertheless, the instruction later became the basis of defendant's motion for a new trial, which the presiding justice denied. The State correctly urges that defendant has failed to preserve his objection to the jury charge and that therefore the instruction can only be reviewed under the obvious error standard of M.R.Crim.P. 52(b). See State v. Lewisohn, Me., 379 A.2d 1192, 1208 (1977).

The obvious error standard requires the reviewing court to make a...