State v. Earley

• Decision Date: 04 January 1983
• Citation: 454 A.2d 341
• Court: Maine Supreme Court
• Parties: STATE of Maine v. Joseph E. EARLEY.

Page 341

454 A.2d 341

STATE of Maine v. Joseph E. EARLEY.

Supreme Judicial Court of Maine.

Argued Sept. 22, 1982.

Decided Jan. 4, 1983.

Henry N. Berry, III, Dist. Atty., Peter G. Ballou, Deputy Dist. Atty., Portland, Michael

Reynolds (orally), Law Student Intern, for plaintiff.

Zuckerman & Avaunt, Robert Avaunt (orally), Gray, for defendant.

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

ROBERTS, Justice.

Joseph E. Earley appeals from convictions on three counts ¹ of attempted murder, 17-A M.R.S.A. §§ 152(1), 201 (1982), two counts of reckless conduct, 17-A M.R.S.A. § 211 (1982), and one count of aggravated assault, 17-A M.R.S.A. § 208(1)(B)-(C) (1980), ² following a jury trial in the Superior Court, Cumberland County. Because we conclude that inadequacies in the jury instructions constitute obvious error affecting the substantial rights of the defendant, we vacate the convictions.

I.

On the morning of July 2, 1981, Earley's wife of seven years obtained a divorce from defendant. Following a day of beer consumption, Earley returned, with a gun, to the marital home in Portland. When the defendant's former wife arrived home, the couple had some sort of exchange during which the defendant displayed the gun to Mrs. Earley. A short while later, Mrs. Earley ran from the house. The defendant followed his former wife and chased her down the street. After a scuffle with Mrs. Earley on the street, the defendant ran back to the house.

Shortly thereafter a police cruiser with two officers arrived at the house and Earley began firing the gun from a second floor window. Eventually, the house was surrounded by police, and bystanders watched from various nearby points. During the next one to two hours the defendant fired approximately twenty rounds of ammunition out the second floor windows. The incident ended when Earley surrendered to police.

The first count of the indictment charged that Earley attempted to strangle his former wife. The second and third counts charged Earley with the attempted murder of the two police officers who first responded to the scene. The fourth count charged Earley with the attempted murder of a police officer who was struck in the jaw by a bullet. The two reckless conduct charges also involved police officers at the scene. Finally, Earley was charged with the aggravated assault of a bystander who received powder burns on the chest.

At arraignment Earley pleaded not guilty, and not guilty by reason of insanity, to each count of the indictment. Prior to jury selection the defendant, through counsel, moved to withdraw his plea of not guilty by reason of insanity. Following a brief inquiry addressed to defense counsel, the trial justice granted the motion to withdraw the plea. ³ Earley retained his plea of not guilty.

At the close of trial, the trial justice charged the jury. In his original instructions the trial justice mentioned "use of a firearm" only with respect to the two counts of reckless conduct. At sidebar the prosecution requested that the instructions be amended to include "with a firearm" for "all seven" counts. Defense counsel did not object. The trial justice so instructed the jury. At sidebar again, the prosecution corrected his amendment to exclude count one--charging attempted strangulation--from the firearm instructions. The trial justice again clarified the jury instructions. Again defense counsel voiced no objection. The jury retired to deliberate supplied with a verdict form that included the words "with use of a firearm" only in the two counts of reckless conduct. Counsel failed to object to the verdict form.

II.

On appeal Earley claims that the jury was confused by an inaccurate verdict form, first noticed by the prosecutor at the conclusion of the court's jury charge, and by the court's attempts to cure the error. Earley also contends that he was prejudiced by the court's instructions on "use of a firearm," 17-A M.R.S.A. § 1252(4) (1982). Because defense counsel expressly voiced no objection to the charge, we review on the obvious error standard of M.R.Crim.P. 52(b). See also M.R.Crim.P. 30(b). By that standard we conclude that we must review the entire jury charge since the specific defects alleged by Earley are inextricably intertwined with other inadequacies pervading the court's instructions.

The multiplicity of charges and the interrelated concepts of culpability contained therein, required the trial court in this case to exercise extra care lest the defendant be deprived of his constitutional right to a fair trial. Each element of the various crimes warrant separate explanation to the jury. We have previously recognized that a failure to properly instruct the jury on each of the essential elements of the offense charged affects the defendant's substantial rights under M.R.Crim.P. 52(b). State v. Pratt, 309 A.2d 864 (Me.1973); see State v. Daley, 440 A.2d 1053 (Me.1982); see also State v. Sommer, 409 A.2d 666, 672 (Me.1979) (Glassman, J., dissenting).

The first four counts of the indictment charged Earley with attempted murder. ⁴ The instructions on all four counts comprised less than two full pages of transcript and initially contained no reference to the use of a firearm, as alleged in counts two, three, and four. The court referred to the "culpability required for the commission of the crime" without explaining the term "culpability." "Intent" was not defined in relation to "attempt" and the jury was not told that a "substantial step" must be "strongly corroborative of the firmness" of that intent. Furthermore, in defining murder the court incorrectly explained both intentional conduct and knowing conduct under the criminal code.

Counts five and six of the indictment charged Earley with reckless conduct. ⁵ The jury was not correctly instructed as to the meaning of "recklessly" under the code and "serious bodily injury" was incorrectly defined. On the seventh and final count, charging Earley with aggravated assault, ⁶ the court gave instructions under 17-A M.R.S.A. § 208(1)(B) and (C). ⁷ No proper instruction was given as to the element in aggravated assault of intentional, knowing, or reckless conduct. Instead, the court simply asked the jury to "remember" the previous incorrect definitions of intentionally, knowingly, and recklessly. The court did not define "dangerous weapon" and failed to explain the phrase "circumstances manifesting extreme indifference to the value of human life" as provided in section 208(1)(C).

Finally, there were two conferences at side-bar concerning the instructions and the inaccurate verdict form. The prosecutor first suggested that the indictment alleged "with use of a firearm" in "every one of the counts[--] all seven." After the jury was instructed according to that suggestion, the prosecutor remembered that count one involved attempted strangulation. The court then corrected the correction as to count one. The verdict form, however, was submitted in its original erroneous form. The confusion of counsel as to the proper statement of the charges must have added to the...