State v. Fortune

Decision Date13 December 2011
Docket NumberDocket No. Som–10–389.
PartiesSTATE of Maine v. Daniel L. FORTUNE.
CourtMaine Supreme Court

OPINION TEXT STARTS HERE

Arnold S. Clark, Esq. (orally), Ferris, Gurney & Crook, Waterville, for appellant Daniel Fortune.

Evert Fowle, District Attorney, and Alan P. Kelley, Dep. Dist. Atty. (orally), Prosecutorial District IV, Augusta, for appellee State of Maine.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

ALEXANDER, J.

[¶ 1] Daniel L. Fortune appeals from a judgment of conviction of aggravated attempted murder (Class A), 17–A M.R.S. § 152–A(1)(A) (2010) (premeditation-in-fact) (two counts); aggravated attempted murder (Class A), 17–A M.R.S. § 152–A(1)(D) (2010) (extreme cruelty) (two counts); attempted murder (Class A), 17–A M.R.S. §§ 152(1)(A), 201 (2010); elevated aggravated assault (Class A), 17–A M.R.S. § 208–B(1)(A) (2010) (two counts); robbery (Class A), 17–A M.R.S. § 651(1)(D) (2010); burglary (Class B), 17–A M.R.S. § 401(1)(B)(4) (2010); conspiracy to commit robbery (Class B), 17–A M.R.S. § 151(1)(B), 651(1)(D) (2010); and violation of condition of release (Class C), 15 M.R.S. § 1092(1)(B) (2010), entered in the Superior Court (Somerset County, Murphy, J.) following a jury trial. Fortune had pleaded guilty to three other counts of the indictment prior to trial: theft (Class B), 17–A M.R.S. § 353(1)(B)(1) (2010); failure to appear (Class C), 15 M.R.S. § 1091(1)(B) (2010); and violation of condition of release (Class E), 15 M.R.S. § 1092(1)(A) (2010).

[¶ 2] Fortune argues on appeal that (1) the evidence was insufficient to support a finding of “premeditation-in-fact” as an element for conviction of the two counts of aggravated attempted murder, 17–A M.R.S. § 152–A(1)(A); (2) the evidence was insufficient to support a finding of “extreme cruelty” as an element for conviction of the two counts of aggravated attempted murder, 17–A M.R.S. § 152–A(1)(D); (3) the evidence was insufficient to support the separate conviction of one count of attempted murder as to three individuals who were not harmed; (4) the court erred when it instructed the jury that it could find Fortune guilty of attempted murder if the jury found that the State had proved attempted murder as to only one of the three victims named in the single count of the indictment; (5) his sentence of life imprisonment is not proportional to the offense of aggravated attempted murder in violation of article I, section 9 of the Maine Constitution; (6) the sentencing court erred in imposing concurrent sentences of imprisonment for life on two counts of aggravated attempted murder; and (7) the sentencing court erred in failing to clearly articulate on the record the three-step sentencing analysis, 17–A M.R.S. § 1252–C (2010), in determining the sentences imposed on each of the remaining nine felony counts of which he was found, or to which he had pleaded, guilty. We affirm the convictions and the resulting sentences.

I. CASE HISTORY

[¶ 3] Viewing the evidence in the light most favorable to the State, the jury rationally could have found the following facts beyond a reasonable doubt. See State v. Townsend, 2009 ME 106, ¶ 2, 982 A.2d 345.

[¶ 4] The victims in this case were five members of one family—a father, a mother, their ten-year-old daughter, their teenage daughter, and a teenage son. 1 The teenage son, a high school senior at the time of these events, had been friends with Daniel Fortune. Fortune knew all of the victims and had spent a significant amount of time as a guest in the victims' home before he graduated from high school the year before.

[¶ 5] Fortune, twenty years old at the time of these events, lived with his foster brother, Leo Hylton. Hylton owned a collection of unusual knives, including a machete. The teenage son knew Hylton from high school, but the other victims had little or no knowledge of Hylton.

[¶ 6] In November 2007, Fortune attended a party at the victims' home during which he stole the father's safe containing more than $180,000 in cash and valuables. The father subsequently went to Fortune's home, Hylton allowed him to look around, and the father found the stolen safe in Fortune's closet. After the theft of the safe, the father had a whole-house security alarm system installed at his home, and he purchased a handgun with a laser sight that he kept in his bedroom closet.

[¶ 7] Fortune was charged with theft and was aware that the father would be a witness at his theft trial. Fortune was released on bail pending his theft trial. He failed to appear for trial, and a warrant was issued for his arrest.

[¶ 8] In the early morning hours of May 27, 2008, Fortune and Hylton stole Hylton's aunt's car and drove to the victims' home, bringing changes of clothing and gloves with them. The evidence indicates that Fortune carried with him a long-blade foldable knife, and Hylton carried a machete. Fortune and Hylton first tried to enter the lower level of the victims' home from the backyard through the glass-paned rear doors. The teenage son was sleeping in the lower level with a large-screen television on at the time Fortune and Hylton tried to enter, and it is possible that Fortune and Hylton observed him sleeping in the lower level room. Finding those doors locked, Fortune and Hylton went around the house and entered the home's kitchen through the garage.

[¶ 9] As soon as Hylton and Fortune opened the kitchen door, the home's security system activated, emitting a loud siren and verbally warning intruders that police were being called. The father, asleep in the first-floor master bedroom with the mother, woke up and, thinking the alarm had gone off accidentally, walked down the hall toward the dining area and kitchen. The father saw a man standing at the far end of the dining room table. The evidence indicates that this man was Hylton. While telling Hylton to leave, the father was suddenly struck extremely hard on the left side of his head and fell to the ground. The evidence supports a finding that the father was hit by the second intruder, Fortune.

[¶ 10] The father got up and, with a badly bleeding head wound, ran back and retrieved his gun from the master bedroom. He returned to the hall where he could see Hylton still standing and pointed the gun and laser sight at him, but Hylton did not flee. The father pulled the trigger on his gun, but it would not fire. Hylton then struck the father repeatedly with the machete.

[¶ 11] At this time, the ten-year-old daughter came out of her upstairs bedroom and looked over the railing to the first floor. Her father yelled at her to get back into her room. The girl saw a person come up the stairs toward her; that man, Hylton, “scaled the stairs as fast as [he] could” and struck at the younger daughter, who was “cowering against the wall,” at least four or five times as her father watched from below. Hylton later stated that the younger daughter was a witness and that he kept swinging at her even after she [went] down” because he had to make sure there were no witnesses. The father tried to get to her, but Fortune was fighting him, “hitting” and “hacking” him, and knocking him down as the father slipped in his own blood. The father lost consciousness.

[¶ 12] As this was happening, the mother could hear horrible screaming. She tried the phone, but it was dead. She shut and locked the master bedroom door, ran into the bathroom and locked the door, pushed out the window screen, dropped to the ground, and started running. After she left the house, the mother heard someone kick in the bathroom door, so she ran through the woods to a neighboring house where the police were called. The older daughter, who had been sleeping in a bedroom in the lower level of the house, hid under her bed, eventually got her cell phone, and also called the police. The teenage son, who had been sleeping on the sofa in the game room in the main part of the lower level, started to go upstairs, but when the basement door slammed shut, he instead ran out the lower level doors and hid in the backyard.

[¶ 13] After savagely assaulting the younger daughter, Hylton walked around to “make sure the house was clear.” He kicked the locked doors open in the master bedroom suite and pulled the shower curtain aside looking for witnesses. Fortune also checked out the house after the father was attacked. Fortune then led Hylton down to the lower level, where the two exited through the rear doors. Although the teenage daughter did not see anyone try to enter her room, Hylton told police that, before exiting the home, he “checked that room,” likely referring to the room where the teenage daughter was hiding.

[¶ 14] The first officer arrived at the scene at 2:11 a.m. and found the father lying in the first floor hallway. The ten-year-old daughter was found lying in her bed. The father and ten-year-old daughter each had received severe wounds. Officers initially believed the younger daughter to be dead. The father and his younger daughter suffer devastating and disfiguring life-long injuries.

[¶ 15] Hylton was arrested on May 29, 2008, and began cooperating with the police. A video of Hylton confessing to and recreating the crimes at the scene was admitted for substantive purposes at Fortune's trial by agreement of the parties. Hylton pleaded guilty to several charges, including attempted murder.

[¶ 16] Fortune was originally charged in Kennebec County in an eight-count indictment. A superseding indictment was filed containing fourteen counts. Subsequent to the superseding indictment, venue was changed to Somerset County. Two days before the jury trial began, Fortune pleaded guilty to the first three counts of the indictment arising from his earlier theft of the safe: theft, failure to appear for trial, and violation of a condition of release.

[¶ 17] Fortune's seven-day jury trial was held in May 2010 on the remaining counts of the superseding...

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