State v. Ouellette

• Decision Date: 31 January 2012
• Docket Number: Docket No. Aro–11–191.
• Citation: 2012 ME 11,37 A.3d 921
• Parties: STATE of Maine v. Kenny L. OUELLETTE.
• Court: Maine Supreme Court

2012 ME 11

37 A.3d 921

STATE of Maine

v.Kenny L. OUELLETTE.

Docket No. Aro–11–191.

Supreme Judicial Court of Maine.

Argued: Nov. 9, 2011.Decided: Jan. 31, 2012.

Theodore M. Smith, Esq. (orally), Smith Law Office, LLC, Van Buren, for appellant Kenny L. Ouellette.

John M. Pluto, Asst. Dist. Atty., Prosecutorial District No. 8, Caribou, for appellee State of Maine.

Todd Collins, District Attorney (orally), for appellee State of Maine.

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

GORMAN, J.

[¶ 1] Kenny L. Ouellette appeals from a judgment of conviction for reckless conduct (Class D), 17–A M.R.S. § 211(1) (2011), entered in the Superior Court (Aroostook County, Hunter, J.) on a jury verdict. Ouellette argues that the court erred in declining to instruct the jury on his justification of self-defense to that charge, and in failing to inform the jury of the parties' out-of-court resolution that resulted in a dismissal of a count of criminal mischief (Class D), 17–A M.R.S. § 806(1)(A) (2011), stemming from the same incident. We vacate the judgment.

I. BACKGROUND

[¶ 2] In 2010 Ouellette was charged with assault (Class D), 17–A M.R.S. § 207(1)(A) (2011); reckless conduct (Class D), 17–A M.R.S. § 211(1); and criminal mischief (Class D), 17–A M.R.S. § 806(1)(A), stemming from an altercation with victim Mike Nadeau. Ouellette pleaded not guilty to all counts. Prior to trial, the court dismissed the criminal mischief charge pursuant to 15 M.R.S. § 891(1) (2011) because Ouellette and Nadeau had reached an accord and satisfaction.

[¶ 3] During his jury trial, Ouellette asserted that he acted only in self-defense, and requested a jury instruction to that effect for both the assault and reckless conduct charges. Viewing the evidence of the crimes in the light most favorable to the State, see State v. Severy, 2010 ME 126, ¶ 3, 8 A.3d 715, and the evidence supporting the claim of self-defense in the light most favorable to Ouellette, see State v. Barretto, 2008 ME 121, ¶ 4, 953 A.2d 1138, the following facts were established at trial.

[¶ 4] On the evening of April 4, 2010, in Caribou, victim Mike Nadeau learned that Ouellette was “riding around” with a fifteen-year-old girl. Nadeau, who was driving around town with a male friend at the time, was upset that Ouellette was with the girl. Both Nadeau and his passenger sent text messages to the girl to express their anger, and Nadeau eventually called the girl's cell phone and had a conversation with Ouellette during which Nadeau told Ouellette that he was “going to come find” him and “kick [his] ass.” After this conversation, Ouellette brought the girl to her home and started driving with plans to leave Caribou; within a few minutes, Nadeau's vehicle crossed Ouellette's path. Nadeau followed Ouellette “right on [his] bumper,” and Nadeau and his passenger made obscene gestures toward him. When both vehicles stopped for a red light, Nadeau and his passenger jumped out of their vehicle and approached Ouellette's vehicle. Ouellette testified: “I felt scared and threatened because they were two guys against one coming to jump me. They had already made threats to me over the phone.” Neither Nadeau nor his passenger carried any weapons, but Ouellette left his vehicle with a baseball bat. Ouellette chased Nadeau with the bat and hit Nadeau on his wrist, swung the bat a few times without making contact with anything, used the bat to bash the taillight on Nadeau's truck, and then returned to his vehicle and drove away. After Ouellette got back in his truck, Nadeau chased Ouellette in his vehicle. A short while later, Ouellette reported the incident to a police officer and stated that he had acted in self-defense.

[¶ 5] Although the court granted Ouellette's request for a self-defense instruction as to the assault charge, it reasoned that the justification of self-defense was not applicable to a charge of reckless conduct. Ouellette also requested an instruction informing the jury about the out-of-court accord and satisfaction; the court denied this request as well, based on its determination that the accord and satisfaction was not relevant.

[¶ 6] The jury found Ouellette guilty of reckless conduct, but not guilty of assault. The court entered a judgment on the verdict and sentenced Ouellette to thirty days in jail, all suspended; one year of administrative release; and a $500 fine. Ouellette appeals.

II. DISCUSSION

[¶ 7] Ouellette contends that the court erred in declining to instruct the jurors that they could consider the justification of self-defense for the reckless conduct count, and in declining to instruct the jurors about the dismissal of the criminal mischief charge. We review the denial of a requested jury instruction for prejudicial error, and will vacate a judgment on this basis only when the denied instruction “(1) stated the law correctly; (2) was generated by the evidence in the case; (3) was not misleading or confusing; and (4) was not sufficiently covered in the instructions the court gave.” Barretto, 2008 ME 121, ¶ 9, 953 A.2d 1138 (quotation marks omitted).

A. Self–Defense

[¶ 8] We have recently enumerated the three broad categories of criminal defenses—a failure of the State's proof, an affirmative defense, and a justification or excuse—that differ primarily based on the allocation of the parties' respective burdens. State v. LaVallee–Davidson, 2011 ME 96, ¶¶ 12–14, 26 A.3d 828. In asserting a failure of the State's proof, the defendant argues that the State has not established one or more elements of the crime beyond a reasonable doubt, but the defendant himself has no burden. Id. ¶ 12; see 17–A M.R.S. § 101(1) (2011). An affirmative defense, in contrast, places the burden of persuasion on the defendant to establish certain facts by a preponderance of the evidence. LaVallee–Davidson, 2011 ME 96, ¶ 14, 26 A.3d 828; see 17–A M.R.S. § 101(2) (2011). Finally, a justification places on the defendant a burden of production to generate an issue with sufficient evidence, and then imposes on the State the burden of persuasion to disprove the defense. LaVallee–Davidson, 2011 ME 96, ¶ 13, 26 A.3d 828; see 17–A M.R.S. § 101(3) (2011); State v. Millett, 273 A.2d 504, 508 (Me.1971).

[¶ 9] Self-defense is one type of the third category of criminal defenses, justifications; it details the circumstances in which a person may use force to defend himself or a third person against an aggressor. ¹ 17–A M.R.S. § 108 (2011). Like other justifications, self-defense “represents a legal acknowledgement that the harm caused by otherwise criminal conduct is, under special justifying circumstances, outweighed by the need to avoid an even greater harm or to further a greater societal interest.” State v. Singleton, 292 Conn. 734, 974 A.2d 679, 689 (2009) (quotation marks omitted). “[T]he law relating to self-defense is designed to afford protection to one beset by an aggressor and confronted by necessity not of his own making.” ² State v. Case, 672 A.2d 586, 589 (Me.1996); Millett, 273 A.2d at 509. Self-defense, like other justifications, is a complete defense, meaning that it negates the commission of the crime; an act committed in self-defense is “simply no crime at all.” Singleton, 974 A.2d at 690; see 17–A M.R.S. § 101(3); State v. Kane, 432 A.2d 442, 445 (Me.1981) (“[A] defendant who kills in self-defense is not guilty.”).

[¶ 10] Section 108 provides for two possible self-defense justifications depending on whether the defendant uses deadly or nondeadly force. Deadly force is “physical force that a person uses with the intent of causing, or that a person knows to create a substantial risk of causing, death or serious bodily injury.” 17–A M.R.S. § 2(8) (2011). A defendant's use of deadly force is justified only when: (1) the defendant has an actual belief that a person is about to use unlawful deadly force against him or another person; a person is committing or about to commit a kidnapping, robbery, or gross sexual assault; or a person has entered or is attempting to enter or remain in a dwelling place without permission and use of deadly force is necessary to prevent bodily injury to himself or another in the dwelling; (2) the defendant believes the use of such force is necessary; (3) those beliefs are objectively reasonable; (4) the defendant did not provoke the attack or does not know that the third person he is protecting provoked the attack; and (5) the defendant knows that he or the third person cannot, “with complete safety,” “[r]etreat from the encounter” (with exceptions), “[s]urrender property to a person asserting a colorable claim of right” to it, or “[c]omply with a demand” from the attacker to “abstain from performing an act that the [defendant] is not obliged to perform” 17–A M.R.S. § 108(2).

[¶ 11] Nondeadly force is “any physical force which is not deadly force.” 17–A M.R.S. § 2(18) (2011). A defendant's use of nondeadly force is justified when: (1) the defendant has an actual belief that imminent and unlawful nondeadly force is about to be used against him or a third person; (2) that belief is objectively reasonable; (3) the defendant has an actual belief that force is necessary to defend himself or the third person; (4) that belief is also objectively reasonable; (5) the defendant uses only a “reasonable degree of nondeadly force” to repel the attack; (6) the defendant did not provoke the other person's use of force; (7) the defendant was not the “initial aggressor” or, if he was, he “withdraws from the encounter and effectively communicates to such other person the intent to do so”; (8) the force is not “the product of a combat by agreement not authorized by law”; and (9) the defendant does not know and reasonably should not know that the person using force against him is a law enforcement officer effectuating an arrest or detention, unless he reasonably believes the officer is using unjustified nondeadly force. 17–A...