State v. Powers

• Decision Date: 18 May 1978
• Citation: 386 A.2d 721
• Parties: STATE of Maine v. Benjamin C. POWERS and Lawrence W. Powers.
• Court: Maine Supreme Court

Page 721

386 A.2d 721

STATE of Maine v. Benjamin C. POWERS and Lawrence W. Powers.

Supreme Judicial Court of Maine.

May 18, 1978.

Michael E. Povich, Dist. Atty., Ellsworth, for plaintiff.

Peter Avery Anderson, Bangor, for defendants.

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

DUFRESNE, A. R. J. ¹

Tried jointly before a Hancock County jury, the Powers brothers, Lawrence and Benjamin respectively twenty-three (23) and twenty-six (26) years of age, were found guilty of the following criminal charges: Lawrence was convicted of the crime of assault and battery of a high and aggravated nature upon the person of Douglas E. Gray in violation of 17 M.R.S.A., § 201 ² and of attempting to break arrest from the custody of James E. Brown, a coastal warden, in violation of 17 M.R.S.A., § 1405 and 17 M.R.S.A., § 251; ³ Benjamin was convicted of two charges of simple assault and battery, one upon the person of John L. Cousins and one upon the person of Douglas E. Gray, in violation of 17 M.R.S.A., § 201; also of the crime of attempting to break arrest from the custody of Douglas E. Gray in violation of 17 M.R.S.A., §§ 1405 and 251; and lastly of the misdemeanor commonly referred to as driving to endanger in violation of 29 M.R.S.A., § 1314. ⁴

Both defendants appeal from the ensuing judgments of conviction, raising the following contentions:

1) the presiding Justice committed reversible error in his instructions to the jury in relation to the offense of attempting to break arrest;

2) the evidence was insufficient to support verdicts of guilty of attempting to break arrest and, thus, it was error to deny their motions for acquittal;

3) their motions for mistrial and severance of their trial from the trial of their codefendant, Galen L. Thompson, Jr., should have been granted, and it was error to refuse them separate trials;

4) new trials should be granted, because they were denied the effective assistance of trial counsel.

We deny the appeals.

Facts

In the evening of July 26, 1974 in the Town of Stonington, there was a dance at the gymnasium of the local high school, while the defendants and their friends were attending a party in another section of the community. The record reveals that hard liquor and beer flowed freely at the party. During the course of the evening Douglas Gray, Chief of Police for the town, together with his part-time constable, John Cousins, visited the gym to check out the dance. When they returned to the police cruiser, they noticed that the cruiser's windshield had been broken during their absence. Chief Gray then communicated by police radio with James E. Brown, a coastal warden for the Department of Marine Resources. As Gray and Cousins were leaving the area, they were flagged down by two individuals who informed them of the identity of the person who had broken the windshield. The named individual was a seventeen year old youth whom the officers found, on their return to the school parking lot, sitting on the hood of a vehicle. Chief Gray testified that the boy was intoxicated. Taken into custody by the police, the teenager was brought home and released, but, instead of turning in for the night, the boy elected to go to the party where the defendants and a number of other acquaintances were. Rumors of police maltreatment of the juvenile had already reached the group at the party and when the boy joined the affair tempers seemed to rise.

Warden Brown and David Black, who was also a warden, had responded to Chief Gray's prior summons for help and were in the yard of Cousins' Garage located at the intersection of Main Street and Atlantic Avenue in Stonington discussing the situation with the police chief and his assistant, when the defendant, Lawrence Powers, appeared with three other individuals. Chief Gray was asked by Galen Thompson, so Lawrence testified, if it were true that the chief had pushed the juvenile off the car and had pulled him by the hair in doing so to which the officer was said to have replied that it was not so and, besides, that it was none of his business and to get out.

Nothing unusual happened on this first encounter. But, later on shortly before midnight, a group of twelve to twenty young people, including Galen Thompson and the Powers brothers, were at Cousins' Garage to protest the police treatment of the juvenile. A noisy and somewhat violent confrontation was developing; so, Chief Gray used chemical mace to compel the group to disperse as ordered. At that point, seven or eight persons piled in the Powers' Pontiac with Benjamin Powers driving and Lawrence Powers on the hood outside. The police testified that the car took off down Atlantic Avenue at a high rate of speed, with squealing tires and swaying back and forth on its course.

The police cruiser and the wardens' vehicle started in hot pursuit. Reaching the Pontiac shortly after it stopped in an ocean front parking lot at the end of Atlantic Avenue, Chief Gray approached Benjamin Powers already out of his car and informed him that he was under arrest for driving to endanger. Benjamin demurred saying he was not going anywhere with the officer. He then turned around and was about to descend an embankment leading towards the ocean, when Officer Gray grabbed him by the collar and pulled him back. The evidence, taken in the light most favorable to the State, does show that the officer never lost his grip upon Benjamin Powers, even though brother Lawrence came to the rescue and landed a punch to the Chief's face which caused the officer to bleed profusely. While Warden Brown intervened by grabbing Lawrence Powers and informing him that he was under arrest, Constable Cousins, noting that Chief Gray was in a dazed condition, came to the assistance of the Chief and took charge of the Chief's prisoner, Benjamin Powers, and started to walk him over to the police cruiser, but, prior to their reaching the cruiser, Benjamin struck Constable Cousins twice on the left cheek in an attempt to break away.

Warden Brown's arrest of the defendant, Lawrence Powers, was not to be without difficulty. A struggle followed. Lawrence broke away from the warden's grasp and succeeded in striking Chief Gray again several times.

Seeing the encounter going against them, both Chief Gray and Warden Brown unholstered their revolvers to maintain the arrests. From that point on, neither the Powers brothers, nor the codefendant Galen Thompson and a juvenile, persisted in their efforts to escape arrest.

1. Jury Instructions

The defendants' first argument on appeal is that the presiding Justice erred in his charge to the jury respecting the offense of attempt to break arrest. They concede, however, that this claim of error is being raised for the first time at the appeal level, as they admit no objections were made at trial before the jury retired to consider its verdict concerning any omissions in the Justice's charge as mandated by Rule 30(b) of the Maine Rules of Criminal Procedure. Our inquiry under such circumstances is limited, pursuant to Rule 52(b), M.R.Crim.P., to a determination whether the given jury instructions as viewed in their entirety constituted error so seriously prejudicial as to tend to produce manifest injustice, i. e. obvious error affecting appellants' substantial rights. State v. Armstrong, Me., 344 A.2d 42, 49 (1975); State v. Scott, Me., 343 A.2d 177, 178 (1975); State v. Collins, Me., 297 A.2d 620, 631 (1972).

Such is the standard we shall use in deciding the defendants' claim on appeal that the Justice's instructions were such as to exclude the jury's consideration of an essential element of the crime charged or as tending to give the jury an erroneous concept of the necessary ingredients thereof. See State v. Pratt, Me., 309 A.2d 864, 865 (1973).

First, the contention is made that the Court's instructions did not provide the jury with the necessary information respecting the constituent elements of an attempt as proscribed by 17 M.R.S.A., § 251. We disagree.

We concede that the breach of our attempt statute requires proof of two things: 1) a specific intent to commit a particular crime and 2) an act moving directly toward the perpetration of the substantive offense intended.

It is the general rule that, in a prosecution for a criminal attempt, the State must prove, first, that the defendant actually intended to do a particular thing which at common law or by statute is a crime and, second, that he did an overt act constituting a substantial step toward the commission of the crime. The overt act must in the eyes of the actor be adapted to or suitable for the purpose and must have reached far enough toward the accomplishment of the desired result that in the ordinary and likely course of things, given the contemporaneous intent to consummate the criminal act, the perpetrator would be in a direct unequivocal movement toward the commission of the offense. Both the intent and the overt act as essential elements of attempts to commit criminal offenses must be closely connected with each other, i. e. they must coincide in time. See Duncan v. State, 158 Me. 265, 275, 183 A.2d 209 (1962); State v. Curry, 43 Ohio St.2d 66, 330 N.E.2d 720, 725 (1975); State v. Harvill, 106 Ariz. 386, 476 P.2d 841 (1970); State v. Davis, 108 N.H. 158, 229 A.2d 842, 844 (1967); State v. Lewis, 69 Wash.2d 120, 417 P.2d 618 (1966); State v. Mazzadra, 141 Conn. 731, 109 A.2d 873, 875 (1954); Nemecek v. State, 72 Okl.Cr. 195, 114 P.2d 492, 135 A.L.R. 1149 (1941); People v. Miller, 2 Cal.2d 527, 530, 42 P.2d 308, 309, 98 A.L.R. 913 (1935); Gustine v. State, 86 Fla. 24, 26, 97 So. 207, 208 (1923).

Although the presiding Justice did not expressly inform the jury that a specific intent to commit the attempted crime was an essential element of the offense of attempt to break arrest, such omission in the instant case did not amount to obvious error within the meaning of Rule 52(b), M.R.Crim.P. In his instructions to the...