State of Maine v. Adam Delano

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2015 ME 18
Docket: Cum-14-13
Argued: November 5, 2014
Decided: March 3, 2015

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.*

STATE OF MAINE

v.

ADAM DELANO

SAUFLEY, C.J.

[¶1] Contending that there were two defects in the trial court’s jury

instructions, Adam Delano appeals from a judgment of conviction entered by the

court (Moskowitz, J.) after a jury found him guilty of aggravated assault (Class B),

17-A M.R.S. § 208 (2014). Delano argues that the court erred in (A) providing

additional jury instructions, after the jury had already begun deliberations,

regarding an alternative means of proving aggravated assault as a lesser included

offense of the charged crime of elevated aggravated assault (Class A),

17-A M.R.S. § 208-B(1)(A) (2014); and (B) refusing to instruct the jury on a

self-defense justification, see 17-A M.R.S. § 108 (2014). We affirm the judgment.

*
Silver, J., sat at oral argument and participated in the initial conference but retired before this
opinion was adopted.
2

I. BACKGROUND

[¶2] On September 16, 2012, the victim was residing in a tent at an

encampment of homeless people at Thompson’s Point in Portland. Sometime

between 9:00 p.m. and 10:00 p.m., he was called out of his tent and attacked,

resulting in injuries that left him unconscious. He suffered multiple facial, head,

and chest injuries, including a skull fracture, bleeding in the brain, rib fractures,

and a collapsed lung. He spent roughly one month in the hospital, some of that

time in a coma, as a result of the injuries.

[¶3] Delano was charged by complaint with aggravated assault (Class B),

17-A M.R.S. § 208(1)(A), for the attack on the victim. He was indicted in

December 2012 on one count of elevated aggravated assault (Class A),

17-A M.R.S. § 208-B(1)(A).

[¶4] The court held a four-day jury trial in September 2013 at which the

victim testified that Delano and another individual had assaulted him. Law

enforcement personnel, including police responders and investigators, also testified

at trial, as did eyewitnesses to part of the assault, witnesses to whom Delano had

made incriminating statements, medical and forensic experts, and the other

individual whom the victim had identified as an assailant, who testified that he was

not present at the time of the events.
 3

[¶5] Although Delano did not testify, a video recording of a police interview

with him was played for the jury. In that video, Delano denied having assaulted, or

even having seen, the victim on the night in question. The only injury to Delano

that the police observed was a swollen left hand.

[¶6] After the close of evidence, Delano sought a self-defense instruction

based in part on testimony from two eyewitnesses to the end of the assault. They

testified that they heard Delano yelling the following at the victim when the victim

was already lying limp on the ground: “[Y]ou want to hit me?” and, “[F]uck you,

I’m a kickboxer, I’m a fighter, you know, you don’t take a swing at me, I’ll show

you.” In support of his request for a self-defense instruction, Delano also referred

to testimony that he had told others that he had gotten in a fight with the victim,

who had tried to rob him or had stolen from him. One witness testified that Delano

“just said that he had gotten into a fight with [the victim], that [the victim] tried to

rob him, and about beer.” Another testified that Delano had said “that he beat his

friend and he said that [the victim] had stolen money from him, that’s the reason he

did it.”

[¶7] The victim, the only person to testify about how the fight began,

testified that he had been called out of his tent and immediately assaulted by

Delano and another man. Specifically, the victim testified that he came out of the

tent “real quick” and “threw the backpack over and then . . . got kicked and
4

punched.” When asked if he swung the backpack to protect himself, the victim

testified that he “swung it to the left a little.” The victim testified that his backpack

may have contained clothes, toiletries, and possibly a couple of forty-ounce beers

in glass bottles.

[¶8] The court declined to give the requested self-defense instruction

because it determined that the evidence in the record did not support the

instruction. The court noted that the eyewitnesses had observed only the end of the

altercation when Delano was attacking and screaming at an already unconscious

victim, and that the victim had identified Delano as the aggressor in the only

testimony about how the altercation began.

[¶9] The parties made their closing arguments, after which the court

instructed the jury on the charged crime of elevated aggravated assault, see

17-A M.R.S. § 208-B(1)(A) (imposing criminal liability if a person “[i]ntentionally

or knowingly causes serious bodily injury to another person with the use of a

dangerous weapon”), and two lesser included offenses: aggravated assault, id.

§ 208, and simple assault, 17-A M.R.S. § 207(1)(A) (2014). In its instructions, the

court took into account the State’s waiver of any attempt to prove the reckless

commission of any of the lesser included crimes. 17-A M.R.S. §§ 207, 208. The

court instructed the jury on one means of establishing aggravated assault—by

proof that Delano intentionally or knowingly “cause[d] . . . [b]odily injury to
 5

another with use of a dangerous weapon.” 17-A M.R.S. § 208(1)(B) (emphasis

added). Although the State had requested an instruction on an alternative means of

proving aggravated assault—through evidence that Delano intentionally or

knowingly “cause[d] . . . [s]erious bodily injury to another,” 17-A M.R.S.

§ 208(1)(A) (emphasis added)—and Delano expressly joined in that request, the

court mistakenly did not instruct the jury on that alternative. After it completed the

charge to the jury, the court gave counsel an opportunity, out of the jury’s

presence, to address any issues regarding its instructions. See M.R. Crim. P. 30(b).

Counsel for the State noted that she had requested that the court instruct the jury on

a different basis for aggravated assault, but then said, “at this point it’s too

convoluted with the jurors to go back and instruct them on that.”

[¶10] The jury began to deliberate at 12:40 p.m. on September 12, 2013.

The jury requested reinstruction on several definitions, including the definitions of

elevated aggravated assault, aggravated assault, and assault. The court sent written

instructions on the three offenses to the jury at 3:45 p.m., and the jury left for the

day at 4:27 p.m.

[¶11] The next morning, the State moved for reinstruction on aggravated

assault to include the instruction on the commission of aggravated assault by

intentionally or knowingly causing serious bodily injury to another. See

17-A M.R.S. § 208(1)(A). Delano objected that the initial instructions had been
6

agreed to and delivered, and that the late reinstruction was improper. The court

overruled the objection and issued a corrected instruction “because this is the

court’s error, this is not anyone else’s error.” The court stated that the instruction

that it had given was inconsistent with the instruction requested by the State, and

the court thereafter called the jury into the courtroom and reinstructed the jury.

The court informed the jury that it was providing corrected instructions, and it took

back from the jury the written instructions that had been provided the day before.

The new instructions indicated, “the State can prove aggravated assault in either of

two different ways,” and described each alternative completely.

[¶12] After reinstruction and further deliberations that consumed nearly the

entire day, the jury was unable to reach a unanimous verdict on the charge of

elevated aggravated assault but found Delano guilty of the lesser included offense

of aggravated assault. Although the court provided the jury with a verdict form,

neither party requested that it distinguish between the two definitions of aggravated

assault that, based on the reinstructions, the jury was entitled to consider.

Following a sentencing hearing, the court sentenced Delano to eight years of

incarceration, with all but five years suspended, and three years of probation. The

court also ordered him to pay twenty-five dollars to the victims’ compensation

fund. Delano appealed from his conviction and applied for review of his sentence.

See 15 M.R.S. §§ 2115, 2151 (2014); M.R. App. P. 2, 20. The Sentence Review
 7

Panel denied his application for sentence review, and we now consider the issues

he raises on appeal.

II. DISCUSSION

A. Jury Reinstruction

[¶13] Delano first challenges the reinstruction on aggravated assault. “A

jury instruction is erroneous if it creates the possibility of jury confusion and a

verdict based on impermissible criteria.” State v. LaPierre, 2000 ME 119, ¶ 18,

754 A.2d 978 (quotation marks omitted). Although additional instructions on

lesser included offenses delivered after a jury has begun deliberating are not per se

prejudicial to a defendant, see United States v. Welbeck, 145 F.3d 493, 496-97 (2d

Cir. 1998), only in exceptional circumstances is it acceptable for a court to

reinstruct the jury by “presenting for the first time choices for lesser included

offenses not presented in the initial instructions.” LaPierre, 2000 ME 119, ¶ 21,

754 A.2d 978. When a court does reinstruct a jury, it must, as here, “accurately

and separately state each of the elements of the greater and lesser offenses to avoid

any potential for juror confusion, and it must specify that there are separate greater

and lesser offenses among which a choice must be made.” Id.

[¶14] Although we have not considered the precise nature of the prejudice

that the defendant must demonstrate for a conviction to be vacated due to a late

instruction, courts in other jurisdictions have identified three basic categories of
8

prejudice. First, a late reinstruction can deprive a defendant of an opportunity to

present or argue the defendant’s case. See Welbeck, 145 F.3d at 497; Cheely v.

State, 850 P.2d 653, 662-63 (Alaska 1993); State v. Thurmond, 677 N.W.2d 655,

662 (Wis. Ct. App. 2004). Second, a defendant can suffer prejudice if the new

instruction is flawed or incomplete. See LaPierre, 2000 ME 119, ¶¶ 21-24, 754

A.2d 978. Third, a late instruction can suggest to a jury that the court is

encouraging a conviction. See Welbeck, 145 F.3d at 497; Thurmond, 677 N.W.2d

at 662; cf. Shuler v. United States, 98 A.3d 200, 209 (D.C. 2014). When no

prejudice is shown, the judgment of conviction will be affirmed. See Shuler, 98

A.3d at 209.

[¶15] Here, none of the three varieties of prejudice has been demonstrated,

and no other type of prejudice has been shown. First, because Delano anticipated

that the State’s requested instruction would be given, Delano was not deprived of

an opportunity to offer evidence or argument1 on the issue of whether he caused

serious bodily injury to the victim. Both the testimony elicited by the parties and

the State’s proposed jury instructions demonstrate that Delano and the State

understood that the jury would consider the prosecution’s theory of aggravated

1
Because the appellate record does not include a transcript of the parties’ opening statements and
closing arguments, we cannot conclude that Delano was deprived of an opportunity to argue that the
assault did not result in serious bodily injury.
 9

assault resulting in serious bodily injury. The court’s later action to correct the

instructions did not result in the jury receiving any unanticipated instructions.

[¶16] Second, the instructions that were ultimately given stated the law

correctly. The instructions could not have led the jury to find guilt on an illegal

basis.

[¶17] Finally, we do not discern the third form of potential prejudice—the

prejudice that arises when the jurors could construe reinstructions as coercive or as

a recommendation by the court to return a guilty verdict on the newly presented

charge. As with an examination of other forms of prejudice that may be generated

by reinstruction, our inquiry must focus on the particular circumstances of this

case. See Welbeck, 145 F.3d at 497.

[¶18] In this case, the potential for prejudice in the form of improper

influence created by the reinstruction arises from its timing. Thus, we address that

timing in greater detail. Along with its other instruction requests, the State

submitted a written request for the court to instruct the jury on the lesser offense of

aggravated assault pursuant to section 208(1)(A). Counsel for Delano expressly

joined in that request. The court told counsel that it had intended to include that

instruction in its charge, but, as the court acknowledged the next day, it instead

only instructed the jury that it could consider aggravated assault under section

208(1)(B) as a lesser included offense. After the court completed its initial oral
10

instructions to the jury, the State recognized the court’s departure from its

requested instruction but expressly waived any challenge to the omission of an

instruction under 208(1)(A).2

[¶19] The jury deliberated for approximately a half day after the case was

first submitted to it. During that time, the jurors sent a note to the court asking for

the court’s instructions on the definitions of elevated aggravated assault and

aggravated assault. With the agreement of the parties, the court responded by

providing the jury with written instructions covering the definitions. After an

additional forty minutes of deliberations, it still had not returned a verdict, and the

court recessed the jury until the next morning.

[¶20] The following morning, the State requested that the court instruct the

jury on the definition of aggravated assault contained in section 208(1)(A), even

though it had waived that request immediately prior to the commencement of

deliberations the previous day. Over Delano’s objection, the court granted the

State’s request, noting that the omission was simply an error, not the result of the

court’s decision to deny the request for the instruction. Following the discussion

of the issue, and approximately one hour after the jury had resumed its

deliberations on the second day, the court called the jurors into the courtroom and

2
As counsel for the State explained at oral argument and as the record may be seen to suggest, she
believed that the court had rejected the proposed instruction and intentionally declined to include it in the
charge.
 11

reinstructed them both on the charges that it had covered in its initial instructions

and on the additional lesser offense of aggravated assault pursuant to section

208(1)(A). The jury then deliberated for the rest of the day. The jury was

ultimately unable to reach a unanimous decision on the greater charge of elevated

aggravated assault, but it returned a guilty verdict on the lesser charge of

aggravated assault.

[¶21] The question presented here is whether, under these particular

circumstances, the jurors reasonably could have construed the newly presented

option of aggravated assault as defined by section 208(1)(A) as a recommendation

from the court that they should return a guilty verdict on that offense. This

question is a significant one because the court presented that alternative to the jury

only after the jury had deliberated for an appreciable length of time on the first

day, had been unable to reach a verdict on any of the options presented initially,

and had begun a second day of deliberations. As noted, it was only after the jury

resumed deliberations on that second day that the court gave the supplemental

instruction that included a separate option: aggravated assault as defined by

208(1)(A).

[¶22] Given the totality of the circumstances, we are not persuaded that

Delano was unfairly prejudiced by the timing of the reinstructions. An instruction

on aggravated assault pursuant to section 208(1)(A) was clearly generated by the
12

evidence, and both parties initially affirmatively stated that they wanted the court

to include it in its original charge. When the court gave the additional instruction

to the jury regarding section 208(1)(A) the next day, the jury had not reported that

it was at an impasse. The existence of a deadlock is a factor that is prevalent in the

prejudice analysis because, when a court responds to a jury’s report of an impasse

by offering an additional charge for the jury to consider, “the stalled jury may

regard the newly furnished theory of liability as the court’s recommendation to

resolve the impasse by agreeing to the lesser offense.” Welbeck, 145 F.3d at 497.

That is not the case here.3

[¶23] Furthermore, when the court considered the State’s request to

reinstruct the jury on the second day of deliberations, Delano objected but did not

articulate any specific form of prejudice that could result. The court then

instructed the jury on the additional lesser offense but advised the jury that it was

doing so because of “a slight error in the instructions we provided to you

yesterday.” The court thereby prefaced the reinstruction in a neutral manner that

would help to dispel the notion that the new charge carried the court’s implicit

recommendation. The court did not call specific attention to the change, thus

minimizing—as much as possible—the risk that evidence pertinent to the new

3
Although the jury did ultimately reach deadlock on the charge of elevated aggravated assault, it did
not do so until after the court provided its corrected instruction.
 13

charge would be “magnif[ied]” in the jurors’ eyes. Thurmond, 677 N.W.2d at 662

(quotation marks omitted). The court also replaced the written instructions it had

provided to the jury during the first day of deliberations with revised instructions

that included aggravated assault as set out in section 208(1)(A). This manner of

providing the law to the jury, supplementing the oral reinstruction given in the

courtroom, added clarity to the jurors’ understanding of the law that would then

serve as the framework for their deliberations. Finally, even after the jury was

instructed on the new charge, it deliberated for the better part of the day before

arriving at a verdict. This suggests that the jury continued to carefully consider the

alternatives and that the timing of the court’s introduction of a new charge for the

jury’s consideration was not an extrinsic influence on the jury’s decision.

[¶24] Therefore, although the jury should have received the complete

instructions before beginning deliberations, the record on appeal fails to

demonstrate prejudice to Delano from the later reinstruction that would require us

to vacate the judgment of conviction.

B. Self-Defense Instruction

[¶25] Delano next argues that the court erred in denying his request for a

jury instruction on self-defense. A defendant is deprived of a fair trial if a trial

court fails to give a self-defense instruction “[w]hen the evidence is sufficient to

raise the issue of self-defense.” State v. Thurston, 2009 ME 41, ¶ 9, 969 A.2d 906.
14

Thus, instead of engaging in a standard harmless error analysis, we analyze the

evidence to determine whether the instruction was generated in the first place. Id.;

see State v. Ouellette, 2012 ME 11, ¶ 15, 37 A.3d 921.4 A self-defense instruction

is generated if the evidence, viewed in a light most favorable to the defendant with

all reasonable inferences resolved in the defendant’s favor, “is of such nature and

quality to render the existence of all facts constituting the defense a reasonable

hypothesis for the fact finder to entertain.” Ouellette, 2012 ME 11, ¶ 13, 37 A.3d

921 (quotation marks omitted).

[¶26] As pertains to the matter before us, a person is justified in using

deadly force upon another person “[w]hen the person reasonably believes it

necessary and reasonably believes such other person is . . . [a]bout to use unlawful,

deadly force against the person.” 17-A M.R.S. § 108(2)(A)(1). “‘Deadly force’

means 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) (2014).

4
References to “obvious error” in some of our previous opinions reviewing preserved claims of error
are somewhat misleading because the obvious error standard of review applies when a party has not
preserved a claim of error. See M.R. Crim. P. 52(b); State v. Herzog, 2012 ME 73, ¶¶ 7-13, 44 A.3d 307
(applying the obvious error standard set forth in State v. Pabon, 2011 ME 100, ¶ 29, 28 A.3d 1147, in
reviewing an unpreserved argument that the court, in a nonjury trial, should have determined whether the
evidence generated an issue of self-defense). Because Delano preserved his claim that a self-defense
instruction should be given, we do not include reference to obvious error in setting forth the standard of
review here.
 15

[¶27] With certain exceptions not applicable here, “[a] person is justified in

using a reasonable degree of nondeadly force upon another person in order to

defend the person . . . from what the person reasonably believes to be the imminent

use of unlawful, nondeadly force by such other person” and “may use a degree of

such force that the person reasonably believes to be necessary for such purpose.”

17-A M.R.S. § 108(1) (emphasis added). “‘Nondeadly force’ means any physical

force which is not deadly force.” 17-A M.R.S. § 2(18) (2014).

[¶28] The evidence here did not generate a self-defense instruction,

regardless of whether Delano used “deadly” or “nondeadly” force. Viewed in the

light most favorable to Delano, the evidence could support factual findings that the

victim swung a backpack that contained clothes, toiletries, and possibly two

forty-ounce beers in glass bottles when he was called out of his tent; Delano yelled

comments at the victim suggesting that the victim had hit him; and Delano told

others that he had gotten into a fight with the victim, who had tried to rob him or

had stolen from him. Neither this evidence nor any reasonable inferences that can

be drawn from it support a reasonable hypothesis that the victim was “[a]bout to

use unlawful, deadly force against” Delano. Id. § 108(2)(A)(1). Thus, any use of

deadly force against the victim by Delano cannot be justified as an act of

self-defense. See id.
16

[¶29] With respect to the use of nondeadly force, even if the victim did

swing a full backpack when exiting his tent, which the evidence, viewed in

Delano’s favor, could suggest, it is not a reasonable hypothesis that the degree of

force that resulted in the victim’s extensive injuries was “a degree of such force

that [Delano] reasonably believe[d] to be necessary” to defend himself. Id. The

undisputed evidence shows that the victim suffered multiple fractures to his head

and ribs, and had a collapsed lung and bleeding in his brain. The injuries resulted

in a coma and approximately a month of hospitalization. It is not a reasonable

hypothesis that injuries this severe could have resulted from the use of a degree of

force reasonably necessary to defend against a swung backpack, especially absent

evidence of any injuries to Delano other than a swollen hand. Nor does evidence

of Delano’s accusation that the victim attempted to hit him, made as Delano

pummeled an unconscious victim, provide the kind of evidence that is “of such

nature and quality to render the existence of all facts constituting the defense a

reasonable hypothesis for the fact finder to entertain.” Ouellette, 2012 ME 11,

¶ 13, 37 A.3d 921 (quotation marks omitted). The court did not err in declining to

instruct the jury on self-defense.

The entry is:

Judgment affirmed.
 17

On the briefs:

Lauren Wille, Esq., DeGrinney Law Offices, Portland, for
appellant Adam Delano

Stephanie Anderson, District Attorney, and Tracy J. Gorham,
Asst. Dist. Atty., Prosecutorial District Two, Portland, for
appellee State of Maine

At oral argument:

Lauren Wille, Esq., for appellant Adam Delano

Tracy J. Gorham, Asst. Dist. Atty., for appellee State of Maine

Cumberland County Unified Criminal Docket docket number CR-2012-6401
FOR CLERK REFERENCE ONLY