State v. LaPierre

CALKINS, J.,

with whom CLIFFORD, J., joins, dissenting.

[¶ 25] I respectfully dissent. The Court today announces a rule that requires a trial court, when instructing on a lesser included offense after a jury has begun deliberations, to state fully all of the elements of the lesser included offense, and restate the elements of the greater offense. I do not dispute the wisdom of advising the trial courts to so instruct in the future. I do, however, dispute that the instructions given in this case were so highly prejudicial, or so tainted the proceeding, that LaPierre was deprived of a fair tidal. I conclude that the jury instructions given by the court, when viewed in their entirety, did not confuse the jury and did not lead to a verdict based on impermissible criteria.

[¶ 26] The trial court’s instruction on count I began with an explanation of the charge against LaPierre, specifically that LaPierre is alleged to have “intentionally or knowingly trafficked in what he knew or believed to be a scheduled drug, marijuana, which is in fact a schedule Z drug, by growing or cultivating more than 500 marijuana plants.” The court gave the statutory definition of trafficking and next told the jurors that the State had to prove beyond a reasonable doubt “trafficking by growing or cultivating more than 500 marijuana plants.” After the court defined “intentionally” and “knowingly,” the court repeated that the State had to prove that LaPierre was “trafficking by growing or cultivating marijuana” and that LaPierre “intentionally or knowingly grew it or cultivated it.” The court then defined “accomplice” and referred to “trafficking, growing or cultivating marijuana.” The court instructed: “So, the State has charged that this defendant either actually trafficked as I’ve defined it for you or he was an accomplice of someone who did traffick or grow or cultivate the marijuana.” When the court instructed on count II, the conspiracy charge, it said that the State had to prove that LaPierre agreed with Ralph Dumond and others to grow or cultivate more than 500 marijuana plants. The court repeated “grow or cultivate” twice more in the instruction on conspiracy. In all, the trial judge referred to “growing and cultivating marijuana” nine times during the initial instructions on the two counts. When LaPierre was asked by the court if he had any objection to these instructions, he said “No objections.”

[¶ 27] In the first reinstruction the court used the broad definition of trafficking to include “sell, barter, trade, grow, cultivate or possess with the intent to sell, barter, trade, grow or cultivate.” When the trial judge reinstructed on accomplice liability, however, he reminded the jurors, “I’ve defined trafficking as growing or cultivating.” The only objection to this first rein-struction was to the accomplice portion and the only stated grounds were that the jury had not asked for a reinstruction on accomplice liability and the State had not charged accomplice liability.

[¶ 28] During the conference of counsel immediately before the final reinstruction, LaPierre objected to instructing on the lesser included offenses because: (1) jury deliberations had begun; (2) the court originally said that it would not give a lesser included offense instruction; and (8) the evidence did not warrant the instruction. He did not object to the substance of the instruction nor did he object on the ground that it was confusing.

[¶ 29] Although LaPierre now argues that the combined effect of the original instructions, plus the two reinstructions, made the instructions ambiguous and led to jury confusion, he did not object to the instructions on that basis at trial. We have held that when a party does not call *986to the court’s attention what he later claims to be error in jury instructions, we review the claim of error under obvious error standards. See State v. Daniels, 663 A.2d 33, 36 (Me.1995). Therefore, we do not grant LaPierre relief unless the error in the instructions is so highly prejudicial to LaPierre and so taints the proceedings as to virtually deprive -him of a fair trial. See State v. Varney, 641 A.2d 185, 187 (Me.1994).

[¶ 30] The Court concludes that the trial court committed reversible error because when it instructed on the lesser included offenses, it did not state each element of the lesser offenses and repeat each element of the greater offense, even though it previously instructed on every element of the greater offense and previously defined-terms applicable to the lesser offenses. The judge instructed on the lesser included offenses by telling the jury that in order to find guilt it had to find the State had proven all of the elements of trafficking “as I’ve defined it,” and by explaining the number of plants. The number of plants is the only element that distinguishes the lesser included-offenses from the greater offense.

[¶ 31] We do not view challenged jury instructions in isolation. See State v. Varney, 641 A.2d at 187; State v. Wright, 531 A.2d 1270, 1271 (Me.1987). Here, the instructions as a whole include the heavy emphasis on “growing or cultivating.” It is apparent from the instructions, when viewed in their entirety, that the court told the jurors that LaPierre was guilty of the offense of trafficking only if they found that the State had proven beyond a reasonable doubt that LaPierre knowingly or intentionally grew or cultivated marijuana, or was the accomplice of someone who grew or cultivated marijuana. The court further told the jury that only if it found-trafficking should it go on to determine the number of plants. I fail to perceive how the jury could have based its verdict on anything other than a finding that La-Pierre grew or cultivated 500 or more marijuana plants, or was the accomplice of someone who did.