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State v. Randolph LaPierre
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MAINE SUPREME JUDICIAL COURTReporter of Decisions
Decision:	2000 ME 119
Docket: 	Aro-99-570
Argued:	March 7, 2000
Decided:	June 23, 2000

Panel: 	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS , JJ.
Majority:	WATHEN, C.J., and RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.
Dissent:	CLIFFORD, and CALKINS, JJ.
													
		

STATE OF MAINE

v.

RANDOLPH LaPIERRE

ALEXANDER, J.

	[¶1]  Randolph LaPierre appeals from a judgment of the Superior
Court (Aroostook County, Pierson, J.) following a jury verdict convicting him
of unlawful trafficking in scheduled drugs (Class B) in violation of
17-A M.R.S.A. § 1103(2) (1983 & Supp. 1998) amended by P.L. 1999, ch.
374, §§ 1 & 2, and conspiracy to traffick in scheduled drugs (Class C) in
violation of 17-A M.R.S.A. § 151 (1983).  LaPierre contends that the court
erred in instructing the jury on lesser included trafficking offenses, 17-A
M.R.S.A. § 13-A (1983), after originally instructing the jury only on the Class
B trafficking offense.  Because the challenged instruction may have misled
the jury to convict on an inaccurate premise, we vacate the convictions.

I.  CASE HISTORY

	[¶2]  Evidence at trial could have supported the following findings: 
Ralph Dumond worked for Randolph LaPierre clearing a field during the
summer of 1997.  LaPierre paid Dumond in part with homegrown marijuana. 
Dumond also purchased marijuana from LaPierre, and LaPierre showed
Dumond how to cultivate marijuana.  Dumond visited LaPierre's mobile home
in Van Buren and saw marijuana plants growing in small cups.  He also
noticed fluorescent lights in the attic.    
	[¶3]  LaPierre went to Florida in the fall of 1997.  LaPierre let Dumond
and Dumond's girlfriend, Bertha Moore, stay in LaPierre's camp in Cyr
Plantation.  Moore left for Florida to live with her son in November 1997,
and Dumond went to Florida shortly thereafter.  Moore and Dumond visited
with LaPierre in Florida.  Dumond and LaPierre discussed the marijuana
plants in LaPierre's mobile home in Van Buren.  LaPierre asked Dumond to
live at the mobile home in Van Buren and take care of the plants, but
Dumond initially declined.  By February 1998, Moore and Dumond had
separated, and Dumond needed a place to live.  Dumond agreed to rent
LaPierre's mobile home in Van Buren for $300 per month and to care for
the marijuana plants.  LaPierre instructed Dumond to take cuttings and start
new plants.
	[¶4]  When Dumond arrived at LaPierre's mobile home he saw a large
number of plants, which he estimated at 350 to 500,{1} potting soil,
fluorescent lights, cups, watering cans and hose, plant food, and trays. 
During a telephone call in March, Dumond and LaPierre discussed the rental
amount and LaPierre told him to forget about the rent.  In March and April,
1998, Dumond created approximately 200 new marijuana plants by
transplanting cuttings.  In mid-March, during a telephone conversation,
LaPierre told Dumond to leave the lights on all the time and to turn up the
heat to foster growth of the plants.  A summary of the electrical use at the
mobile home showed a steady increase from the fall of 1997 through April
1998.  LaPierre paid the power bill throughout this time in $200
increments.
	[¶5]  In December 1997, Moore called the Aroostook County Crime
Stoppers from Florida.  She reported that marijuana plants were being
grown in LaPierre's mobile home in Van Buren.  Moore called several
additional times, including in late April 1998, when she stated that Dumond
was living at LaPierre's trailer in Van Buren and that Dumond admitted to
having 800 marijuana plants in LaPierre's mobile home.
	[¶6]  On April 30, 1998, police officers executed a search warrant of
LaPierre's mobile home.  The officers found and seized 758 marijuana plants
in various stages of growth, plus other items including an electronic scale. 
Dumond was arrested and later released on bail.  Dumond cooperated with
the police and telephoned LaPierre.  The conversation was recorded and the
audio tape was played for the jury. 
	[¶7]  LaPierre was charged by a two-count information, M.R. Crim. P.
7(b), with unlawful trafficking in scheduled drugs (Class B) and conspiracy to
traffick in scheduled drugs (Class C).  He pled not guilty and the matter
eventually proceeded to trial.
	[¶8]  At the close of the evidence, the State requested an instruction
on lesser included offenses.  See 17-A M.R.S.A. § 13-A.  The court denied
the State's request.  In count I of the information, LaPierre was charged
with intentionally or knowingly trafficking in marijuana by growing or
cultivating more than 500 marijuana plants, on or about April 30, 1998.  See
17-A M.R.S.A. § 1103(2)(A).{2}  The statute also made growing or cultivating
100 or more marijuana plants a Class C offense and cultivation of any amount
of marijuana a Class D offense.  See 17-A M.R.S.A. § 1103(2)(B) & (C).   
	[¶9]  In its initial jury instructions the court told the jury that it must
find LaPierre guilty of count I if the State had proven beyond a reasonable
doubt that on or about April 30, 1998, in Aroostook County, LaPierre
"intentionally or knowingly trafficked in what he knew or believed to be a
scheduled drug, marijuana . . . by growing or cultivating more than 500
marijuana plants."  The court then defined several terms including
trafficking which it stated:  "means to make or create or manufacture or to
grow or cultivate, to sell, barter, trade, exchange, or otherwise furnish for
consideration or to possess with the intent to do any of the acts mentioned." 
This broader definition added a number of choices to the "growing and
cultivating" element stated in the indictment.  It may not have been
significant at the time, and was not objected to, perhaps because the jury
was limited to the 500 or more alternative by the court's instruction.  
	[¶10]  After defining other terms, the court restated that the State
had to prove trafficking by showing that LaPierre engaged in "growing or
cultivating" marijuana.  
	[¶11]  The court then instructed on accomplice liability in a manner
which suggested that guilt could be found if LaPierre was "an accomplice of
someone who did traffick or grow or cultivate the marijuana" (emphasis
added).  The court then only addressed trafficking, without reference to the
growing or cultivating qualification, in the remainder of the accomplice
instruction.  The court then stated, "Another element in this case is that
there were more than 500 marijuana plants.  So, an element of this case that
the State has to prove to you beyond a reasonable doubt is that there were
more than 500 marijuana plants."  The court then instructed the jury on the
conspiracy count.
	[¶12]  After approximately forty-five minutes of deliberation, the jury
sent a note to the court which asked for the audio tape and cassette
recorder so that the jurors could listen again to the taped telephone
conversation between Dumond and LaPierre.  After consulting with counsel,
the court brought the jury back into the courtroom and the tape was played.
	[¶13]  About an hour later the court received another note from the
jury asking for a written definition of trafficking.  After a conference with
counsel, the court brought the jury into the courtroom and stated an
instruction on count I similar to that it had given initially, except that the
court did not repeat the sentences quoted above concerning the 500 plants.  
Further, the broader, statutory definition of trafficking-possess with intent,
etc.-was given twice.  In the reinstruction, with regard to the 500 plants,
the court stated that the charge was "growing or cultivating more than 500
plants."  The court also reinstructed on accomplice liability.  LaPierre
objected to the accomplice portion of the reinstruction but made no other
objection to the reinstruction.
	[¶14]  Approximately one-half hour later the jury sent a third note to
the court.  This note stated:  "Does the definition of trafficking have to have
a specific number of plants to be charged?  We are hung up on the # 500." 
The court met with counsel, and the State again requested that the jury be
instructed on the lesser included offenses of trafficking by growing or
cultivating less than 500 plants and less than 100 plants.  The court
reconsidered its earlier decision and instructed the jury on the lesser
included offenses.  The reinstruction referenced the earlier trafficking
definition, then indicated the jury could make choices to find "500 or more
plants," "100 or more plants," "or less than 100."{3}  The "growing or
cultivating" limitation was not stated when the number choices were given. 
LaPierre objected to instructing the jury on the lesser offenses, but he did
not object to the substance of the instruction.  Seventeen minutes after the
third instruction, the jury returned with:  (i) a guilty verdict on count I; (ii) a
finding that the amount of plants was 500 or more; and (iii) a guilty verdict
on count II.{4}  The case was continued for sentencing.
	[¶15]  Before sentencing LaPierre made a motion for a new trial based
on newly discovered evidence.  See M.R. Crim. P. 33.  An evidentiary hearing
was held after which the court denied the motion.  LaPierre was
subsequently sentenced and noticed this appeal.{5}  Because of our disposition
of the jury instruction issue, we do not address the issues on appeal related
to the motion for a new trial.

II.  JURY INSTRUCTIONS

	[¶16]  LaPierre argues that the court committed reversible error by
instructing the jury on the lesser included offenses after initially refusing to
do so.  The question presented here is not whether the lesser included
instruction was appropriate if it had been given initially.  LaPierre does not
argue that the evidence did not warrant such an instruction.
	[¶17]  For purposes of this appeal we shall assume, without deciding
the issue, that a court may subsequently reinstruct a jury on lesser included
offenses after refusing to do so in its initial general instructions.  See, e.g.,
United States v. Welbeck, 145 F.3d 493 (2nd Cir. 1998), cert. denied, 525
U.S. 892 (1998).  However, any reinstruction must accurately state the law
and not confuse the jury about the facts they must decide.  
	[¶18]  "A jury instruction is erroneous if it creates the possibility of
jury confusion and a verdict based on impermissible criteria."  State v. Fitch,
600 A.2d 826, 828 (Me. 1991).  Furthermore, "[s]uch an error is harmless
only if the court believes it highly probable that it did not affect the verdict." 
Id.  Here, after the jurors announced they were "hung up" on the number of
plants, the jurors were given instructions which suggested that any differing
views about numbers were only to be addressed after they had decided guilt
for trafficking-with reference back to the broad, statutory trafficking
definition.  Further, they were advised to make findings about the numbers
with no reference to the necessary "growing or cultivating" finding that was
essential for a finding of guilt for this trafficking charge.   
	[¶19]  Jury instructions must be carefully tailored to the issues
charged in the indictment and tried to the jury.  An instruction accurately
tracking the statutory language of a term in the Criminal Code may be
erroneous where the instruction broadens the issues beyond those charged
in the indictment and tried to the jury.  See State v. McKinney, 588 A.2d
310, 312 (Me. 1991).  Such an instruction raises the possibility of jury
confusion and a verdict based upon impermissible criteria.  Id., see also
State v. Burns, 560 A.2d 568, 569 (Me. 1989).  
	[¶20]  On review we must consider jury instructions in their entirety
to determine whether they accurately stated the law to the jury.  We must
review the entire charge, or here, three charges, "taking into consideration
the total effect created by all the instructions and the potential for juror
misunderstanding."  State v. Varney, 641 A.2d 185, 187 (Me. 1994) (quoting
State v. Cote, 462 A.2d 487, 490 (Me. 1983)). 
	[¶21]  A reinstruction presenting for the first time choices for lesser
included offenses not presented in the initial instructions, if proper at all,
would be a rare event, only done in exceptional circumstances.  If the court
does reinstruct presenting lesser included offenses for the first time, it
must 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.  Not including an essential element or definition of an offense
in an instruction is error where the element or definition is important to
the issues in an instruction on an offense that is in reality being given for the
first time.  See State v. Griffin, 487 A.2d 247, 249 (Me. 1984).  See also
State v. Begin, 652 A.2d 102, 106 (Me. 1995).
	[¶22]  Thus, in this instance, a proper instruction would have advised
the jury that they first had to decide the trafficking question, then if they
found trafficking proven beyond a reasonable doubt, they "must" determine{6}
whether the State had proven beyond a reasonable doubt that LaPierre was:
(i) growing or cultivating 500 or more plants; or (ii) growing or cultivating
100 or more plants; or (iii) growing or cultivating less than 100 plants.  
Here, the jury was not advised that these determinations were elements of
the separate offenses, nor were they advised that growing or cultivating was
an essential finding for the aggravating factor specified in section
1103(2)(A) & (B).  Because the jury had heard the broader definition of
trafficking stated on several occasions, including the reference to
possession, and factors other than the growing or cultivating limitation, this
instruction, without the growing or cultivating limitation, and without
clarifying the separate elements of the offenses at issue, was confusing.  
	[¶23]  As instructed, the jury could have concluded that the actual
number of plants was of little significance or they could have concluded that
possessing{7} the plants was enough to support the more than 500 finding. 
On the evidence presented, the jury could have found possession without
finding that LaPierre was himself actually growing or cultivating more than
500 marijuana plants as a principal or an accomplice.
	[¶24]  Because LaPierre was convicted of the most serious offense on
an incomplete statement of the law, we are unable to conclude that it is
highly likely that the jury's verdict was not affected by the incomplete
reinstruction on the lesser included offense numbers.  State v. McKinney,
588 A.2d at 312.{8}  Consequently, we vacate the conviction on count I. 
Because count II, the conspiracy count is inextricably tied to count I, and
also dependent on the more than 500 finding, the conviction on count II
must be vacated also.
	The entry is:
Judgment vacated.  Remanded for
further proceedings consistent with this
opinion.