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State v. Paul Dumond

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 95
Docket:	Cum-99-159
Submitted
on Briefs:	February 25, 2000
Decided:	May 19, 2000

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





STATE OF MAINE v. PAUL DUMOND


WATHEN, C.J.


	
	[¶1]  Paul Dumond appeals from a judgment entered in the Superior
Court (Cumberland County, Warren, J.) following a jury trial convicting him
of assaulting a police officer and failing to submit to arrest.  On appeal
Dumond contends that his justification defense required the jury to
determine whether his initial arrest was illegal and that therefore the court
erred when it refused to give instructions defining the specific offenses that
motivated Dumond's arrest.  Finding no error, we affirm.
	[¶2]  The relevant facts presented at trial may be summarized as
follows:  In February of 1998 at approximately 12:45 a.m., Officer Burke of
the Portland Police Department responded to a call requesting that he assist
Officer Strout, who was in the process of dealing with a disturbance caused
by three or four men in front of the Pavilion, a nightclub on Middle Street. 
When Burke arrived at the Pavilion, he saw Strout approaching the
disorderly men.  Burke was Strout's backup; he took a position slightly away
from Strout.  From this vantage point, Burke could more readily observe the
situation and thus warn Strout of developing problems that Strout would not
otherwise be able to see.  
	[¶3]  There was a large and noisy crowd in front of the club, many of
whom were intoxicated.  Both officers were aware that the arrival of police
at that time of night tended to incite a crowd, and consequently they took
care to avoid being overly aggressive, in order to minimize the crowd's
involvement.  Although one of the disorderly individuals, Paul Ladacackos,
was heavily intoxicated and verbally abusive, Strout attempted to control the
confrontation with talk rather than force.  
	[¶4]  Burke was not the only officer who provided backup for Strout. 
Sergeant Germaine had also responded to the call for assistance.  Unlike
Strout and Burke, Germaine was in plainclothes.  When he first arrived,
Germaine was concerned only with observing the scene, though he was also
available to intervene should the crowd get out of hand.  Germaine felt it
preferable for the uniformed officers to handle the situation.  As the senior
officer on the scene, Germaine paid particularly close attention to Burke and
Strout; he felt they were handling the confrontation with Ladacackos
appropriately and nonaggressively.
	[¶5]  Strout's initial actions on the scene were attempts to get the
crowd and particularly the disorderly men to disperse.  Although one of the
disorderly men did leave the scene when confronted by Strout, Ladacackos
refused and continued to behave in a loud and disorderly manner.  Strout
decided to place him under arrest.  Burke moved forward to assist as Strout
moved Ladacackos away from the entrance to the Pavilion and back toward
two police cruisers parked on Middle Street.  At the cruisers, the officers
checked Ladacackos for weapons and placed him in handcuffs. 
	[¶6]  Burke once again took up a position where he could watch both
Strout and the crowd.  Strout took Ladacackos to the rear door of the
cruiser.  Burke noticed that two people had broken off from the crowd on
the other side of Middle Street.  They appeared to be following Strout and
Ladacackos.  Burke was concerned that these two people might be friends of
Ladacackos.  The two people seemed intoxicated and were yelling at Burke. 
They walked into the street, even though Middle Street was heavily travelled
at that time of night.  Burke told them to return to the sidewalk.  Burke was
concerned because, even if they did not intend to come to Ladacackos's aid,
they were distracting him  from his primary mission, which was to look out
for Strout's safety. 
	[¶7]  One of the pair approaching and yelling at Burke was Paul
Dumond.  Neither Dumond nor his friend initially obeyed Burke's commands
to return to the sidewalk, but instead advanced upon Burke, yelling that
what he and Strout were doing was not right.{1}  Burke noticed that Dumond
was highly agitated as he came across the street.  Despite Dumond's
agitation, Burke remained calm and continued to order Dumond and his
friend to return to the sidewalk.  At this point, the friend tried to get
Dumond to return to the sidewalk, but Dumond refused and continued to
advance upon Burke.  By this time, Dumond was in the middle of the street,
near Burke and hindering the passage of cars on Middle Street.  Dumond
brushed up against Burke, and Burke decided to arrest him for obstructing a
public way and obstructing government administration. 
	[¶8]  Burke attempted to take Dumond back to the cruiser so that he
could pat him down for weapons before handcuffing him and placing him
inside the vehicle.  At some point before Burke could handcuff him, Dumond
realized he was being arrested and attacked the officers in an effort to
escape.  Dumond began throwing punches and completely lost control,
shouting at the officers that he was going to "fuck them up," which the
officers interpreted as a threat that he was going to try to kill them.  Burke
was hit in the face and lost a contact lens, Germaine was also hit in the face,
and the side view mirror of the patrol car was damaged.  Burke and
Germaine had difficulty restraining Dumond; Strout saw the fight and moved
to assist.  Even so, the three officers could not restrain Dumond until Strout
used cayenne pepper spray to incapacitate him.  The three officers
handcuffed Dumond and placed him in a police van.  During the fight with
Dumond, Ladacackos escaped when one of his friends opened the cruiser
door. 
	[¶9]  Dumond was indicted on seven counts relating to this incident. 
Some of these charges were dismissed and in February of 1999 Dumond was
tried before a jury for assault on a police officer, two counts of criminal
mischief relating to the damage to Burke's contact lens and to the cruiser's
side-view mirror, and for failure to submit to arrest.{2}  Dumond raised a
justification defense to the charges.  After the close of evidence, Dumond
moved for acquittal on the two criminal mischief counts.  The court granted
the motion as to the side view mirror but reserved judgment as to the
contact lens.  The jury returned a verdict of guilty of assault on a police
officer and of failure to submit to arrest, but of not guilty of criminal
mischief.  Prior to sentencing, Dumond again moved for acquittal and for a
new trial.  Dumond argued that there was insufficient evidence to allow the
jury to find that Burke did not know the arrest was illegal, that the court
erred in failing "to instruct the jury as to the legal definitions of the offenses
that gave rise to the arrest," and that the court erred in failing to give an
instruction for simple assault.  Following a hearing, the court denied
Dumond's motion in its entirety and sentenced Dumond to a term of six
months for assault on a police officer and 30 days, concurrent, for failure to
submit to arrest.  All but 48 hours of the sentence was suspended and
Dumond was placed on a year probation for each count, to be served
concurrently.  Dumond appeals from the judgment.  
	[¶10]  On appeal, Dumond argues that the court erred when it failed
to give an instruction about the elements of obstruction of a public way and
of obstruction of government administration because the jury could not
properly evaluate his justification defense without knowing the legal
definitions of these two offenses.  As an initial matter, we must consider the
State's suggestion that Dumond failed to properly preserve his objection
because he did not renew it after the charge was given and before the jury
retired.  The State cites three federal cases interpreting the federal rules as
support for this proposition.  See United States v. Barrett, 598 F.Supp. 469
(D.Me. 1984) (interpreting Fed. R. Crim. P. 30); McGrath v. Spirito, 733 F.2d
967 (1st Cir. 1984) (interpreting Fed. R. Civ. P. 51); Carrillo v. Sameit
Westbulk, 514 F.2d 1214 (1st Cir. 1975) (interpreting Fed. R. Civ. P. 51). 
Though these cases set forth the law in the First Circuit, see, e.g., United
States v. Monteiro, 871 F.2d 204, 208 (1st Cir. 1989), and though M. R.
Crim. P. 30(b) has language identical to its federal counterparts, Maine has
never adhered to a strict requirement that objections be renewed after the
charge is given.  See State v. Morey, 427 A.2d 479, 482 (Me. 1981). 
Although we have repeatedly admonished counsel that the better practice is
to object after the charge is given, see State v. Rice, 379 A.2d 140, 144 n.3
(Me. 1977); Morey, 427 A.2d at 482 n.2, we have only required an objection
be renewed after the charge when the circumstances of the case were such
that the trial court was unaware of the defendant's objection, as, for
example, when the court "purport[s] to instruct in accordance with the
defendant's wishes," only to find the defendant arguing on appeal that the
instruction was erroneous.  See Rice, 379 A.2d at 144.  In the present case,
Dumond requested particular instructions that the court refused to give.  In
such  cases, we do not require that the objection be renewed after the
charge has been given.  See id. ("It would have been futile for defendant . . .
to have renewed his obvious disagreement after completion of the charge.");
State v. Burnham, 406 A.2d 889, 892 (Me. 1979) (noting that error was
preserved because instruction was requested but not given).  We decline to
abandon these established rules in favor of the federal approach.  See Irish v.
Gimbel, 2000 ME 2, ¶ 5, 743 A.2d 736, 737.
	[¶11]  When an objection to jury instructions has been preserved, we
review jury instructions in their entirety.  See Wheeler v. White, 1998 ME
137, ¶ 6, 714 A.2d 125, 127.  Dumond does not argue that the instructions
were incorrect, just that the court erred in failing to give an additional
instruction.  We review for abuse of discretion the refusal to give further
instructions when the instructions that were given are substantially correct. 
See Mixer v. Tarratine Market, 1999 ME 27, ¶ 6, 724 A.2d 614, 615.  
A party is entitled to a requested jury instruction when that
instruction (1) states the law correctly;  (2) appears to be supported
by the facts of the case;  (3) is not misleading or confusing;  (4) is
not already sufficiently covered in the given charge;  and (5) when
refusal to give the instruction would result in prejudice to the party
requesting it.
Id.  Dumond's requested instructions fail to meet at least two of these
requirements.  First, they are misleading.  Second, the refusal to give the
instructions did not prejudice Dumond.
	[¶12]  Under the law of justification in Maine, a private citizen is
limited in his or her legal ability to resist an arrest by a police officer.  Maine
no longer adheres to the common law rule that a citizen has the same rights
to resist an illegal arrest "as he would have in repelling any other assault and
battery."  State v. Austin, 381 A.2d 652, 653 (Me. 1978) (quoting State v.
Robinson, 145 Me. 77, 81, 72 A.2d 260, 262 (1950)).  The interplay of 17-A
M.R.S.A. §§ 107(1){3} & 108(1-A){4} now limits a citizen's ability to respond
with force to an arrest.  See 17-A M.R.S.A. §§ 107(1), 108(1-A) (1983 &
Supp. 1999).  Unless an officer has used excessive force,{5} a citizen may not
resist the arrest unless the officer "knows the arrest is illegal."  Austin, 381
A.2d at 655.  The actual legality of an arrest is not the relevant
determination; indeed, even if the arrest ultimately is found to be illegal, the
justification defense will fail absent an indication that the officer knew of the
illegality at the time of the arrest.  See id. 653 n.1, 654.  An instruction on
the elements of obstructing a public way and obstructing government
administration is misleading for precisely this reason.  It creates the
possibility that the jury would focus on the question of whether or not the
arrest was illegal rather than on what Burke knew of the legality of the
arrest.  
	[¶13]  Even if the proposed instructions were not misleading,
Dumond has suffered no prejudice from their omission.  Dumond's proposed
instructions are solely focussed upon the immaterial question of whether the
arrest was, in fact, illegal.  The jury, however, was correctly charged on the
material question of whether Burke knew that the arrest was illegal and
concluded, as fact, that Burke did not know his arrest of Dumond was illegal. 
Dumond's proposed instructions would not alter that factual determination
and therefore would not change the legal conclusion that Dumond was not
justified in his use of force against Burke.
	The entry is:
				Judgments affirmed.
                 
Attorneys for State: Stephanie Anderson, District Attorney Julia Sheridan, Asst. Dist. Atty. 142 Federal Street Portland, ME 04101 Attorneys for defendant: Andrew P.T. Bloom, Esq. James G. Boulos, Esq. The Boulos Law Firm P O Box 856 Saco, ME 04072-0856
FOOTNOTES******************************** {1} . Dumond claimed at trial that Strout was verbally and physically abusive to Ladacackos. {2} . Though Dumond was initially indicted on the charges that were the basis of the arrest, namely obstructing a public way and obstructing government administration, the State dismissed those charges before trial. {3} . The statute provides: A law enforcement officer is justified in using a reasonable degree of nondeadly force upon another person: A. When and to the extent that he reasonably believes it necessary to effect an arrest or to prevent the escape from custody of an arrested person, unless he knows that the arrest or detention is illegal; or B. To defend himself or a 3rd person from what he reasonably believes to be the imminent use of nondeadly force encountered while attempting to effect such an arrest or while seeking to prevent such an escape. 17-A M.R.S.A. § 107(1) (1983). {4} . The statute provides: A person is not justified in using nondeadly force against another person who that person knows or reasonably should know is a law enforcement officer attempting to effect an arrest or detention, regardless of whether the arrest or detention is legal. A person is justified in using the degree of nondeadly force the person reasonably believes is necessary to defend the person or a 3rd person against a law enforcement officer who, in effecting an arrest or detention, uses nondeadly force not justified under section 107, subsection 1. 17-A M.R.S.A. § 108(1-A) (Supp. 1999). {5} . Dumond does not argue that the officers used excessive force during his arrest.