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State v. Jason Berry
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:	1998 ME 113
Docket:	Cum-97-416
Submitted
On Briefs:	February 13, 1998
Decided: 	May 18, 1998										

Panel:	ROBERTS, CLIFFORD, RUDMAN, DANA, LIPEZ, and SAUFLEY JJ.



STATE OF MAINE v. JASON BERRY


LIPEZ, J.

	[¶1]	Jason Berry appeals from a judgment of conviction entered in
the Superior Court (Cumberland County, Crowley, J.) following a jury verdict
finding him guilty of theft (Class C) in violation of 17-A M.R.S.A. § 353
(1983).{1}  Berry contends, inter alia, that the prosecutor denied him a fair
trial by threatening to prosecute a potential defense witness whose
testimony may have included incriminating admissions, and that the court's
instructions on accomplice liability were erroneous.  We affirm the
judgment.  
I.
	[¶2]  The jury could have found the following facts from the evidence
presented.  On January 8, 1997, John Hunter arrived at Brenda Rice's home
in Yarmouth to baby-sit her two children for the evening.   After Rice left
and the children went to bed, Berry and two others, Greg Carmichael and
Nate Shaheen, arrived at the Rice home.  At some point, Hunter suggested
that they look around for something to steal.  All four went into Rice's
bedroom and rummaged through the bureaus and chests looking for
something to take.  In the closet, Carmichael found a five-pound coffee can
filled with loose change, including several foreign coins, a 1924 silver dollar
and some dimes which Rice's son had painted with fingernail polish. 
Shaheen took a diamond ring and placed it in the coffee can.  Berry picked
up another ring and handed it to either Shaheen or Carmichael.  Three of
Rice's rings ended up in the coffee can.  
	[¶3]  Berry, Shaheen, and Carmichael left the house before Rice
returned.  When Rice came home, Berry and Carmichael picked up Hunter
and went to Berry's house.  In Berry's bedroom, Hunter saw some change
and two rings in a purple long-neck vase.  One of the rings in the vase was a
diamond ring.  Hunter also saw a painted coin and the coffee can from Rice's
closet on the floor.  Carmichael was wearing one of the rings taken from
Rice's bedroom.  Berry emptied the contents of the vase onto his bed and
said that he was going to purchase drugs with the money.  
	[¶4]  On the following day, Rice notified the police that the coffee can
and the rings were missing.  As a result of discussions with Hunter, the
police obtained and executed a search warrant for Berry's house.   They
found a 1924 silver dollar, a coffee can, and change in a tall purple glass
vase.
	[¶5]  At the close of the State's case-in-chief, the court denied
Berry's motion for a judgment of acquittal.  The court instructed the jury on
accomplice liability as follows:  
A person is legally accountable for the conduct of another
person when he is an accomplice of such other person in the
commission of a crime.  A person is an accomplice of another
person in the commission of a crime if with the intent of
promoting or facilitating the commission of a crime he solicits
such other person to commit the crime or aids or agrees to aid
or attempts to aid such other person in the planning or
committing the crime.   A person is an accomplice to any
crime the commission of which was a reasonably foreseeable
consequence of his conduct.
The jury returned a guilty verdict, and this appeal followed.
II.
	[¶6]  Berry first argues that the State's "threat" to prosecute
Carmichael violated Berry's constitutional right to present witnesses in his
defense.  During a pretrial, in-chambers conference, Berry's attorney
announced his intention to call Carmichael as a witness.  The charge against
Carmichael stemming from the theft at Rice's home had been dismissed
pursuant to a plea bargain in another case.  When the court stated its
assumption that the dismissal was without prejudice, Berry's attorney said
that he would not call Carmichael as a witness "unless the State want[ed] to
go on the record and say that they [sic] are not going to . . . prosecute
Carmichael for his testimony here today."  The prosecutor declined that
invitation.{2}  Later, during a break in the trial, Carmichael spoke to his
attorney, who then represented to the court that Carmichael would invoke
his Fifth Amendment privilege if called to testify.  
	[¶7]  A defendant's right to present his own witnesses in establishing
a defense is a fundamental component of due process.  See State v. Fagone,
462 A.2d 493, 496 (Me. 1983) (citing Washington v. Texas, 388 U.S. 14, 19,
87 S. Ct. 1920, 1923, 18 L. Ed. 2d 1019 (1967)).  In Fagone, the trial court
warned a prospective defense witness about the extent of his potential
criminal liability by "emphatically and repeatedly [suggesting] that the
witness did not have to testify."  Id. at 497.  We held that the trial court
deprived the defendant of a fair trial by effectively driving the witness off the
stand.  See id.  
	[¶8]  In this case, Carmichael was not present during the chambers
conference, nor did he have any contact with the prosecutor.  The
prosecutor's mere suggestion that Carmichael might be prosecuted if he
made incriminating statements falls far short of the intimidating conduct by
a prosecutor that has been held to violate a defendant's right to present
witnesses in his defense.  See, e.g., United States v. Morrison, 535 F.2d 223,
227 (3rd Cir. 1976) (holding that prosecutor's repeated warnings to
potential defense witness, including a "highly intimidating personal
interview," violated the defendant's right to present witnesses in his
defense).  Carmichael was not effectively driven off the witness stand by the
prosecutor; rather, he chose to invoke his constitutional right not to give
incriminating testimony after consulting with a lawyer.  We conclude that
the prosecutor's statement did not deprive Berry of a fair trial in violation of
the Maine and United States Constitutions. 
III.
	[¶9]  Berry also argues that there was no evidence regarding his role
in the theft and, therefore, the accomplice liability instruction was not
generated by the evidence.  We disagree.  The jury heard evidence that Berry
was present when Hunter suggested looking for something to steal, that all
four men "snooped around" in Rice's bedroom, and that Berry took one of
Rice's rings and handed it to either Carmichael or Shaheen.  Because the
evidence established that Berry, at a minimum, aided in the commission of a
theft, the court properly instructed the jury on accomplice liability.  See
State v. Wright, 662 A.2d 198, 202 (Me. 1995).
	[¶10]  Berry argues further that the court erred by instructing the
jury on the "reasonably foreseeable consequence" basis for accomplice
liability.  Although Berry objected generally to the accomplice liability
instruction, he did not object to and did not direct the court's attention to
what he now contends is the specific defect in the instruction.  See M.R.
Crim. P. 30(b).  We therefore review for obvious error affecting substantial
rights.  See State v. Daniels, 663 A.2d 33, 36 (Me. 1995).
	[¶11]  In pertinent part, the accomplice liability statute provides that:
3.	A person is an accomplice of another person in the
commission of a crime if:

	A. With the intent of promoting or facilitating the
commission of the crime, he solicits such other
person to commit the crime, or aids or agrees to aid
or attempts to aid such other person in planning or
committing the crime.  A person is an accomplice
under this subsection to any crime the commission
of which was a reasonably foreseeable consequence
of his conduct[.]
17-A M.R.S.A. § 57(3)(A) (1983).  This statute establishes two bases for
accomplice liability:  first, when the alleged accomplice intends to promote
the commission of the primary crime; second, when the alleged accomplice
intends to promote the primary crime and the commission of the secondary
crime is a foreseeable consequence of the accomplice's participation in the
commission of the primary crime.  See State v. Goodall, 407 A.2d 268,
277-78 (Me. 1979).  In State v. Armstrong, 503 A.2d 701 (Me. 1986), we
explained that an instruction on the reasonably foreseeable consequence
basis of accomplice liability "is warranted only when a crime, other than the
intended primary crime, has been committed by the principal."  Id. at 703.  
When no secondary crime is charged, an instruction on the reasonably
foreseeable consequence basis "raise[s] the possibility that the jury found
accomplice liability based on the fact that the [crime] was a foreseeable
consequence of [the accomplice's] conduct and not because he intended the
[crime] to occur."  Id.{3}   Because Berry was not charged with a secondary
crime, the court erred by instructing the jury on the reasonably foreseeable
consequence theory of accomplice liability.  Cf. State v. Bowman, 588 A.2d
728, 732 (Me. 1991) (holding that trial court erred by instructing jury on
accomplice liability without specifying a primary crime or its elements).  
	[¶12]  Although the court erred by instructing the jury on the second
sentence of § 57(A)(3), the error does not rise to the level of an obvious
error affecting Berry's substantial rights.  See M.R. Crim. P. 52(b).  Applying
the instructions as given, the jury could have reached its verdict based on
one of two permissible conclusions:  that Berry himself committed the acts
constituting a theft or that, with the requisite mental state, he solicited,
aided, or agreed to aid the other men in the commission of the theft.  There
was substantial evidence of Berry's guilt as a principal.  There was also
substantial evidence that the theft by the others was an intended
consequence of Berry's conduct.  Therefore, the court's instruction on the
second sentence of § 57(A)(3), viewed in the context of the entire charge,
was not a highly prejudicial error tending to produce manifest injustice.  See
Daniels, 663 A.2d at 36.{4} 
IV.
	[¶13]  At trial, Hunter testified, over Berry's objection, that Berry said
that he was going to purchase drugs with the stolen money.  Berry contends
that this testimony should have been excluded pursuant to M.R. Evid. 403.{5} 
We disagree.  We review a court's Rule 403 ruling to determine whether the
court exceeded its discretion.  See State v. Thompson, 1997 ME 109, ¶ 14,
695 A.2d 1174, 1179.  The trial court determined that the proffered
testimony was "highly probative" of Berry's exercise of unauthorized control
over Rice's property.  The court correctly weighed the probative value of the
evidence against the possibility of unfair prejudice to Berry, and instructed
the jury that the evidence could only be considered on the issue of Berry's
participation in the theft.  See State v. Connors, 679 A.2d 1072, 1074-75
(Me. 1996).  The trial court did not exceed its discretion by admitting
Hunter's testimony.  
	[¶14]  Finally, we reject Berry's contention that the court erred by
denying his motion for a judgment of acquittal.  Viewed in the light most
favorable to the State, the evidence in this case was sufficient to eliminate
any reasonable doubt that Berry exercised unauthorized control over Rice's
property with intent to deprive her thereof.  See State v. Thompson, 503
A.2d 228, 232 (Me. 1986).
	The entry is:
					Judgment affirmed.

Attorneys for State: Stephanie Anderson, District Attorney Steven Dassatti, Asst. Dist. Atty. Megan Elam, Asst. Dist. Atty. 142 Federal Street Portland, ME 04101 Attorney for defendant: Peter E. Rodway, Esq. P O Box 874 Portland, ME 04104
FOOTNOTES******************************** {1} Section 353 provides: 1. A person is guilty of theft if he obtains or exercises unauthorized control over the property of another with intent to deprive him thereof. 2. As used in this section, "exercises unauthorized control" includes but is not necessarily limited to conduct heretofore defined or known as common law larceny by trespassory taking, larceny by conversion, larceny by bailee and embezzlement. 17-A M.R.S.A. § 353 (1983). Theft is a Class C crime if the value of the property is more than $2,000, but not more than $10,000. Id. § 362(3)(A) (1983 & Supp. 1997). {2} The prosecutor's exact words were: "Right. If he admits today, I'm not going to prosecute him? I will certainly check. I'll have them get the copy of the dismissal and see if it is with or without prejudice, if it is even noted." {3} In State v. Kimball, 424 A.2d 684 (Me. 1981), we held that the trial court did not err by instructing the jury on the second sentence of 17-A M.R.S.A. § 57(3)(A), when the defendants were charged with murder in connection with a death that occurred during the course of a robbery. See id. at 691-93. We noted that the trial court used the word "murder" and described the elements of that crime "to direct the jury's attention to what they must find had in fact occurred and what they must find to have been a reasonably foreseeabl[e] consequence of either defendant's participation in the robbery . . . ." Id. at 693. In Kimball, the robbery was the primary crime and the murder was the secondary crime. To obtain a conviction for a secondary crime on the basis of the second sentence of 17-A M.R.S.A. § 57(3)(A), the State is required to prove that the defendant possessed the intentional mental state to be an accomplice to the primary crime and that the commission of the secondary crime by another person was a reasonably foreseeable consequence of the defendant's participation in the primary crime. See State v. Linscott, 520 A.2d 1067, 1070 (Me. 1987); Alexander, Maine Jury Instruction Manual §§ 6-31 cmt., 6-32, 6-33 (3d ed. 1996). {4} Contrary to Berry's contention, the court did not commit obvious error by failing to instruct the jury that a defendant's "mere presence" at the scene of a crime does not make that defendant an accomplice. See Daniels, 663 A.2d at 36. {5} Rule 403 provides that relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice . . . ." M.R. Evid. 403.