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State v. Donald Boyce
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MAINE SUPREME JUDICIAL COURTReporter of Decisions
Decision:	1998 ME 219
Docket:	Aro-97-552	
Argued:	September 11, 1998
Decided:	September 30, 1998


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




STATE OF MAINE v. DONALD BOYCE

SAUFLEY, J.

	[¶1]  Donald Boyce appeals from the judgment of conviction entered in
the Superior Court (Aroostook County, Pierson, J.) on a jury verdict finding
him guilty of depraved indifference murder, 17­p;A M.R.S.A. § 201(1)(B)
(1983), terrorizing with the use of a dangerous weapon, 17­p;A M.R.S.A. 
§ 210(1)(A)(1983), and possession of a firearm by a felon, 15 M.R.S.A.
§ 393(1) (Supp. 1997).{1}  Boyce contends that the court erred when it
refused to instruct the jury on reckless conduct with a dangerous weapon as
a lesser included offense to depraved indifference murder.  See 17­p;A
M.R.S.A. § 211(1) (1983).  Boyce also argues, inter alia, that the trial court
erred when it refused to give defense counsel the opportunity to cross-
examine a juror who Boyce alleged was biased against him and erred when it
denied his motion for recusal.  We affirm the judgment.
I. Facts
	[¶2]  Sean Bither was killed when Boyce shot him in the head at point
blank range during a drunken approximation of Russian roulette.  In the
hours before Bither's death, Boyce, who was highly intoxicated, had
impulsively and carelessly fired the pistol approximately thirty times while
inside his house and in the presence of many other people.  After the
incident, Boyce admitted to the arresting officer that he shot Bither in the
head.
II. Lesser Included Offense
	[¶3]  Boyce first argues that the trial court erred when it declined to
instruct the jury that it was required to consider reckless conduct with a
dangerous weapon as a lesser included offense of depraved indifference
murder.  "[A] lesser included offense is an offense carrying a lesser penalty
which . . . [a]s legally defined, must necessarily be committed when the
offense or alternative thereof actually charged, as legally defined, is
committed."  17­p;A M.R.S.A. § 13­p;A(2)(A) (1983) (emphasis added).  This
definition includes offenses that, in addition, require a "culpable state of
mind . . . which is different than that charged but which results in lesser
criminal liability."  17-A M.R.S.A. § 13-A(2)(B) (1983).{2}  
	[¶4]  We have previously held that reckless conduct, which requires
affirmative proof that the defendant acted recklessly,{3} is not a lesser
included offense of depraved indifference murder because depraved
indifference murder "requires no evidence whatever of the defendant's
subjective state of mind."{4}  State v. Goodall, 407 A.2d 268, 280 (Me. 1979).  
Although we did not rely on the statutory definition of "lesser included
offense" in Goodall,{5} the Goodall analysis nonetheless remains valid.  Section
13-A(2)(B) of the Maine Criminal Code provides that a lesser included
offense may contain a "different" culpable state of mind than the primary
charge.  This reference to a "different" culpable state of mind, however,
inherently presumes that the primary offense charged also requires proof of
a culpable state of mind.  A lesser offense that does require proof of a
culpable state of mind, therefore, is not "necessarily committed" when a
greater offense that does not require proof of a culpable state of mind is
committed.
	[¶5]  Simply stated, a charge that does not require proof of any
culpable state of mind cannot have as a lesser included offense any charge
that does require such proof because the lesser offense would require proof
of an element not contained in the primary charge--the mens rea. 
Accordingly, because it is theoretically possible to commit depraved
indifference murder without acting with the reckless state of mind that
must be proven for a reckless conduct charge, reckless conduct cannot be a
lesser included offense of depraved indifference murder.  The court
properly refused to give the requested instruction.
III. Allegation of Juror Bias
	[¶6]  Boyce also argues that the trial court erred when it denied his
motion for a new trial.  Boyce's primary contention in that motion was his
claim that the court erred in refusing to allow defense counsel the
opportunity to cross-examine a juror who Boyce alleged was biased against
him.  Following Boyce's allegations of juror bias and misconduct, the trial
court properly excluded Boyce's proffered evidence regarding juror
deliberations but accepted Boyce's amended proffer regarding the alleged
bias of one juror.  M.R. Evid 606(b).  See Taylor v. Lapomarda, 1997 ME 216,
¶ 6, 702 A.2d 685, 687.  
	[¶7]  The court then conducted an in camera interview of the
challenged juror to inquire as to the alleged basis for bias.  See State v.
Royal, 590 A.2d 523, 525 (Me. 1990).  The decision to interview the juror in
a recorded in camera conference was well within the trial court's discretion. 
See State v. St. Pierre, 1997 ME 107, ¶¶ 10-11, 693 A.2d 1137, 1140.
During the interview, the court had the opportunity to assess the challenged
juror's credibility and found that the allegations of bias were unfounded. 
The determination of credibility in such circumstances is a matter solely
within the province of the trial judge, and we therefore give substantial
deference to the court's ultimate decision regarding the juror's impartiality
or lack thereof.  See State v. Mair, 670 A.2d 910, 912-13 (Me. 1996)
(quoting State v. Wright, 662 A.2d 198, 201 (Me. 1995)).  We discern no
error in the court's conclusion here.
IV. Motion for Recusal
	[¶8]  Boyce next contends that the court erred when it denied his
pretrial motion for recusal.  In that motion, Boyce alleged that the trial
justice was biased because he had previously entered a contempt order
against Boyce in an unrelated civil proceeding.  As we have made clear,
information gained or opinions formed by a trial judge based on events or
facts presented in the same or other judicial proceedings do not constitute a
basis for recusal except in the extraordinary circumstances that
demonstrate a "'deep-seated favoritism or antagonism that would make fair
judgment impossible.'"  State v.  Rameau, 685 A.2d 761, 763 (Me. 1996)
(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)) (emphasis
added).  No such circumstances were demonstrated here.  Indeed, Boyce
concedes that he failed to obey a direct order of the court in the separate
matter that formed the basis of his motion.  We find no error in the court's
denial of the motion for recusal.
	[¶9]  Finally, Boyce's other contentions are without merit.  
	Therefore, the entry is:
Judgment affirmed.

Attorneys for State: Andrew Ketterer, Attorney General Nancy Torreson, Asst. Atty. Gen., (orally) Donald W. Macomber, Asst. Atty Gen. William Stokes, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006 Attorney for defendant: Eugene J. McLaughlin, Jr., Esq., (orally) P O Box 589 Presque Isle, ME 04769
FOOTNOTES******************************** {1} . The trial court sentenced Boyce to forty years for the crime of depraved indifference murder, and to concurrent sentences of five years each for the crimes of terrorizing with a dangerous weapon and possession of a firearm by a felon. Boyce's application for leave to appeal the sentence was denied on January 15, 1998. {2} . In addition, the factfinder may only consider a lesser included offense as an alternative to that with which the defendant is charged if "there is a rational basis for finding the defendant guilty of that lesser included offense." 17­p;A M.R.S.A. § 13­p;A(1) (1983). Because we conclude that reckless conduct with a dangerous weapon is not a lesser included offense of depraved indifference murder, we do not reach Boyce's argument that the evidence provided a rational basis for finding him guilty of reckless conduct with a dangerous weapon. {3} . A person engages in reckless conduct when he "recklessly creates a substantial risk of serious bodily injury to another person." 17-A M.R.S.A. § 211(1). "A person acts recklessly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result." 17-A M.R.S.A. § 35 (1983). {4} . A person engages in depraved indifference murder if he "engages in conduct which manifests a depraved indifference to the value of human life and which in fact causes the death of another human being." 17-A M.R.S.A. § 201(1)(B). {5} . Section 13-A became effective on September 14, 1979. See P.L. 1979, ch. 512, §§ 21, 45. Goodall was decided on October 22, 1979.