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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 trial. 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 reinstruction 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 (3) 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 to 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 LaPierre grew or cultivated 500 or more marijuana plants, or was the accomplice of someone who did.FOOTNOTES******************************** {1} . Dumond first testified that he guessed the number of plants in one room of the mobile home to be "350, 400 plants." Later in his testimony he said there were "at least 500" and "about 500" plants in the mobile home. {2} . The statute, in effect on April 30, 1998, read as follows: 1. A person is guilty of unlawful trafficking in a scheduled drug if the person intentionally or knowingly trafficks in what the person knows or believes to be a scheduled drug and that is in fact a scheduled drug, . . . . . . . . 2. Violation of this section is: A. A Class B crime if the drug is a schedule W drug, if it is marijuana in a quantity of 20 pounds or more or if it is marijuana and the person grows or cultivates 500 or more plants; B. A Class C crime if the drug is a schedule X drug, if it is marijuana in a quantity of one pound or if it is marijuana and the person grows or cultivates 100 or more plants; C. A Class D crime if the drug is a schedule Y drug or a schedule Z drug. 17-A M.R.S.A. § 1103 (1983 & Supp. 1998). This statute was amended in 1999, to delete the language regarding cultivation of marijuana. See P.L. 1999, ch. 374, §§ 1 & 2. The crime of cultivating marijuana plants is now found at 17-A M.R.S.A. § 1117 (Supp. 1999). Marijuana is defined as a schedule Z drug. See 17-A M.R.S.A. § 1102(4)(B) (1983). The definition of "traffick," in effect on April 30, 1998, included "to grow or cultivate." 17-A M.R.S.A. § 1101(17) (Supp. 1998), amended by P.L. 1999, ch. 374, § 1. {3} . The third instruction stated: The issue of the number of plants cannot come up unless you conclude beyond a reasonable doubt that the defendant has -- that the State has proved to you beyond a reasonable doubt all of the elements of trafficking as I've defined it. And if the State has proved all the elements of trafficking, then the issue of the number of plants may be considered by the jury. The jury is entitled to consider whether the State has proved to you beyond a reasonable doubt that the number of plants is 500 or more. Doesn't have to be an exact number, but it would have to be 500 or more. Or if the State has proved to you beyond a reasonable doubt all of the elements of trafficking, the jury could determine whether or not there are 100 or more plants or less than 100. So if you go to the jury room, obviously if the State has failed to prove any element of the offense of trafficking, the number is irrelevant because he has to be acquitted. But if you find beyond a reasonable doubt that the State has proved trafficking, . . . then you may determine whether or not the State proved beyond a reasonable doubt that there are 500 or more plants, 100 or more plants, or less than 100 plants. So when you go back to the jury room, if you come upstairs and the clerk inquires, how do you find the defendant, guilty, he is charged in the indictment with 500 or more plants. If you determine guilty, I will then inquire, do you find 500 or more plants? And you answer yes or no. 100 or more plants? And you answer yes or no. Or less than 100. Okay? {4} . The jury retired to begin deliberations at 12:13 p.m. At 1:05 the court reconvened to discuss the first note from the jury, and at 1:11 p.m. the jury was brought back into the courtroom for the replaying of the audio tape. The jury left the courtroom at 1:21 p.m. At 2:15 the court received the second note from the jury and brought them into the courtroom at 2:16. The jury was reinstructed and left again at 2:23. At 2:51 the court reconvened to receive the third note, and the jury came back into the courtroom at 3:03, when it was instructed on the lesser included offenses. The jury retired to the jury room at 3:08 p.m. and the court reconvened at 3:25 p.m. to take the verdict. {5} . LaPierre was sentenced to four years incarceration, suspending all but two years, on count I. He was also sentenced to four years of probation and ordered to pay a fine of $16,000, plus surcharges and assessments. He was sentenced to two years incarceration on count II, to be served concurrently with count I. {6} . The court's instruction had told the jurors that they "may determine" whether the State had proven the alternative numbers. {7} . By the time of the final instruction, the jury had heard trafficking defined to include possession with intent to accomplish any acts listed in the statutory definition on at least three occasions. {8} . In McKinney, we state that we: "encourage the trial court not to track the language of a statute in its instructions without careful consideration of the applicability of the language to the issues generated in the case that are being submitted to the jury."
Attorneys for State: Neale T. Adams, District Attorney John M. Pluto, Deputy. Dist. Atty., (orally) 144 Sweden Street Caribou, ME 04736-2353 Attorney for defendant: Daniel G. Lilley, Esq., (orally) Mark L. Randall, Esq. Law Offices of Daniel G. Lilley, P.A. P O Box 4803 Portland, ME 04112-4803