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State v. Therrien
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision: 	1997 ME 100
Docket: 	PEN-95-342
Argued: 	December 3, 1996
Decided :	May 14, 1997

Panel:  WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ,
JJ.  

STATE OF MAINE v. TRAVIS THERRIEN

GLASSMAN, J.
  
	[¶1] Travis Therrien appeals from a judgment entered in the Superior
Court (Penobscot County, Kravchuk, J.) following a jury verdict finding him
guilty of manslaughter (Class A), 17-A M.R.S.A. § 203 (Supp. 1996), for the
death of Robert Reynolds.  Therrien contends, inter alia, that the trial court
erred by denying his requested jury instructions on voluntary conduct.  We
agree and vacate the judgment.{1}  
	[¶2] Therrien entered a plea of not guilty to the charge of intentionally
or knowingly causing the death of Robert Reynolds in violation of 17-A
M.R.S.A. § 201(1)(A) (1983).{2}  The record reflects that at the trial on that
charge the jury, inter alia, heard the following evidence:  Robert Reynolds,
aged 32 years, died shortly after sustaining a shotgun wound to the abdomen
in the early morning hours of July 14, 1994, at a second-floor apartment on
Silk Street in Brewer that Therrien, aged 19 years, shared with Chris
Maxwell, aged 20 years.  At approximately 1:00 a.m. on July 14, while
walking to a convenience store, Therrien and Maxwell encountered
Reynolds on the street near their apartment building.  Although they had
met Reynolds only once before, they were aware he indirectly supplied the
marijuana they purchased from Reynolds' younger brother, Chris.{3}  Both
Therrien and Maxwell had consumed LSD and marijuana earlier that
evening, but Therrien denied he was still affected by the drugs when they
met Reynolds.  They surmised Reynolds was drunk.  Both Therrien and
Maxwell related that Reynolds acted in a mocking and harassing manner,
especially towards Maxwell.{4}  The men testified that they were intimidated
by him and did not want to fight with him.  At one point, Reynolds suddenly
took a swing at Therrien, knocking off his baseball hat.  After Maxwell went
inside their apartment building, Therrien and Reynolds remained outside. 
After about ten minutes, Therrien told Reynolds it was late and he was going
to bed and jumped onto the porch to go into the apartment building. 
Reynolds stepped onto the porch and said he wanted to show Therrien
something and wanted to use the telephone to call his brother Chris.  While
Therrien had his hand on the knob of the door to the building and had again
stated it was late and he had to go to bed, Reynolds grabbed his arm and
said, "I've got to use your goddamn phone, I'm going to call Chris."  
	[¶3]   Reynolds followed Therrien into the building.  As Therrien and
Reynolds came up the stairs, Therrien said to Reynolds, "You are just calling
your brother Chris, right?"  Reynolds replied "yes", and they proceeded up
the stairs into the apartment.  Therrien told Maxwell that Reynolds wanted
to use the telephone and that nothing could be done about it.  Once inside,
Reynolds took off his coat, held it out with his left hand and said, "Look at
me, boys, I'm not a very big man, what are you afraid of?"  He then dropped
his coat and sat down on a recliner facing away from the hall entrance to the
living room, where he remained.  Reynolds had no weapons.  
	[¶4] Reynolds did not attempt to call his brother Chris.  Instead he sat
quietly for a short time and then began again to orally harass Maxwell, who
was also sitting in the living room.  Therrien was originally seated in the
living room with Maxwell and Reynolds, but after getting up to get a drink of
water in the kitchen, remained in the living room archway located behind
and to the right of where Reynolds was seated.  
	[¶5] Reynolds made several telephone calls while seated in the
recliner.  He told Therrien to look up telephone numbers and dial the
telephone.  Both Maxwell and Therrien testified they were afraid to ask
Reynolds to leave because they were convinced that ordering him to leave
would have resulted in a fight.  Reynolds told them "he had a 9-millimeter
backing him up and that he knew how to use it and that you shouldn't -- you
shouldn't be talking about one if you're not prepared to use one."  Therrien
testified that Reynolds was acting in an unpredictable manner,
intermittently orally harassing both him and Maxwell and boasting to them. 
This continued for approximately one hour.  
	[¶6] At approximately 3:10 a.m., Therrien decided that Reynolds had
to leave.  He walked to his bedroom to find another telephone to plug in and
to call Reynolds' brother, Chris, to get Reynolds to leave.  Unable to find the
telephone, he testified that he wanted something to "equalize the situation"
when he asked Reynolds to leave.  Therrien searched unsuccessfully for his
baseball bat and decided on his single-shot shotgun.  He knew the gun was
loaded.  
	[¶7] Therrien left the bedroom and walked down the hall toward the
living room with the shotgun on his hip and his finger on the trigger.  On
direct examination he testified as follows:
  
Q.	Okay.  Did you approach Rob with the gun?
A.	Yes, I did.
Q.	And he was sitting down?
A.	Yes, he was.  
	. . . .  
	Q.	What did he do?
A.His right arm came out towards the gun, his torso twisted
and his butt began to come off the seat.  
Q.	And how close were you to him at this time?  
	A.	Real close.
	. . . .  
	Q.	Did you decide to shoot him at that point?  
A.	I pulled the hammer back when he did that.  I'm not --
Q.You pulled -- you remember pulling the hammer back
when he lunged at you?  
	A.	Yes.
	Q.	Do you remember pulling the trigger?
A.I don't remember pulling the trigger, but I'm not denying
it.  
	Q.	It went off?
	A.	Oh yeah.  
	. . . .  
	Q.	Were you surprised that Rob had been shot?  
	A.	Yeah.
	. . . .  
Q.Are you suggesting that this was just one big accident?  
A.I'm not saying that -- you know, I'm not denying I shot the
guy, but I mean, I didn't -- my intention was never to hurt
Rob Reynolds.  My intention was to get him out of the
house.  
	. . . .  
	Q.	Why did you shoot him, Travis.  
A.I didn't -- I didn't shoot him because he wouldn't stay
there.  I didn't intend to shoot him, but he moved for my
gun.  He went to get my gun.  That's a small apartment. 
It's a tight space.  
Q.Did you shoot him so he wouldn't get the gun or don't you
know?  
A.No.  Better that than, you know, have him get my gun, I
guess.  
	Q.	But did you think about it?  
A.No.  I didn't have -- I didn't expect him to move for my
gun.  
	Q.	What did you expect him to do?  
A.I expected him to sit tight and then I could get on with my
you've got to leave, but it didn't happen.  

On cross-examination, Therrien testified he was not sure if Reynolds' hand
touched the gun when he moved from his seat after seeing the weapon.  The
shotgun used by Therrien had a five and one-half to six pound trigger pull,
which is considered average for a weapon of this type.  
	[¶8] Maxwell, who did not see Therrien step into the living room with
the gun or see the shooting, called 911.  Maxwell testified that Reynolds was
making gulping sounds and breathing heavily.  Therrien said, "Oh my god, I
did it," and then stated he was going to his parents' house and ran out the
door.  The Brewer police responded immediately and were joined by the
Brewer Fire and Capitol Ambulance in an ultimately unsuccessful attempt to
resuscitate Reynolds.{5}  
	[¶9] Soon after leaving the apartment, Therrien, in an agitated state,
called the Brewer police and said, "I just shot the man.  I'm at Texaco
Brewer One Stop." A Brewer police cruiser en route to the shooting was
diverted to that location to pick up Therrien.  Therrien emerged from the
store with his hands up and was taken into custody.  
	[¶10] Following the close of the evidence at the trial, the court, inter
alia, instructed the jury on the elements of the offenses of murder, reckless
or criminally negligent manslaughter and adequate provocation
manslaughter.{6}  Therrien requested, and the court gave, a jury instruction
on self-defense.  Therrien also requested that the court instruct the jury on
voluntary conduct.{7}  The trial court denied the request on the ground that
the issue had not been generated by the evidence and would only confuse
the jury.  The jury returned a verdict of not guilty of murder, but guilty of
manslaughter.  From the judgment entered accordingly, Therrien appeals.  
	[¶11] Therrien contends that the court erred by failing to give his
requested instruction on voluntary conduct within the purview of 17-A
M.R.S.A. § 31(1).  We agree.  
	[¶12] In State v. Case, 672 A.2d 586 (Me. 1996), we stated that "[t]o
be voluntary an act must be the result of an exercise of defendant's
conscious choice to perform [it], and not the result of reflex, convulsion, or
other act over which a person has no control." Id. at 589 (quoting State v.
Mishne, 427 A.2d 450, 458 (Me. 1981)); see State v. Flick, 425 A.2d 167,
171 (Me. 1981) (legal concept of voluntariness pursuant to section 31
distinguishes such conduct from reflex or nonvolitional action).{8}  Viewing
the evidence in the light most favorable to Therrien, Therrien testified that
he did not intend to shoot Reynolds, he did not remember pulling the
trigger, and he was surprised that Reynolds was shot.  On this evidence, the
jury could have concluded that the force applied to the trigger was
involuntary.  
	[¶13] The jury verdict finding Therrien guilty of manslaughter gives no
indication whether it was premised on Therrien's criminally negligent or
reckless conduct or whether he acted with adequate provocation.  In each
instance, a determination whether Therrien had voluntarily or involuntarily
pulled the trigger of the gun is a relevant factor to be considered by the jury. 
The jury, after considering all the attendant circumstances and Therrien's
conduct culminating in the actual shooting, could find Therrien guilty of
criminally negligent or reckless manslaughter notwithstanding its
determination that his pulling of the trigger was an involuntary act.  See
State v. Ledger, 599 A.2d 813, 815 (Me. 1991) (for purposes of
manslaughter the terms "recklessly" or "criminally negligent" identify the
accused's culpable mental state that State must prove by establishing that
conduct of defendant involved gross deviation from standard of conduct that
a reasonable and prudent person would observe in same situation).  See also
State v. Burrell, 609 A.2d 751, 753 (N.H. 1992) (State is not required to
prove that defendant's last act of pulling the trigger is voluntary in order to
establish manslaughter).  Because, however, the definition of adequate
provocation manslaughter requires that the death be caused by intentional
or knowing conduct, a finding by the jury that Therrien acted involuntarily
when he pulled the trigger of the gun would foreclose a verdict of
manslaughter on the ground of adequate provocation.  It is axiomatic that
one cannot intentionally and knowingly cause the death of another by an
involuntary act.  State v. Lafferty, 309 A.2d 647 669 (Me. 1973).  On the
record in this case, we conclude the trial court erred by denying Therrien's
request to instruct the jury on voluntariness.  
	The entry is:
Judgment vacated.  Remanded for further
proceedings consistent with the opinion
herein. 
                                                               

Attorneys for State: Andrew Ketterer, Attorney General Nancy Torresen, Asst. Atty. Gen. (orally) William R. Stokes, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006 Attorney for defendant: David E. Gray, Esq. (orally) 50 Columbia Street, Suite 66 Bangor, ME 04401
FOOTNOTES******************************** {1} Because we vacate the judgment on this ground, we need not address Therrien's other challenges to the jury instructions. {2} 17-A M.R.S.A. § 201(1)(A) provides, in pertinent part: 1. A person is guilty of murder if: A. He intentionally or knowingly causes the death of another human being[.] {3} On occasion, Maxwell and Therrien had complained to Chris Reynolds because they felt that they had been shortchanged in these transactions. Chris told the pair that his brother had been to prison, was very tough, and would protect him. Maxwell and Therrien replied that they had loaded guns and could protect themselves. {4} Reynolds called Maxwell "Mr. 9-millimeter man" and stated "I own you" to him. Chris Reynolds testified that he recalled a conversation with Therrien in which he warned Therrien that people living in Therrien's apartment building had children and that Therrien would have to keep the noise level down. Therrien had responded, "If anybody comes up here I've got a gun, I've got a 9-millimeter that will take care of them." Chris Reynolds could not recall whether he mentioned the conversation to his brother Robert. The police recovered a pellet gun at Therrien's apartment that resembled a 9-millimeter. {5} An autopsy revealed that Reynolds died of a shotgun wound to the abdomen that severed the aorta and vena cava. At the time of his death, Reynolds' blood-alcohol level was .24. {6} 17-A M.R.S.A. § 203 (Supp. 1996) provides in pertinent part: 1. A person is guilty of manslaughter if that person: A. Recklessly, or with criminal negligence, causes the death of another human being; B. Intentionally or knowingly causes the death of another human being under circumstances which do not constitute murder because the person causes the death while under the influence of extreme anger or extreme fear brought about by adequate provocation. Adequate provocation has the same meaning as in section 201, subsection 4. The fact that a person causes the death while under the influence of extreme anger or extreme fear brought about by adequate provocation constitutes a mitigating circumstance reducing murder to manslaughter and need not be proved in any prosecution initiated under this subsection . . . . 17-A M.R.S.A. § 201(4) (Supp. 1996) provides that provocation is adequate if: A. It is not induced by the actor; and B. It is reasonable for the actor to react to the provocation with extreme anger or extreme fear, provided that evidence demonstrating only that the actor has a tendency towards extreme anger or extreme fear shall not be sufficient, in and of itself, to establish the reasonableness of his reaction. 17-A M.R.S.A. § 35 (1983) defines the relevant culpable states of mind as follows: 1. "Intentionally." A. A person acts intentionally with respect to a result of his conduct when it is his conscious object to cause such a result. B. A person acts intentionally with respect to attendant circumstances when he is aware of the existence of such circumstances or believes that they exist. 2. "Knowingly." A. A person acts knowingly 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. B. A person acts knowingly with respect to attendant circumstances when he is aware that such circumstances exist. 3. "Recklessly." A. A person acts recklessly with respect to a result of his conduct when he consciously disregards a risk that his conduct will cause such a result. B. A person acts recklessly with respect to attendant circumstances when he consciously disregards a risk that such circumstances exist. C. For purposes of this subsection, the disregard of the risk, when viewed in light of the nature and purpose of the person's conduct and the circumstances known to him, must involve a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation. 4. "Criminal negligence." A. A person acts with criminal negligence with respect to a result of his conduct when he fails to be aware of a risk that his conduct