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State v. Kaler & Farrar
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MAINE SUPREME JUDICIAL COURT          Reporter of Decisions
Decision:  1997 ME 62
Docket: LIN-96-219
Argued March 4, 1997
Decided April 4, 1997

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




STATE OF MAINE v. ROBERT KALER and JAMES FARRAR

WATHEN, C. J.


	[¶1]  Defendants, James Farrar and Robert Kaler were convicted by
jury verdicts in a joint trial held in the Superior Court (Lincoln County,
Bradford J.).  Farrar appeals from his conviction as an accomplice to
aggravated assault pursuant to 17-A M.R.S.A. § 57 (3)(A){1} and 17-A M.R.S.A.
§ 208 (1983).{2}  Kaler appeals from his conviction of aggravated assault
pursuant to 17-A M.R.S.A. § 208 (1983) and reckless conduct with a firearmpursuant to 17-A M.R.S.A. § 211 (1983).{3}   Defendant Farrar argues that the
evidence was insufficient to sustain his conviction as an accomplice.  Both
defendants argue that the court erred in failing to grant their joint motion
for a new trial.  They contend that a jury officer's statement to a juror,
directing her to return to the jury room during deliberations, constituted an
extraneous influence or an irregularity in deliberations that justifies a new
trial.   We disagree, and affirm the judgments.	 
	[¶2]  The evidence presented at trial may be summarized as follows: 
On Sunday, January 29, 1995, defendant Farrar was at home watching the
Superbowl on television along with his girlfriend, Tory Jolicoeur; his
employer, defendant Kaler; and three other friends.  They heard a noise like
a loud "pop" in the driveway.  Kaler went out to investigate and discovered
that the tires on Farrar's pickup truck were slashed.  Kaler and Farrar
concluded that the tires had been slashed by members of a local family of
fishermen with whom they had an ongoing feud.  The tires on a boat trailer
belonging to Kaler's father and on a truck belonging to Farrar had been
slashed a couple weeks before this incident.  Defendants had also been
receiving threatening phone calls.  Although they had been unable to
positively identify the perpetrators, defendants believed that the fishermen
were behind these incidents.  On this occasion, Farrar took a 20 gauge semi-
automatic shotgun from the house and handed it to Kaler.  Thus armed, they
drove off in a black Chevrolet Celebrity in pursuit of the perpetrators, with
Farrar behind the wheel, 
	[¶3] In fact, the perpetrator was Tory Jolicouer's former boyfriend,
Matthew Doughty, not the feuding fishermen.  Doughty had been driven to
Farrar's home by a friend, Gabriel Shadis, in a blue Volvo belonging to
Shadis.  Shadis had no foreknowledge of Doughty's plans.  When Shadis
realized that defendants were in pursuit, he attempted to elude them.  He
drove about 120 feet down a side road, turned off his lights and parked
facing the main road.  Kaler and Farrar noticed the headlights just as they
were turned off.  Farrar drove into the side road at a fast rate of speed,
stopping in front of the Volvo.  Shadis drove off scraping the edge of the
Celebrity's door as Kaler was getting out.  Kaler fired several shots at the
Volvo, hitting Shadis in the neck with one of the shots.  Shadis drove to the
hospital with defendants in pursuit until they neared the hospital.
	[¶4]  The complainants, Shadis and Doughty, provided inconsistent
testimony about the placement of the vehicles on the side road.  They
testified that the vehicles did not collide, although they admitted to the
possibility of it.  They also testified that Shadis was hit as they neared the
entrance to the main road, and that at some later point in the chase they
heard another shot.  Defendant Kaler testified that Shadis tried to run him
over, that he jumped behind the open car door to avoid being hit, and that
he believed the Volvo was backing up to hit him when he fired several shots
in self-defense.  He testified that he fired all the shots when the Volvo was
only ten to fifteen feet away, contrary to the complainants' testimony that
the Volvo was speeding away during the shooting.
	[¶5]  The investigating officer recovered a 20 gauge shotgun from a
bedroom in the Farrar house the next day.  It was loaded with buckshot:  one
round in the chamber and three in the magazine.  Five empty 20 gauge
shotgun shells, four slugs and one buckshot, were found along the edge of
the side road.  A ballistics expert determined that all five were fired from
the shotgun found at the Farrar house.  No spent shells were ever found on
the main road.  The expert could not tell if the Volvo was stationary when
hit.  He found damage on the trunk and rear window consistent with
buckshot that was fired from six to ten feet away.  Other damage was
consistent with slug holes.  He acknowledged that these slugs could have
been fired from a greater distance.  Forensic evidence demonstrated
conclusively that the Volvo had scraped the edge of the Celebrity door as the
vehicles passed.	
	[¶6]  The jury found Kaler guilty of aggravated assault and reckless
conduct with a firearm.  Farrar was found guilty as an accomplice to
aggravated assault.
I.
	[¶7]  Farrar argues that the evidence is insufficient to establish
accomplice liability, and that his conviction was improperly based on his
mere presence at the scene of the shooting.  Although mere presence is not
sufficient to establish accomplice liability, once presence is proven, "the
State need prove only any conduct promoting or facilitating, however,
slightly, the commission of the crime."  State v. Libby, 435 A.2d 1075, 1077
(Me. 1981).  On a sufficiency of the evidence challenge we review the
evidence in the light most favorable to the State to determine whether the
trier of fact rationally could have found beyond a reasonable doubt every
element of the offense charged.  State v. Marden, 673 A.2d 1304, 1311 (Me.
1996).  
	[¶8]  Farrar argues that the forensic and physical evidence required
the jury to reject the complainants' version of the incident.  First, he argues
that the complainants testimony, pertaining to the placement of the vehicles
on the side road, was mutually inconsistent and inconsistent with  the
forensic and physical evidence.  Contrary to Farrar's contention, these
inconsistencies do not render the complainants' version of the events
wholly incredible.  The jury could conclude that Shadis and Doughty were
merely confused on these points without rejecting their testimony
altogether.  Unless testimony is "inherently improbable and incredible and
does not meet the test of common sense," it is the jury's function to resolve
inconsistencies and determine the credibility of witnesses.   State v.
McFarland, 369 A.2d 227, 229 (Me. 1977).
	[¶9]  Farrar also argues that the physical and forensic evidence prove
incontrovertibly that the Volvo was stationary when shot at from a distance
of six to ten feet.  He argues that this evidence renders incredible the
complainants' version that they were speeding away when the shots were
fired.  Farrar's argument relies ineffectively on the inconclusive ballistics
evidence.  The ballistics expert testified that his conclusions about the
pattern of shots was not certain, and that he could not tell if the Volvo was
stationary when hit.  His conclusion that the gun was fired from six to ten
feet away was limited to the one buckshot firing, and he acknowledged that
the three or four slugs could have been fired from a much greater distance. 
This testimony would not preclude a jury from rationally finding that Kaler
fired the buckshot when the Volvo was ten feet away, and that he kept firing
the slugs as Shadis sped away, finally hitting Shadis with a slug as he
approached the main road.  The determinations of witness credibility and
the weight to be given the evidence are within the exclusive province of the
jury.  State v. Marden, 673 at 1312.  Moreover, the jury may draw reasonable
inferences from proven facts.  Id.
	[¶10]  The evidence in the record is sufficient to support the following
findings.   Kaler and Farrar shared a motive to seek revenge against the
occupants of the Volvo, who they believed were the perpetrators of a series
of tire slashings and other harassments.  Shadis was at all times attempting
to hide or get away from defendants and had no motive to attempt to run
Kaler down.  Farrar provided the loaded and cocked shotgun that Kaler used
to fire several shots at the complainants.  As Kaler opened the Celebrity's
front passenger door to get out, Shadis drove by scraping the front edge of
the door.  As Shadis drove off, Kaler fired several shots at the back of the
Volvo, the last shot hitting Shadis in the neck as he neared the main road. 
Farrar continued to pursue the complainants after Kaler fired a full round of
shots.  The jury could also have concluded that the gun was reloaded and
another shot was fired during the subsequent pursuit.  Based on the direct
and circumstantial evidence, viewed in the light most favorable to the State,
the jury could have rationally found beyond a reasonable doubt that Farrar
intentionally promoted or facilitated the commission of the crime of
aggravated assault.
	[¶11]  Farrar makes a further argument, that he cannot be found liable
as an accomplice for Kaler's shooting because Kaler was acting out of self-
defense, responding, either reasonably or unreasonably, to a perceived
threat.  This argument is without merit because the jury rationally could
have rejected Kaler's self-defense testimony.  "[M]erely because there is
evidence sufficient to generate an issue [of self-defense] does not mean the
jury is compelled to believe that evidence."  State v. Lagasse, 410 A.2d 537,
542 (Me. 1980).
II.
	[¶12]  The court denied defendants' motion for a new trial alleging an
irregularity in jury deliberations.  The following facts were presented at a
hearing on the motion.  During deliberations, one of the jurors walked out of
the jury room with her coat on.  She was confronted halfway down the hall
by the jury officer who recalled the following interchange:

I said where are you going?  She indicated she was disgusted
with the process and was leaving.  I said, no, you can't.  You have
to go back.  She said that if I go back to the effect (sic) I'll stay in
the bathroom.  I said I don't care where you stay, but you will
have to go back to the jury room now.  She turned and went
back.  And as I heard the door open I heard laughter and I heard
somebody say I told you so.  That was about it.  Then I came up
and then told you (the presiding judge). 

In response to questions by the prosecutor, the officer stated that the juror
had been out of the jury room for about 30 seconds and that the jury came
back with a verdict about a half hour later.  At the hearing, the juror gave the
following account of the incident:

I said something to the effect they are not listening to me.  I
don't want to deal with it.  I want to go home.  He said I
couldn't.  So I went back in the room. .... I said I was just going
to hide in the bathroom because there was only the bathroom.  I
was going to hide.  I felt I was being hassled a bit.  I didn't know
what to do.  

She also stated that she was out of the room for only "seconds," and that it
was "quite awhile" after the incident that they reached a verdict.

Defendants present three arguments in support of their motion for a
new trial; one is raised for the first time on appeal.  First, defendants argue
that the jury officer's statement to the juror directing her to return to the
jury room constituted "extraneous, potentially prejudicial information". 
Juror exposure to extraneous information raises a presumption of prejudice
"and the burden of proof shifts to the State which must demonstrate by
clear and convincing evidence that the information did not prejudice the
case."  State v. Royal, 590 A.2d 523, 525 (Me. 1990).  We have defined
"extraneous" to mean "information introduced to the jury from outside the
normal deliberative process."  Marr v. Shores, 495 A.2d 1202, 1205 (Me.
1985).  E.g., State v. Fuller, 660 A.2d 915, 918 (Me. 1994) (juror note-
taking did not introduce "extraneous" information.)  To raise a presumption
of prejudice, however, the "information" received must also relate to the
law or facts of the case.
  
In a criminal case, any private communication, contact, or
tampering directly or indirectly, with a juror during a trial about
the matter pending before the jury is, for obvious reasons,
deemed presumptively prejudicial, if not made in pursuance of
known rules of the court and the instructions and directions of
the court made during the trial, with full knowledge of the
parties.

Remmer v. United States, 347 U.S. 227, 229 (1954) (emphasis added).  
Because the jury officer's statement did not reveal any information "about
the matter pending before the jury," it did not constitute the type of
extraneous information that will give rise to a presumption of prejudice.  
	[¶13]  The jury officer's statement also did not constitute an
extraneous influence.  The officer's statement to the juror was "made in
pursuance of known rules of the court," Id.  As a matter of practice and
tradition, the officer was performing his sworn duty to keep the jury
together during deliberations.  Therefore, the statement was not
"introduced to the jury from outside the normal deliberative process," and
did not constitute an "extraneous" influence.  Fuller, 660 A2d. at 915.  
	[¶14]  Next, defendants argue that the officer's statement constituted
a jury instruction that had the coercive effect of a "dynamite charge" or
"Allen charge."   In State v. White, 285 A.2d 832, 838 (Me. 1972), we
rejected the use of the "Allen charge,"{4} a jury instruction to a potentially
deadlocked jury that emphasizes the duty to return a verdict.  We adopted
the ABA standard jury charge that provides the crucial balance between the
desirability of reaching a verdict and the desirability of ensuring that the
verdict accurately reflects the honestly held beliefs of individual jurors.  A
charge to a potentially deadlocked jury that does not embody this crucial
balance "is unacceptably coercive."  State v. Weidul, 628 A.2d 135, 137 (Me.
1993).  
	[¶15]  The officer's statement was not an "instruction" to the jury and
did not have a coercive effect "akin to an Allen charge".  The statement did
not, directly or indirectly, convey the message that the jury must reach a
decision.  Nor did it emphasize, in any way, the "importance of agreement
to the exclusion of the dictates of conscience."  United States ex rel. Tobe v.
Bensinger, 492 F.2d 232, 239 (7th Cir. 1974) (statement by court officer to
jury that they must reach a decision was "akin to an 'Allen charge'").  The
communication was a simple directive to remain in the jury room during
deliberations.
	[¶16]  Defendants have expanded their "Allen charge" argument on
appeal to contend that the court, when informed of the incident, was
"constructively notified" of a disagreement revealing that the jury was
deadlocked.  They argue that the court was then obliged to give a jury
instruction in accordance with the standards adopted in White.  The ABA
standards recommend the instruction when "it appears to the court that the
jury has been unable to agree."  ABA Standards for Criminal Justice § 15-
4.4(b) (1980), see Weidul, 628 A.2d at 136.  The court was not obligated to
assume that the jury was unable to agree simply because one juror expressed
frustration with the deliberative process.  Subsequent events confirmed that
the jury was, in fact, not deadlocked.  The frustrated juror returned to