State v. Berry

711 A.2d 142, 1998 Me. 113, 1998 Me. LEXIS 135
CourtSupreme Judicial Court of Maine
DecidedMay 18, 1998
StatusPublished
Cited by4 cases

This text of 711 A.2d 142 (State v. Berry) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Berry, 711 A.2d 142, 1998 Me. 113, 1998 Me. LEXIS 135 (Me. 1998).

Opinion

LIPEZ, Justice.

[¶ 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, [144]*144that 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 Sha-heen, 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 lings 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 ease-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 [145]*145a 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 ease, 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, 536 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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of Maine v. Angelena Quirion
2025 ME 75 (Supreme Judicial Court of Maine, 2025)
State of Maine v. Jahneiro Plummer
2020 ME 106 (Supreme Judicial Court of Maine, 2020)
State of Maine v. Michael W. Chapman
2014 ME 69 (Supreme Judicial Court of Maine, 2014)
State v. Perry
2006 ME 76 (Supreme Judicial Court of Maine, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
711 A.2d 142, 1998 Me. 113, 1998 Me. LEXIS 135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-berry-me-1998.