State v. Gauthier

939 A.2d 77

2007 ME 156

STATE of Maine v. Gary R. GAUTHIER. and State of Maine v. Thomas J. Dyer.

Docket: And-07-87.

Supreme Judicial Court of Maine.

Argued: November 7, 2007.

Decided: December 27, 2007.

G. Steven Rowe, Atty. Gen., Donald W. Macomber, Asst. Atty. Gen. (orally), Augusta, for State.

George A. Hess (orally), Hess Law Firm, Lewiston, Robert Smith (orally), Westbrook, for defendants.

Panel: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, LEVY, SILVER, and MEAD, JJ.^*

ALEXANDER, J.

[¶ 1] Gary R. Gauthier and Thomas J. Dyer appeal from judgments entered in the Superior Court (Androscoggin County, Delahanty, J.) upon a jury verdict, finding each guilty of one count of murder, 17-A M.R.S. § 201(1)(A), (B) (2006). Gauthier and Dyer assert that (1) the court erred in instructing the jury that it could find each guilty if it found that he killed James Graffam "and/or" John Vining; and (2) the court's instructions to the jury on accomplice liability were erroneous. Gauthier separately challenges his sentence, arguing that the Superior Court (1) violated his constitutional rights to due process and trial by jury in sentencing him to a term of sixty years incarceration; (2) misapplied principles of law in setting his basic sentence; (3) abused its discretion in setting his maximum sentence; and (4) abused its discretion in sentencing him to a term of years which is excessive. We affirm the convictions and Gauthier's sentence.

I. CASE HISTORY

[¶ 2] On October 29, 2005, the bodies of James Graffam and John Vining were discovered in the area of Foss Road in Lewiston. The medical examiner determined the cause of death for both was blunt trauma to the head, consistent with a baseball bat, and that both had been dead for a few weeks to a month, consistent with a date of death of September 23, 2005.

[¶ 3] On December 8, 2005, the State Police received a call from a caretaker in Pownal indicating that he found a bleach bottle, beer cans, a baseball bat, and a bag of brown/red stained clothing on a property in Pownal. The Crime Lab determined the items were stained with Vining's and Graffam's blood.

[¶ 4] On December 15, 2005, and January 11, 2006, police spoke with Gauthier and Dyer separately. Each admitted knowing Graffam and going to his apartment, but denied knowing Vining. On January 11, Dyer admitted that he was present during the homicides, but claimed he only participated out of fear that Gauthier would kill him.

[¶ 5] Gauthier and Dyer were indicted on February 7, 2006. The indictments stated that each defendant "did intentionally or knowingly cause the death of John G. Graffam (dob: 7/28/1975) and James Everett Vining (dob: 4/10/1962) or did engage in conduct which manifested a depraved indifference to the value of human life and which, in fact, caused the death of John G. Graffam and James Everett Vining."

[¶ 6] A six-day trial was held in October 2006, during which forensic specialists testified that the evidence linked Gauthier and Dyer's DNA to the clothing found in Pownal. Dyer testified that he was present during the killings, but claimed that it was Gauthier who wielded the bat, and that Dyer's participation was solely out of fear that Gauthier would kill him. He alleged Gauthier continued to threaten him throughout the night, while they buried the bodies, and the following day, when they buried the clothing later found in Pownal. Gauthier, who did not testify, presented evidence that Dyer asked three people to lie to police.

[¶ 7] Both Gauthier and Dyer requested a jury instruction on accomplice liability, including an instruction that mere presence at the scene of the crime, alone, is insufficient to find someone guilty as an accomplice.

[¶ 8] Gauthier and Dyer contended that the jury should be instructed that for them to be found guilty, the jury had to find each guilty for the death of both victims in order to convict, due to the use of the conjunctive "and" in the indictment. The court decided, over the objections of Gauthier and Dyer, to instruct the jury that to convict it only had to find each defendant guilty of causing the death of either victim. The court provided a special jury instruction and verdict form that informed the jury that it had to consider each defendant's guilt as to each victim separately and decide unanimously as to each victim.

[¶ 9] The court instructed the jury that:

the state must prove beyond a reasonable doubt that John Graffam and James Vining are dead, number two, that the defendant caused the death of John Graffam and/or James Vining, and that the defendant caused the death of John Graffam and/or James Vining intentionally or knowingly.

The court informed the jury that its verdict as to guilt for each defendant regarding each victim had to be unanimous, but that the basis of guilt, whether principal or accomplice liability, did not have to be unanimous. The court gave similar "and/or" instructions regarding manslaughter.

[¶ 10] The court then informed the jury that, to be guilty as an accomplice, a person must "with the intent of promoting or carrying out the commission of the crime ... solicit such other person to commit the crime or aid or agree to aid or attempt to aid the other person in planning or committing the crime." The court went on to state, without any objection at the time, that:

mere presence at the scene of the crime without anything more does not prove that a person is an accomplice to a crime; however, when a defendant's presence has been proven beyond a reasonable doubt, the State need only prove any conduct that intentionally promotes or facilitates the crime, however slight.

The court did restate the State's burden and that it had to prove every element of the crime beyond a reasonable doubt.

[¶ 11] Based on unanimous findings by the jury, both Gauthier and Dyer were found guilty of one count of murder for the killing of both Graffam and Vining.

[¶ 12] Sentencing was held at a later date. After hearing from members of the victims' families, members of Gauthier's and Dyer's families, both Gauthier and Dyer, and both defense attorneys, the court recessed in order to properly review all of the evidence related to sentencing. The court then addressed the courtroom and discussed the steps outlined in State v. Hewey, 622 A.2d 1151, 1154-55 (Me.1993), for imposing sentences, and the requirement that the court compare the manner of death in this case to that of other cases in setting the basic sentence. For comparable cases, the sentencing court referenced Gauthier's "Memorandum in Aid in Sentencing" to the court, indicated that the pre-sentence report provided similar comparisons, and discussed murder cases in which the justice had presided and imposed sentences. The court set a basic sentence of fifty years for both Gauthier and Dyer, based on the number of victims and manner of death. The court reduced Dyer's sentence to forty-seven years based on several mitigating factors. The court increased Gauthier's sentence to sixty years because it found there was only one mitigating factor and many aggravating factors including his lack of respect for others, his high risk of recidivism category under the Level of Service Inventory-Revised (LSI-R), his prior bad acts, his prior criminal record, his refusal to accept responsibility, his continuing blame of others, and his lack of empathy. Gauthier and Dyer were each also ordered to pay $8226.25 in restitution.

[¶ 13] Gauthier and Dyer timely appealed.

II. DISCUSSION

A. Instructions to the Jury

[¶ 14] We review jury instructions as a whole for prejudicial error, to ensure they informed the jury correctly and fairly. State v. Martin, 2007 ME 23, ¶ 5, 916 A.2d 961, 964. In this review, we consider the effect of the instruction as a whole and the potential for juror misunderstanding. Id. Errors in criminal cases that affect constitutional rights are reviewed to determine that we are satisfied, beyond a reasonable doubt, that the error did not affect substantial rights or contribute to the verdict. State v. Durant, 2004 ME 136, ¶ 14, 861 A.2d 637, 640 (citing State v. Burdick, 2001 ME 143, ¶ 29, 782 A.2d 319, 328; State v. Warren, 1998 ME 136, ¶ 17, 711 A.2d 851, 857).

[¶ 15] In order to demonstrate that failure to give the requested instruction was erroneous, Gauthier and Dyer had to show the instruction they requested (1) states the law correctly; (2) is generated by the evidence in the case; (3) is not misleading or confusing; and (4) is not otherwise sufficiently covered in the court's instructions. Martin, 2007 ME 23, ¶ 6, 916 A.2d at 964.

1. Use of the Term "and/or"

[¶ 16] Gauthier and Dyer argue that the court should have instructed the jury that in order to find either guilty, the jury had to find that defendant responsible for the death of both victims, rather than instructing the jury that they could convict if they found the defendant guilty for Graffam's "and/or" Vining's death. Gauthier and Dyer assert this change from the indictment amounted to a substantive amendment to the indictment and made the indictment duplicitous. Further, they contend that even if this was not a substantive amendment, but only one of form, it was prejudicial because it interfered with their right to receive notice of the charges against them, receive a fair trial, and prepare a defense.

[¶ 17] The purpose of an indictment is to put the accused on notice of the charge and allow the accused to prepare a defense. State v. Pierce, 438 A.2d 247, 250 (Me.1981). The indictment must "allege every material fact that forms the essential elements of the charged crime." State v. Coleman, 452 A.2d 397, 399 (Me. 1982). The test for determining whether an indictment is sufficient is whether "an accused of reasonable and normal intelligence would, by the language of the indictment, be adequately informed of the crime charged and the nature thereof, so that [the accused] could properly prepare his defense ......