State v. Robert Day
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MAINE SUPREME JUDICIAL COURT 					Reporter of Decisions
Decision:	1999 ME 29
Docket:	Lin-98-403
Submitted
on Briefs:	January 13, 1999
Decided:	February 16, 1999

Panel: 	 	WATHEN, C.J. and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and 	
	 	CALKINS, JJ.

STATE OF MAINE

v.

ROBERT DAY SR.

ALEXANDER, J.
 
	[¶1]  Robert Day appeals from a judgment entered in the Superior
Court (Lincoln County, Atwood, J.) following his conviction for refusing to
submit to arrest or detention in violation of 17-A M.R.S.A. § 751-A (Supp.
1998).{1}  Day contends that the court erred when it instructed the jury on
both the defense for refusing to submit to arrest, section 751-A(2)(A),{2} and
inconsistent provisions of 17-A M.R.S.A. § 108(1-A) (Supp. 1998){3} relating
to the use of force in defense of a person.  Because the instruction on the
first sentence of section 108(1-A) was inconsistent with the defense
provided in section 751-A(2)(A), we vacate the conviction.
	[¶2]  On the evening of November 24, 1997, Robert Day returned
home to find his wife, Carol Day, drinking with friends.  Robert and Carol
began to argue over Carol's drinking.  Angered by his dinner options, Robert
threw a plate of food onto the floor.  Soon their twenty-two-year-old
daughter, Vickie Austin, joined the verbal fray.  In the heat of the argument,
Carol tackled Robert.  As Vickie and Robert continued to argue, Carol went
to a downstairs apartment and called 911 to report, falsely, that Robert had
assaulted Vickie.
	[¶3]  The first officer to arrive was Jamie Wilson, a Waldoboro police
officer, who was accompanied by a civilian.  When Wilson arrived, Robert was
upstairs, and Vickie and Carol were in the downstairs apartment.  Wilson
proceeded upstairs and informed Robert that he was not under arrest, but
that he should leave the residence.  The evidence indicates that Robert
agreed and was preparing to leave with Wilson.
	[¶4]  Meanwhile, Rand Maker and Brendan Kane, officers with the
Lincoln County Sheriff's Department, arrived on the scene.  After speaking
with Vickie and Carol, the officers decided to arrest Robert for domestic
abuse.  Just as Robert was preparing to leave the residence with Wilson,
Maker went upstairs and, after some discussion, announced that Robert was
under arrest.  In response to this announcement, Robert strenuously
resisted the arrest.  Ultimately, he was handcuffed and placed in a patrol
car. 
	[¶5]  Robert was charged with refusing to submit to arrest or
detention pursuant to 17-A M.R.S.A. § 751-A, and tried before a jury. 
Instruction on the justification for refusing to submit to arrest was generated
by (i) the evidence that Wilson had told Robert that he could leave and not
be arrested and (ii) other evidence by which the jury could infer that the
Lincoln County Officers, knowing they did not have sufficient cause to arrest,
may have induced Carol to claim, falsely, that Robert had assaulted her to
give cause to support the arrest.  Accordingly, the court instructed the jury
that, 

[I]t is [a] defense to the prosecution of this crime if the
defendant knew that the law enforcement officer knew that the
arrest or detention was illegal.  If you believe that sufficient facts
have been introduced to raise a question as to whether the
defendant knew that the law enforcement officer knew that the
arrest or detention was illegal, then in order for the defendant
to be convicted of this charge, the State must prove beyond a
reasonable doubt either that the defendant in fact did not know
that the officer or officers involved in effecting the arrest or
detention knew that it was illegal, or that the officer or officers
in fact did not know the arrest or detention was illegal.

	The court then qualified the instruction as follows:

Thus, the focus is not on whether or not the arrest or detention
was in fact illegal.  Instead, the focus must be [on] the knowledge
of the defendant and the knowledge of the officer or officers. 
That's because under Maine law a person is not justified in using
nondeadly force against another person [who] that person knows
or reasonably believes to be a law enforcement officer, and who
he knows is attempting to effect an arrest or detention,
regardless of whether or not the arrest was in fact illegal.{4} 

	[¶6]  The second part of the above instruction, based on the first
sentence of section 108(1-A) was properly objected to by defense counsel. 
The jury returned a guilty verdict from which Robert has appealed.
	[¶7]  Robert argues that the instructions created jury confusion by
instructing the jury that, on the one hand, it was a defense to prosecution if
the defendant knew that the officer knew the arrest was illegal but, on the
other hand, a person is not justified in using nondeadly force to resist arrest.
	[¶8]  We review jury instructions "as a whole to ensure that they
informed the jury correctly and fairly in all necessary respects of the
governing law."  State v. Daniels, 663 A.2d 33, 36 (Me. 1995) (citations
omitted).  A jury instruction that "creates the possibility of jury confusion
and a verdict based on impermissible criteria" is erroneous.  State v. Rivers,
634 A.2d 1261, 1263 (Me. 1993).  "Such an error is harmless only if the
court believes it highly probable that it did not affect the verdict."  State v.
Fitch, 600 A.2d 826, 828 (Me. 1991).
	[¶9]  Section 751-A(2)(A) provides that it is a defense to prosecution
for refusing to submit to arrest that, "[T]he person knew that the law
enforcement officer knew that the arrest or detention was illegal . . . ."  17-A
M.R.S.A. § 751-A(2)(A).  This defense is specific to the crime of refusing to
submit to arrest.  Id.  The first sentence of section 108(1-A), however, states
that,

A person is not justified in using nondeadly force against another
person who that person knows or reasonably should know is a
law enforcement officer attempting to effect an arrest or
detention, regardless of whether the arrest or detention is legal.

17-A M.R.S.A. § 108(1-A).  
	[¶10]  This statement of the law is a qualification of the general law on
physical force in defense of a person.  Id.  It addresses justifications for
charges such as assault, 17-A M.R.S.A. § 207 (Supp. 1998), or other charges
involving physical violence.  
	[¶11]  These two justification provisions are contradictory.  The first
permits a person to use physical force against a law enforcement officer
attempting to effect an arrest when the person knows that the officer knows
that the arrest was illegal.  17-A M.R.S.A. §§ 751-A(1)(A) & (2)(A).  The
second forbids the use of force against a law enforcement officer attempting
to effect an arrest, without exception.  17-A M.R.S.A. § 108(1-A).
	[¶12]  By instructing the jury on the first sentence of  section 108(1-
A), the court in essence nullified the statutory defense to refusing to submit
to arrest provided by section 751-A(2)(A).  The court first told the jury that
there were circumstances when resisting arrest with force was justified and
then told the jury that force was never permitted when resisting arrest.
	[¶13]  Statutory language must be construed "to avoid absurd, illogical,
or inconsistent results." Fullerton v. Knox County Comm'rs, 672 A.2d 592,
594 (Me. 1996).  Likewise, a statute addressing a specific issue will be given
precedence over a statute of more general application.  South Portland Civil
Serv. Comm'n v. City of South Portland, 667 A.2d 599, 601 (Me. 1995).
	[¶14]  Recognizing these doctrines of statutory interpretation, the
Legislature, in enacting section 751-A with its specific defenses in 1997,{5}
certainly did not intend that those protections for arrestees be negated by
the general language in section 108(1-A).
	[¶15]  When the law provides for a defense specific to the charged
offense, the court cannot instruct the jury on an inconsistent law of general
application which nullifies the specific defense.  Instructing in accordance
with the first sentence of section 108(1-A) denied the defendant a defense
authorized by the Legislature.
	The entry is
Judgment vacated.  Remanded for further
proceedings consistent with this opinion.
Attorneys for State:	

Geoffrey A. Rushlau, District Attorney	
Patrica A. Mador, Asst. Dist. Atty.	
32 High Street	
Wiscasset, ME 04543
	
Attorney for defendant:

William M. Avantaggio, Esq.
Howard & Bowie
P O Box 460
Damariscotta, ME 04543-0460

FOOTNOTES******************************** {1} . Title 17-A M.R.S.A. § 751-A provides in part: 1. A person is guilty of refusing to submit to an arrest or a detention if, with the intent to hinder, delay or prevent a law enforcement officer from effecting the arrest or detention, that person: A. Uses physical force against the law enforcement officer; or B. Creates a substantial risk of bodily injury to the law enforcement officer. {2} . Title 17-A M.R.S.A. § 751-A(2)(A) states in part: 2. It is a defense to prosecution under this section that: A. The person knew that the law enforcement officer knew that the arrest or detention was illegal . . . . {3} 3. Title 17-A M.R.S.A. § 108(1-A) states : 1-A. A person is not justified in using nondeadly force against another person who that person knows or reasonably should know is a law enforcement officer attempting to effect an arrest or detention, regardless of whether the arrest or detention is legal. A person is justified in using the degree of nondeadly force the person reasonably believes is necessary to defend the person or a 3rd person against a law enforcement officer who, in effecting an arrest or detention, uses nondeadly force not justified under section 107, subsection 1. {4} . The jury was actually instructed twice on this point, once in the body of instructions and again in response to a note from the jury requesting clarification of the charge. The quoted language is from the reinstruction. It does not differ materially from the original instruction. {5} . P.L. 1997, ch. 351, § 3.