State v. Zaccheus King
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1998 ME 60  
Docket:	Sag-96-483
Argued:	January 5, 1998
Decided:	March 25, 1998

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

STATE OF MAINE

v.

ZACCHEUS KING

ROBERTS, J. 

	[¶1]  Zaccheus King appeals from the judgment entered in the
Superior Court (Androscoggin County, Delahanty, J.) convicting him of
manslaughter (Class A) in violation of 17-A M.R.S.A. § 203 (1983 & Supp.
1997).  King contends that the court erred by refusing to suppress all
statements that he made to a police officer and that the court erred by
failing to reinstruct the jury concerning the primary crimes of robbery and
assault when it requested clarification of accomplice liability.  He also
challenges the sufficiency of the evidence to support his conviction as an
accomplice in the commission of the crime of manslaughter.  Finally, he
argues that the court erred in its determination of his basic period of
incarceration.  We affirm the judgment and the sentence.  

I.

	[¶2]  In the early morning hours of April 16, 1995, Juan Carlos
Rodriquez, a crack cocaine dealer, was shot and killed in Lewiston.  King,
along with Joseph Jackson and Jeremiah Moore, was indicted for
Rodriquez's murder pursuant to 17-A M.R.S.A. § 201(1)(A) (1983 & Supp.
1997).  King subsequently filed a motion to suppress all statements that he
made during a police interrogation on the day of Rodriquez's death.  The
court denied King's motion, finding that King voluntarily waived his right to
remain silent.  
	[¶3]  At King's trial numerous witnesses testified that the night before
his death, Rodriquez had an argument with Jackson and/or Moore about a
cocaine-for-marijuana trade.   King was not involved in the argument, nor
was he present during the incident.   Sometime after midnight, however, he
returned with Jackson, Moore, and a fourth man to the apartment where
Rodriquez was staying.  King, Jackson, and the fourth man entered the
apartment building.  After Jackson entered the apartment, he fired three or
four shots into Rodriquez.  Another shot was fired from behind Jackson.{1}  
	[¶4]  In April 1996 a jury found King guilty as an accomplice to the
crime of manslaughter.  At his sentencing hearing, the court established his
basic period of incarceration at 25 years.  It then imposed the sentence of
25 years with all but 18 years suspended followed by a 6-year period of
probation.  King appeals both his conviction and his sentence.  
	[¶5]  Detective Geoffrey Cummings of the Maine State Police
interviewed King about his involvement in Rodriquez's death. Before
beginning the interrogation, Cummings recited the Miranda warnings to
King and told him that he could terminate the interview at anytime.  Walter
Coleman, a friend of King's mother, was present at the interview and also
informed King that he did not have to answer any questions.  King
voluntarily agreed to proceed with the interview.  
	[¶6]  After Coleman left the room with another officer, King became
reluctant to talk to Cummings.  He stated that he wanted Coleman present
to ensure that Cummings did not later misquote him.  Cummings assured
him that the interview was being recorded, but King again stated, "I'm just
saying, you know, ... I ain't saying nothing."   Cummings responded, "Zach ...
you'd better start coming clean," and resumed questioning King about the
shooting.  King asserted that he did not know anything about Rodriquez's
death and reiterated his earlier statement that he did not want to answer
questions in Coleman's absence.  King requested Coleman's presence on
numerous occasions during the interview.  Cummings did not, on any of
these occasions, ask King whether he was invoking his right to remain
silent.  After Coleman came back into the interrogation room, King admitted
to being present at the apartment. 
	[¶7]  King contends that the court erred by failing to suppress the
statements that he made during his interview with Cummings.  He argues
that he unequivocally invoked his right to retract his waiver and reassert his
right to remain silent during the interview and that Cummings violated his
Fifth Amendment right to remain silent by failing to terminate the interview. 
Alternatively, King asserts that at a minimum his assertions were ambiguous,
and pursuant to our decisions in State v. Ladd, 431 A.2d 60 (Me.), cert.
denied, 454 U.S. 1101 (1981) and State v. Ayers, 433 A.2d 356 (Me. 1981),
cert. denied, 466 U.S. 941 (1984), Cummings should have limited his
inquiry to clarifying whether King was invoking his Fifth Amendment right
to remain silent.  The State counters that King's statements were not a clear
invocation of his right to remain silent.  It further asserts that the
statements were at the most ambiguous and that pursuant to the United
States Supreme Court's decision in Davis v. United States, 512 U.S. 452
(1994), the officer was not obligated to terminate the interrogation.  We
agree.  
	[¶8]  The trial court did not explicitly state whether it found King's
statements ambiguous.  Implicit in its findings, however, is its conclusion
that even if one were to assume that the statements were ambiguous, the
officer, pursuant to Davis, was not obligated to terminate the interrogation.  
	[¶9]  The Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966),
described an individual's "right to cut off questioning" as follows: 
 
	Once warnings have been given, the subsequent
procedure is clear.  If the individual indicates in any manner,
at any time prior to or during questioning, that he wishes to
remain silent, the interrogation must cease. At this point he
has shown that he intends to exercise his Fifth Amendment
privilege; any statement taken after the person invokes his
privilege cannot be other than the product of compulsion,
subtle or otherwise.  Without the right to cut off questions,
the setting of in-custody interrogation operates on the
individual to overcome free choice in producing a statement
after the privilege has been once invoked. 

Id. at 473-74.   In Ladd and Ayers, we interpreted the Miranda decision to
require that when an individual equivocally asserts the "right to cut off
questioning," an officer may make a limited inquiry to clarify whether the
individual is, indeed, invoking the right to remain silent.  We, likewise,
employed this rule when an individual ambiguously asserts the right to
counsel.  See State v. McCluskie, 611 A.2d 975, 977 (Me.), cert. denied, 506
U.S. 1009 (1992).  The Supreme Court in Davis clarified that such a
limitation is not required by Miranda and explained that

if a suspect makes a reference to an attorney that is
ambiguous or equivocal in that a reasonable officer in light of
the circumstances would have understood only that the
suspect might be invoking the right to counsel, our
precedents do not require the cessation of questioning. 

Davis v. United States, 512 U.S. at 459.  Contrary to King's assertions,
whether Miranda is applicable in a given situation is a matter of federal
constitutional law, State v. McKechnie, 1997 ME 40, ¶ 7 n.1, 690 A.2d 976,
978 n.1, and we are, therefore, bound by the principles enunciated by the
Supreme Court.  Moreover, King has not advanced, nor can we discern, any
reason that the Court's decision in Davis be limited to an individual's right to
retract a waiver and reassert the right to counsel.  See Coleman v.
Singletary, 30 F.3d 1420, 1424 (11th Cir. 1994), cert. denied, 514 U.S.
1086 (1995).  We therefore follow the principles set forth in Davis that in
order to assert one's right to "cut off questioning" an individual must
articulate a desire "sufficiently clearly that a reasonable police officer in the
circumstances would understand the statement" to be a retraction of a
waiver and a reassertion of the right to remain silent.  Davis, 512 U.S. at
459.  None of King's statements meet this standard of clarity.  

III.

	[¶10]  King also argues that the court committed error in its
reinstruction to the jury when they requested a clarification about
accomplice liability and that the jury's findings that he aided and abetted
Jackson in the manslaughter of Rodriquez are not supported by sufficient
evidence.  We are unpersuaded by either argument.  
	[¶11]  Because King failed to object to the court's reinstruction, we
review the instruction for obvious error.  State v. McCluskie, 611 A.2d at
978.  When a court instructs a jury about the primary crimes at issue in its
original instruction and then fails to reinstruct a jury about the crimes in its
reinstruction, it has not committed error, let alone obvious error.  See State
v. Dow, 616 A.2d 864, 865 (Me. 1992).  In addition, the jury, based on the
evidence viewed in the light most favorable to the State, could have
rationally found beyond a reasonable doubt that King was an accomplice in
the killing of Rodriquez.  State v. Barry, 495 A.2d 825, 826 (Me. 1985).  

IV.

	[¶12]  King's final argument is that the court erred in determining his
basic period of incarceration.  In sentencing King, the court first found that
King's offence was among the "most heinous and violent crimes committed
against a person" and set a basic period of incarceration within the
extended sentencing range for Class A crimes.  In doing so, the court noted
that King willingly went to a haven for drug activity and that the evidence
indicated that King acted as a backup.  The court then set his basic period of
incarceration at 25 years.   After weighing the mitigating and aggravating
factors, it determined that the basic period of 25 years should be the
maximum period of incarceration.  Finally, the court imposed the sentence
of 25 years with all but 18  years suspended to be followed by a 6-year period
of probation.  
	[¶13]  Because the sentencing of individuals convicted of Class A
crimes has been a source of confusion and because the confusion stems from
the distinction between our decisions in State v. Lewis, 590 A.2d 149 (Me.
1991), and State v. Hewey, 622 A.2d 1151 (Me. 1993), we explain the
principles enunciated in those decisions and clarify the relationship
between these principles.  In Lewis, we determined that the intent of an
amendment to the criminal code that doubled the maximum sentence for
Class A crimes was to create two discrete ranges of sentences for these
crimes.  Lewis, 590 A.2d at 151.  Relying on the language in the Statement
of Fact to the committee amendment, we concluded that the statutory
maximum sentence was increased to 40 years only for "'the most heinous
and violent crimes that are committed against a person.'"  Id. (quoting
Comm. Amend. A to L.D. 2312, No. H-720, Statement of Fact (113th Legis.
1988)).  When determining what is the statutory maximum for a Class A
crime, a court must, therefore, first determine whether the crime in
question is one involving heinous and violent conduct against a person. 
Recently, in State v. Jackson, 1997 ME 174, 697 A.2d 1328, we stated that
"[i]n deciding whether a sentence in the extended range is consistent with
the principles set forth in Lewis, we look at the entire record."   Id. at ¶ 11,
697 A.2d at 1331 (emphasis added).  Moreover, our objective when
examining the soundness of such a sentence is to implement the legislative
intent.  
	[¶14]  In contrast, the principles set forth in Hewey are not limited to
Class A crimes, but apply to the imposition of any sentence of one year or
more regardless of the class of the crime.  In Hewey, we explained that
sentencing is a three-step process.  The court must first determine the
basic period of incarceration "'by considering the particular nature and
seriousness of the offense without regard to the circumstances of the
offender.'"  Hewey, 622 A.2d at 1154 (quoting State v. Weir, 600 A.2d 1105,
1106 (Me. 1991)).  The court then must consider mitigating and aggravating
factors to individualize each sentence.  Hewey, 622 A.2d at 1154.  Finally,
the court may suspend a portion of the sentence to arrive at the offenders
final sentence.  Id. at 1155.  We review a trial court's determination of the
basic period of incarceration for misapplication of principle and give greater
deference to both its assessment of aggravating and mitigating factors and
its determination whether a portion of the sentence should be suspended. 
Id.

II.  

	[¶15]  Contrary to King's assertions, the court did not err in finding
that King's offence was one of the "most heinous and violent crimes
committed against a person."  Lewis, 590 A.2d at 151.  As we stated in
Jackson, we review whether a sentence in the extended range is consistent
with Lewis by examining the entire record.  Moreover, we review the
sentence irrespective of the sentencing court's findings.  In Jackson, we
affirmed the court's selection of a basic period of incarceration within the
extended sentencing range for Jackson's involvement in Rodriquez's death. 
Jackson at ¶ 11, 697 A.2d at 1331-32.  We noted that drugs and guns are a
lethal combination.  Id., 697 A.2d at 1331.  We also stated that "[a]lthough
not dispositive, [a] court may consider that manslaughter, unlike some other
Class A crimes, is a crime that results in the death of a human being."  Id.,
697 A.2d at 1331-32.   King, likewise, voluntarily went to a known haven for
drug activity and knew or should have known that trouble would likely
develop.  In these circumstances, we cannot say that the court erred in
finding that King's crime was among the "most heinous and violent crimes
committed against a person."  
	[¶16]  We also disagree with King's contentions that the court violated
the principles set forth in Hewey when setting his basic period of
incarceration.  In applying the Hewey principles, the court can rely on any
factually reliable evidence.  State v. Whitten, 667 A.2d 849, 852 (Me. 1995). 
We have stated that information obtained through the trial process is
factually reliable because it is derived from the sworn testimony of witnesses
subject to cross-examination and observation by the court.  State v. Dumont,
507 A.2d 164, 166-67 (Me. 1986).  Although there were contradictory
accounts about King's involvement in Rodriquez's death, the trial court did
not err by finding that King acted as a "backup" and chose to carry and use
guns and by relying on these findings to set King's basic period of
incarceration.  The court heard the testimony of the various witnesses and
could, therefore, judge the credibility of the different accounts. 
	[¶17]  Moreover, the court's comments regarding the evidence in
King's presentence report were made in the context of a Lewis, and not a
Hewey, analysis.  Assuming arguendo that the court considered this
information in applying the principles set forth in Hewey, its use of such
evidence did not amount to a misapplication of principle.  The court used
the evidence to support its own findings that King acted as a "backup" and
went with Jackson and Moore to the apartment where Rodriquez was
staying knowing that trouble would likely develop.  In these circumstances,
any error in the court's remarks was harmless.  
	The entry is: 
				Judgment affirmed.  Sentence affirmed. 
                                                                                                
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

Attorneys for defendant:

Leonard I. Sharon, Esq., (orally)
Sharon, Leary & DeTroy
P O Box 3130
Auburn, ME 04212-3130

Mary Beth Crocket, Esq.,