holding[1] that trial judge does not commit obvious error by not instructing on a defense that was deliberately waived by the defense
How later courts described this case
- holding[1] that trial judge does not commit obvious error by not instructing on a defense that was deliberately waived by the defense
- holding that exclusionary rule did not extend to suppress evidence of assault against officer after unlawful police entry
- “[a] pretrial motion is not the proper method of raising a defense or objection that will require the trial of the general issue”
- declining to reach additional claims after reaching a dispositive conclusion on different grounds
Written by the judges who cited it.
The opinion
McKUSICK, C.J., and ROBERTS, VIOL-ETTE, GLASSMAN and SCOLNIK, JJ.,
concurring.
We agree fully with the first four parts of the court’s opinion and, without going further, believe that defendant’s conviction must be affirmed. We do not believe it appropriate in this case to address the jury instruction question.
Defendant never raised the issue of section 104 justification, either at trial or in his brief on appeal. Defendant’s brief contends only that the officer’s entry into his home was illegal so that the evidence of the subsequent crime inside the home should have been suppressed. Even after the State threw down the gauntlet in its brief, stating that “[i]n the absence of a defense justifying his conduct, see 17-A M.R.S.A. § 104, the defendant by this appeal seeks in effect to acquire a privilege to assault and obstruct an officer by a misapplication of the law of search and seizure,” defendant failed to file any reply brief in response. At oral argument before us, defendant’s counsel explicitly stated as his reason for not raising the defense of justification that “in a situation as we had here, where the defense was a denial of the contact made [by defendant upon the offi *1391 cer], one has to make a tactical decision as to what is going to be argued to the jury.”
That tactical decision not to argue a section 104 justification, for fear of weakening the primary defense of denial of assaultive conduct, was not so obviously wrong that the court below should have intervened to overrule counsel’s choice of defense tactics, by giving the instruction on its own initiative. Except in unusual circumstances, a criminal defendant and his retained counsel should be allowed to decide for themselves whether or not to argue in the alternative. In any event, we can see here no obvious error within the intendment of M.R.Crim.P. 52(b). Cf. State v. Raubeson, 488 A.2d 1379, 1380 (Me.1985) (obvious error found where judge’s instruction on a defense of justification conveyed an erroneous impression as to burden of proof). Defendant at no time effectively asserted the defense of justification. Following the familiar principle that points not preserved at trial or argued on appeal are considered waived, e.g., State ex rel. Tierney v. Ford Motor Co., 436 A.2d 866, 870 (Me.1981); State v. Desjardins, 401 A.2d 165, 169 (Me.1979), we are not willing to reach out, without the help of either written or oral argument of counsel for either side, to decide legal contentions nowhere raised by defendant. On this direct appeal we would affirm the judgment of the Superior Court, without addressing any possible defect in the jury instructions that resulted from the trial strategy of defense counsel.