State v. Fortune, 2011 ME 125

Fortune convicted by jury of multiple crimes arising from home invasion and assaults on a family, including two counts of aggravated attempted murder with prem editation-in-fact and extreme cruelty, plus other felonies; he had prior guilty pleas to theft, failure to appear, and violation of release.
Perpetrators, with accomplice Hylton, entered the victims’ home at night to murder witnesses to a prior theft and to prevent witnesses; Fortune carried a long-blade knife; Hylton carried a machete.
Father and ten-year-old daughter suffered life-altering injuries; other victims (mother, teenage son, teenage daughter) were threatened but not proven to be assaulted in the same manner; evidence included both direct conduct and circumstantial circumstances.
Two-day jury trial in Somerset County; Fortune elected not to poll the jury; trial court instructed on Count 8 (attempted murder against three victims) as a single, aggregated charge.
Court sentenced Fortune to two concurrent life terms for aggravated attempted murder, plus long concurrent sentences on remaining felonies; Fortune appealed challenging several trial and sentencing rulings.
On appeal, the State affirmed; the court treated Count 8 as one incident of attempted murder rather than three separate offenses and upheld the verdicts and the concurrent life sentences.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the jury instructions permitted a conviction on Count 8 without unanimity as to the specific victim.	Fortune contends all three victims must be proven for Count 8.	Fortune objected to the all-three-or-nothing approach.	Instruction not error; general verdict permissible where one victim-involved incident supports conviction.
Sufficiency of evidence for prem editation-in-fact and extreme cruelty as elements of aggravated attempted murder.	Fortune argues insufficient evidence for both aggravating factors.	State showed planned, deliberate attacks with brutal conduct.	Evidence sufficient for both prem editation-in-fact and extreme cruelty for two aggravated counts.
Constitutionality of 17-A M.R.S. § 152-A(2) regarding life imprisonment for attempted murder.			Statute constitutional; life imprisonment permissible for aggravated attempted murder under proportionality standards.
Whether sentencing analysis for aggravated attempted murder and the remaining felonies was properly conducted and articulated.	Court erred in applying 1252-C steps and in structuring concurrent life sentences.	Court’s reasoning supported life sentences and implied analysis sufficed.	Concurrent life sentences upheld; any error as to step-three analysis harmless as to remaining counts.

Griffin v. United States, 502 U.S. 46 (U.S. 1991) (general verdicts permissible on multi-incident charges when one incident supports conviction)
Black v. United States, 130 S. Ct. 2963 (S. Ct. 2010) (vacating conviction when improper alternative theory, but not necessarily overturning where harmless error)
Skilling v. United States, 130 S. Ct. 2896 (S. Ct. 2010) (same-day as Black; limits on instructional alternatives but potential for harmless error)
Commonwealth v. Conefrey, 650 N.E.2d 1268 (Mass. 1995) (unanimity required for verdicts when evidence supports multiple incidents)
State v. Shortsleeves, 580 A.2d 145 (Me. 1990) (factors for life sentences in Maine; relevance to sentencing analysis)
State v. Ward, 21 A.3d 1033 (Me. 2011) (proportionality and standards for punishments under Maine Constitution)
State v. McKeen, 977 A.2d 382 (Me. 2009) (statutory and constitutional considerations for enhanced penalties)
State v. Dwyer, 985 A.2d 469 (Me. 2009) (harmless error review in sentencing where not all steps explicit)
State v. Medeiros, 997 A.2d 95 (Me. 2010) (lot of favorable inferences permissible in sufficiency review)
State v. Severy, 8 A.3d 715 (Me. 2010) (sufficiency of evidence standard for aggravated crimes)
State v. Leone, 581 A.2d 394 (Me. 1990) (definition of ‘substantial step’ in murder trials)
State v. Townsend, 982 A.2d 345 (Me. 2009) (standard for viewing evidence in light most favorable to State)