State of Maine v. Mark Cardilli Jr.

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2021 ME 31
Docket: Cum-20-235
Argued: April 6, 2021
Decided: June 17, 2021

Panel: MEAD, GORMAN, JABAR, HORTON, and CONNORS, JJ.

STATE OF MAINE

v.

MARK CARDILLI JR.

GORMAN, J.

[¶1] Very early in the morning of March 16, 2019, Mark Cardilli Jr. shot

and killed Isahak Muse at the Cardilli home in Portland. A Cumberland County

grand jury then indicted Cardilli for the intentional or knowing murder of Muse,

17-A M.R.S. § 201(1)(A) (2021), and, after a bench trial, the trial court

(Cumberland County, Mills, J.) found Cardilli guilty of the lesser included offense

of manslaughter (Class A), 17-A M.R.S. § 203(1)(A) (2021). Cardilli appeals,

arguing that the State failed to disprove beyond a reasonable doubt one of his

self-defense justifications and that the trial court erred in failing to analyze

another of his self-defense justifications. We affirm the judgment.
2

I. BACKGROUND

A. Factual Background

[¶2] The following facts were found by the trial court and are all fully

supported by the record. See State v. Fournier, 2019 ME 28, ¶ 2, 203 A.3d 801.

On March 4, 2019, Cardilli returned to his parents’ home in Portland after

serving five years in the Army. In the preceding year, there had been

considerable discord in the Cardilli household. Cardilli’s parents were

separated and living in different bedrooms, and Cardilli’s seventeen-year-old

sister had recently been placed under bail conditions after she was found riding

in a stolen vehicle with her twenty-two-year-old boyfriend, Muse.

[¶3] The bail conditions prohibited all contact between the sister and

Muse, but the sister completely ignored that prohibition, as well as the

remaining bail conditions. Cardilli’s father attempted to control his daughter’s

behavior and to restrict her time with Muse, but she openly disobeyed both him

and the bail order. Despite the bail conditions, Cardilli’s parents often granted

Muse permission to visit.

[¶4] On March 15, 2019, Cardilli’s parents denied their daughter’s

request to allow Muse to come to the home. In defiance of that denial, the sister

told Muse to come, and he arrived at the Cardilli home at 10:00 p.m. The family
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argued over Muse’s arrival, but the parents eventually agreed that Muse could

stay until 1:00 a.m. Cardilli’s father asked Cardilli to check on his sister at

1:00 a.m. to make sure Muse left. Muse had been drinking alcohol all day on

March 15, and he and the sister drank alcohol together that night. Both were

affected by the alcohol that night.1

[¶5] At approximately 1:00 a.m., Cardilli sent a text message to his sister

informing her of the time. When that prompt failed to result in Muse’s

departure, Cardilli and his mother went to the sister’s room and told Muse that

he had to leave. Over the course of the next ten to fifteen minutes, Muse pleaded

with Cardilli’s mother for permission to stay, but she continued to tell him to

leave.

[¶6] Eventually, Cardilli’s father joined the argument and reiterated the

message that Muse had to leave. Cardilli and his father walked Muse toward

the door to a breezeway, and opened the door to get him to leave, but “he just

wouldn’t go.” While Cardilli and his father were attempting to get Muse to

leave, Cardilli’s mother announced that her daughter had hit her, and Muse

pushed his way back into the kitchen and kept pushing both Cardilli and his

father. Cardilli attempted to grab Muse but could not overpower him.

1 At autopsy, Muse’s blood alcohol content was 0.181 grams per 100 milliliters.
4

[¶7] Believing that the situation was escalating, Cardilli left the kitchen

and headed to his bedroom to retrieve his gun. He decided against bringing the

gun back to the kitchen, however, and returned without it. In the kitchen, he

found Muse and his father “locked onto each other.” Cardilli pushed Muse

against the counter, prompting Muse to throw a punch at Cardilli, which missed.

Cardilli again told Muse that he had to leave, at which point the sister began

hitting and scratching her parents and Cardilli.

[¶8] Cardilli went back to his bedroom, grabbed his gun, and put it in his

pocket. He returned to the kitchen and told his father to get behind him. Cardilli

then pulled out the gun and told Muse that he had to leave because he was done

struggling with him. When he saw the gun, Muse responded by yelling for his

phone in order to call for a ride home. The sister then charged at Cardilli and

began to strike him, so Cardilli pointed the gun away from her. As soon as

Cardilli was able to get his sister off him, Muse started punching him. Cardilli’s

father was able to get Muse off Cardilli and threw Muse into the sister’s

bedroom onto the bed. Muse got up and punched Cardilli in the face at least

four or five times. Muse punched Cardilli again and, as Muse started to throw

another punch, Cardilli raised his gun and shot him. Because Muse had raised

his left arm, the first shot grazed his left finger and his eyebrow. As Muse
5

twisted, Cardilli shot him two more times. Muse had no weapons and never

tried to grab Cardilli’s gun. After the shooting, which occurred at approximately

1:43 a.m., Cardilli called the police and reported that he had shot Muse.

[¶9] The cause of Muse’s death was the internal and external bleeding

resulting from the two gunshot wounds. The entrance wounds were on the

back of the right side of Muse’s torso, and both were contact entrance wounds,

meaning that, at the time the shots were fired, the gun’s muzzle was touching

the outer surface of Muse’s clothing. Cardilli and his father suffered minimal

injuries as a result of the night’s events.

B. Procedural Background

[¶10] Cardilli was indicted for intentional or knowing murder,

17-A M.R.S. § 201(1)(A), a charge to which he pleaded not guilty. After a

five-day jury-waived trial in December of 2019, the trial court found Cardilli not

guilty of the charge of intentional or knowing murder, but found him guilty of

manslaughter, 17-A M.R.S. § 203(1)(A). In reaching this conclusion, the trial

court first found that the State had proved, beyond a reasonable doubt, that

Cardilli’s killing of Muse was both voluntary and knowing. The court then

analyzed Cardilli’s claimed justifications: physical force in defense of himself or

others pursuant to 17-A M.R.S. § 108(2)(B) (2021); use of force in defense of
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premises pursuant to 17-A M.R.S. § 104(3) (2021);2 and “imperfect

self-defense” pursuant to 17-A M.R.S. § 101(3) (2021).

[¶11] Applying section 108(2)(B), the court found that the State had

failed to prove beyond a reasonable doubt that Cardilli did not actually believe

that (1) Muse had entered, attempted to enter, or surreptitiously remained in

the Cardilli home without a license; and (2) his use of deadly force was

necessary to prevent Muse from inflicting bodily injury upon Cardilli or

someone else in the home. The court also found, however, that the State had

2 Although Cardilli’s arguments in his brief focused solely on the portions of the trial court’s
decision with regard to 17-A M.R.S. § 108(2)(B) (2021), he noted that his arguments apply equally to
the trial court’s conclusion as to the justification of defense of premises pursuant to 17-A M.R.S.
§ 104(3) (2021). The State agrees that similar elements apply in assessing both defenses and did not
address section 104(3) independently.

Section 104(3) provides,

3. A person in possession or control of a dwelling place or a person who is
licensed or privileged to be therein is justified in using deadly force upon
another person:

A. Under the circumstances enumerated in section 108; or

B. When the person reasonably believes that deadly force is necessary
to prevent or terminate the commission of a criminal trespass by such
other person, who the person reasonably believes:

(1) Has entered or is attempting to enter the dwelling place or
has surreptitiously remained within the dwelling place
without a license or privilege to do so; and

(2) Is committing or is likely to commit some other crime
within the dwelling place.

Due to the similarities between the statutes, our analysis evaluating Cardilli’s arguments under
section 108(2)(B)(1) applies equally to section 104(3)(B)(1).
7

proved beyond a reasonable doubt that Cardilli’s beliefs as to both of these

conditions were objectively unreasonable. Because the court found that

Cardilli had an actual belief that deadly force was necessary to protect himself

or someone else from Muse, but also found that that belief was objectively

unreasonable, it applied section 101(3) and found Cardilli not guilty of murder,

but guilty of manslaughter, “a crime for which recklessness or criminal

negligence suffices.”

[¶12] Cardilli then asked the trial court to reconsider its verdict and

requested additional findings of fact and conclusions of law. See M.R.U. Crim. P.

23(c). Cardilli argued that when a claim of self-defense is evaluated regarding

a charge of manslaughter—where recklessness or criminal negligence suffices

for the state-of-mind element—the State must prove beyond a reasonable

doubt not only that Cardilli’s belief was objectively unreasonable but further

that the belief was reckless, i.e., a gross deviation from what a reasonable and

prudent person would believe. In presenting this argument, Cardilli relied on

State v. Smith, 472 A.2d 948, 951 (Me. 1984), and its progeny. The court denied

the motion to reconsider its judgment but granted the motion for additional

findings of fact and conclusions of law. In its order, the court re-analyzed

Cardilli’s beliefs under the “gross deviation” standard and found,
8

In formulating his subjective but objectively unreasonable
belief that . . . Muse entered, attempted to enter, or surreptitiously
remained in the dwelling place without a license or privilege to do
so, [Cardilli] acted recklessly or with criminal negligence and [his]
disregard of the risk or failure to be aware of the risk was a gross
deviation of the standard of conduct that a reasonable and prudent
person would observe in the same situation.

In formulating his subjective but objectively unreasonable
belief that deadly force was necessary to prevent . . . Muse from
inflicting bodily injury upon defendant or a third person present in
the dwelling, [Cardilli] acted recklessly or with criminal negligence
and his disregard of the risk or failure to be aware of the risk was a
gross deviation of the standard of conduct that a reasonable and
prudent person would observe in the same situation.

(Citation and footnote omitted.)

[¶13] The court found Cardilli guilty of manslaughter and imposed a

sentence of eleven years in prison, with all but seven and a half years

suspended, and four years of probation. Cardilli timely appealed. See 15 M.R.S.

§ 2115 (2021); M.R. App. P. 2B(b)(1).

II. DISCUSSION

A. Standard of Review

[¶14] On appeal, Cardilli argues that (1) the State failed to prove beyond

a reasonable doubt that his beliefs—that Muse was not licensed or privileged

to enter or had surreptitiously remained in the Cardilli home and that Cardilli

needed to shoot Muse to prevent him from inflicting bodily injury as that phrase
9

is used in section 108(2)(B)—were gross deviations from what a reasonable

and prudent person would believe; and (2) the trial court erred in failing to

analyze his self-defense justification pursuant to 17-A M.R.S. § 108(2)(A)

(2021).

[¶15] The present case requires us to examine the self-defense

justifications defined in section 108 and the application of “imperfect

self-defense” established by section 101(3). Our review of the trial court’s

interpretation of a justification defense is de novo. State v. Cannell, 2007 ME

30, ¶ 6, 916 A.2d 231. “In doing so, we interpret the relevant statute according

to its plain language. Only if that plain language is ambiguous will we go on to

consider other indicia of legislative intent to discern its meaning.” State v.

Carter, 2016 ME 157, ¶ 5, 150 A.3d 327 (citation omitted).

[¶16] In order to address Cardilli’s arguments, we begin by noting that,

in 2008, the Legislature enacted a significant change to section 101(3).

P.L. 2007, ch. 475, § 10 (effective June 30, 2008). From 1999 until 2008, the

statute read,

Conduct that is justifiable under this chapter constitutes a defense
to any crime; provided that, if a person is justified in using force
against another, but the person recklessly injures or creates a risk
of injury to 3rd persons, the justification afforded by this chapter is
unavailable in a prosecution for such recklessness. If a defense
provided under this chapter is precluded solely because the
10

requirement that the person’s belief be reasonable has not been
met, the person may be convicted only of a crime for which
recklessness or criminal negligence suffices, and then, only if
holding the belief, when viewed in light of the nature and purpose of
the person’s conduct and the circumstances known to the person, is
grossly deviant from what a reasonable and prudent person would
believe in the same situation.

(Emphasis added.) P.L. 1999, ch. 357, § 1 (effective Sept. 18, 1999); P.L. 2007,

ch. 475, § 10 (effective June 30, 2008). In 2008, the Legislature amended

section 101(3) by deleting the last phrase. P.L. 2007, ch. 475, § 10 (effective

June 30, 2008) (codified at 17-A M.R.S. § 101(3) (2021)). As amended, it

provides,

Conduct that is justifiable under this chapter constitutes a defense
to any crime; except that, if a person is justified in using force
against another, but the person recklessly injures or creates a risk
of injury to 3rd persons, the justification afforded by this chapter is
unavailable in a prosecution for such recklessness. If a defense
provided under this chapter is precluded solely because the
requirement that the person’s belief be reasonable has not been
met, the person may be convicted only of a crime for which
recklessness or criminal negligence suffices.

17-A M.R.S. § 101(3) (2021); 17-A M.R.S. § 101(3) (2008).

[¶17] In short, since 2008, to disprove a claim of self-defense for any

crime for which recklessness or criminal negligence suffices for the

state-of-mind element, the State is no longer required to prove beyond a

reasonable doubt that the defendant’s belief is “grossly deviant from what a
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reasonable and prudent person would believe in the same situation.”3

17-A M.R.S. § 101(3). If the State proves beyond a reasonable doubt that a

defendant’s actual beliefs concerning the justification requirements are not

reasonable, the defendant cannot be convicted of a crime that requires proof of

knowledge or intent, but he can be convicted of a crime that requires proof of

criminal negligence or recklessness.4 17-A M.R.S. § 101(3).

3A summary of the proposed legislation provided by the Legislature’s Office of Policy and Legal
Analysis explains,

Section 10 of the bill eliminates the current precondition for a conviction for a
crime for which recklessness or criminal negligence suffices that the State, in addition
to proving beyond a reasonable doubt that the person’s belief is unreasonable, prove
beyond a reasonable doubt that the person’s holding of that belief “when viewed in
light of the nature and purpose of the person’s conduct and the circumstances known
to the person, is grossly deviant from what a reasonable and prudent person would
believe in the same situation.”

L.D. 1240, Summary (123d Legis. 2008).

4 For reasons we cannot entirely explain, this change appears to have been largely ignored.
Although thirteen years have now elapsed since 2008, we have never addressed this significant
change in the law. In January of 2012, we cited the statute three times without quoting it in State v.
Ouellette, 2012 ME 11, ¶¶ 8, 9, 20 n.4, 37 A.3d 921. Two months later, in State v. Hanaman, we cited
to the amended version of section 101(3). 2012 ME 40, ¶ 13 n.4, 38 A.3d 1278 (“If a defendant acted
with imperfect self-defense, in that it may have been unreasonable for him to believe that deadly
force was necessary, then the defendant ‘cannot be held criminally liable for any crime requiring
intention or knowledge of the actor, but he can be held responsible for a crime for which recklessness
or criminal negligence suffices as the culpable mental state.’”). We cited that language from Hanaman
four years later in State v. Kimball, but did not mention section 101(3). 2016 ME 75, ¶ 6, 139 A.3d
914. Most recently, in State v. Marquis, we cited section 101(3) in a reference to imperfect
self-defense. 2017 ME 104, ¶ 19 n.5, 162 A.3d 818.

In none of these cases, however, did we discuss the change to section 101(3). And, perhaps as a
result, the primary tool relied upon by trial judges and trial attorneys drafting jury instructions—
Alexander, Maine Jury Instruction Manual § 6-61 at 6-131 to 6-133 (2020-2021 ed. 2020)—has not
been updated to reflect the change in the law.
12

[¶18] Thus, in its original judgment, when it determined whether the

State had proved, beyond a reasonable doubt, that Cardilli’s beliefs about the

need to use deadly force were not objectively reasonable, the trial court

properly applied 17-A M.R.S. § 101(3). Cardilli’s demand that the court

consider whether the State had proved not only that the belief was

unreasonable, but that it was reckless, was based on statutory language that

has not existed since 2008. See P.L. 2007, ch. 475, § 10.

[¶19] With this understanding in mind, we turn to Cardilli’s claim that

his actions in shooting Muse were justified according to section 108(2)(B).

B. Section 108(2)(B)

[¶20] Because the trial court concluded that Cardilli presented sufficient

evidence to raise the self-defense justification provided by section 108(2)(B),

we review whether the evidence—when viewed in the light most favorable to

the State—supports the court’s finding that the State disproved the self-defense

justification beyond a reasonable doubt. State v. Nadeau, 2007 ME 57, ¶ 10,

920 A.2d 452; 17-A M.R.S. § 101(1) (2021).
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[¶21] Section 108 provides two possible justifications for a person who

has used deadly force.5 The second of these justifications, contained in section

108(2)(B), provides that the use of deadly force is justified as follows:

B. When the person reasonably believes:

(1) That such other person has entered or is attempting to
enter a dwelling place or has surreptitiously remained within
a dwelling place without a license or privilege to do so; and

(2) That deadly force is necessary to prevent the infliction of
bodily injury by such other person upon the person or a 3rd
person present in the dwelling place.

[¶22] Section 108(2)(B), consistent with other justification provisions,

authorizes the use of deadly force, but only where the fact finder determines

both (1) that the defendant has a reasonable belief regarding the existence of a

condition or occurrence of an event and the necessity of a particular response

to that condition or event and, (2) that the State has failed to disprove that

reasonable belief beyond a reasonable doubt. See also 17-A M.R.S. § 101(1)

(2021); State v. Ouellette, 2012 ME 11, ¶ 8, 37 A.3d 921. The person must have

a “reasonable belief” about both the condition or event—the threatening

circumstances—and the necessity of deadly force to address those threatening

5Deadly force is “physical force that a person uses with the intent of causing, or that a person
knows to create a substantial risk of causing, death or serious bodily injury.” 17-A M.R.S. § 2(8)
(2021).
14

circumstances. 17-A M.R.S. § 108(2)(B). We have explained that such a

“reasonable belief” contains both a subjective and an objective element. State

v. Graham, 2004 ME 34, ¶ 13, 845 A.2d 558. In the context of section 108(2)(B),

this requires two findings. First, the fact finder must find the subjective

element, i.e., that the person actually believes that another person has entered

or is attempting to enter a dwelling place or has surreptitiously remained

within a dwelling place without a license or privilege to do so, and that deadly

force is necessary to prevent the infliction of bodily injury by that person upon

himself or a third person present in the dwelling place. 17-A M.R.S. § 108(2)(B);

see Ouellette, 2012 ME 11, ¶ 10, 37 A.3d 921.

[¶23] Second, the fact finder must find the objective element, i.e., that the

person’s actual beliefs—that another person has entered or is attempting to

enter a dwelling place or has surreptitiously remained within a dwelling place

without a license or privilege to do so and that deadly force is necessary to

prevent the infliction of bodily injury by that person upon himself or a third

person present in the dwelling place—were reasonable. 17-A M.R.S.

§ 108(2)(B). The standard for judging the reasonableness of a defendant’s

belief concerning the need to use deadly force is determined from the point of
15

view of a reasonable and prudent person under the same circumstances.

See Smith, 472 A.2d at 951.

[¶24] To summarize, if a person has an actual, reasonable belief that

another person has entered or is attempting to enter a dwelling place or has

surreptitiously remained within a dwelling place without a license or privilege

to do so and actually and reasonably believes that deadly force is necessary to

protect himself or someone else from bodily injury, that person’s conduct—his

use of deadly force—constitutes self-defense pursuant to section 108(2)(B).

See Graham, 2004 ME 34, ¶ 13, 845 A.2d 558. This justification would result in

“a complete defense, meaning that it negates the commission of the crime; an

act committed in self-defense is simply no crime at all.” Ouellette, 2012 ME 11,

¶ 9, 37 A.3d 921 (quotation marks omitted).

[¶25] If, on the other hand, a person lacks an actual belief that another

person has entered or is attempting to enter a dwelling place or has

surreptitiously remained within a dwelling place without a license or privilege

to do so or lacks an actual belief that deadly force is necessary to protect himself

or someone else from bodily injury, his conduct does not constitute self-defense

pursuant to section 108(2)(B).
16

[¶26] There is a third option, however. Pursuant to section 101(3), if a

defendant actually believes that another person has entered or is attempting to

enter a dwelling place or has surreptitiously remained within a dwelling place

without a license or privilege to do so and actually believes that deadly force is

necessary to protect himself or third persons from bodily injury, but the belief

as to either is not reasonable, he may not be convicted of crime with intentional

or knowing state-of-mind elements. 17-A M.R.S. § 108(2)(B). Nonetheless he

may “be convicted . . . of a crime for which recklessness or criminal negligence

suffices.” 17-A M.R.S. § 101(3). This is known as “imperfect self-defense.” State

v. Hanaman, 2012 ME 40, ¶ 13 n.4, 38 A.3d 1278.

[¶27] Here, the trial court found that the State had failed to disprove,

beyond a reasonable doubt, that Cardilli actually believed both that Muse had

entered or was attempting to enter the Cardilli home or had surreptitiously

remained within the Cardilli home without a license or privilege to do so and

that deadly force was necessary to prevent Muse from inflicting bodily injury

upon himself or someone else. The court, however, also found that the State

had proved, beyond a reasonable doubt, that Cardilli’s actual beliefs as to both

conditions were objectively unreasonable. Based on that finding, and in light of

its earlier finding that Cardilli’s killing of Muse was both voluntary and
17

knowing, the court found that the State had proved, beyond a reasonable doubt,

that Cardilli was guilty of the lesser included offense of manslaughter, for which

recklessness or criminal negligence suffices. See 17-A M.R.S. § 203(1)(A). The

court held that Cardilli’s actual but objectively unreasonable beliefs as to

whether circumstances existed that would allow him to lawfully use deadly

force against Muse “negate[d] the commission of the crime” of murder, but not

the crime of manslaughter. Ouellette, 2012 ME 11, ¶ 9, 37 A.3d 921.

[¶28] Contrary to Cardilli’s assertions, there was competent record

evidence to support the court’s determination that Cardilli’s belief that Muse

was not licensed or privileged to enter the Cardilli home or that he

surreptitiously remained therein was objectively unreasonable. The plain

language of the statute requires only that Muse had license, i.e., consent, to

enter, see State v. Neild, 2006 ME 91, ¶ 11, 903 A.2d 339, and the court’s explicit

finding that Muse had the parents’ consent to be present is fully supported by

the record, including Cardilli’s own testimony. As the court found, Cardilli knew

that Muse entered the home at 10:00 p.m. and knew that Muse had been

permitted to stay in the home by Cardilli’s parents.

[¶29] Even if Muse overstayed his welcome at the Cardilli home, as he

clearly did, that fact is irrelevant. Section 108(2)(B)(1) requires a focus on
18

whether Muse “entered or . . . attempt[ed] to enter [the Cardilli home] . . .

without a license or privilege to do so,” and not whether he remained there

without a license or privilege to do so. Persons whose license or privilege to

stay is revoked can be deemed trespassers, and the law does permit

homeowners to use nondeadly force to eject trespassers. 17-A M.R.S. § 104(1)

(2021). Deadly force, however, can be used against only trespassers who are

about to commit arson, 17-A M.R.S. § 104(2) (2021), or whose entry to the

building was either unsanctioned or whose continued presence in the building

is “surreptitious” and who are committing or about to commit a crime other

than criminal trespass. 17-A M.R.S. § 104(3) (2021). In other words, deadly

force in defense of premises may be used against intruders who are committing

or about to commit assault or some other crime and against arsonists.

17-A M.R.S. § 104(2)-(3).

[¶30] Cardilli’s arguments concerning his belief as to whether Muse

surreptitiously remained in the Cardilli home are also unpersuasive. In State v.

Harding, we defined “surreptitiously remaining” as “stealthily, secretly[,] or

clandestinely” remaining on the premises. 392 A.2d 538, 542 (Me. 1978).

Applying this definition, it is clear that even if Cardilli held a belief that Muse

surreptitiously remained in the Cardilli home after 1:00 a.m., that belief was
19

objectively unreasonable. The trial court explicitly found that Cardilli was

aware that Muse was still at the Cardilli home after 1:00 a.m. After his entry at

10:00 p.m. on March 15, Muse did not leave the home while he was alive.

[¶31] As explained above, when viewed in the light most favorable to the

State, Nadeau, 2007 ME 57, ¶ 10, 920 A.2d 452, the evidence amply supports

the court’s finding that the State proved, beyond a reasonable doubt, that

Cardilli’s belief that Muse was not licensed or privileged to enter or attempt to

enter or that Muse surreptitiously remained in the Cardilli home was

objectively unreasonable. Because section 108(2)(B) is conjunctive, we need

not decide whether the court erred in concluding that Cardilli’s belief that it

was necessary to use deadly force to prevent Muse from inflicting bodily injury

on Cardilli or his family was also objectively unreasonable.6 See Smith, 472 A.2d

at 951.

C. Section 108(2)(A)

[¶32] In his appeal to us, Cardilli also contends, citing section 108(2)(A),

that the trial court erred in failing to consider whether the State disproved that

he reasonably believed that he needed to shoot Muse to prevent Muse from

6 Title 17-A M.R.S. § 108(2)(B)(2) (2021) requires only that the defendant believe “[t]hat deadly

force is necessary to prevent the infliction of bodily injury,” and 17-A M.R.S. § 104(3)(B)(2) (2021)
requires only that the defendant believe that deadly force is necessary to prevent the intruder from
committing any crime other than criminal trespass.
20

shooting one of the Cardillis. The State argues that Cardilli explicitly waived his

right to challenge this issue on appeal by not requesting that the trial court

apply section 108(2)(A).

[¶33] “If a defendant explicitly waives the delivery of an instruction or

makes a strategic or tactical decision not to request it, we will decline to engage

in appellate review, even for obvious error.” State v. Nobles, 2018 ME 26, ¶ 34,

179 A.3d 910; State v. Ford, 2013 ME 96, ¶ 16, 82 A.3d 75 (“[Section] 101(1) . . .

specif[ies] that a trial court is not required to instruct on an affirmative defense

that has been waived by the defendant.”); 17-A M.R.S. § 101(1) (“This

subsection does not require a trial court to instruct on an issue that has been

waived by the defendant. The subject of waiver is addressed by the Maine Rules

of Unified Criminal Procedure.”); M.R.U. Crim. P. 51.

[¶34] The record clearly shows that Cardilli not only failed to request a

self-defense justification pursuant to section 108(2)(A), but explicitly argued

that the evidence did not generate the self-defense justification. He argued in a

written memorandum in support of closing, “This is not a self-defense case

under [section] 108(2)(A) where the [c]ourt needs to determine whether

[Muse] was going to inflict deadly force on any of the inhabitants of [the Cardilli

home].” Further, even though he asked the court to reconsider some of its
21

rulings, Cardilli never suggested that the self-defense justification provided by

section 108(2)(A) had any application.

[¶35] Even if we were to assume that Cardilli’s section 108(2)(A)

argument was not expressly waived, we find it unpersuasive. The court’s

findings regarding the level of “threat” posed by Muse preclude a finding that

Cardilli held an objectively reasonable belief that Muse was about to use

unlawful, deadly force against anyone in the household. As mentioned above,

the court explicitly found that Muse was not armed and that he did not at any

time try to grab Cardilli’s gun. The court specifically found that Muse’s

response to seeing the gun was to ask for his phone so he could call for a ride

home. Even if Cardilli had an actual belief that Muse was about to use deadly

force by taking control of the gun that Cardilli brought into the chaos—a belief

not asserted by Cardilli at trial—the court found that any such belief was

objectively unreasonable. The court aptly noted that “Muse had been drinking

all day on March 15, 2019 and was impaired. Deadly force was not required to

prevent minimal bodily injury or to remove . . . Muse from the house.”

The entry is:

Judgment affirmed.
22

Jamesa J. Drake, Esq. (orally), Drake Law LLC, Auburn, and Rory A. McNamara,
Esq., Drake Law LLC, York, for appellant Mark Cardilli Jr.

Aaron M. Frey, Attorney General, and Leanne Robbin, Asst. Atty. Gen. (orally),
Office of the Attorney General, Augusta, for appellee State of Maine

Cumberland County Unified Criminal Docket docket number CR-2019-1823
FOR CLERK REFERENCE ONLY