Doe, In re

• Decision Date: 17 August 1978
• Docket Number: No. 76-139-C,76-139-C
• Citation: 120 R.I. 732,390 A.2d 920
• Parties: In re John DOE. A.
• Court: Rhode Island Supreme Court

Page 920

390 A.2d 920

120 R.I. 732

In re John DOE.

No. 76-139-C.A.

Supreme Court of Rhode Island.

Aug. 17, 1978.

[120 R.I. 743] Julius C. Michaelson, Atty. Gen., E. Martin Stutchfield, Asst. Atty. Gen., for petitioner.

William F. Reilly, Public Defender, Barbara Hurst, Chief Appellate Atty., Providence, for respondent.

OPINION

KELLEHER, Justice.

The respondent ¹ is a juvenile who was tried by a justice of the Family Court for the murder of one Ricardo Jose. Hereafter we will refer to the respondent as "John." On January 19, 1976, he was found guilty of second-degree murder and accordingly adjudged a delinquent. This appeal from the finding of guilt and delinquency followed.

In the early morning hours of July 11, 1975, John, who was then 17 years old, struck and killed Ricardo Jose with a baseball bat in the backyard of a tenement house located at 212 Hanover Street in Providence, Rhode Island. Both John and Ricardo lived in the tenement house, Ricardo on the first floor and John on the second. At trial John relied on the defense of self-defense to justify the homicide. A full recitation of the events of the previous evening is, therefore, in order.

At approximately 10 p. m. on the evening of July 10, 1975, Ricardo Jose (Ricardo), a 43-year-old carpenter, discovered that one of his car windows had been broken. The car was parked at the rear of 212 Hanover Street. For some unknown reason, Ricardo assumed that John was responsible for the property damage to his car and summoned the police and his landlord to the premises. When the police arrived, Ricardo and John were arguing over the damage to Ricardo's car. Ricardo was accusing John, and John was denying that he had anything to do with the damage. All agree that Ricardo was intoxicated at the time. Since no one at the scene, including Ricardo, could substantiate Ricardo's allegation, the police officer informed Ricardo that he could not arrest John. At this news Ricardo became visibly upset. As the officer was leaving, John informed him that Ricardo had a knife. The officer took a 10- to 12-inch butcher knife away from Ricardo and placed it in the police car. Ricardo's landlord remained at the scene for approximately 45 minutes after the police left, trying to assuage Ricardo's temper. The landlord testified that Ricardo was drunk and was threatening to kill John.

After the landlord left, John walked to a nearby sandwich shop with Cindy, his 15-year-old girl friend. Cindy and John had been living together for over a year. In their absence Ida, another resident of 212 Hanover Street, saw Ricardo going up the fire escape on the side of the house. A moment later she heard the sound of breaking glass and shortly thereafter observed Ricardo entering the house by a back window. When John and Cindy returned to their second-story apartment, they noticed their television set was "all cracked up." The window leading to the fire escape was open. John told Cindy to get him the baseball bat that was by the door. ² Upon learning from Ida that Ricardo had gone up the fire escape, John immediately sought to confront him. John banged on the door of Ricardo's first-floor apartment, first with his hand and then with the bat. When Ricardo refused to answer, John telephoned the police from a neighbor's apartment.

Officer Donald Barkley responded to the scene at approximately 1 a. m., July 11, 1975. ³ At that time John and Ricardo were engaged in what Officer Barkley called a "heavy argument." John accused Ricardo of breaking into his apartment and smashing his television set, and Ricardo countered by accusing John of entering his first-floor tenement and breaking his car window. When a second cruiser arrived on the scene, the combatants were placed in separate vehicles. Prior to placing Ricardo in the cruiser, Officer Barkley took a hammer away from him. After viewing the property damage, Officer Barkley informed both parties that the whole matter would have to be settled "downtown." When John asked Officer Barkley if he was going to get "locked up," the officer responded in the affirmative. At this point John stated: "I don't want to make a beef then, I will take care of it myself." Upon hearing this, Ricardo agreed to drop his charge also. Although both were warned to keep the peace, there was little cause for optimism in this regard, for each made comments which could be considered threats to the other. John allegedly said that the only way to straighten out this matter was to take Ricardo out in the backyard and "have it out with him." Ricardo allegedly retorted that "if anything came up they would take care of it later."

After the police left, John remained on the front steps with Cindy, Ida, Deborah, Ruth, and several others. Ricardo soon re-emerged from his apartment and began acting "crazy." All of the witnesses testified that he was drunk. At this time Ricardo was armed with his third weapon of the evening, a short ax or hatchet. Ricardo threatened to kill John and his two dogs. John, according to the four women, generally ignored Ricardo, but occasionally responded by saying "leave me alone."

What transpired next is not entirely agreed upon. According to two of the women, John went around to the backyard followed shortly thereafter by Ricardo. The other two women reported that Ricardo entered the backyard first, with John bringing up the rear. It is unclear exactly why either or both John and Ricardo decided to go into the backyard. Deborah thought that John wanted to check on his dogs, which, according to her, were in the backyard barking. Ida thought John had his dogs with him when he entered the backyard. Cindy, on the other hand, thought the dogs were in the house at this time. In any event, as John went into the backyard with his baseball bat, he allegedly told the onlookers that if Ricardo bothered him, he was going to "f him up with the bat."

Ida was the only eyewitness to the ensuing altercation in the backyard. She testified that she spoke briefly to John through her rear kitchen window and then returned to the front steps. When Ricardo went into the backyard, Ida returned to her vantage point at the window. She testified that Ricardo started swinging his ax at John. ⁴ John, she said, backed away from Ricardo, saying: "Leave me alone. Now, I told you to leave me alone." John then struck Ricardo on the side or back of the head. Ricardo fell to the ground and, as he was getting up, he was struck a second time in the head. Ida shouted to John to stop hitting him, and then she ran to the front of the house to tell the others of the ongoing skirmish. Deborah, still standing in front of the premises, also heard John call out from the backyard: "Stay away from me. I told you to leave me alone."

Ida and some of the others in the front went from the front into the backyard. Ida testified that as she stood over the body, she could not detect any breathing. She believed that Ricardo was dead and so informed the others. John thought his adversary was just "knocked * * * out."

John and Cindy walked up the street and asked an older neighbor to take them to Cindy's mother's house. After being apprised of the circumstances, the neighbor prudently suggested that they return to the body and check on its condition. After checking the body and finding it to be "stiff," the neighbor left the scene, and John and Cindy went to Ida's apartment, where they played some records for about 20 minutes. As the two were preparing to go up to their apartment at approximately 2 a. m., a police officer who had been ordered to respond to a call that there was a disturbance at 212 Hanover Street entered the premises. Without mentioning the fact that there was a body in the backyard, John told the police everything was all right, and the police left.

Within a matter of minutes a Fire Department rescue squad arrived on the scene, and at approximately 2:30 a. m. Ricardo's body was discovered. The ax was found lying on a toolbox on the back porch approximately 15 to 20 feet away from the body. No evidence was introduced as to how the ax came to rest on the back porch or what fingerprints it did or did not contain. The baseball bat was never located.

At the conclusion of the trial, the Family Court ⁵ trial justice found John guilty of murder in the second degree and adjudged him to be a delinquent.

John's principal contention on appeal is that the trial justice erred as a matter of law when he placed upon John the burden of proof on the issue of self-defense. Until today the law in Rhode Island has been that a defendant seeking to excuse a killing by a plea of self-defense must prove that defense by a preponderance of the evidence. State v. Ballou, 20 R.I. 607, 40 A. 861 (1898). John contends, and we agree, that such a rule is no longer permissible under the due process clause of the fourteenth amendment to the United States Constitution. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).

In Mullaney v. Wilbur the Supreme Court declared invalid the Maine murder statute under which a defendant, in order to rebut the statutory presumption that he committed the offense with "malice aforethought," had to prove by a preponderance of the evidence that he acted in the heat of passion on sudden provocation. The sole element distinguishing murder from manslaughter under the Maine statute malice aforethought was negated by and could not coexist with the defense of "heat of passion on sudden provocation." 421 U.S. at 684, 95 S.Ct. at 1882-83, 44 L.Ed.2d at 511. Accordingly, the Court held that the prosecution was required "to prove beyond a reasonable doubt the absence of heat of passion on sudden provocation when the issue is properly presented in a homicide case." 421 U.S. at 704, 95 S.Ct. at 1892, 44 L.Ed.2d at 522.

Although the Court did not directly address the issue with which we are concerned whether self-defense, like heat of passion, must be negated...