Hilton v. State

• Decision Date: 02 December 1975
• Citation: 348 A.2d 242
• Parties: Roland E. HILTON, Administrator of the Estate of David L. Hilton v. STATE of Maine.
• Court: Maine Supreme Court

Page 242

348 A.2d 242

Roland E. HILTON, Administrator of the Estate of David L. Hilton v. STATE of Maine.

Supreme Judicial Court of Maine.

Dec. 2, 1975.

Smith, Elliott & Wood by Randall E. Smith, Roger S. Elliott, Saco, for plaintiff.

Verrill Dana Philbrick Putnam & Williamson by John A. Mitchell, Protland, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

WERNICK, Justice.

By Resolve approved by the Governor on June 4, 1969 (Resolves, 1969, Chapter 27) the Legislature authorized '. . . the estate of David L. Hilton, acting by his personal representative', to sue the State of Maine to recover

'. . . damages, if any, resulting from the death of David L. Hilton, . . . who, his estate claims, was wrongfully or negligently shot and killed on April 20, 1967, . . . as a result of wrongful or negligent actions and manner by which his capture and apprehension as a wanted felon was attempted and executed by law enforcement officers of the State of Maine; . . ..'

Procedurally,

'. . . the conduct of . . . (the) action . . . (was to) be according to the practices of actions and proceedings between parties and suitors in . . . Superior Court, . . .'

except that

'(h)earing . . . shall be before 3 Justices of the Superior Court without a jury; said justices to be assigned by the Chief Justice of the Supreme Judicial Court.'

Substantively,

'. . . the liabilities of the parties, and elements of damage, if any (were to) be the same as the liabilities and elements of damage between individuals; . . ..'

Roland E. Hilton, as Administrator of the Estate of David L. Hilton, instituted the action in the Superior Court (York County) on January 9, 1970. Defendant State of Maine filed an answer. Simultaneously, defendant moved for summary judgment relying upon an affidavit in which the State Trooper who had shot and killed David L. Hilton described the circumstances of the homicide.

The further course of the litigation is summarized in the 'Decision and Order' of the three Superior Court Justices assigned by the Chief Justice to hear the case, without a jury.

'The plaintiff's complaint . . . (was) filed in seven counts. Counts 4, 5, and 6 have been voluntarily dismissed. Count 1 . . . seeks damages for wrongful death, count 2 seeks damages pursuant to statute for conscious pain and suffering according to the common law, and count 7 seeks punitive damages. The parties have submitted to the court material indicating that there is no factual dispute. On the issue of liability each side has filed a motion for summary judgment as to the first three counts of the plaintiff's complaint. The parties agree that as to their respective motions for summary judgment as to counts 1, 2, and 3 . . . the same legal issue is presented, namely whether the killing of David L. Hilton by the State Trooper was a justifiable homicide. Both parties agree that if it was a justifiable homicide . . . there is no liability on the part of the state. On the other hand, both parties agree that if the killing was not a justifiable homicide . . . the issue of liability should be resolved in favor of the plaintiff.'

The panel of Justices concluded that defendant's motion for summary judgment should be denied and plaintiff's motion granted. With the liability issue thus decided in favor of plaintiff, the panel ordered

'. . . the matter . . . set for trial solely upon the issue of the damages, if any, incurred by the plaintiff.'

As to damages, the panel granted defendant's motion to dismiss Count 7 of the Complaint which sought punitive damages and confined the damages recoverable to compensatory damages. After a hearing, the panel ordered entry of judgment for plaintiff in the amount of $13,105.05.

This judgment was entered on June 27, 1974. Defendant's appeal from the judgment is now before us.

We sustain the appeal.

The facts on which the panel rested its decision were:

'(T)he State Trooper involved was assisting other law enforcement officers in attempting to execute an arrest warrant upon the deceased David L. Hilton for the offense of breaking, entering and larceny in the nighttime. The death resulted from a shooting by the State Trooper when the deceased sought to escape and evade arrest.'

To these facts the panel refused to apply as the governing law of Maine a principle of the common law acknowledged by the panel as 'unquestioned' that, in the language of the panel,

'. . . a police officer . . . justifiably kill(s) a fleeing felon if . . . (by) no other way the felon could be arrested.'

Instead, the panel took as controlling the principle stated in Section 3.07(2) (b) of the American Law Institute's Model Penal Code:

'The use of deadly force (by a police officer to effect an arrest) is not justifiable . . . unless:

(i) the arrest is for a felony; and

(iv) the actor believes that:

(1) the crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or

(2) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.'

Since the panel found that in the instant situation both of the elements prescribed as alternatives in (iv)(1), (2) were absentIt ruled that the 'homicide here involved was not justifiable' and, in accordance with the stipulated framework for decision, resolved the tort liability issue in favor of plaintiff.

We decide that the panel committed reversible error in refusing to apply to this case the principle of the common law invoked by defendant and ruling, instead, that the case is controlled by the principle enunciated in Section 3.07(a)(b) of the Model Penal Code.

The foundation of the panel's analysis was its observation:

'(t)here is no case or statutory authority in the State of Maine indicating whether a killing under the circumstances . . . (here involved) constitutes a justifiable homicide.'

The panel then reasoned as follows. First, the panel deemed archaic the theoretical rationable of the English common law principle that since, at common law, virtually all felonies were punishable by death,

'the killing of a fleeing felon resulted in no greater consequences than those which would inevitably result from his trial and conviction.'

Second, the panel believed that because current penology punishes as 'misdemeanors' many crimes involving conduct dangerous to life and limb and punishes as 'felonies' many crimes not thus dangerous, the 'felony-misdemeanor' classification of crimes no longer is, if ever it was, an adequate criterion to differentiate crimes dangerous to life and limb from those not so.

Thus finding the theoretical rationale and practical consequences of the common law principle at issue to be 'inadequate for modern law', the panel decided to follow the aforementioned principle proposed by the Model Penal Code because the panel regarded it as striking

'. . . the appropriate balance between the legitimate needs of law enforcement and the sanctity of human life.'

Although there is persuasiveness in the panel's approach, we reverse its decision since we believe that the panel acted, here, beyond appropriate bounds of judicial functioning.

The panel did not see fit to amplify the significance intended by the observation that no case or statutory authority in Maine has expressly spoken upon whether a killing in the circumstances, here involved constitutes a justifiable homicide. Were it the panel's thought that at the time of its decision there was no operative law in Maine governing the case before it and, therefore, the panel was entirely free to pronounce the law of Maine according to the panel's own view of what the maine law should be, shch conception would be erroneous.

In Davis v. Scavone, 149 Me. 189, 100 A.2d 425 (1953) this Court painstakingly analyzed the process by which those who settled the Colony of the Massachusetts Bay brought with them, and adopted as their law, the 'common law of England' (149 Me. p. 194, 100 A.2d 425) which in turn, became the common law of the Commonwealth of Massachusetts by operation of the Massachusetts Constitution and, subsequently, the common law of the State of Maine by force of the Act of Separation and Article 10, Section 3 of the Constitution of Maine.

Davis v. Scavone, supra, elucidated (149 Me. at p. 195, 100 A.2d 425) that a particular principle of the 'common law of England' would be the governing law of the Commonwealth of Massachusetts and likewise of Maine, notwithstanding the absence of an express holding by the Massachusetts or Maine Court acknowledging such principle as law, so long as it was compatible with the 'new state and condition' of the colonists. (149 Me. p. 194, 100 A.2d 425) Davis v. Scavone further made clear that this Court would take as convincing evidence of such compatibility any approving references to the common law of England made by either the Massachusetts or Maine Courts even if such references had been forthcoming after Maine had become a separate State. ¹

We are satisfied that the Massachusetts Court's mention without indication of disapproval, in Commonwealth v. Young, 326 Mass. 597, 96 N.E.2d 133 (1950) of the principle of the common law of England here invoked by defendant and the Court's accompanying citation of Murdock v. Ripley, 35 Me. 472 (1853) as suggesting Maine's much earlier recognition of the principle, suffice to establish the principle as compatible with 'the habits and manners' of the colonists and to stamp it as applicable to 'their new state and condition.'

Following the reasoning of Davis v. Scavone, supra, then, and borrowing the language of that precedent,

'(i)t is upon the . . . provisions of the Constitution of the Commonwealth of Massachusetts, the Act of Separation and the Constitution of Maine, and the . . . decisions (upon which Davis v. Scavone relied) that we hold . . .' (149 Me. p. 195, 100 A.2d p. 428)

that the principle of the...