State v. Amado

• Decision Date: 06 August 1981
• Docket Number: No. 79-110-C,79-110-C
• Citation: 433 A.2d 233
• Parties: STATE v. Elizabeth AMADO. A.
• Court: Rhode Island Supreme Court

Page 233

433 A.2d 233

STATE v. Elizabeth AMADO.

No. 79-110-C.A.

Supreme Court of Rhode Island.

Aug. 6, 1981.

Dennis J. Roberts, II, Atty. Gen., Barry N. Capalbo, Sp. Asst. Atty. Gen., for plaintiff.

William F. Reilly, Public Defender, Lise Gescheidt, Asst. Public Defender, for defendant.

OPINION

BEVILACQUA, Chief Justice.

This is an appeal by the defendant, Elizabeth Amado, from a conviction of second-degree murder by a jury of the Superior Court for Providence and Bristol Counties.

At approximately 9:30 p. m. on July 18, 1977, two police officers of the Providence police department responded to a call at 8 Harvard Avenue. There, in a second-floor apartment, they observed the victim, Joseph Amado, lying in a pool of blood while his wife, defendant Elizabeth, was straddling him. The defendant was apparently trying to stop the bleeding coming from a stab wound in the area of Joseph's left shoulder. The officers asked defendant what had happened, and the defendant responded, "I stabbed him." One of the officers picked up a butcher's knife lying next to the victim, which knife defendant later admitted was the weapon she had used to wound Joseph fatally.

A third officer arrived at the apartment and proceeded to advise defendant of her constitutional rights as set forth in Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694, 726 (1966). Again, defendant admitted stabbing her husband, adding that he had come home that evening in a drunken and abusive condition. Subsequently, defendant was arrested and taken to the police station. Here, defendant was advised of her rights a second time and was interrogated after signing a rights-waiver form. The defendant offered a statement in which she elaborated on her husband's intoxicated condition and on her own role in the stabbing. Meanwhile, Joseph Amado died from the stab wound. Thereafter, defendant was indicted for second-degree murder.

In addition to offering testimony from two of the officers who were present at the Harvard Avenue apartment and from the detective who interrogated defendant, the state offered the testimony of one of the Amados' neighbors who had appeared in the apartment just after the incident and had told a second neighbor to call the police. The prosecution also presented the state medical examiner as a witness. At the conclusion of the state's case, defendant moved for judgment of acquittal, arguing that no evidence of premeditation had been introduced. This motion, however, was denied.

Thereafter, the defense attempted to show lack of intent and of premeditation by submitting the expert testimony of two psychologists, one of whom had conducted extensive interviews with defendant while defendant was under the influence of the drug sodium amytal. ¹ Tapes of these interviews were played for the jury.

After all the evidence was presented, the trial justice charged the jury. The prosecution requested the trial justice to instruct the jurors that "(t)here is a presumption that a person intends all the natural and probable consequences of his voluntary acts." In order to consider this requested instruction properly, it is necessary to reproduce a large portion of this charge:

"In addition to the oral testimony and the physical exhibits, you should draw from the evidence any reasonable inferences which you might feel are warranted. * * * In other words, if you feel that certain facts have been established to your satisfaction, you might reasonably infer that other facts must necessarily be so. That is what we call drawing an inference.

" * * *

"As I told you at the outset, Ladies and Gentlemen, there are certain basic principles of the criminal law which you must not lose sight of. Number one is the presumption of innocence. This woman, Mrs. Amado, is presumed to be innocent as she sits there at this very moment. * * * And the only time that that presumption of innocence vanishes, if it ever does, is when you are convinced that the State of Rhode Island has proven her guilt as to each and every element of the offense beyond a reasonable doubt. Then and only then does the presumption of innocence vanish. * * * It (the indictment) is an accusation and it is incumbent upon the State of Rhode Island to prove those accusations or those allegations beyond a reasonable doubt.

" * * *

"Now, murder, very simply defined, is the unlawful killing of a human being with malice aforethought or premeditation. In other words, the person must have thought about killing. Must have thought about it. An evil design or plan, an (sic) acted upon that thought and actually consummated the evil plan or design and killed the person.

"Now, murder in the second degree as opposed to murder in the first degree is simply a matter of time. If you find that this woman had malice aforethought and premeditated or thought about killing her husband for a mere moment or less, then it is murder in the second degree. The amount of time required for murder in the second degree is a mere moment or less. But, the state, in order to prove her guilty beyond a reasonable doubt, must prove to you that on the 18th day of July 1977 she killed her husband with malice aforethought or premeditation. This premeditation had to last for a moment or less.

" * * *

"(b)ased upon how you view the evidence, how you determine the facts in this particular case, you could find Elizabeth Amado guilty of manslaughter * * *.

" * * *

"Accidental homicide is an unintentional act, as distinguished from homicide in self-defense, which is a positive and intentional act. It has been alleged in this particular case that this was an accidental killing. Unintentional and accidental.

" * * *

"In order to convict Elizabeth Amado of any crime, you must have been satisfied by the evidence introduced by the state that this was not an accidental homicide.

"You must always keep in mind that the defense has, and had, no obligation to prove anything; therefore, you may not decide this case by weighing the evidence introduced by the defense against the evidence introduced by the state. Then question always remains whether the state has proven guilt beyond a reasonable doubt.

"There is also a presumption that a person intends all of the natural and probable consequences of his voluntary acts.

"Now, after going over all of the evidence in this particular case * * *." (Emphasis added.)

The defendant now raises one assignment of error: whether the instruction "there is also a presumption that a person intends all of the natural and probable consequences of his voluntary acts" violates the Fourteenth Amendment requirement that the prosecution prove every element of the offense of murder beyond a reasonable doubt when intent is an element of the crime charged.

In raising this issue, defendant principally relies on the Supreme Court's holding in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) a case decided seven months after defendant's trial and conviction. However, before addressing the issue in this case, we must first determine whether we may consider this question on direct appellate review because of defendant's failure to take objection to this instruction at trial.

I

Rule 30 of the Superior Court Rules of Criminal Procedure states in pertinent part:

"No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection."

We have stated that a defendant's failure to comply with Rule 30 and to make a specific objection to the proffered instruction prevents her from raising this objection on appeal. Infantolino v. State, R.I., 414 A.2d 793, 795 (1980); State v. Pope, R.I., 414 A.2d 781, 786 (1980); State v. McGehearty, R.I., 394 A.2d 1348, 1351 (1978).

The defendant argues, however, that the issue raised concerns a violation of defendant's basic constitutional rights, regarding whether the state was relieved of its burden to prove, beyond a reasonable doubt, that defendant intended to kill her husband or whether defendant was left with the burden of proving that she lacked this intent. See Sandstrom v. Montana, 442 U.S. at 524, 99 S.Ct. at 2459-60, 61 L.Ed.2d at 51. Intent was a crucial element in this case, and the due-process clause of the Fourteenth Amendment requires the state to prove every fact necessary to constitute the offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970). Moreover, any instruction that effectively shifts the burden of proof of an essential element of the crime to a defendant is impermissible under the due-process clause. See Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508, 522 (1975). It is a well-settled principle of law that when a basic constitutional right is in issue, we will review the alleged error notwithstanding defendant's failure to make a timely objection at trial if she meets two requirements. First, the record must show that failure to object was not a deliberate trial tactic. Second, the error complained, of, although involving a basic constitutional right, must consist of more than harmless error. State v. McGehearty, 394 A.2d at 1352; see generally 14 Suffolk U.L.Rev. 819, 826 (1980).

A

This court will review an "appeal from the judgment of conviction, rather than upon post-conviction proceedings if the existence of (these requirements is) ascertainable from the record * * * without resort to an evidentiary hearing." State v. McGehearty, 394 A.2d at 1352. The first of these requirements is ordinarily met when the defendant raises "novel constitutional claims that were unappreciated by his counsel at trial," State v. Duggan, R.I., 414 A.2d 788, 791 (1980); see State v. Reis, R.I., 430 A.2d 749, 754 (1981); State v. DeWitt, R.I., 423 A.2d 828, 830 (1980); State v....