State v. Anderson

• Decision Date: 31 December 1979
• Citation: 409 A.2d 1290
• Parties: STATE of Maine v. Timothy L. ANDERSON and Edward G. Sabatino.
• Court: Maine Supreme Court

Page 1290

409 A.2d 1290

STATE of Maine v. Timothy L. ANDERSON and Edward G. Sabatino.

Supreme Judicial Court of Maine.

Dec. 31, 1979.

Charles K. Leadbetter, Michael D. Seitzinger (orally), Asst. Attys. Gen., Augusta, for plaintiff.

Dunlap, Wood & O'Brien by Mark E. Dunlap (orally), Portland, for Anderson.

Childs, McKinley & Emerson, Richard S. Emerson, Jr. (orally), Portland, for Sabatino.

Before McKUSICK, C. J., POMEROY, WERNICK and ARCHIBALD, JJ., and DUFRESNE, A. R. J.

DUFRESNE, Active Retired Justice. ¹

The defendants, Timothy L. Anderson and Edward G. Sabatino, were charged in a two-count joint indictment with the murder of Joseph H. Lalumiere, Sr. on January 25, 1978 in violation of 17-A M.R.S.A., § 201(1)(A) ² and with the concurrent crime of robbery in violation of 17-A M.R.S.A., § 651(D)(E). ³ They were tried together in the Superior Court, Cumberland County, before a jury impaneled on July 26, 1978, which, after taking a view of the scene of the crime and receiving evidence during the period of five days, returned, on August 1, 1978, verdicts of guilty of murder and robbery against each defendant.

On appeal, defendant Anderson contends that (1) the evidence was insufficient to support the verdict of guilty on the murder count; (2) his pretrial motion for severance was erroneously denied; (3) adoptive admissions were erroneously admitted in evidence without proper foundation; (4) the admission in evidence of his own extrajudicial admissions violated the corpus delicti rule; (5) statements made by a prosecution witness should have been excluded on the ground that they were obtained through a violation of that witness' Miranda rights; (6) the jury was erroneously instructed on the definition of the mens rea element of murder under 17-A M.R.S.A., § 201(1)(A); and (7) the trial court erred in failing to give defendant's requested instruction on the inherent trustworthiness of excited utterances.

Defendant Sabatino appeals on the ground that the trial Court erroneously instructed the jury on the elements of accomplice liability. He contends that, if the Court had correctly construed the accomplice liability statute (17-A M.R.S.A., § 57(3)(A)), the Court would have been compelled to grant Sabatino's motion for a directed verdict of acquittal on the murder count. Sabatino also joins in Anderson's contention that the admission in evidence of their extrajudicial admissions violated the corpus delicti rule.

We reject each claim of error raised by the defendants and accordingly we deny the appeals.

Facts of the Case

The jury would have been warranted in finding the following facts.

On January 24, 1978 Anderson and Sabatino were present when one John Taylor purchased a .22-caliber pistol from Sabatino's cousin, Dennis Splude. Taylor borrowed the money to purchase the gun from Anderson.

On the following day, January 25, 1978, Anderson and Sabatino arrived at Taylor's apartment on Cumberland Avenue in Portland, Maine at about 5:00 p. m. Present in the apartment at that time were John Taylor, Michelina Collelo Taylor, Norman Estes and Henry Lewis. The defendants asked John Taylor if they could borrow his pistol in order to use it to commit a robbery at the Elm Ice and Coal Co. of Portland, Maine. Taylor agreed to lend them the gun. The flip of a coin was used to determine who would be carrying the gun. As a result thereof, Anderson took possession of the firearm. The defendants made masks out of pullover hats and then left the Taylor apartment together in Sabatino's car.

At about 5:45 p. m., the dead body of Joseph H. Lalumiere, Sr., the owner of the Elm Ice and Coal Co., was found in a chair on the premises of his business at 30 Washington Avenue in Portland, Maine. A subsequent autopsy revealed that Lalumiere died from a bullet which passed through his chest, heart and lung.

At 6:00 p. m. that evening, Anderson and Sabatino returned to the Taylor apartment and changed their clothes. Anderson stated that the two of them had gone to Elm Ice and Coal where Anderson had demanded money of Joseph Lalumiere. Anderson related that the victim had reached into a bag, causing Anderson to think that Lalumiere was going for a gun, and that it was at this point Anderson shot Lalumiere. Anderson further told Lewis, Estes and the Taylors that he had meant to shoot Lalumiere in the arm, just to wound him. Both Anderson and Sabatino stated that Sabatino was standing near the victim with a pair of ice tongs during the incident. The defendants stated that they left without taking any money. They told John Taylor they would get rid of the gun. Both defendants then left the Taylor apartment.

On the 26th of January, the defendants again went to the Taylor apartment, and Sabatino told Taylor that he had thrown the gun in the water from a bridge in Falmouth. Police later recovered a .22-caliber pistol from the water, and ballistic tests showed that the bullet which killed Lalumiere came from that gun.

At their joint trial, both defendants took the stand and admitted that they went to the Elm Ice and Coal Co. to rob Lalumiere. Both testified, however, that they intended to use the gun only to scare Lalumiere. Sabatino claimed he did not know that the gun was loaded. Anderson stated that he knew it was loaded and that he fired once at Lalumiere intentionally, but that he meant only to wound him in the arm, not to kill him. Anderson further added that, after firing the single action pistol once, he pulled the hammer back to prepare the gun for a second shot, but he did not fire at Lalumiere again; instead, he fled from the scene, discharging the second shot into the pavement outside the premises.

I. Anderson Appeal

A. Murder Instructions

Defendant Anderson claims reversible error in the Justice's instructions to the jury in relation to what constitutes "knowing" conduct underlying one type of culpable state of mind in murder. We disagree.

To support a conviction of murder under 17-A M.R.S.A., § 201(1)(A), the State must either prove that it was the defendant's "conscious object" to cause the death of his victim (17-A M.R.S.A., § 10(1)(A)) (the culpable state of mind intended by the term "intentionally" in the murder statute see note 2, supra) or that the defendant was aware that it was "practically certain" that his conduct would cause Lalumiere's death (17-A M.R.S.A., § 10(2)(A)) (the culpable state of mind intended by the term "knowingly" in the reference murder statute). The trial Justice did instruct the jury correctly respecting the requisite mens rea in murder when he explained to them what was meant by "intentional" and "knowing" conduct necessary to support the prerequired culpable state of mind in the crime of murder. Although the Maine Criminal Code definitionally states that a person acts knowingly with respect to a result of his conduct when he is aware that it is "practically certain" that his conduct will cause such a result, here, the trial Justice did not confine himself to the exact statutory definition, but told the jury, in the alternative, that the defendant acted knowingly if he knew that death would "almost certainly" result from his conduct. We reject the defendant's contention that the Justice's amplification in his definition of knowing conduct introduced a lower standard of evidentiary proof than the statutory requirement or practical certainty between cause and effect.

The word "certain," standing alone, used in the context of cause to effect, connotes, amongst other things, the sense of being exact and precise, sure and dependable. It is the antonym of doubtful. When conjoined with either of the words "practically" or "almost," it then loses its characteristic of absolute exactitude or definitive sureness and embraces, instead, the qualitative concept of certainty to all practical purposes though not entirely or absolutely so (practically) or certainty to a very close degree of correctness (almost). Webster's Third New International Dictionary, in defining the word "practically," indicates the near-identical conceptualization of the two terms, since one of the meanings given to "practically" is "nearly," "almost." In our view, the jury understood the dual phraseology as being synonymous. There was no error.

B. Sufficiency of the Evidence in Proof of Murder

Defendant Anderson argues that the evidence was insufficient to prove that he "intentionally" or "knowingly" killed Lalumiere, and that, at most, the evidence supports a conviction of manslaughter only. This argument is to no avail.

The State's evidence showed that the fatal bullet which killed Lalumiere passed through the victim's chest, heart and lung. Anderson himself testified that he knew the gun was loaded, that he intentionally pulled the trigger, and that, after firing once, he pulled back the hammer of the single action pistol in preparation for a second shot.

Where the existence of a culpable state of mind such as a conscious object to cause death (intentional conduct) or an awareness that it is practically certain that death will result from the actor's conduct (knowing conduct) is a necessary constituent of the crime of murder, the intent with which the accused committed the acts underlying the criminal accusation must be proved as any other fact beyond a reasonable doubt. Such proof of the accused's intent at the time of the commission of the alleged criminal act may be drawn from the act itself or from the existing circumstances surrounding the incident, as well as from any other evidence having a legitimate tendency to shed light upon the accused's intent or mental state at the time. See State v. Gagne, Me., 362 A.2d 166, 174 (1976); State v. Pinnette, Me., 340 A.2d 17, 21 (1975); State v. Eaton, Me., 309 A.2d 334, 339 (1973).

Thus, the defendant's testimony regarding his subjective intent at the time the shooting occurred was admissible evidence, because it could have an important bearing with the jury in...