State v. Armstrong

• Decision Date: 04 September 1975
• Citation: 344 A.2d 42
• Parties: STATE of Maine v. Lewis C. ARMSTRONG, Jr.
• Court: Maine Supreme Court

Page 42

344 A.2d 42

STATE of Maine v. Lewis C. ARMSTRONG, Jr.

Supreme Judicial Court of Maine.

Sept. 4, 1975.

David M. Cox, Dist. Atty., Bangor, Charles K. Leadbetter, Fernand R. LaRochelle, John R. Atwood, Asst. Attys. Gen., Augusta, for plaintiff.

Vafiades, Brountas & Kominsky, by Marvin H. Glazier, Eugene C. Coughlin, III, Bangor, for defendant.

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

ARCHIBALD, Justice.

Defendant, having been indicted for the felonious homicide punishable as murder, entered pleas of not guilty and not guilty by reason of mental disease or defect. A Penobscot County jury, having heard evidence offered by the State limited to proof of the commission of the crime by the defendant, and having heard defense testimony focused completely on the defendant's mental capacity, returned a guilty verdict. Judgment was entered accordingly, from which an appeal was seasonably taken.

We deny this appeal.

FACTS

Appellant has argued many points in support of his appeal. In order that we may deal with these points rationally, it is necessary that an abstract of the facts be included.

On February 13, 1973, the body of the decedent, Jeanette A. Moore, was discovered in Room 39 of the Fairmount Motel in Bangor, this being the room which was rented and regularly occupied by the appellant. Medical evidence established beyond any possible doubt that the cause of her death was 'asphyxiation due to manual strangulation.' The testimony by a medical examiner also established that coincident with her strangulation she had been the victim of severe physical abuse.

The decedent, who was characterized by several witnesses as appellant's 'girl-friend,' had been seeing him regularly for several months prior to her death. He had frequently visited her home, and had established what would appear to have been a reasonably good rapport with the Moore family.

We revert now to the evidence dealing with the known activities of Miss Moore and the appellant on the day of her death. The couple left the Moore residence in the afternoon and spent approximately two hours (2:30 p. m. to 4:30 p. m.) in a restaurant in Hampden where they consumed a certain amount of beer. At approximately 6:30 in the evening the tenant in the room adjoining Room 39 in the Bangor motel observed appellant 'with a towel wrapped around him . . . headed for the showers,' and shortly thereafter noted his return to the room, which did not have shower facilities.

Appellant was next seen in a Bangor restaurant between 6:40 p. m. and 7:20 p. m. Because of his appearance and emotional conduct, the cashier, who knew him, gave more than passing attention to his activities. She noted that his clothes were 'clean and freshly laundered,' and 'it looked like he just had a shower and shampoo.' Becuase her station in the restaurant was within '6 or 8 feet' of the telephone booth, she was able to overhear segments of the appellant's conversation which he had with another person and quoted appellant as saying, 'I have done something bad,' and, 'I love you and I miss you and I want to come home. . . . Will you meet me with a minister.'

At 8:45 p. m. a Washington County deputy sheriff, having received a radio communication and having been given certain information from a passing motorist, proceeded to a point on Route 182 in Cherryfield ¹ where he observed two vehicles, 'a green MG and a blue Dodge pickup with a camper on it.' He noted the presence of two persons, one of whom, appellant's father, approached him. As the result of conversation with this person, the officer approached the MG. He testified that the appellant was seated in the vehicle and he proceeded to engage him in conversation. Although the admissibility of the statements made to the officer was challenged (and will be dealt with infra), the officer quoted appellant as saying, 'I killed her and I want to get her out of there.' Additionally, he informed the officer that he was referring to Room 39 at the Bangor motel.

Via police radio this information was transmitted and the officer kept the two vehicles under surveillance until he received a report verifying that a body had been discovered in the particular location given. Shortly thereafter members of the Maine State Police arrived and placed the appellant under arrest.

Although there was additional evidence connecting the appellant to this homicide beyond the statement made to the deputy sheriff, one is of particular and compelling significance. During the course of an autopsy, the pathologist had removed a segment of human skin which he found imbedded in the decedent's hair. This was preserved and ultimately transmitted to the Federal Bureau of Investigation along with known fingerprints of the appellant. As a result of comparisons made between the segment of skin removed from the decedent's hair and the appellant's known fingerprints, an expert from the Bureau was able to testify, 'I found out it was the finger, left index finger, of Lewis C. Armstrong.'

The same pathologist who had performed the autopsy on the decedent had seen the appellant shortly after his arrest and had observed his hands on which there were 'a few small injuries . . . on the index finger on the left.'

Appellant elected not to testify and confined the defense testimony to three witnesses, Halbert Miller, M. D., who specialized in psychiatry; Ulrich B. Jacobson, M. D., a psychiatrist with a sub-specialty in forensic psychiatry, ² and John E. Burns, a psychologist. The obvious purpose of the defense testimony was to prove the validity of the plea of not guilty by reason of mental disease or defect. ³

As we initially indicated, appellant urges numerous points in support of this appeal. We will deal first with those points that can be disposed of without extensive discussion.

I

Over objection the jury was instructed the appellant had the burden of proving that the criminal conduct charged against him was 'the product of mental disease or defect' by a fair preponderance of the evidence. This identical issue was decided adversely to appellant's position in State v. Melvin, 341 A.2d 376 (Me.1975), which affirmed our previous holding in State v. Buzynski, 330 A.2d 422 (Me.1974). We see no useful purpose in reiterating the rationale expressed in Melvin and Buzynski. ⁴ The instruction was correct.

II

As was the situation in State v. Wallace, 333 A.2d 72 (Me.1975), appellant claims error because the Justice presiding declined to inform the jury of the consequences which flow from a verdict of not guilty by reason of mental disease or defect. In Wallace we gave careful consideration to this identical argument and determined 'on balance' to retain the practice of refusing to give such an instruction. There was no error.

III

The Justice presiding had been requested to instruct the jury that 'expert opinion cannot arbitrarily be ignored and the inexpert opinion of the jurors be substituted in the place thereof in any matter which is within the realm of the expertise.' In his brief appellant argues that the instruction actually given, although not necessarily an incorrect legal statement, 'lumped all witnesses together which in this instance was erroneous and prejudicial to the Defendant.'

We apply the rule enunciated in Towle v. Aube, 310 A.2d 259 (Me.1973), and juxtapose the requested instruction against the charge in its entirety. In so doing we find no error. State v. Palumbo, 327 A.2d 613 (Me.1974).

The Justice presiding explained at some length to the jury the reasons which allowed the medical experts and 'the psychologist' because of their 'special training or special experience' to express opinions, whereas 'lay witnesses or ordinary witnesses' are not. Having thus differentiated between lay and expert witnesses, the Justice then continued:

"You are not bound by the opinions of either expert or lay witnesses. You should not arbitrarily or capriciously rejuct the testimony of any witness, but you should consider the testimony of each witness in connection with the other evidence in the case and give it such weight as you believe it is fairly entitled to receive.' And that is applicable to testimony of all witnesses.'

Thompson v. Johnson, 270 A.2d 879 (Me.1970), is cited in support of appellant's position. Thompson was a civil case in which a new trial was ordered on the limited issue of damages because, on the uncontradicted medical testimony, the award was 'grossly inadequate.' Thus, this case was not addressing the issue raised by the refusal to give the requested instruction but, rather, was evaluating the sufficiency of the verdict in light of undisputed medical testimony. We note, of course, that Thompson cites with approval Pease v. Shapiro, 144 Me. 195, 67 A.2d 17 (1949), a case which is thoroughly consistent with the instruction now said to be inadequate.

This point is without merit.

IV

In rebuttal the State had called the decedent's father as a witness and elicited evidence from him that he had never heard the appellant refer to him as 'Dad' or some similar familiarity. This evidence was introduced because one of the defense psychiatrists had considered in his diagnosis the supposedly close relationship that had developed between the appellant and the Moore family. He had based this conclusion, in part, on the appellant's use of the terms 'Mom' and 'Dad.' Thus, the jury could understand that such evidence had some relationship to the diagnosis made by the psychiatrist although, of course, this was not the sole basis of the diagnosis.

In State v. Durgin, 311 A.2d 266 (Me.1973), we delineated the role played by the jury in determining whether a criminal defendant has maintained his burden of proving that the act charged was the product of mental disease or mental defect. Durgin makes it clear that although experts may describe the mental and emotional condition of an accused at the relevant time, it is for...