State v. Buzynski

Decision Date27 December 1974
Citation330 A.2d 422
PartiesSTATE of Maine v. Peter John BUZYNSKI.
CourtMaine Supreme Court

Henry N. Berry, III, County Atty., David P. Cluchey, Asst. County Atty., Portland, for plaintiff.

David C. Pomeroy, Portland, for defendant.



Peter John Buzynski was indicted for Robbery (17 M.R.S.A. § 3401) and first degree arson (17 M.R.S.A. § 161), and entered pleas of 'Not Guilty' and 'Not Guilty by Reason of Mental Disease' to both charges. Pursuant to Rule 13, M.R.Crim.P., the two indictments were ordered tried together, a procedure to which Mr. Buzynski agreed. Unlike past practice, the Justice presiding granted the defendant's motion to 'bifurcate' the trial, the purpose being, as stated by defense counsel, 'so there will be two issues of fact, the question of factual guilt and mental capacity be separated from the jury and given to them (sic) on different occasions.' 1 At the conclusion of the initial segment of the trial dealing only with 'factual guilt,' the jury was instructed on the elements of both robbery and arson, including the requisite criminal intent. The jury then answered affirmatively two questions phrased as follows: 'Does the jury find that the defendant . . . did commit the crime of Robbery (arson) as alleged in the indictment?' The same jury, not having been previously informed of the plea of not guilty by reason of mental disease, was then presented conflicting evidence bearing on the defendant's mental capacity, but found him mentally competent. The defendant has appealed from the ultimate judgments of guilt, appeals which we must deny.

Appellant bases his appeal on the following points:

'1. The Presiding Justice erred in granting the State's Motion to send the Defendant to the Augusta State Hospital for observation, pursuant to Title 15 M.R.S.A. § 101, for to do so violated the Defendant's right against self-incrimination guaranteed by the Fifth and Fourteenth Amendments of the U. S. Constitution.

2. The Presiding Justice erred in allowing the in-court identification of the Defendant by the witness, Erwin John Richardson, because the testimony showed, as a matter of law, that the in-court identification was tainted and prejudiced (by) the out-of-court procedures employed by the Portland Police Department.

3. The Presiding Justice erred in denying Defendant's Motion for a directed verdict of acquittal at the conclusion of the State's case in Docket #73-82 (Arson-First Degree) because the evidence, as a matter of law, was insufficient to show a burning of the real property in question.

4. The Presiding Justice erred in refusing to allow the jury to hear the testimony of Defendant's witness, Gloria Wood.

5. The Presiding Justice erred in denying Defendant's Motion to strike the testimony of Dr. Walter Rohm, concerning the MMPI Test (Minnesota Multiphasic Personality Inventory Test) because of the gross governmental unfairness on the part of the state.

6. The Presiding Justice erred in refusing to grant Defendant's requested instructions to the jury listed as Nos. 4 and 5 in his requested instructions. The charge to the jury, of the Presiding Justice, was clearly erroneous as it related to the presumption of sanity and the burden of proof of the element of sanity.' 2

Point I

Was it error for the Justice below, pursuant to 15 M.R.S.A. § 101, 3 to order a mental examination of the appellant at the Augusta State Hospital?

Appellant argues that such an examination violates his right against self-incrimination guaranteed under the Fifth Amendment of the Constitution of the United States. Since the results thus obtained may be used to rebut the special defense generated by his plea of 'not guilty by reason of mental disease,' he contends he is being compelled to furnish evidence against himself. 4

Appellant misconceives his position. The Fifth Amendment is designed to protect 'an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.' Schmerber v. State of California, 384 U.S. 757, 761, 86 S.Ct. 1826, 1830, 16 L.Ed.2d 908, 914 (1966).

It is clear beyond debate that an order requiring a criminal defendant to submit to a psychiatric examination in no way compels the production of testimonial evidence. The purpose is not to extract incriminating statements but, rather, to determine the presence, or absence, of mental disease or mental defect. The results of such an examination relate only to criminal responsibility. Such being the case, no Fifth Amendment problems are involved. See People v. Martin, 26 Mich.App. 467, 182 N.W.2d 741 (1971); Parkin v. State, 238 So.2d 817 (Fla.1970). As was succinctly put by the Ninth Circuit Court of Appeals, an order of this nature does

'not compel 'communication' or 'testimony' on the issue of guilt of the defendant. It may be likened to compelling blood tests, handwriting exemplars, 'fingerprinting, photographing or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.''

United States v. Handy, 454 F.2d 885, 889 (9th Cir. 1971); see also State v. Inman, 301 A.2d 348 (Me.1973).

This point is without merit.

Point II

Was the in-court identification of the appellant so tainted by out-of-court procedures as to become inadmissible?

A brief factual summary will bring this argument into focus. Erwin Richardson testified that he had lost $10.00 to the appellant in a pin-ball game and, in so doing, had spent considerable time with him. Appellant had accompanied Richardson to his apartment so that the money could be obtained from Anna Lamoin, Richardson's aunt, to pay the gambling debt. Some hours later, Richardson testified, appellant returned to the apartment and was observed again while doing the acts necessary to commit arson and robbery. Subsequently, Richardson, with Mrs. Lamoin, was taken to police headquarters where he was shown six photographs out of which he selected one as being a photograph of the appellant.

Acting pursuant to our admonition to presiding justices in State v. Boyd, 294 A.2d 459 (Me.1972), the Justice below conducted an extensive examination of Richardson in the absence of the jury and stated:

'Recognizing the limitations of this witness, I am satisfied that there was an independent opportunity and observation made by this witness of a sufficient foundation upon which to base the in-Court identification that he has made.

And, I'm further satisfied that there was nothing as pertaining to the police photo mug shot identification that was in any way unfair or prejudicial to the extent that the in-Court identification by this witness is (affected) or tainted by the police photo examination and mug shot identification.

On that basis the Court will permit this witness to make the in-Court identification in the presence of the jury.'

Reading the record in its entirety discloses no error. The evidence of the in-court identification was properly admitted. State v. Levesque, 281 A.2d 570 (Me.1971).

Point III

Should the Justice below have granted appellant's motion for judgment of acquittal on the arson indictment because there was no admissible evidence of a sufficient burning of the structure to constitute arson?

Erwin Richardson testified the '(f)loor had been burnt, you know, charred.' Mrs. Lamoin also described the results of the fire in this language: 'The wall was black, was like burning. . . . There was a burn stain on the floor. . . . Walls got burned, you know.' A Portland fireman described the condition of the wall and floor as 'scorched' and 'smoldering.'

Appellant argues that this testimony is inadmissible because it is opinion evidence which only an expert witness can give. We disagree.

Acknowledging the general rule that a non-expert cannot give opinion evidence on many technical topics, we do not feel that the testimony objected to falls within that rule.

We have allowed a non-expert witness to testify to an existing condition which is within the common knowledge of people in general by using adjectives, or descriptive adverbs, viewing such evidence not as opinion evidence, but as a conclusion of fact. See State of Maine v. Hamilton, 149 Me. 218, 100 A.2d 234 (1953). Such evidence is properly admitted

'where it is difficult or impossible for (a lay witness) to reproduce for the jury the totality of the conditions perceived and where the opinion given is one that men in general are accustomed and capable of making, comprehending, and understanding.'

People v. Burton, 6 Oll.App.3d 879, 286 N.E.2d 792, 797 (1972). See also Cherry v. State, 518 P.2d 324 (Okl.Cr.1974); United States v. Milne, 487 F.2d 1232 (5th Cir. 1973); State v. Johnson, 5 Wash.App. 546, 488 P.2d 769 (1971).

We view the questioned testimony in this context. The jury was instructed that the crime of arson would not have been committed unless the fire 'burns some material that is a part of the real estate' as opposed to 'mere blackening of the walls by smoke or heat.' Based on the testimony of these witnesses the jury could conclude that these legal criteria had been met. Therefore, there no error in denying the motion for judgment of acquittal.

Point IV

Was the testimony of Gloria Wood admissible?

Appellant made an abortive effort to establish an alibi, although he did not testify himself. Initially, he called his sister-in-law, Diane Dionne, as a witness hoping she would testify that he had spent the entire night of the alleged crime in her company. When she limited the time spent with appellant to 'about 10 or 15 minutes' between 9:00 and 9:30 p. m. on the critical evening, he then called his estranged wife, Sharon Buzynski, hoping she would refute this testimony by repeating a conversation in which Diane Dionne had admitted to her that she had in fact...

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