State v. Childs

• Decision Date: 23 June 1978
• Citation: 388 A.2d 76
• Parties: STATE of Maine v. Maurice P. CHILDS.
• Court: Maine Supreme Court

Page 76

388 A.2d 76

STATE of Maine v. Maurice P. CHILDS.

Supreme Judicial Court of Maine.

June 23, 1978.

Thomas E. Delahanty, II (orally), Dist. Atty., Auburn, for plaintiff.

Sachs & Grasso by Michael J. Levey (orally), Alan L. Sachs, James V. Grasso, Jr., Winthrop, for defendant.

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

DUFRESNE, Active Retired Justice. ¹

Maurice Childs, the defendant, was indicted for assault and battery of a high and aggravated nature upon the person of one Jean Gilbert allegedly committed on October 31, 1974 in the Town of Sabattus, Maine. Tried before an Androscoggin County jury, Childs was convicted of the offense charged. He appeals from the judgment of conviction and ensuing sentence. We deny the appeal.

Two claims of error have been briefed and presented to us for our consideration, (1) whether the Justice below committed reversible error in his instructions to the jury in the use of certain examples to clarify the distinction between an assault and battery of the misdemeanor type and one of a high and aggravated nature, and (2) whether in the course of such instructions he misquoted the evidence, in each instance, it is claimed, inferentially expressing an opinion to the jury upon the facts of the case contrary to 14 M.R.S.A., § 1105. ²

Since no objections were raised to the charge at the trial level as provided by Rule 30(b), M.R.Crim.P., ³ our review thereof in relation to the points raised for the first time on appeal is limited to the determination, whether as a whole it contained obvious error which affected the appellant's substantial rights. State v. Gagne, Me., 362 A.2d 166 (1976); State v. Deveau, Me., 354 A.2d 389 (1976); State v. Westphal, Me., 349 A.2d 168 (1975); State v. Armstrong, Me., 344 A.2d 42 (1975). Rule 52, M.R.Crim.P. ⁴ But, to reach the obvious error or manifest injustice stage, there must be an initial determination that there was error. State v. Deveau, supra, at 390.

Facts

On the evening of October 31, 1974 a pick-up truck owned by Jean Gilbert was seen veering off Route 126 in the Town of Sabattus down an embankment toward the river. The local police were notified and responded. Another truck driver who happened along, however, was the first person to reach the mired truck resting on the edge of the river bank, Mr. Gilbert had his little daughter, Kathy, three years of age, in his arms, when Mr. Cyr, the truck driver, offered assistance in removing them from the truck. Gilbert was very reluctant to release his daughter and did so only after Mr. Cyr assured him that Kathy would be well taken care of. Mr. Cyr and Officer Laplante of the Sabattus Police Department then helped Gilbert up the embankment toward the road. Gilbert was unsteady on his feet. In the early part of the evening he had taken, so he testified, three shots of gin, some aspirin and other non-prescription medicine, as he was nursing a head cold. Worrying about the whereabouts of his daughter, Gilbert would release himself from the hold of Officer LaPlante and Mr. Cyr, turn around and shout at the top of his lungs, where's Kathy? As the three of them neared the crest of the hill, the defendant, Maurice Childs, a full-time police officer for the Town of Sabattus, arrived. He was on duty and in uniform. Seeing Gilbert pull away from Officer Laplante and Mr. Cyr, which Gilbert had done several times previously as he was being helped up the embankment, Officer Childs, as some of the witnesses testified, struck Gilbert over the head with a large metal flashlight and put the handcuffs on him, ordering Officer LaPlante to take him to the county jail. Gilbert was bleeding profusely, so the officer transported him to St. Mary's General Hospital in Lewiston for treatment of his injuries. A stitch or more was required to repair the cut on his head which Gilbert had sustained above the hairline by reason of Childs' blow with the flashlight.

Officer Childs' account of the affair is much different from that given by the other witnesses. He testified that it was Gilbert who punched him in the mouth when the defendant inquired of Officer LaPlante whether Gilbert was under arrest. Childs claims that he was trying to parry the blow when he threw the flashlight at Gilbert, but did not intend to hit him on the head with it. We need not concern ourselves with the facts as they presented a jury question which was decided unfavorably to the defendant.

Instructions respecting aggravation

The defendant claims that the Justice below expressed an opinion on facts contrary to the provisions of 14 M.R.S.A. § 1105, when in his instructions to the jury he first explained to them that the distinctive feature between a simple assault and battery and one of an aggravated nature lay in the seriousness of the assault and battery, and then followed that broad instructional concept with supportive specific examples such as these:

"If I slap you across the face, Mr. Hart (jury foreman), and perhaps make a red mark on your face with my hand, then I would think there would be no question about the fact, and again all of the other elements being present, I had committed an assault and battery on you. It would be classified as a misdemeanor, simple assault and battery; the circumstances under which this occurred would not under our present standards be considered to be a serious or aggravated type of assault.

"On the other hand, if I stabbed you with a knife or, if I hit you over the head with an axe, or a bar, or a piece of wood or shot you with a gun,

I think the difference between what is an aggravated assault and what is a simple assault is something that your common sense and intelligence would recognize without a great deal of difficulty. Look at the totality of the circumstances. You look at, who are the people involved in this. The nature and extent of the injury may be a factor of determining whether or not it is a simple assault or an aggravated assault.

"And so, you consider the totality of the people, the circumstances, the nature of the injury, the type of weapon that was used, the consequences that could flow from the use of that particular device in order to inflict that particular injury. Maybe the defendant who was wielding this particular piece of equipment didn't intend to do much harm. Because of the very nature of what it was he was using, and the manner in which he was using it, he should have known that it was capable of inflicting a serious injury, even a mortal injury upon the person, and, therefore, his conduct, act, and results of his conduct and act became more serious and therefore are aggravated.

"So you will have to examine the circumstances in this case and determine first: Was there an assault and battery committed here in accordance with the guidelines I have given to you. If you find there is no assault and battery on the basis of principles I have told you of, then of course you stop right there, you don't have to go any farther. Your verdict is then not guilty. If you find there was an assault and battery committed by this defendant upon Mr. Gilbert, and you have no reasonable doubt, you then have to determine whether or not you find the assault was of a high and aggravated nature, or whether or not it was a simple assault and your verdict, as you will return it, Mr. Hart, will reflect the jury's finding in that particular area." (Emphasis ours)

It is axiomatic in a criminal case that, by his plea of not guilty, an accused puts in issue each essential element of the crime charged against him, and the State must prove beyond a reasonable doubt each necessary ingredient of the criminal accusation. State v. Davis, Me., 384 A.2d 45 (1978); State v. Liberty, Me., 280 A.2d 805 807 (1971); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

True, the crime of assault and battery is a unitary offense, whether simple or aggravated, and the factual circumstances which establish the degree of criminal culpability and determine the severity of the sentence are not elements of the crime itself. State v. Pinnette, Me., 340 A.2d 17, 25 (1975); State v. Davenport, Me., 326 A.2d 1, 9 (1974); State v. Ferris, Me., 249 A.2d 523, 527 (1969). Nevertheless, the burden is upon the State to prove beyond a reasonable doubt that the offense of assault and battery is of a high and aggravated nature. State v. Ferris, supra, at 528. See Mullaney v. Wilbur, 421 U.S. 684, 699, 95 S.Ct. 1881, 1890, 44 L.Ed.2d 508, at note 24 (1975).

Our system of criminal justice, to attain just and efficient results, cannot allow juries to speculate as to what conduct the law proscribes by a specific criminal statute. Thus, it is mandatory on the part of the trial judge to instruct the jury as to the fundamental principles of law which control the case. State v. Butler, 27 N.J. 560, 143 A.2d 530, 550 (1958). See also Claybrooks v. State, 50 Wis.2d 87, 183 N.W.2d 143 (1971); People v. Pepper, 389 Mich. 317, 206 N.W.2d 439 (1973); State v. McHenry, 13 Wash.App. 421, 535 P.2d 843 (1975).

We said in State v. Devoe, Me., 301 A.2d 541 (1973):

"What constitutes 'aggravation' is neither self-explanatory nor capable of accurate definition in the abstract. The concept assumes substance and meaning to a jury only when related to facts and events. This and other courts have, of necessity, recognized certain sets of circumstances whereby what otherwise would be a simple assault is elevated to a higher grade, namely, aggravated assault, depending upon the proof."

The defendant contends that the use of the specific examples of hitting the victim over the head with an axe, or a bar, or a piece of wood by the defendant as being conduct and an act more serious and therefore aggravated was tantamount to an expression of opinion on the facts contrary to 14 M.R.S.A., § 1105. We disagree.

The correctness of the court's instructions to the jury is to be determined from the entirety of the...