State v. Cote
| Decision Date | 30 July 1976 |
| Parties | STATE of Maine v. Ronald J. COTE. |
| Court | Maine Supreme Court |
Fernand R. LaRochelle, Asst. Atty. Gen., Augusta, for plaintiff.
James J. Shirley, Sanford, for defendant.
Before DUFRESNE, C. J., and WEATHERBEE *, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.
Ronald J. Cote was indicted by the York County grand jury for the felonious homicide punishable as murder but after a jury trial he was convicted of the lesser included offense of manslaughter, from, which conviction he has appealed. Mr. Cote assigns error in his conviction premised on two arguments, (1) the presiding Justice did not instruct the jury that assault and battery is a lesser included offense within the crime of manslaughter, and (2) the denial of a motion for new trial on the theory that the verdict was not supported by substantial evidence and was contrary to the weight of the evidence.
We deny the appeal.
On September 3, 1972, Robert Gagne was taken to a hospital in Sanford for emergency treatment. The attending physician, being informed that the patient had been assaulted, conducted a brief neurological examination with negative results, had head x-rays taken, sutured a laceration of the scalp, and allowed him to be taken home. The next afternoon at approximately 4:00 p. m. the patient was returned to this hospital unconscious, having convulsions and envincing 'neurological signs of increased cranial pressures.' Another physician diagnosed the condition, having in mind the previous history, as 'epidural or subdural hematoma,' and caused the patient to be transferred to the Maine Medical Center. Mr. Gagne there underwent Mr. Gagne did not regain consciousness following this surgery and died several weeks later, a pathologist being of the opinion 'that the actual cause of death is related to a severe closed head injury with resultant subdural hemorrhage to the brain as the result of that.'
brain surgery and a subdural hematoma was removed, described by the surgeon as 'pan-hemispheric, the shape of a pancake, depth was approximately 1 inch and approximately 3 or 4 inches in length and wide.' This blood clot was submitted to a pathologist who made sections from 'multiple areas' thereof which were examined microscopically. He concluded that the clot was of recent origin, namely, 'between a few hours and twenty-four hours, approximately thirty-six hours.' 1 (Emphasis supplied.)
Prior to Mr. Gagne's initial visit to the Sanford hospital he had been in an altercation with the defendant, the causation of which being sharply disputed. Witnesses for the State testified that the defendant entered an apartment seeking the decedent and, having found him, literally threw him out the front door onto a sidewalk and proceeded to administer a physical beating, including taking Mr. Gagne's head and banging the back of it repeatedly on a cement sidewalk. Apparently the defendant had felt that Mr. Gagne had assaulted the defendant's father and this assault was in revenge. Also, there was evidence from several witnesses that the defendant had taken off his belt and lashed the decedent with the buckle end.
The defendant's version was different. He contended that he entered the apartment where his uncle lived, only for the purpose of having a beer and there he inadvertently met the decedent. He then contended that the decedent assaulted him with a knife and he successfully disarmed him. As he was leaving the apartment, he was again assaulted by the decedent who was carrying a weapon which one witness described as a screwdriver. As the result of the momentum of the decedent's assault, the participants fell out the doorway, down the stairs, and onto the sidewalk. Ultimately the defendant disarmed the decedent and left. He denied any aggressiveness, claiming that his entire conduct was defensive.
The defendant was twenty-two years old, a military veteran, who weighed one hundred fifty pounds. The decedent, somewhat shorter, was described by one doctor as It was suggested that the decedent was a 'thirty-five year old man with a seventy year old body.'
There was evidence from one witness that about two weeks prior to September 3rd the decedent, while intoxicated, had become unconscious after falling into an automobile, presumably striking his head, but there was no other evidence of past trauma.
The Justice below did not instruct the jury that assault and battery was a lesser included offense in an indictment charging murder.
Preliminary to the trial the State moved to consolidate the murder indictment with another indictment alleging aggravated assault and battery (17 M.R.S.A. § 201). The Justice below, over objection of defense counsel, refused to do it, informing counsel:
In fact, he did not so charge and no objections were noted to the charge as given.
It can no longer be subject to doubt that manslaughter under appropriate circumstances is a lesser included offense under an indictment charging murder. State v. McCarthy, 256 A.2d 660 (Me.1969); State v. Conley, 39 Me. 78 (1854). Since the jury on proper instructions returned a manslaughter verdict, it is clear that this was tantamount to finding the defendant not guilty of murder. Therefore, we must ask whether it was error to fail to charge on assault and battery as a lesser included offense within the crime of manslaughter. In State v. Bowden, 342 A.2d 281 (Me.1975), we determined that assault and battery is a lesser included offense within the crime of common law or involuntary manslaughter. Under appropriate circumstances, therefore, and as an abstraction, a defendant charged with manslaughter may be convicted of assault and battery. See State v. Ferris, 249 A.2d 523 (Me.1969).
We remind ourselves, of course, that no objections were taken to the charge as given, thus failing to comply with Rule 30(b), M.R.Crim.P. As a result, the appellant must now satisfy us that this omission to instruct on assault and battery was
'so highly prejudicial and so...
To continue reading
Request your trial
-
State v. Nason
...tainted the proceeding as virtually to deprive the defendant of a fair trial and lead to a manifest miscarriage of justice. State v. Cote, Me., 362 A.2d 174 (1976); State v. Gagne, Me., 349 A.2d 193 (1975); State v. Brown, Me., 302 A.2d 322 (1973); State v. Small, Me., 267 A.2d 912 (1970); ......
-
Jones v. State
...doubt as to whether the act of the accused was the cause of death. See, Muse v. Commonwealth, Ky., 551 S.W.2d 564, 567; and State v. Cote, Me., 362 A.2d 174, 177. In Muse v. Commonwealth, supra, the defendant was charged and convicted of willful murder. On appeal, the defendant's contention......
-
State v. Allard
...manslaughter is a lesser included offense of intentional or knowing murder. 17-A M.R.S.A. § 13-A(2)(B)(1983). See also State v. Cote, 362 A.2d 174, 177 (ME 1976) makes criminally negligent manslaughter a lesser included offense of depraved indifference murder.5 See supra note ...
-
State v. Harding
...remaining on the Tyler premises was unnecessary since a factual basis underlying such a charge was completely absent. State v. Cote, Me., 362 A.2d 174, 178 (1976). There was no evidence that the appellant unlawfully remained on the premises surreptitiously, i. e., stealthily, secretly or cl......