State v. Davenport

• Decision Date: 04 October 1974
• Citation: 326 A.2d 1
• Parties: STATE of Maine v. Wayne Allen DAVENPORT.
• Court: Maine Supreme Court

Page 1

326 A.2d 1

STATE of Maine v. Wayne Allen DAVENPORT.

Supreme Judicial Court of Maine.

Oct. 4, 1974.

David M. Cox, County Atty., Bangor, for plaintiff.

Gross, Minsky, Mogul & Singal, P. A. by Norman Minsky, Bangor, for defendant.

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

DUFRESNE, Chief Justice.

Wayne Allen Davenport was convicted of committing an assault and battery of a high and aggravated nature upon the person of one Desmond Braley in violation of 17 M.R.S.A., § 201, for which offense he was sentenced to a term in Maine State Prison of not less than one and one half (1 1/2) years and not more than five (5) years. Davenport appealed to this Court. We deny the appeal.

Represented by attorney appointed by the Court on account of his indigency, the defendant has designated some eight points of error on appeal, many of which charged court-appointed trial counsel with incompetency. Present counsel, who is not the original court-appointed counsel on appeal, has argued only three issues, undoubtedly recognizing that the previously stated claims of error were not proper subject matter of review on direct appeal.

The three issues raised are: 1) the statute, 17 M.R.S.A., § 201, is violative of Article I, Sections 6 and 6-A of the Constitution of Maine and of the Fifth and Sixth Amendments to the Constitution of the United States made applicable to the States by reason of the Fourteenth Amendment, because, in providing for the increased punishment in a felony conviction when the offense is of a high and aggravated nature, the statutory concept-'high and aggravated nature'-is so vague and uncertain as to deprive an accused of due process of law; 2) the indictment, in couching the accusation merely in the very terms of the statute without specifying the particulars of the defendant's conduct upon which the State relies to prove that the assault and battery was of a high and aggravated nature, in practical effect failed to inform the defendant of the nature and cause of the accusation and deprived him of his liberty without due process of law, all contrary to the dictates of the reference constitutional provisions, and divested the trial Court of subject-matter jurisdiction; 3) the Justice below committed obvious error affecting the substantial rights of the defendant, when, in instructing the jury respecting the test to apply in determining whether the assault and battery was of a high and aggravated nature, he advised they could consider, as one of the factors, 'to what extent, really, are you, the jury, outraged by what has occurred,' thus leaving, it is claimed, the resolution of the more serious aspect of the offense to the individual subjective sensitivities of the individual jurors, instead of providing them with a specific objective standard of conduct.

The evidence upon which the jury convicted the defendant of assault and battery of a high and aggravated nature may be summarized as follows:

On June 5, 1970 the defendant had been drinking heavily and in the evening he and his wife were going through a heated argument which she sought to abate by putting a call to the police. In order to do so, she ran downstairs to the Spellman apartment, where Mr. Braley was babysitting his daughter's two boys, and asked to use the telephone. Braley granted her request and she was in the process of making the call, when the defendant rushed in, grabbed the receiver out of his wife's hand and proceeded to choke her. In an attempt to free Mrs. Davenport from the defendant's grip, Braley swung him around, but, in the scuffle, absorbed the thrust of the defendant's fists aimed at his face and chest. Braley's glasses were broken and he suffered some fractured ribs.

I CONSTITUTIONALITY OF 17 M.R.S.A., § 201

Davenport contends that our assault and battery statute ¹ is unconstitutionally vague, not for failing to provide potential defendants adequate notice of the general type of conduct which is or is not criminal, but rather, for lack of a specific standard whereby aggravation can be ascertained with some degree of certainty. He takes comfort in State v. Ferris, 1969, Me., 249 A.2d 523, wherein this Court held that a defendant prosecuted for the crime of felonious assault and battery must be given the opportunity to have a jury determination of the matter of aggravation, concluding from our holding in Ferris that the statute Although, in Ferris, the same attack was made against the statute as is here advanced to the effect that 17 M.R.S.A., § 201 was too vague, too indefinite and contained no standards for determining assaults of a high and aggravated nature to meet due process requirements, the Court did not address itself to the specific point. Ferris, however, recognized that 'by the case law of this State and also by statute . . . a high and aggravated nature of an assault is not an element of the crime but goes only to the severity of punishment,' and, by way of dictum, added:

itself is unconstitutionally vague because of its failure to set out specifically what circumstances would constitute aggravation within the meaning of the law. We reject the appellant's contention.

'However, when a defendant is originally charged with assault and battery under Sec. 201 and the State decides the alleged assault and battery is one in which the circumstances indicate it was high and aggravated in its nature, then the defendant is entitled to an allegation to this effect in order that he be informed of what he has to meet in the trial of the case.'

Thus, in Ferris, the Court implicitly indicated that the concept of aggravation had acquired such a well delineated meaning by judicial enumeration that a general allegation of aggravation would satisfy the constitutional mandate of Article I, Section 6, of the Constitution of Maine that in all criminal prosecutions the defendant has the constitutional right to know the nature and cause of the accusation. No greater requirement would be constitutionally demanded of the statute concerning the nature of the offense, in its simple or aggravated aspect. Over the years our Court, by the process of inclusion and exclusion, on a case by case basis, has fleshed out the statutory concept of aggravation to such an extent that the circumstances characterizing an assault and battery to be of a high and aggravated nature as distinguished from a simple assault and battery misdemeanor are now clearly delineated. Judicial construction of a statute can implement a statutory concept as fully as an express legislative definition can.

While the basic conduct constituting the crime of assault and battery in its simple aspect punishable as a misdemeanor is specifically enumerated in the statute and raises no constitutional vagueness problem, the statutory provision elevating the crime of assault and battery to the level of a felony when it is of a high and aggravated nature and prescribing increased punishment for the same introduces a concept of conduct in more general and flexible terms. Due process requirements demand that the same rule of reasonable definiteness should apply to such penal statutes enhancing punishment as is mandated for all penal enactments. The statutory language should adequately present sufficiently distinct boundaries between the offense in its simple aspect and the offense at the felonious level so that judges and juries may fairly administer the law in accordance with the will of the Legislature. We realize, however, that in certain kinds of regulated conduct the use of general and flexible terms in fixing the standard for enhancement of penalty is inescapable. That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to foster a fair and proper administration of the law.

In State v. Northwest Poultry & Egg Co., 1938, 203 Minn. 438, 281 N.W. 753, the Court said:

'(I)f the statute is no more uncertain of meaning or difficult of application to necessarily varying facts than has been repeatedly sanctioned by the courts it must be given effect.'

Courts must construe legislative enactments so as to avoid a danger of unconstitutionality When a statute on its face is flexible and broad in its terminology such as our assault and battery statute concerning the felonious aspect thereof, it gives a potential defendant notice, by virtue of this very characteristic, that a question may arise as to its coverage, and that it may be held to cover his contemplated conduct. Bouie v. City of Columbia, 1964,378 U.S. 347, 84 S.Ct. 1697, at 1702, 12 L.Ed.2d 894.

and if the general class of offenses to which the statute is directed is plainly within its terms and can be made constitutionally definite by a reasonable construction of the statute, it is the duty of the courts to construe the statute. United States v. Harriss, 1954, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989. See, Swed v. Bar Harbor, 1962, 158 Me. 220, 182 A.2d 664; State v. Fantastic Fair & Karmil, 1961, 158 Me. 450, 186 A.2d 352. The cardinal principle of statutory construction is to save, not to destroy. National Labor Relations Board v. Jones & Laughlin Steel Corp., 1937, 301 U.S. 1, 30, 57 S.Ct. 615, 621, 81 L.Ed. 893, 907, 108 A.L.R. 1352.

Past interpretations of our assault and battery statute by this Court have become a part of the statute as definitely as if the Legislature itself had amended the statute to reflect expressly the judicial construction. See, Winters v. People of State of New York, 1948, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; Hebert v. State of Louisiana, 1926, 272 U.S. 312, 317, 47 S.Ct. 103, 104, 71 L.Ed. 270, 48 A.L.R. 1102.

Legislation should not be held invalid on the ground of uncertainty, if susceptible of any reasonable construction that will support it. When the language of an act appears on its face to have...