State v. Discher

• Decision Date: 30 September 1991
• Citation: 597 A.2d 1336
• Parties: STATE of Maine v. Fred Roy DISCHER, III.
• Court: Maine Supreme Court

Page 1336

597 A.2d 1336

STATE of Maine v. Fred Roy DISCHER, III.

Supreme Judicial Court of Maine.

Argued June 6, 1991.

Decided Sept. 30, 1991.

Michael E. Carpenter, Atty. Gen., Garry L. Greene (orally), Asst. Atty. Gen., Augusta, for plaintiff.

Jennifer Nichols Ferguson, Fales & Fales, Lewiston, William Maselli (orally), Andover, for defendant.

Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD, COLLINS and BRODY ^*, JJ.

WATHEN, Justice.

Defendant, Fred Roy Discher, III, appeals from his conviction of manslaughter, Class A, 17-A M.R.S.A. § 203(1)(A) (1983), entered after a jury trial in the Superior Court (Androscoggin County, Alexander, J.). Defendant argues that the Superior Court erred in refusing to grant a judgment of acquittal due to the State's alleged failure to establish the corpus delicti. Alternatively, he contends that the judgment should be vacated on three separate grounds: (1) the Superior Court compromised defendant's right to a fair trial by assuming the role of a partisan advocate during the trial, (2) the Superior Court erred in admitting the unsworn out-of-court statements of two witnesses as substantive evidence, and (3) the evidence was insufficient to sustain defendant's conviction. Defendant also challenges the legality of his sentence. We affirm the Superior Court's judgment.

On January 27, 1989, Kristean Soucy summoned emergency medical assistance for her 9-day-old daughter, Heather Discher, who was also defendant's child. When the paramedics arrived, they found the baby unconscious, limp, blue in color, and just barely breathing. She was taken to Central Maine Medical Center where the doctors who examined her concluded that she was suffering from "shaken baby syndrome," a serious condition which can occur when someone shakes a young child too vigorously. A post-mortem examination following the baby's death three days later confirmed this diagnosis. That evening, a social worker telephoned defendant to inform him that his older daughter would have to be removed from the home due to the nature of the baby's injuries. The social worker testified that, during their conversation, defendant began crying and stated that "the baby was innocent" and hadn't done anything wrong, and "he couldn't stand that high-pitched squeaky cry."

Following his arrest, defendant was hospitalized in Augusta. The baby's mother and a close friend each visited him there. Although the baby's mother testified at trial that she did not recall defendant telling her that he had shaken the baby, shortly after the hospital visit she reported to police in a tape recorded interview that defendant had told her that "he couldn't stand the crying" and that he shook the baby 10 or 20 seconds at the most. Likewise, the friend told police in a tape recorded interview that defendant had stated, "I don't know what I did and why I did it" and "I didn't shake her that hard." At trial, the friend testified that he did not recall relating these statements to the police. Silently reading a transcript of the tape recorded interview and listening to the tape itself in the absence of the jury failed to refresh the recollection of either witness.

Following the testimony of these two witnesses, the State requested a ten-minute recess in which to consider whether it could "in good faith go forward with this case." In response, the presiding justice said, "I thought you had tapes of those interviews." After the State responded affirmatively, defense counsel asserted that the taped material could only be used for impeachment and not as substantive evidence. To this, the court replied, "No, section 5 of 803." Later in the trial, the State sought to lay the foundation for admitting the tape recordings of both interviews as past recollections recorded under M.R.Evid. 803(5). Over defendant's objection, the court permitted a partial transcript of the tape recordings to be read aloud to the jury.

After the State rested, defendant moved for a judgment of acquittal which the court denied. The jury found defendant guilty of manslaughter, and the court sentenced him to ten years, with all but five suspended, and six years on probation.

Corpus Delicti

Defendant contends, first, that the State failed to establish the corpus delicti to a probable cause standard, independent of any admission or confession of defendant ¹. In order to withstand a motion for acquittal in a manslaughter prosecution, the corpus delicti rule requires the State to prove that the victim died and that a criminal agency was responsible for that death. Moreover, the corpus delicti cannot be established solely by post-crime admissions or confessions which are unsupported by any other evidence. See State v. Chapman, 496 A.2d 297, 303 (Me.1985).

It is not open to dispute that the State satisfied the first element of the corpus delicti rule, that Heather Discher was the baby that died on January 30, 1989. To satisfy the second element, the State was obligated to present evidence that created a substantial belief that the baby's death "was not suicide, not due to natural causes, and not purely accidental and devoid of any criminal agency." State v. Chapman, 496 A.2d at 304. In determining whether it has met its burden of proof, we must examine the evidence presented by the State, exclusive of any admissions or confessions of defendant. See id.

The State offered the following evidence: Both the attending physician and the medical examiner determined that the 9-day-old baby was a victim of "shaken baby syndrome." Although the physician conceded that "over-vigorous pathogenic shaking" might occur inadvertently during rough play or while attempting to dislodge a suspected foreign object from the mouth or throat of a child or to stop violent coughing or protracted crying, she opined that such over-shaking would be an unlikely cause of this baby's injuries. Moreover, the testimony revealed only two known incidents that may have involved rough handling of the baby, and the court reasonably could have concluded that these incidents did not contribute to the baby's death.

In State v. Chapman, we found that the State had established the corpus delicti in a child-abuse manslaughter case in which the pathologist had determined that the 5-week-old victim's body had sustained multiple bruises, that his brain was flattened and unusually soft, and that the cause of death was due to a head injury caused by blunt force. See id. Together with the hospital corpsman's testimony that the defendant was alone with the child when he arrived, we found the evidence sufficient to meet the necessary standard of proof that the child's death was not from natural causes or due to his own actions. See id. In the present case, given the baby's tender age, her lack of mobility, and the dearth of evidence that an accident of any proportion had occurred, the testimony concerning the nature of her injuries provided the basis for a substantial belief that a criminal agency was responsible for her death and satisfied the second element of the corpus delicti rule.

Judicial Conduct

Defendant contends that the Superior Court abandoned the role of neutral magistrate and became a partisan advocate when informing the State that the witnesses' tape recordings recounting defendant's admissions could be admissible as substantive evidence under M.R.Evid. 803(5). Characterizing the court's comment as unsolicited tactical advice that "tainted the trial" and "undermined the guarantee of judicial impartiality," defendant calls for a reversal of the judgment.

The Superior Court is authorized to rule upon all matters of law arising in the case, but may not, during a jury trial, express opinions on issues of fact. See 14 M.R.S.A. § 1105 (1980). It is well settled in Maine law that the statute limiting the court's expression of opinion at trial must be strictly construed "if it is not to be held to trench upon the prerogative of the court." State v. Stuart, 132 Me. 107, 109, 167 A. 550, 551 (1933). Thus, the statute has reference only to factual issues to be determined by the jury. It has no application to the present case involving a question of law addressed only to the court. See id., 167 A. at 551.

While the Superior Court is not permitted to assume the role of an advocate, it is "not confined to the role of a passive moderator." State v. Pickering, 491 A.2d 560, 563 (Me.1985); see also State v. Curit, 462 A.2d 1188, 1189 (Me.1983); State v. Bachelder, 403 A.2d 754, 759 (Me.1979). We have consistently held that a trial court may intervene to "clarify testimony, save time or prevent a miscarriage of justice.... As long as the intervention is otherwise within the scope of the court's authority, the mere fact that it results in the development of additional evidence does not demonstrate that the [court] has exceeded the limits of [its] discretion." State v. Curit, 462 A.2d at 1190.

In State v. Curit, we exhorted:

Our adversarial system assumes that the truth is most likely to emerge if the attorney for each litigant is held fully responsible for planning the presentation of his [or her] client's case. Judicial intervention tends to detract from that responsibility and, if excessive or unwise, may disrupt to some extent the attorney's plan for presenting his [or her] client's side of the case.

Id. In this case, the court pointed out the relevance of M.R.Evid. 803(5) to the situation at hand. There is nothing in the record to suggest that the State was unaware of the applicability of the rule or that the court's comment impaired defendant's "right to have the strategy and tactics employed in presenting his cause determined by his attorney, not by the [court]." Id. The paramount concern in cases involving judicial intervention "has been that the [court] not participate in any manner from which the jury may infer that [it] endorses the cause of one side." State v. Pickering, 491 A.2d at 564. Because the jury...