State v. Ellis

• Decision Date: 20 November 1972
• Citation: 297 A.2d 91
• Parties: STATE of Maine v. Norman ELLIS.
• Court: Maine Supreme Court

Page 91

297 A.2d 91

STATE of Maine v. Norman ELLIS.

Supreme Judicial Court of Maine.

Nov. 20, 1972.

Peter W. Culley, Asst. Atty. Gen., Augusta, for plaintiff.

Vafiades, Brountas & Kominsky, by Lewis V. Vafiades, Susan R. Kominsky, Bangor, for defendant.

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

WEBBER, Justice.

This is an appeal from a conviction of murder. For reasons which will appear the appeal must be sustained.

Mr. and Mrs. Woodbury, called by the State, testified that in the early morning hours of July 9, 1970 they were awakened by a knock on their door. Mrs. Woodbury went to the door and recognized the woman waiting there as Mrs. Labrie who occupied an apartment across the street. Mrs. Labrie was carrying her baby. Over objection, these witnesses were permitted to relate the ensuing conversation. Mrs. Woodbury gave the following testimony:

'Q. Could you tell us what this conversation was that you had, Mrs. Woodbury, with this other woman?

'A. She asked me if she could step in and use the telephone, and I told her that I didn't have one but I opened the door and she stepped inside and she said there was a man across the street that had a gun and was threatening to kill her if she didn't go with him, kill her and all the childrfen if she didn't go, and she said she gave him the excuse that she wanted me for a baby sitter and she didn't know where she was going to go because I had no phone. I said, 'Wait a minute. I will wake my husband up,' and I started to go out where my husband was and he thought that they were drinking so he said, 'what are they, all drunk?' And she said, 'No, we are not. Thank you,' and she walked out and slammed the door.'

Mr. Woodbury, having overheard the conversation from his bedroom, gave a less detailed but essentially consistent account of the conversation. Immediately after the departure of Mrs. Labrie, Mr. Woodbury dressed rapidly and left in his car to procure a police officer. Just before leaving his home he observed Mrs. Labrie carrying her child and walking alone up Center Street which is described as being a hill or upgrade in that area. She was then 'halfway up the hill.' About five minutes after Mrs. Labrie had left the Woodbury home, Mrs. Woodbury heard several shots. Mr. Woodbury, arriving at the top of the hill with an officer very soon thereafter, found Mrs. Labrie lying dead in the street, her wounded baby close to her body, and the defendant lying seriously wounded nearby. Except for the defendant's own testimony, there is no independent evidence of his whereabouts or conduct immediately preceding Mrs. Labrie's call at the Woodbury home. He asserts that he was in the Labrie apartment awaiting her return.

The Justice below, after hearing the proffered evidence on an offer of proof in the absence of the jury, ruled it admissible 'under the rule of res gestae.' The Court was of the opinion that the statement was made by Mrs. Labrie 'while the offense was being committed.' Wigmore on Evidence, 3d Ed., Vol. VI, p. 131 discusses spontaneous exclamations which under appropriate circumstances are admitted under an exception to the hearsay rule. As he carefully points out, we are here dealing with a true exception to the hearsay rule, the statement being offered for the truth of the matter asserted and the declarant not being available for cross-examination. He contrasts spontaneous exclamations with verbal acts which cannot properly be characterized as hearsay because not offered for the truth of the matter asserted. There are many situations in which the mere fact that certain words were uttered under certain circumstances is material to issues being tried, whether the words were true or not. ¹ Professor Wigmore documents his conclusion that courts have too often tended to overlook this distinction and apply to one the rules of admissibility peculiar to the other.

Wigmore's text describes the rationale for the exception for spontaneous exclamations in these terms in Sec. 1747 at page 135:

'This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled...