State v. Flick

• Citation: 425 A.2d 167
• Court: Maine Supreme Court
• Decision Date: 26 January 1981
• Parties: STATE of Maine v. Albert Lee FLICK.

Page 167

425 A.2d 167

STATE of Maine v. Albert Lee FLICK.

Supreme Judicial Court of Maine.

Argued May 6, 1980.

Decided Jan. 26, 1981.

Charles K. Leadbetter (orally), Paula Van Meter, Asst. Attys. Gen., Augusta, for plaintiff.

Dunlap, Wood & O'Brien, Gary C. Wood (orally), Mark E. Dunlap, Portland, for defendant.

Before McKUSICK, C. J., and WERNICK, GODFREY, NICHOLS and ROBERTS, JJ.

ROBERTS, Justice.

In Superior Court, Cumberland County, Albert Lee Flick was convicted of murder, 17-A M.R.S.A. § 201. The indictment charged alternatively that Flick either intentionally or knowingly caused the death of his wife Sandra Flick (§ 201(1)(A)), or engaged in conduct which manifested a depraved indifference to the value of human life and which in fact caused the death of Sandra Flick (§ 201(1)(B)). On appeal, Flick raises several issues concerning pretrial procedures, admissibility and sufficiency of evidence, and instructions to the jury. We affirm the judgment of conviction.

Facts

On January 10, 1979, Sandra Flick had her husband served with divorce papers and physically escorted from their apartment in Westbrook by the police. In the following month, Flick returned several times, sometimes with the result that Sandra called the police. They were disputing, among other things, the custody of the children.

On Monday, January 29, Sandra asked Flick to come and remove certain of his belongings from the apartment. On Wednesday morning he drove to Westbrook with a gun and a knife in the car. He parked three-quarters of a mile from his wife's apartment, and took the knife with him.

Elsie Kimball, Sandra's daughter by a prior marriage, testified that she was in the back bedroom when Flick knocked on the door. She stayed in the back room when he came in. He asked about some fishing poles which her mother brought out to him in the living room. While Elsie, still hidden in the back bedroom, watched through a crack in the door, Flick took out his knife and began showing Sandra how to remove the hooks from the fishing lines.

Elsie testified that her mother bent over one of the poles to take one of the hooks off, as Flick was telling her to do. Then Flick seized her arm and bent it behind her back, putting his other hand over her mouth. He pushed her over to the chair, saying that he loved her and didn't want to have to hurt her. Sandra managed to scream out Elsie's name, and the girl ran out of the bedroom. She saw Flick sitting on her mother on the chair. She heard him say "Now you've had it," then she ran to the apartment downstairs.

Mrs. Daniels, the occupant of the second floor apartment, called the police. Her husband, Alphee Daniels, went upstairs. He testified that Elsie told him Flick was going to kill her mother. As soon as Daniels reached the third floor stairs, he met Flick coming down the stairs with blood on his hands and blood stains on his pants. Flick began asking for help for Sandra, claiming that he didn't mean to do it. Daniels found Sandra covered with blood, cut in the throat, but still alive. She said she knew she was going to die, and said that Flick had stabbed her. The police, who arrived shortly thereafter, found Flick's 31/2 inch long jackknife in the living room.

The medical examiner testified that Sandra had numerous cuts and stab wounds, including four stab wounds on the neck and in the chest area, one through the heart, and some wounds which could be characterized as "defense wounds," likely to occur if the victim was trying to defend herself against attack.

Flick testified that while he and Sandra were taking the hooks off the fishing poles, he tried to begin a discussion. The day before they had had an argument, and she had threatened to harm herself and the children. At some point he pushed her into the chair. When he and Sandra had reached the point of hollering at each other, Sandra told Elsie to go downstairs. Flick started to walk away, and Sandra picked up the knife and threatened to kill him. Then he grabbed her arm and both of them fell. He ended up on top of her. Flick said he knew Sandra had been cut, and "after that I don't know what happened." Five minutes later she was standing in front of him all covered with blood. He made her sit down and went for help.

I. Sufficiency of the Evidence

Flick first contends that the evidence was insufficient to show that he acted knowingly or intentionally or with "depraved indifference." We find that the testimony of the State's witnesses, summarized above, was sufficient. Defendant attacks other evidence that the prosecution advanced to show intent, but his argument is not persuasive. If the jury believed the medical examiner and Elsie's testimony, they could reasonably infer that after Elsie was out of the apartment, Flick began intentionally stabbing his wife. Alphee Daniels' testimony confirms this conclusion. Nothing else is necessary.

Evidence is not insufficient because the defendant's state of mind is shown by circumstantial evidence. State v. Doughty, Me., 399 A.2d 1319, 1326 (1979). When reviewing for sufficiency on appeal, the evidence is viewed most favorably to the prosecution, and is sufficient unless no trier of fact rationally could find proof of guilt beyond a reasonable doubt. State v. Lagasse, Me., 410 A.2d 537, 542 (1980).

II. Motion to Suppress Evidence

Flick sought by pretrial motion to suppress physical evidence seized from his car. He concedes that the police first entered his car with his consent. Flick contends, however, that the police only had permission to remove his gun, and not to search the car for a box of ammunition. The police claim they were also told about the ammunition. While searching for the ammunition, they opened the glove compartment and there observed a box for the knife. Leaving the box where it was, they took the car to the police station and obtained a search warrant. The defendant suggests that the warrant was the fruit of an illegal search of the glove compartment.

At the conclusion of the suppression hearing, the presiding justice found by a preponderance of the evidence that Flick had given the police permission to search for the ammunition. Since this finding is not clearly erroneous, we must reject the claim of error. State v. Fredette, Me., 411 A.2d 65, 68 (1979).

III. State Participation in Witness Interview

The defendant filed a pretrial motion seeking to prohibit or limit State participation in counsel's interview of Sandra Flick's daughter, Elsie. The prosecution had been requested by the child's relatives, who had custody of her, to provide a State police officer or other representative to be present during the interview. After a hearing, the motion was denied. Flick argues on appeal that the State's presence violated his right to due process, to confront the witnesses against him and to the effective assistance of counsel.

Flick does not claim that the prosecution told the girl not to talk to defense counsel. The defendant claims only that the State's action "so restricted the defendant's ability to question (the witness) that it was tantamount to instructions not to talk to defense counsel." The defendant does not claim that any specific actions taken by the State during the interview interfered with counsel's ability to question the witness. Flick suggests only that the girl would have been unlikely to change her story in front of the State police officer who had previously interviewed her. There is no evidence, however, to suggest that the State intimidated the child or in any way discouraged her from telling the truth.

The Superior Court justice, after denying defendant's motion, said that the defendant could come back with a new motion if he had anything new that would support his assertion of prejudice. Flick made no new motion, and on appeal he makes no attempt at a specific showing of prejudice. Instead, he asks for a per se rule that the Court's refusal to bar the State's presence at the interview constitutes reversible error.

We decline to adopt such a rule. In the circumstances of this case, absent any showing whatever of prejudice, we cannot speculate on what prejudice may have occurred. The State's presence may well have facilitated rather than interfered with counsel's interview. A witness, or her custodian, may refuse such an interview entirely or impose any conditions deemed necessary. While we find no error here, our decision in this case does not condone any actual interference by the prosecution in defense preparation.

IV. Exclusion of Psychiatric Testimony

The defendant presented two expert witnesses, a psychiatrist and a clinical psychologist, who testified that Flick's intelligence borders on retardation. No attempt was made to establish a mental disease or defect. The State presented a rebuttal witness, a psychiatrist who testified that the defendant is of average intelligence.

Before calling the witnesses, defense counsel asked, in effect, if the witnesses could be asked to state their opinions as to whether Flick acted intentionally or knowingly at the time of the killing, or acted in extreme anger or fear. The presiding justice refused to permit such questions, saying:

Your experts are not legal experts.... They may testify concerning their medical and psychological evaluation of Mr. Flick, whether he suffered from some abnormality ... how that abnormality manifests itself in terms of effect on his mental processes. The jury will then draw the conclusion as to whether he acted knowingly or intentionally.

The defendant maintains that this ruling violated M.R.Evid. 704, which reads:

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

Rule 704 affects only opinions of an expert witness "otherwise admissible." The presiding justice may exclude an expert's opinion under M.R.Evid. 702 if he finds that it would not be within...