State v. Hilliker

Decision Date08 November 1974
Citation327 A.2d 860
PartiesSTATE of Maine v. Valmore E. HILLIKER.
CourtMaine Supreme Court

Richard S. Cohen, Deputy Atty. Gen., Chadbourn H. Smith, Malcolm L. Lyons, Asst. Attys. Gen., Augusta, for plaintiff.

Daniel G. Lilley, Portland, for defendant.

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

ARCHIBALD, Justice.

Appellant was indicted, tried and convicted of felonious homicide punishable as murder. 17 M.R.S.A. § 2651. At the conclusion of the testimony defense counsel stated to the presiding Justice: '(W)e do request a Charge in this case, based on the facts, on manslaughter.' This request was denied.

We do not necessarily approve the general langauge used in the requested instruction and our consideration of the issues discussed infra should not be so interpreted. Rule 30(b), M.R.Crim.P. However, our reasons for considering these issues, as we will analyze the facts hereinafter, will become apparent.

We deny the appeal.

FACTS

The defendant, a career naval aviation mechanic, was stationed at the Brunswick Naval Air Station, and with his wife (the victim) and their children lived in a Capehart housing unit in Brunswick, known as 51 East Emanuel Drive, a two-story duplex house. The Hillikers utilized the second floor as sleeping quarters. There was also a bathroom on the second floor. They had occupied the house for slightly over three months prior to the date of the homicide.

On entering the front door one is faced immediately with a stairwell, leading to the second floor, which starts to ascend about three and one-half feet from this door. There are thirteen steps, the risers being about eight inches high and the treads being eleven inches in depth. On the left of the entry is a livingroom, in back of which is the kitchen where the telephone is installed.

This particular apartment had an exterior screen door opening outward and an interior wooden door opening inward, both of conventional size.

On the afternoon of the critical day Mr. Hilliker spent a good deal of time in an enlisted men's club at the Naval Air Station. From a series of witnesses it is apparent that he consumed a considerable quantity of intoxicating liquor. While there he met one Roy Kitterman, a First Class Aircraft Mechanic, with whom he had no prior acquaintance, so far as the record discloses. However, when the time came to leave, Mrs. Kitterman, being of the opinion that appellant was 'pretty drunk,' offered to drive him home, with the understanding that Mrs. Hilliker would give him a ride back to the club thereafter so he could get his own car.

On arriving at the Hilliker home Kitterman assisted the appellant to the door where they were met by Mrs. Hilliker, who immediately stated, 'this is no way to come home with children in the house.' Appellant's response was, 'I've got a right to come home like this if I want to . . . you've got your lovers.' After this interchange Kitterman was introduced to Mrs. Hilliker who offered him a cup of coffee. They went into the livingroom where Kitterman remained while appellant and his wife immediately went into the kitchen. It was clear to Mr. Kitterman that an argument was ensuing, but he was unable to distinguish the exact words being used. However, Mrs. Hilliker did re-enter the livingroom with the coffee but returned at once, remarking that she had to make a phone call. 1 Kitterman was unable to pinpoint exactly the amount of time that appellant and his wife were in the kitchen but limited the time to 'well, 5, 10 minutes.' In any event, Kitterman testified he heard 'a loud voice, a male voice saying, 'well, why don't you kiss him too," and then observed Mr. Hilliker come out of the kitchen, walk in front of him without speaking and go up the stairs. The witness then testified, 'I could hear him up there walking around.' Hilliker's ability to negotiate the stairs without difficulty apparently surprised Kitterman because he testified, 'He didn't appear drunk at that time.'

Immediately thereafter Mrs. Hilliker emerged from the kitchen, went upstairs, returning almost instantly and saying either, 'he has a gun up there, you better leave'; or, 'he has a gun up there. I'm afraid he'll use it, you better leave.' Whereupon Kitterman and Mrs. Hilliker went to the front door together and he departed, walking toward the street, Mrs. Hilliker remaining in the house. Kitterman testified tht when he had gone '40 to 55 feet' from the door he heard a noise, turned around and observed Mrs. Hilliker coming down the front steps, walking toward him with her arms folded 'around her.' He then stated that as she got in the middle of the driveway, he 'observed a gunshot, I saw the flash, and then I heard the report of the gun.' He also testified that the shot came from the front doorway of the house and that he could see a male figure outlined therein. Mrs. Hilliker screamed, ran up the street a short distance, and fell in front of 45B East Emanuel Drive saying, 'I'm hit.'

At Kitterman's request the police were called but before they arrived appellant's nine year old son, Erik, came home and observed his father coming out of the upstairs bathroom. He asked where his mother was and was told by appellant that she was 'at the police station.' Erik then went to the phone, called the police station and learned that she was not there and, after reporting this to his father, was told to 'go to bed.' When asked to describe his father, he testified: 'His eyebrows were down like this, and he looked as though he were mad or something.'

Shortly thereafter the police arrived and placed Mrs. Hilliker under arrest. The police described appellant as not being intoxicated at the time and, as they were leaving the house with him, quoted him as saying: 'The gun is upstairs, go get it.'

A subsequent search of the apartment revealed no recently fired expended cartridge casings, nor did a search of the neighborhood reveal any expended bullets. However, a .22 caliber semi-automatic pistol was found under the blankets on the double bed in the master bedroom. 2 Additionally, on a downstairs table near where Mr. Hilliker had been standing when the police first entered the home was found a magazine holding seven rounds of .22 caliber long range ammunition, which would fit the .22 caliber pistol found in the bedroom. This magazine had a maximum capacity of mine rounds. A ballistics expert described the operation of this pistol as follows:

'A. Insert the clip in the base of the grip; to actuate the weapon, one pulls back on the slide in this manner, lets the slide slide forward, and the spring pressure in this manner, it picks up the top cartridge in the magazine and the clip, seats it in the chamber. At this time the gun is ready to fire simply by pulling the trigger.

Q. And the gun clipping holds nine shots?

A. Yes, sir.

Q. Now, after you fired the first round, being a semi-automatic, this other procedure is done automatically is that right, a new bullet is pushed up into the chamber, and it's ready to fire, and you don't have keep pulling back on the handle?

A. That's correct.'

An examination of the apartment was otherwise negative except for a hole in the front screen door, fifty inches from the floor, which an expert witness testified was made by a lead object.

Post-mortem examination of Mrs. Hilliker's body revealed that her death was a result of hemorrhage caused by a small caliber bullet which entered the chest, piercing the heart 'on the (venous) side of the circulatory system and exited on a more or less the same plane from the back.' Because the damage was to the venous area of the heart, mobility would be possible 'for several minutes' after receiving the injury.

An examination of the dressing gown Mrs. Hilliker was wearing did not reveal the presence of any nitrates in the area where it was penetrated by the bullet, leading to the conclusion that the muzzle of the weapon was at least four feet away when the shot was fired.

Since the entrance would on Mrs. Hilliker's body was 'in the mid portion of the anterior part of the chest just to the right of the mid-line' and since she was not facing the door when the shot witnessed by Mr. Kitterman was fired from the doorway, it becomes clear that the fatal wound must have been received before she emerged from the house. This conclusion is necessarily based on Mr. Kitterman's testimony because there was no witness to the firing of the fatal shot. We must assume from the verdict that the jury adopted Mr. Kitterman's testimony and found that the appellant had committed the homicidal act while he and his wife were alone inside the house.

LEGAL ISSUES

With this rather detailed background before us, we now must inquire whether it was error to refuse the requested 'manslaughter' instruction and, thus, to restrict the possible verdicts to either 'not guilty' or 'guilty of murder.'

Manslaughter is defined by our statute in this language:

'Whoever unlawfully kills a human being in the heat of passion, on sudden provocation, without express or implied malice aforethought . . . or commits manslaughter as defined by the common law, shall be punished . . ..'

17 M.R.S.A. § 2551.

The above statutory language is commonly understood as providing punishment for an unlawful killing on two distinct legal theories, namely, 'voluntary' or 'statutory' manslaughter as distinguished from 'common law' manslaughter.

As we have attempted to make clear beyond question, voluntary manslaughter is necessarily included within the concept of felonious homicide punishable as murder but, since such an unlawful killing results from heat of passion produced by sudden adequate provocation, the penal consequences are reduced. State v. Lafferty, 309 A.2d 647 (Me.1973); State v. Rollins, 295 A.2d 914 (Me.1972); State v. Wilbur, 278 A.2d 139 (Me.1971). Common law manslaughter is likewise included by statutory definition within the single...

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