State v. Kane

• Citation: 432 A.2d 442
• Parties: STATE of Maine v. Doris Elizabeth KANE.
• Decision Date: 20 July 1981
• Court: Supreme Judicial Court of Maine (US)

Page 442

432 A.2d 442

STATE of Maine v. Doris Elizabeth KANE.

Supreme Judicial Court of Maine.

Argued March 13, 1980.

Decided July 20, 1981.

Charles K. Leadbetter, Michael D. Seitzinger (orally), Augusta, Asst. Attys. Gen., for plaintiff.

Berman, LeBlanc, Pallas & Clark, Ray R. Pallas (orally), Westbrook, Robert M. Napolitano, Portland, for defendant.

Before GODFREY, NICHOLS, GLASSMAN ^* and ROBERTS, JJ., and DUFRESNE, A.R.J.

NICHOLS, Justice.

The Defendant, Doris Elizabeth Kane, was convicted of murder, 17-A M.R.S.A. § 201, in Superior Court in Kennebec County. From that judgment she has seasonably appealed to this Court, claiming error by the trial court (1) in permitting prosecutorial comment upon her failure to give an exculpatory explanation while speaking spontaneously to a police officer before and after she was given Miranda warnings; and (2) in instructions which required the jury to find murder or manslaughter before it might consider self-defense.

We affirm the judgment of conviction.

The Defendant, Doris Elizabeth Kane, was the wife of the victim of this homicide, Stanley Kane. When on February 20, 1979, the Defendant and her husband became embroiled in an argument inside their trailer-home in Winthrop, the Defendant shot him with a shotgun, and he died at the scene. The Defendant was thereafter indicted for both murder and manslaughter. Although at trial the Defendant testified that she shot her husband in self-defense, the jury convicted her of murder.

I

Defendant contends that at trial the prosecutor violated her Fifth Amendment rights in his argument to the jury in which he commented upon omissions in the Defendant's statements on the date of the shooting. She argues that those omissions represent her silence attributable to her exercise of her right against self-incrimination, and that Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), prohibits impeachment, and therefore prosecutorial comment, upon such silence.

At trial, police officer Daniel McGinley testified that on February 20, 1979, he arrived at the Kanes' trailer in response to a radio call, and when he entered the trailer to find Stanley Kane dead on the floor, the Defendant was crying uncontrollably. Officer McGinley testified that she said spontaneously to him, "We had a hell of a fight and I got the gun and shot him." Officer McGinley helped the Defendant to the kitchen table and talked with her for about 30 minutes. He did not put the Defendant under arrest or ask her questions about the shooting, but rather, he said, he tried to steer the conversation to other subjects. Though Officer McGinley did not testify to the exact warning given, he testified that several times he told the Defendant she had a right to remain silent and to get a lawyer. Nevertheless, he testified, the Defendant related that she and her husband had been arguing about their checkbook. When Officer McGinley again warned her not to speak, he testified that she thereupon said to him, "(D)ammit, he threw a damn tray at me, and I shot him."

State Police Detective Richard Cook testified at trial that when he arrived, he inquired whether the victim had been identified. The Defendant said, "(T) hat is my husband. How am I ever going to explain this to his sister." Cook then gave her "the Miranda warning." The Defendant later said, "(Y)ou will have to call his sister and let them know what I've done."

At the Winthrop police headquarters Detective Cook told the Defendant she was under arrest. Cook asked her if she had any scars or marks or if she was injured. The Defendant reported scars from previous operations and indicated she was not injured.

The police officers testified that the Defendant did not state at any time that she had been afraid of her husband or that he had ever assaulted her.

When the Defendant took the stand she testified that she shot the Defendant in self-defense. She testified she feared him because on previous occasions he had assaulted her seven or eight times while he was drunk, and two weeks before he had threatened her with a knife. The Defendant explained why she did not tell the police these facts relevant to self-defense in response to a question on direct examination. Defense counsel asked her whether she told the police about her husband's prior attacks. She answered, "No, I tried to tell them but they kept telling me to be quiet and not to talk."

Before final argument, defense counsel moved to prohibit the prosecutor from commenting on the Defendant's failure to tell the police about the prior violence and her fear. Defense counsel characterized the omission as an exercise of her Fifth Amendment right to remain silent. Nevertheless, the Superior Court allowed the prosecutor to comment, finding that it was fairly arguable whether the omissions resulted because the police discouraged her from speaking or because there were in fact no exculpatory circumstances.

In his summation the prosecutor interpreted Stanley Kane's rage as provoked by the Defendant's nagging. On the basis of the Defendant's demeanor on the night of the incident, her comments, and her failure to relate exculpatory facts on the night of the incident, the prosecutor argued that the Defendant did not shoot in self-defense.

In this trial the prosecutor did not penalize the Defendant for exercising her Fifth Amendment rights because the Defendant never asserted those rights. Once a defendant decides to speak, her failure to speak in exculpation cannot be explained away as a response to Miranda warnings. A defendant making inculpatory statements would not meanwhile withhold exculpatory facts in exercise of her right against self-incrimination. Hill v. United States, 404 A.2d 525, 531 (D.C.App.1979); Simmons v. Zahradnick, 465 F.Supp. 115, 117-118 (E.D.Va.1979).

Given the posture of the evidence in the case before us, we conclude that the rule of Doyle v. Ohio, supra, avails the Defendant nothing. The...