State v. Lewisohn

• Decision Date: 08 November 1977
• Citation: 379 A.2d 1192
• Court: Maine Supreme Court
• Parties: STATE of Maine v. James E. LEWISOHN.

Page 1192

379 A.2d 1192

STATE of Maine v. James E. LEWISOHN.

Supreme Judicial Court of Maine.

Nov. 8, 1977.

Vernon I. Arey, Asst. Atty. Gen., Augusta, for plaintiff.

Bernstein, Shur, Sawyer & Nelson by Peter J. Rubin, Barnett I. Shur, Portland, for defendant.

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

DUFRESNE, Active Retired Justice. ¹

On June 2, 1974 the defendant, James Lewisohn, and his wife, Roslyn, had guests for dinner at their home in Cape Elizabeth. Their visitors left early in the evening. Following their departure, the defendant set out for a Portland restaurant and cocktail lounge which he reached by hitchhiking. When the place was about to close, Mr. Lewisohn invited several of his acquaintances whom he had met at the restaurant to come to his home in Cape Elizabeth. They did and remained with him until some time before 2:00 a. m. Their testimony indicated that, as the night wore on, the defendant became vociferous and animated in his speech. Several said that he appeared to be under the influence of intoxicating liquor.

Shortly after his last guest had left, Lewisohn yelled to his wife to come help with the dishes. She shouted back: "Jimmy, Jimmy, stop it. Stop laying trips on me." She rose from her bed, however, and walked into the kitchen. Seconds later, the couple's young daughters heard a loud bang and the sound of breaking glass. The defendant had shot his wife in the shoulder with a 9 mm. handgun.

Lewisohn's younger daughter, aged 10, who had been asleep in a second floor bedroom, reached the kitchen first and observed her father kneeling beside her wounded mother on the floor. She heard her mother cry: "Jimmy, call the hospital, I'm bleeding." She stated that her father then got up and said: "If it will make you happy, I'll shoot myself; at least we will die together." She added that her father then shot himself.

The other daughter, aged 14, then appeared from her basement bedroom and, observing her mother and father lying on the kitchen floor, telephoned for medical assistance. The defendant's wife was pronounced dead on arrival at the Maine Medical Center.

The defendant was indicted by the Cumberland County Grand Jury for felonious homicide punishable as murder (17 M.R.S.A., § 2651), to which charge he entered dual pleas of not guilty and not guilty by reason of mental disease or defect. His motion for bifurcation of the trial was granted.

The defendant based his defense on misadventure or accidental shooting, contending that he unintentionally shot his wife while handling the gun with the intention to clean it. The traverse jury rejected this particular version of the defendant's explanation and brought in a verdict of guilty of the murder of Roslyn S. Lewisohn, his wife, as charged in the indictment.

On the second portion of the trial, the jury concluded that the unlawful homicide was not the product of mental disease or defect and found the defendant criminally responsible for his act.

The defendant appeals his conviction and sentence of life imprisonment, raising in his points on appeal several claims of reversible error which he contends the trial Justice committed. He directs his attack in the following areas: 1) the trial Court's decision respecting his pretrial motion to suppress, 2) rulings on admissibility of evidence, 3) instructions to the jury, 4) omissions to charge requested instructions, 5) the denial of the defendant's motion for acquittal, and finally 6) evidentiary rulings and jury instructions at the second stage of the bifurcated trial. We deny the appeal.

Pretrial Motion to Suppress

It was shortly after 2:00 a. m. in the morning of June 3, 1974 when Officers Tolan and Tinsman of the Cape Elizabeth Police Force, while on separate patrols, received a radio message regarding a possible homicide at 29 Angell Terrace, the defendant's residence. Responding to the call, the officers arrived at the defendant's home at approximately the same time. The defendant's fourteen year old daughter was at the front door, pleading for help and crying that "they" were dying. While Officer Tinsman returned to the police cruiser to get oxygen, the young girl escorted Officer Tolan through the front door, across the living room, along a short hallway and into the kitchen. Upon entering the kitchen, the officer immediately observed the defendant and his wife lying on the floor. Examining the wife, he found a small amount of blood underneath her right shoulder. Turning his attention to the defendant, Officer Tolan noticed a gunshot wound in his abdomen. As he kneeled beside the defendant, he pushed away a small shag rug. This exposed a 9 mm. handgun.

When he observed the defendant's wife, he detected no body motion nor any sign of life. His closer examination for the purpose of finding a pulse proved negative, a condition corroborated, so he stated, by the officer assisting him at the time. Oxygen brought no response. Thinking, however, the woman might have some type of chance of regaining life if she reached the hospital, Officer Tolan had her removed immediately by the Cape Elizabeth rescue squad. The defendant who was conscious was taken to the hospital shortly thereafter by the South Portland rescue unit.

After the bodies were removed from the home, Officer Tolan stated they proceeded to look around the kitchen and the adjoining rooms on the first floor. Appearing on the scene within one half hour, Police Chief DiTomaso of the Cape Elizabeth Police Department joined in the investigation of the first floor premises including the bedroom where the Chief saw in plain view on the bureau a brown holster and a clip and in the open second drawer thereof a .22 caliber handgun plus a box of 9 mm. ammunition. The scene was processed by the taking of photographs around 3:00 o'clock a. m., without the presence of the body of the deceased victim which had already been removed. These photos of the weapon, the relevant kitchen and living room areas and the spent ammunition found in the kitchen were all admitted without objections at trial.

The trial Justice denied the defendant's motion to suppress several items seized by the police in the early morning hours of June 3, 1974 and taken from the Lewisohn home. The defendant, however, has narrowed his point on appeal to the articles seized and taken from the bedroom. This would involve the brown holster, the .22 caliber handgun and the box of 9 mm. ammunition. The State did not introduce this "real" evidence in the case as such, but the defense argues that it was error to allow the same in evidence by way of oral descriptive testimony of Detective Greeley of the Maine State Police who reached the Lewisohn home about 11/2 hours after the Cape Elizabeth police had started their investigation and who viewed these same objects in place in the bedroom at the request of Police Chief DiTomaso. The seizure was actually made one hour after Detective Greeley joined the investigation.

Oral testimony respecting physical tangible objects the knowledge of which has been obtained by or through an unlawful search or seizure is equally inadmissible in evidence as the physical tangible objects themselves. Verbal evidence as to matters observed during a constitutionally unlawful police intrusion into one's home must on objection be excluded at trial in order to enforce and give meaningful effect to the basic constitutional privileges provided by the Fourth-Fourteenth Amendments. Wong Sun v. United States, 1963, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441; State v. Wade, 1968, 99 N.J.Super. 550, 240 A.2d 689, 692; McGinnis v. United States, 1955, 1 Cir., 227 F.2d 598, 603; Ross v. Commonwealth, 1955, Ky., 275 S.W.2d 424; State v. Hunt, 1955, Mo., 280 S.W.2d 37, 40; Todd v. State, 1954, 233 Ind. 594, 122 N.E.2d 343; Dalton v. State, 1952, 230 Ind. 626, 105 N.E.2d 509, 512.

The State justifies the bedroom search without a warrant on the case of State v. Chapman, 1969, Me., 250 A.2d 203, where this Court said:

"The interest of society in securing a determination as to whether or not a human life has been taken, and if so by whom and by what method, is great indeed and may in appropriate circumstances rise above the interest of an individual in being protected from governmental intrusion upon his privacy. (Id. p. 210)

"We are satisfied that if the police cannot, after lawful entry, make the sort of prompt, orderly and methodical investigation of the scene of a violent death that is here shown, the protection of the legitimate interests of society will be seriously weakened." Id. p. 212.

We recognize that the search in the instant case is far from being as extensive in space and time as the search in Chapman. But justification for it must be based on the same principles. We hold that the original warrantless police entry was proper as being made in exigent circumstances for the purpose of saving life upon the report of a possible homicide, the need for providing emergency care and early hospitalization to victims of violent crimes being present.

"When the attending circumstances indicate to the officer as a reasonable and prudent person that any delay attendant upon securing a search warrant might mean the difference between life and death for the person within the home, the constitutional requirement of the fourth amendment must give way to the paramount duty of the officer to preserve a human life. Davis v. State, 1964, 236 Md. 389, 204 A.2d 76." Chapman, supra, (Dufresne, J. dissenting) at 215.

See also State v. Davidson, 1969, 44 Wis.2d 177, 170 N.W.2d 755, 764.

It is true that in Chapman, the victim was officially pronounced dead by the medical examiner while the body remained in the home. There was no immediate removal to the hospital as in the instant case, but the evidence in this record points to the only conclusion possible that at the time of removal of the body Mrs. Lewisohn had already succumbed...