State v. Melvin

• Decision Date: 03 August 1978
• Citation: 390 A.2d 1024
• Parties: STATE of Maine v. Donald MELVIN.
• Court: Maine Supreme Court

Page 1024

390 A.2d 1024

STATE of Maine v. Donald MELVIN.

Supreme Judicial Court of Maine.

Aug. 3, 1978.

Michael D. Seitzinger, Asst. Atty. Gen. (orally), Augusta, for plaintiff.

Gaston M. Dumais (orally), Lewiston, for defendant.

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

WERNICK, Justice.

In separate indictments dated January 8, 1976, defendant Donald Melvin was charged in the Superior Court (Knox County) with the offenses of felonious homicide punishable as murder (17 M.R.S.A. § 2651) and assault on a prison officer (34 M.R.S.A. § 710). The indictments were consolidated for trial, and a jury found defendant guilty as charged. Defendant has appealed from the judgments of conviction entered on the jury verdict.

We deny the appeal.

The evidence justified jury findings of these facts. On November 15, 1975 while defendant was serving a sentence at the Maine State Prison in Thomaston, the following incident occurred. A prison guard, John Wyman, allowed defendant to place his food tray outside one of the prison corridors. Defendant grabbed Wyman from behind, and holding a knife with an 8 to 10 inch blade to Wyman's throat, said to Wyman: "If you make a move I'll kill you." Defendant then took Wyman's keys, locked Wyman in one of the cells and was proceeding down the corridor when Wyman heard someone scream: "No! No! Not me! I never done anything to you Melvin! Don't do it." Melvin was seen by others a short time later with blood on his hands and a wet knife, and he stated: "Well, there's one rat we won't have to worry about any more."

Prisoners Forest Hotham and Roland Pouliot, Jr. saw defendant enter a cell where Gary Lawrence was imprisoned. They heard Lawrence beg for mercy and then observed defendant walking back down the corridor with blood on his knife. Prisoner Milton Wallace saw defendant stab Gary Lawrence and noticed, too, that no one else was in the cell at the time. Gary Lawrence bled to death from multiple stab wounds in his upper left chest area and at the base of his neck.

1.

As a first point of appeal, defendant asserts that a discriminatory exercise of prosecutorial discretion denied him the right to a fair trial and equal protection under the law. Defendant was the only person charged with the murder of Gary Lawrence although, according to defendant, four other prisoners (Pierre Loyer, Donald Cormier, Forest Hotham and Donald Smith) could have been charged with the same offense.

Defendant first raised this contention in a motion to dismiss the indictment at the conclusion of the State's evidence. The presiding Justice then correctly indicated that the defense of discriminatory prosecution should have been raised before trial. See State v. Heald, Me., 382 A.2d 290, 300 (1978). He also ruled, however, that the evidence presented up to that point in the case did not support the granting of the motion to dismiss.

Although under Rule 12(b)(2) M.R.Crim.P., the failure to present before trial any defense or objection based on defects in the institution of the prosecution will result in a waiver, the Court under that rule may also grant relief from waiver. Since the presiding Justice saw fit, here, expressly to consider and rule upon the merits of defendant's motion to dismiss for discriminatory prosecution, we treat the issue as preserved for appellate review in ordinary course. See State v. Heald, Me., 382 A.2d 290, 300 (1978).

As to the other prisoner Forest Hotham, evidence indicated that he supplied a knife to defendant before the prison disturbance, Hotham believing that defendant wanted it only for the purpose of scaring someone.

In regard to the prisoner Donald Smith, there was evidence that he was observed carrying a knife during the prison disturbance, but the witnesses indicated that very little was seen of Smith. Milton Wallace testified that after defendant had stabbed Lawrence, Smith appeared and "seemed as shocked as I was that the man was dead."

Evidence established that the other prisoners Loyer and Cormier had participated more directly in the prison disturbance. In separate proceedings Cormier and Loyer were charged and convicted of assault on a guard. They both had knives during the disturbance, both helped to guard Wyman and both aided in the prisoner takeover of the east wing of the prison. After the stabbing, Cormier and Loyer, at defendant's instruction, "dumped" Lawrence's body off the catwalk to the floor below. At defendant's trial, Cormier testified that he alone had stabbed Lawrence, although the State on cross-examination elicited several inconsistencies in Cormier's testimony.

In view of all of the foregoing evidence, as well as the testimony of witnesses Wallace, Hotham, Pouliot and Wyman, we conclude that the presiding Justice was justified in rejecting defendant's claim of discriminatory enforcement or fundamental unfairness. As we indicated in State v. Heald, Me., 382 A.2d 290, 301 (1978):

"The defense of discriminatory prosecution consists of two basic elements: (1) other individuals similarly situated have not been prosecuted for comparable criminal conduct, and (2) the selective enforcement was deliberately made on an impermissible and unjustifiable standard such as race, religion, a desire to discourage the exercise of one's constitutional rights or other invidious criteria."

See also Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962). Here, it was rational for the presiding Justice to decide either that defendant and the other prisoners did not engage in "comparable criminal conduct" or that the prosecution of the defendant was not based on an "impermissible and unjustifiable standard." Although there was some evidence that other prisoners played some role in the killing of Gary Lawrence, the weight of the testimony established either directly or circumstantially that defendant was solely responsible for the murder of Lawrence. ¹ Moreover, despite some evidence that defendant was involved in certain "political activity" in the prison, there is no evidence of any retaliatory or discriminatory motive of the prison officials or the prosecutor in the decision to charge only the defendant with the crime of felonious homicide punishable as murder.

2.

We reject defendant's second point of appeal, that the State must be held to have failed to prove the cause of Lawrence's death.

Specifically, defendant's argument is that Dr. Roberts, the only witness as to the cause of death, was not a competent witness for that purpose because he was not certified by a Board of Forensic Pathologists and was not acquainted with the factual circumstances of the case. The decision of the presiding Justice on preliminary questions of fact such as the qualifications of an expert witness and the factual foundation for opinion testimony will be set aside on appeal only for abuse of discretion. See State v. Ifill, Me., 349 A.2d 176, 183 (1975); State v. Carvelle, Me., 290 A.2d 190, 192 (1972). There was no abuse of discretion here since the evidence established that Dr. Roberts, a graduate of Tufts Medical School and a pathologist at the Penobscot Bay Medical Center, was qualified as an expert to testify as to the cause of death, and his opinion as to the cause of death was based on the autopsy that he personally performed on the body of Gary Lawrence. The matters raised by defendant, therefore, at best bear on the weight to be given Dr. Roberts' testimony by the jury as fact-finder and not on the legal issues (for the court) of the competency or admissibility of that testimony as evidence.

3.

Defendant next contends that the State did not comply with the procedural requirements of 15 M.R.S.A. § 1314-A in granting immunity from prosecution to Forest Hotham and, hence, the court erred in granting immunity to Hotham.

The failure to comply with the requirements of 15 M.R.S.A. § 1314-A in granting immunity to a witness in a criminal proceeding does not violate any rights of the criminal defendant. The immunity statute is designed to protect a witness' privilege against self-incrimination and at the same time to obtain essential evidence in a criminal proceeding. The privilege against self-incrimination, however, is personal to the witness. Communist Party of United States v. Subversive Activities Control Board, 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961); Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951); Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906); State v. Wentworth, 65 Me. 234 (1875). Accordingly, a criminal defendant lacks standing to assert the privilege against self-incrimination of a witness against him. Bowman v. United States, 350 F.2d 913 (9th Cir. 1965); United States v. Foster, 478 F.2d 1001 (7th Cir. 1973). Moreover, the immunity statute does not grant any rights to the criminal defendant to assert a witness' privilege against self-incrimination or the right to object to noncompliance with the procedural requirements for granting immunity to a witness against the defendant.

We conclude, therefore, that defendant lacks standing to attack the grant of immunity to Forest Hotham.

4.

As his next point of appeal, defendant asserts that the presiding Justice erred in admitting a confession to impeach his credibility. Defendant contends that the confession was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and that the presiding Justice erred in omitting to conduct a hearing to determine whether the confession was voluntary.

The State in this case did not attempt to introduce the confession as part of its case in chief against the defendant. Instead, after defendant testified at trial and denied having killed Gary Lawrence, the State on cross-examination asked defendant whether on November 26, 1975 he stated to Dale Ames, a corporal of the Maine State Police, that he was the only person involved in killing...