State v. Millett

• Decision Date: 09 February 1971
• Parties: STATE of Maine v. Bruce R. MILLETT.
• Court: Maine Supreme Court

Page 504

273 A.2d 504

43 A.L.R.3d 211

STATE of Maine v. Bruce R. MILLETT.

Supreme Judicial Court of Maine.

Feb. 9, 1971.

Peter T. Dawson, Peter W. Culley, Asst. Attys. Gen., Augusta, for plaintiff.

Kinsey B. Fearon, Portland, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE and WERNICK, JJ.

WEBBER, Justice.

On appeal. The appellant was tried by a jury upon an indictment charging him with murder of one Frank Cooper and was convicted of manslaughter. During the trial the appellant became a witness in his own behalf. He admitted that he shot and killed Cooper with a revolver but asserted unsuccessfully that he killed in self-defense. It is not here contended that the evidence would not support a conviction for manslaughter if the claim of self-defense was properly rejected. We will deal with the issues in the order presented by the points of appeal.

'1. The Court erred in allowing prejudicial testimony by relatives of the deceased in chambers prior to sentencing.'

After verdict and before sentence the presiding Justice in chambers heard the views of a number of people, including the parents of the deceased, with respect to the character and conduct both of the appellant and of the victim of this homicide. A transcript of these conversations is made part of the record on appeal. The appellant signed a written waiver of any right he might have had to be present. His counsel was present and participated in the conversations. He was afforded the opportunity and did in fact present persons who furnished information in support of a plea for leniency. We can discover no violation of Due Process or any other constitutional right vouchsafed to the appellant. If the appellant believed that the sentence imposed was excessive, his proper remedy was to seek a review of sentence by the Appellate Division of the Supreme Judicial Court. He was informed that this right of appeal was available in open court.

'2. The Court erred in denying Defendant's requested instructions No. 2, 3, 4, 5, and 6.'

In both written and oral argument, counsel for appellant has confined himself to requested instructions numbered 4 and 6 and we may treat the issues with respect to instructions numbered 2, 3, and 5 as waived. The decision to refrain from argument with respect to the latter instructions was no doubt prompted by the fact that the subject matter of those instructions was fully and accurately covered by the instructions actually given.

Requested instruction #4 dealt with the burden of proof with respect to self-defense. In effect the presiding Justice told the jury that if the defendant would justify or excuse an otherwise unlawful killing as committed in self-defense, he must carry the burden of proving that he acted in self-defense by the fair preponderance of the evidence. He stated additionally, however, that if upon the whole evidence the jury entertained a reasonable doubt as to whether or not the homicide was excusable, the jury should acquit. The appellant's requested instruction, although not a complete and adequate statement of the law, was obviously predicated upon the legal theory that once the self-defense issue has been properly tendered, the State must assume the burden of negativing self-defense beyond a reasonable doubt. We treat the requested instruction as having the force of an objection to the instruction as given, thus raising the burden of proof issue.

We are aware that over the years the trial courts in Maine have treated self-defense as an affirmative defense to be proven by the defendant by evidence from whatever source by the fair preponderance of that evidence. It is noteworthy and indeed most remarkable that the precise issue has never heretofore been presented to or decided by the Law Court. It is perhaps because of an awareness that there has been no guiding decision on the point in this State and a further awareness that there is a conflict of authority in other jurisdictions, that the practice has grown up in our trial courts of giving the secondary or saving instruction given in this case requiring acquittal if upon the whole evidence the jury entertains a reasonable doubt as to guilt. Yet upon examination it is clear that the two instructions impose two different burdens with respect to self-defense which stand in conflict with each other.

Our research discloses that a small minority of appellate courts adhere to the rule that the defendant has the burden of proving self-defense by a fair preponderance of the evidence. ¹ In Commonwealth v. Winebrenner (footnote (1)) the Pennsylvania Court stated its rationale for the fair preponderance rule. It viewed self-defense, unlike the defense of alibi, as a true affirmative defense in the nature of confession and avoidance. The defendant is seen as admitting facts which, absent excuse or justification, would constitute an unlawful homicide. He thereby assumes the burden of proving excuse and justification by the fair preponderance of the evidence. The Court added, however, 'Nevertheless, the defendant's burden of proving self-defense by a fair preponderance of the evidence does not relieve the Commonwealth from proving, beyond a reasonable doubt, defendant's guilt of the crime charged.' The possibility of confusion which may rise when a jury seeks to reconcile the burden thus placed on the State and the burden imposed upon the defendant is without doubt a factor which has prompted many courts to adopt a rule which imposes a less stringent burden upon the defendant. Without doubt the problem is at times one of semantics. In Gunther v. State (1962) 228 Md. 404, 179 A.2d 880, 883, after stating the rule that self-defense must be proved by a fair preponderance of the evidence and the State is not required to overcome the defense beyond a reasonable doubt, the Court continued, 'It is thus apparent that the burden of proving self-defense to the satisfaction of the jury or the court (as the case may be) is on the defendant, but, it is likewise clear that if, upon all of the evidence, a reasonable doubt exists as to the guilt of the defendant, the trier of the facts ought to acquit him.' (Emphasis ours) Here the Court seemingly equates proof 'to the satisfaction of the jury' with proof by the fair preponderance of the evidence. Yet other courts understand proof 'to the satisfaction of the jury' quite differently. In State v. Calloway (1968) 1 N.C.App. 150, 160 S.E.2d 501, 504, the Court reviewed North Carolina precedents and noted that the burden of proving self-defense 'to the satisfaction of the jury,' as required by the prevailing rule, meant something less than proof beyond a reasonable doubt and might mean something more than proof by a fair preponderance of the evidence. The Court said, 'But the intensity of the proof required to 'satisfy the jury' of the truth of matters in mitigation or justification of a homicide cannot be defined by the Court as being 'less than,' 'the same as,' or 'more than' the greater weight of the evidence or the preponderance of the evidence. * * * A bare preponderance of the evidence may be sufficient to satisfy the jury.' In Kentucky the Court has held without more precisely defining the rule that 'it is incumbent on accused to offer convincing proof that the act was excusable,' and by such proof to 'satisfy the jury.' Smith v. Commonwealth (1940) 284 Ky. 80, 143 S.W.2d 859, 862; Wilson v. Commonwealth (1947) 305 Ky. 652, 205 S.W.2d 319, 320.

The majority rule, embraced by many courts, declines to shift the burden of proof to defendant but requires only that he assume the burden of going forward with evidence of such nature and quality as to raise the issue of self-defense and justify a reasonable doubt of guilt if upon the whole evidence the factfinder entertains such a doubt. The rule has been variously stated by those courts which have adopted it, and in some instances they have been aided by the wording or their judicial construction of applicable statutes. ²

In State v. Yokum (1899) 11 S.D. 544, 79 N.W. 835 the Court had determined that self-defense must be established by the defendant by the fair preponderance of the evidence. But in State v. Wilcox (1925) 48 S.D. 289, 204 N.W. 369, Yokum was expressly overruled and the Court adopted what it deemed to be the 'more humane and reasonable rele' that the defendant's evidence 'must be sufficient to create or leave in the minds of the jury a reasonable doubt as to whether he was justified in taking the life of the deceased.'

The Missouri Court carefully reviewed its prior decisions in State v. Malone (1931) 327 Mo. 1217, 39 S.W.2d 786 and concluded that no burden of proof as to self-defense could properly be imposed upon the defendant. The Court concluded that an instruction imposing a requirement that defendant not be acquitted on grounds of self-defense 'unless he has shown to your reasonable satisfaction that he killed the deceased in lawful defense of himself' would be understood by the jury to mean that defendant had the burden of sustaining his defense by a preponderance of the evidence. The Court further concluded that error could not be averted by a concluding sentence 'to the effect that if there is reasonable doubt of defendant's guilt he should be acquitted.' Of the effect of the conflicting instructions, the Court said, 'A lawyer might work our a construction to reconcile and harmonize that positive direcition with the concluding sentence and the presumption of innocence to which defendant is entitled, but it is not likely a jury of laymen could do so. To say the best of it, the instruction was likely to be misunderstood by, and to mislead, the jury.' The Court concluded that only the burden of coming forward with evidence rests upon the defendant and thereafter the State must sustain its burden of proving guilt beyond a reasonable doubt; and that all prior decisions tending to suggest a contrary rule 'should no longer be followed.' Malone...