State v. Pinnette

• Decision Date: 16 June 1975
• Citation: 340 A.2d 17
• Parties: STATE of Maine v. Daniel H. PINNETTE.
• Court: Maine Supreme Court

Page 17

340 A.2d 17

STATE of Maine v. Daniel H. PINNETTE.

Supreme Judicial Court of Maine.

June 16, 1975.

Michael E. Barr, Asst. County Atty., Augusta, for plaintiff.

Alan C. Sherman, Waterville, for defendant.

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

DELAHANTY, Justice.

A jury in the Superior Court (Kennebec County) convicted defendant Daniel H. Pinnette of aggravated assault and resisting arrest. He appeals his conviction, and we deny his appeal.

Circumstances both bizarre and bathetic marked the evening of October 16, 1973, on which defendant imperilled two law officers and earned himself not more than five years in prison. After an evening's circulation among the various taverns of downtown Waterville, defendant sought a somewhat wider field for his diversion and amusement. At 2:00 a. m. he visited the house of Mrs. Florence Hallee, to whom he was formerly engaged. In a spirited mood, defendant hoped for a reunion with Mrs. Hallee that would feature both reconciliation and romance.

Mrs. Hallee was not at home. But defendant was not to be discouraged. Confident of a favorable reception, he decided to await Mrs. Hallee's return, meanwhile enjoying the comforts of her house and larder. Thus, he took a single-blade ax from his truck, smashed a pane of glass in the kitchen door, and entered the Hallee residence. Remembering Mrs. Hallee's amiable nature, and finding some beer in her refrigerator, he took the beer and sat at the kitchen table. Thus fortified, defendant awaited Mrs. Hallee's return.

Soon after Mrs. Hallee returned, it became evident that defendant had seriously misjudged the extent of her affection for him and the prospects of reconciliation. Mrs. Hallee was mortified and angered that defendant had though so lightly of her as to violate her house and to traduce her privacy. She told defendant to leave. But defendant was reluctant to abandon his pleasant expectations for the night. He demurred to Mrs. Hallee's complaints. Mrs. Hallee thereupon called the police station to procure assistance in ejecting her unwanted admirer. Defendant remained in Mrs. Hallee's kitchen. Soon two law officers approached the outside screen door, which was closed. The inside door, with the broken glass, was open, and, light from the kitchen shone on the outside landing.

At this point, accounts vary. The law officers stated that they heard a heavy thumping noise as they climbed the back stairs to the landing. Since they had been summoned by Mrs. Hallee, they presumed her consent and opened the screen door to enter. They stated that defendant was pounding his ax on the floor and muttering crude imprecations. ¹ Upon noticing the presence of the officers, defendant's eyes allegedly grew large, and he arose. As the officers related, Mrs. Hallee was standing in front of the defendant with her arms on his shoulders, as if she were trying to restrain him. She was saying, 'Please don't, Danny. Don't start any trouble. Please don't.' He started to swing his ax in the direction of the officers, but brushed against Mrs. Hallee, breaking his swing. He started to swing again, with the ax at waist level, and was coming around, when an officer lunged at him and grabbed him around the neck from behind. According to the officers' account, which we are following, defendant was subdued only after much thrashing and wrestling. The officers and defendant grappled down a hallway and rolled onto the living room couch, where defendant finally conceded defeat. He was handcuffed and led away.

According to defendant, he and Mrs. Hallee were seated at the kitchen table, amicably chatting, when the police officers burst into the room. Defendant may have said: 'Let them come. They'll just give me a ride home.' Defendant denies pounding the ax on the floor. He states that he stood up when the police entered. The ax was in his hands, but he never swung it. Rather, he says, the law officers barked at him: 'Pinnette, we have had enough of you; we have got you this time. You're going to jail.' And with that, according to defendant, the officers leaped across the room at him, seized his throat, and throttled him. The ax fell away from his hands, and Mrs. Hallee retrieved it. Defendant concedes he may have instinctively resisted the officer's choke-hold, but denies any sort of a protracted struggle.

Mrs. Hallee's testimony substantially corroborated that of the defendant. When the police entered the room, she heard them say: 'Pinnette, we've had just about enough of you.' She stated that she and defendant were seated when these remarks were uttered; thereupon they both stood up. Most importantly, Mrs. Hallee stated that defendant did not swing the ax. There was a scuffle, and she took the ax out of defendant's hand and put it aside. Because she was thus occupied, she could not describe the seizure of defendant too exactly.

Two indictments were returned against defendant on January 5, 1974. They charged him with assault and battery of a high and aggravated nature (17 M.R.S.A. § 201) and assault with intent to kill (17 M.R.S.A. § 2656). In addition, a complaint was filed charging defendant with resisting apprehension while being taken into custody (17 M.R.S.A. § 1405). A jury found defendant guilty of high and aggravated assault and of resisting arrest. Defendant's motion for a new trial was denied.

Defendant's appeal presents four principal issues:

(1) whether the court erred by denying defendant's motion of acquittal on the charges of assault with intent to kill and resisting arrest;

(2) whether the court erred by permitting the impeachment of defendant's witness by accusatory questions without an adequate offer of proof;

(3) whether defendant was prejudiced by a reading of the indictment against him which charged assault and battery when in fact defendant was actually charged with high and aggravated assault; and

(4) whether the court committed reversible error by instructing the jury that if they found the defendant not guilty of high and aggravated assault, they may still find him guilty of simple assault, when in fact the evidence presented at trial might not on any theory support a finding of simple assault.

I. Denial of Motion of Acquittal on Charges of Assault with Intent to Kill and Resisting Arrest

At the conclusion of the State's case, defendant moved for acquittal on the charges of assault with intent to kill and resisting arrest. The indictment for assault with intent to kill issued pursuant to 17 M.R.S.A. § 2656. ² The indictment charged that defendant 'being then and there armed with a dangerous weapon, to wit, a single blade axe, with a 4 1/2 by 7 blade, feloniously did assault one Ronald Raymond (a law officer), with intent . . . then and there feloniously to kill.'

Assault with intent to kill is a crime in which specific intent, i. e., subjective state of mind or intent or design, is necessary to be proved beyond a reasonable doubt before a conviction can be had. Bessay v. State, Me., 297 A.2d 373, 376 (1972). The specific intent to be proved is the intent to kill. And though defendant's own testimony as to his intent is admissible as evidence bearing on the requisite specific intent, an intent to kill may also be inferred from the circumstances where a defendant acts in reckless or wanton disregard for the safety of others. State v. Barnett,150 Me. 473, 476, 114 A.2d 245, 247 (1955). The act itself under the existing circumstances may show guilty intention. Id. Thus, while the specific intent to kill must be proven beyond a reasonable doubt, the specific intent may be inferred from circumstances proximate to the assault charged. See State v. Eaton, Me., 309 A.2d 334, 339 (1973).

In the present case there was direct, admissible evidence tending to show an assault by defendant with an ax against two law officers. There was also evidence of defendant's vehement and minatory animadversions upon the law officers as they entered the room. We acknowledge that defendant denied any hostile intent, indeed, denied any hostile act aginast the officers. But certainly defendant's denial in this case did no more than raise a question of fact for the jury. We hold that there was sufficient evidence of the wantonness of defendant's motive or design to warrant a submission to the jury of the charge of assault with intent to kill. We also note that the jury acquitted defendant of this charge.

As to resisting arrest, the material portions of the statute read: 'Whoever resists apprehension or breaks arrest shall be punished by a fine of not more than $1,000 or by imprisonment for not more than 11 months.' 17 M.R.S.A. § 1405.

According to the account of the law officers, defendant assaulted them, thereby committing either a misdemeanor or a felony in their presence, according to the nature of the assault, and warranting an arrest. Even according to defendant's account, the law officers entered Mrs. Hallee's kitchen announcing, 'Pinette . . . you're going to jail.' The intention to apprehend defendant was plain on the facts.

That defendant may have resisted apprehension by a struggle, albeit involuntary or instinctive, is a fact to be gleaned from his own account of events. According to the officers, defendant's resistance was strenuous and forcible. The clash of facts was for the jury to resolve. The Superior Court did not err in allowing the charge of resisting apprehension to be decided by the trier of fact.

II. Impeachment of Defendant's Witness by the State

Defendant called Mrs. Hallee as a witness to corroborate defendant's account of the evening's events. When she was cross-examined by the State, there occurred the following colloquy:

Q Has the significance of what you are telling the jury now ever been explained to you by (your attorney)?

A No, this is the truth, and this is what I told (my attorney), and this is what I am telling the jury. I haven't had anyone legally say this...