State v. Rollins

• Citation: 295 A.2d 914
• Parties: STATE of Maine v. Roy ROLLINS.
• Decision Date: 24 October 1972
• Court: Supreme Judicial Court of Maine (US)

Page 914

295 A.2d 914

STATE of Maine v. Roy ROLLINS.

Supreme Judicial Court of Maine.

Oct. 24, 1972.

Peter W. Culley, Asst. Atty. Gen., Augusta, for plaintiff.

Richardson, Hildreth, Tyler & Troubh by William B. Troubh, Portland, for defendant.

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

WERNICK, Justice.

Defendant was charged with having committed an unlawful homicide in manner punishable as murder. After trial by jury defendant was found guilty and adjudicated subject to punishment for murder. Accordingly, he was sentenced to life imprisonment, as mandatorily required by statute. Judgment of conviction was entered and defendant has appealed from the judgment.

At the close of all of the evidence defendant had moved for a judgment of acquittal which was denied. As one ground of appeal defendant maintains that this ruling by the presiding Justice was erroneous. In the face of undisputed eye witness testimony that defendant attacked and killed his victim with a knife at a time when the latter was unarmed, defenseless and so intoxicated as to be nearly comatose, the Justice below properly denied the motion.

The State offered in evidence three colored slides taken during the course of the autopsy performed upon the body of the victim. The defendant offered no objection to the admission of two of these exhibits but did object to the admission of State's Exhibit #5. This picture was narrowly focused upon the fatal wound and displayed the nearly severed 'left common carotid artery' and the hand of the pathologist. The defendant sought to render the use of this slide unnecessary by suggesting that 'the defendant does not contest that the neck wound exhibited in Exhibit No. (6) was the terminal wound, and that the effect of that wound was to sever the artery in question which is exhibited in Exhibit No. (5).' In the discharge of its burden to prove, guilt beyond a reasonable doubt, the State was not obligated to accept this limited admission as an adequate substitute for the explanatory testimony of its pathologist. The slide having been admitted, it was used effectively by the pathologist in illustrating his oral testimony, particularly with respect to the depth and severity of the puncture. We note also that judgment as to what will inflame the minds of a jury is, in this area at least, purely subjective. Illustrative of that fact is that no objection was offered to the admission of Exhibit #6 showing the dead face of the corpse as well as the fatal wound, whereas Exhibit #5 is a clinical portrayal of the point of entry of the lethal instrument and shows no other portion of the victim's body. Opinions might well differ as to which type of picture would be most likely to arose the emotions of a juror. This is but one of several reasons for adhering to the rule that the use of photographs is best left to the sound discretion of the presiding Justice. Here there was no abuse of that discretion. State v. Duguay (1962) 158 Me. 61, 63, 178 A.2d 129; State v. Turmel (1952) 148 Me. 1, 88 A.2d 367; State v. Ernst (1955) 150 Me. 449, 114 A.2d 369.

Before the presiding Justice instructed the jury the defendant's counsel presented a requested instruction in this form:

'While voluntary intoxication is generally no excuse for murder, if you find that there was no malice aforethought, and find there was sudden passion or provocation in the defendant's actions, then you must consider the question of intoxication as bearing on the defendant's intent, and thus whether he is guilty of manslaughter or murder.'

The presiding Justice declined to give the jury this instruction. Several factors support the ruling. In the first place there was no evidence in the case from any source, even from the defendant himself who elected to testify in his own behalf, that he was intoxicated. On the contrary, all the witnesses who observed him at the time of the homicide gave it as their opinion that the defendant was not intoxicated.

Moreover, and even more importantly, the requested instruction was not an accurate statement of the law of Maine with respect to the crime of felonious homicide. The error of the requested instruction is that it misconceives principles long and firmly established in the law of Maine, which we deem it important for present purposes to recapitulate, and pursuant to which the concept of 'malice' (express or implied) functions as a legal formula by which Maine law differentiates ultimate punishment classifications (designated under the labels, 'murder' and 'manslaughter').

In McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971) the Supreme Court of the United States, speaking through Mr. Justice Harlan, produced an enlightening summary of the continuing effort by our jurisprudence, commencing with the earliest days of the common law, satisfactorily to

'. . . identify before the fact those characteristics of criminal homicides . . .' (p. 204 of 402 U.S., p. 1466, of 91 S.Ct.)

by which categories of punishment severity might be established.

McGautha traces the steps from (1) the mid-fourteenth century 'benefit of clergy' to (2) the 'malice' approach, in terms of an actual subjective state of mind (premeditation), as it originated in the sixteenth century, to (3) the further development of the 'malice' concept, during the following century and a half, as it became transformed into an objectified criterion under which the act of killing, if in any respect unlawful, would draw the most serious penalty consequences unless further circumstances of extenuation, in the form of 'adequate provocation', were made to appear, and finally to (4) the resort, at the end of the eighteenth and the commencement of the nineteenth century, to a specification of 'degrees' of felonious homicide.

Although this history was used in McGautha to disclose the unsatisfactoriness of the entire effort as it bore upon the problem of marking the felonious homicides 'appropriately punishable by death' (p. 198 of 402 U.S., 91 S.Ct. 1454), it is here important because it focuses attention upon another point critical for present purposes. The summary of McGautha reveals that the common law dealt with the killing of one human being by another (homicide) with a dominant view that it was far less difficult to delineate the factors rendering homicide criminal or noncriminal than to devise workable, and understandable, classifications (criminality having been formulated) of appropriate penalties.

Such common law approach, predicated upon a single underlying criminal entity, 'felonious homicide', has been continuingly reflected in the law of Maine. From the inception of Maine's statehood the decisions of this Court have been at pains to reaffirm that-regardless of differences in the wording, or form, of statutes as they might have been revised from time to time to achieve greater conciseness, or coherence, or to adapt to the modified applicability, or total abolition, of the death penalty-the law of this State has sought to preserve the essential principle that the unlawful killing of one human being another is, as to its criminality vel non, a single entity within which the concept of 'malice' (express or implied) is utilized as a shorthand summarization of factors providing before-the-fact identification of penalty categories ranging from greater to lesser severity. State v. Conley, 39 Me. 78 (1854); State v. Knight, 43 Me. 11 (1857); State v. Turmel, 148 Me. 1, 88 A.2d 367 (1952); State v. Duguay, 158 Me. 61, 178 A.2d 129 (1962); Brine v. State, Me., 264 A.2d 530 (1970) and all as most recently re-examined and summarized in State v. Wilbur, Me., 278 A.2d 139 (1971).

When, therefore, as in the instant case, the contention is that the intentional (and, thus, unlawful) killing is, notwithstanding that it was intentional, 'manslaughter' rather than 'murder', because it was caused by heat of passion resulting from sudden and adequate provocation, we must keep clearly in mind that attention is being directed to the problem, not of proving the criminality of the homicide since the showing that the killing was intentional fixes its criminality but rather, criminality established, of mitigating the severity of the punishment to be imposed.

In amplification of this point we avoid confusion in analysis and facilitate understanding by bringing to light an underlying ambiguity concealed behind the common law's resort to a single language phrase concerning 'malice' and its functioning,-namely, the 'presumption of malice.'

In one of its primary applications at common law the 'presumption of malice' signified a unitary legal principle reflecting two subsidiary aspects: (1) a specification concerning the proof of facts relating to features distinguishing homicide as criminal (felonious) or non-criminal (justified or excused)-i. e., that an evidentiary showing (beyond all reasonable doubts) that defendant had killed another human being would be adequate, in itself and without more, as the proof to...