State v. Simpson
| Decision Date | 16 April 1971 |
| Citation | 276 A.2d 292 |
| Parties | STATE of Maine v. Thomas W. SIMPSON. |
| Court | Maine Supreme Court |
Peter T. Dawson, Peter W. Culley, Asst. Attys. Gen., Augusta, for plaintiff.
Franklin F. Sterns, Jr., George Milliken, Portland, for defendant.
Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY and ARCHIBALD, JJ.
The Defendant was indicted, tried and convicted of murder, from which conviction he seasonably appealed. The Points of Appeal raise four issues: 1) The refusal of the Presiding Justice to grant a motion for judgment of acquittal; 2) The verdict is contrary to the weight of the evidence; 3) The verdict is not supported by substantial evidence; 4) The Court erred in giving the following instructions to the Jury:
'Now, the fact that the crime of robbery was in process of being committed, or was actually consummated, is of no consequence as to Mr. Simpson unless at the time of Mr. Hider's death you are satisfied that Mr. Simpson, the Defendant in this case, was at that time still actively assisting, encouraging or aiding or making himself available for assistance either in the further prosecution of the robbery or in the efforts to complete the robbery by assisting in the escape, he having participated previously with that intention in mind.' (emphasis added) A summary of the ultimate facts follows.
On February 17, 1969, a South Portland merchant, one Samuel Hider, was shot and killed in his variety store by one Robert E. Westberry. At the precise moment of this homicide the Jury could have believed, from the testimony, that the Defendant was standing on the sidewalk in the vicinity of the front entrance to the Hider store, having walked there with Westberry from a car, parked a short distance away. It was the State's theory that the Defendant was an active participant in the planned robbery of Mr. Hider and, therefore, was as guilty of murder as was Westberry, who had, previous to this trial, been convicted of this homicide on a separate indictment.
Previously in the evening of the day of the homicide, the Defendant and two companions, Wayne Dow and Richard Morgan, had been drinking and 'riding around' in the Morgan car. They met Westberry, with whom they had a prior acquaintance, and he joined them. The drinking continued and the record justifies the inference that the four men, by collective discussion, decided to 'pull a job'. It was determined that this should be done at Hider's store. They obtained a sawed-off shotgun and, thus armed, stopped the vehicle in the vicinity of the store, at which time the Defendant and Westberry were in the back seat. The weapon was passed from the front seat to the back and taken by Westberry, previous to which the Defendant had said, 'I'll take it.' The Defendant and Westberry then proceeded to get out of the car and walk in the direction of the front door of the store. As they approached the front door, one Leonard Larain came out and entered his car, which was directly in front of the store. He recalled seeing the two men and testified that it appeared to him that they were passing something back and forth. Westberry 'had a silk stocking on the top of his head rolled up, which made him look rather odd.' He said that the Defendant was standing by the corner of the store, that he kept his head down and appeared to turn away from Mr. Larain. However, he made no move to leave the vicinity. Mr. Larain got into his car and started to drive away, and just as he did, he heard a loud 'pop'.
Mr. Westberry testified that, as they stood near the store door, the Defendant said, 'Let's go, let's go' and when he, Westberry, entered the store he thought the Defendant was behind him, interpreting the statement as an encouragement to proceed. As he entered the store, Mr. Hider was standing near the cash register. Mr. Hider apparently saw the gun, reached for it, and the gun exploded, the shot damaging Mr. Hider's left hand and entering his abdomen in the left inguinal area, causing his death. After the shot was fired, and Mr. Hider had fallen to the floor, Westberry took approximately One Hundred Eighty Dollars ($180.00) in bills from the cash register and returned to the car. He testified that as he came out of the store to go to the car the Defendant was just entering the car. They then drove to the dock area where the shotgun was thrown into the ocean, after which the four men separated.
The Defendant ultimately was arrested and gave a statement to the police in which he took the position that he was not actively participating in the robbery but went along with Westberry to the store for the purpose of preventing any harm from befalling Mr. Hider. He said that although he was aware of the plan to rob the Hider store and aware of the presence of the sawed-off shotgun, his purpose in going with Westberry was to 'stop him from hurting the guy'.
There were certain inconsistencies between the testimony of Westberry and that of the Defendant, who elected to be a witness. For example, the Defendant in his statement said that he returned to the car and was there 'about five minutes' before Westberry returned. Westberry, on the other hand, testified that when he emerged from the store, having shot Mr. Hider and taken the money, he observed the Defendant just then entering the car. Westberry denied that the Defendant ever made any effort to discourage him from carrying out the planned robbery, although the Defendant had testified that he had tried to talk him out of it. It should also be noted from the testimony of the Defendant himself, that when he left the car to go with Westberry to the store, his avowed purpose in so doing was not to prevent Westberry from committing a robbery, but to prevent injury to the storekeeper.
The Jury could have placed great faith in the testimony of Mr. Larain, whose testimony would negate any attempt on the part of the Defendant to leave the scene, and support an inference that the Defendant attempted to conceal his identity from him. He, also, placed the Defendant in front of the store when he heard the 'pop', which was contrary to the Defendant's...
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State v. Anderson
...rule" of accomplice liability which existed in Maine prior to the enactment of the Maine Criminal Code. See State v. Simpson, Me., 276 A.2d 292, 295 and note 2 (1971). B. Felony Sabatino was convicted of the crime of murder under 17-A M.R.S.A., § 201(1) (A), i. e. "intentional" or "knowing"......
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...For her participation, she was subject to prosecution as a principal. See State v. Bellanceau, Me., 367 A.2d 1034 (1977); State v. Simpson, Me., 276 A.2d 292 (1971); see also State v. Mower, Me., 317 A.2d 807 We do not believe that the purpose behind the marital privilege is served by permi......
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State v. Bellanceau
...of the variety store, in legal contemplation he could not be constructively present. In support of this position he cites State v. Simpson, 276 A.2d 292 (Me.1971), and State v. Saba, supra. The defendant's reliance on these cases is misplaced. In Simpson we intimated that in order to impose......
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State v. Thibodeau
...escape, all by prearrangement, meets the legal requirements necessary to establish participation as a principal offender. State v. Simpson, 1971, Me., 276 A.2d 292, 295. The instructions to the jury on the issue of constructive presence were more favorable to the defendant than the law requ......