State v. Thorpe, 79-361-C

• Decision Date: 08 May 1981
• Docket Number: No. 79-361-C,79-361-C
• Citation: 429 A.2d 785
• Parties: STATE v. James M. THORPE. A.
• Court: Rhode Island Supreme Court

Page 785

429 A.2d 785

STATE v. James M. THORPE.

No. 79-361-C.A.

Supreme Court of Rhode Island.

May 8, 1981.

Dennis J. Roberts II, Atty. Gen., Theodore W. Travis, Sp. Asst. Atty. Gen., for plaintiff.

William F. Reilly, Public Defender, John A. MacFadyen III and Paula Rosin, Asst. Public Defenders, for defendant.

OPINION

KELLEHER, Justice.

The defendant, James Thorpe (Thorpe), was originally charged with the murder of his four-month-old daughter. Presently he is before us on a two-issue appeal following a Superior Court verdict in which the jury found that the defendant was guilty of committing an assault and battery upon his daughter. The verdict came after the trial justice had granted Thorpe's motions for judgment of acquittal in regard to first- and second-degree murder, and the case was presented to the jury on the charge of manslaughter and the lesser-but-included offense of assault and battery. Thorpe was fined $500 and sentenced to one year at the Adult Correctional Institutions. The sentence was stayed pending Thorpe's appeal.

The facts reveal an unfortunate sequence of events. Dawn Marie Lincoln was born in April of 1977 to Loretta Lincoln (Loretta) and Thorpe. Loretta was seventeen; and Thorpe, who was taking a physical-education course at a local university, was twenty. The three lived together in a Providence apartment. On July 15, 1977, Loretta was showing her baby to a friend. While she was carrying Dawn Marie from one room to another, the baby's head bumped against a door casing. She took Dawn Marie to the emergency room of the Rhode Island Hospital. The baby was released an hour later.

About two weeks later, on the morning of July 29, 1977, Loretta left the apartment, having just bathed and dressed Dawn Marie. As Loretta was leaving the apartment, Thorpe was preparing to begin his regular weight-lifting program. Approximately two and a half hours later, Loretta returned to the apartment with a girl friend. The seven-pound baby was not awake and appeared to be sobbing. When Loretta asked Thorpe what had happened, he told her that Dawn Marie had been crying a lot and must have cried herself to sleep.

After Loretta had expressed some concern, Thorpe drove her and Dawn Marie to the office of the child's pediatrician, Dr. John Montgomery. The physician examined the baby and observed reddish markings on the buttocks area but could not say whether such markings were indicative of slight, moderate, or severe force. Doctor Montgomery called the Providence fire department's rescue squad, which in turn transported Loretta and Dawn Marie to Rhode Island Hospital's emergency room. Sometime between 1:30 and 2 o'clock of the afternoon of July 29, Dr. Paul Pitel examined Dawn Marie at the hospital's pediatric-care unit. Doctor Pitel told the jury that there was a laceration and some hemorrhaging on the front side of the brain and that the bruises on the left buttock were caused by a blow of "rather severe" force.

Loretta testified that when she took the baby to the hospital, she notice a hand print on her daughter's buttocks. The baby's mother also stated that she had not observed any bruises or marks on Dawn Marie when she had bathed the child earlier on July 29. ¹

When Loretta returned to the apartment after having left Dawn Marie at the hospital, she asked Thorpe whether or not he had struck the child. Thorpe denied hitting the baby; but subsequently, in giving a statement to the detectives, he conceded that he had hit the baby and added to the statement the following personally typed explanation for his behavior:

"When I lift weights I get all my frustrations out. During this time I am very high strung. The baby wouldn't stop crying so I spanked her ass. I didn't realize how hard I hit her."

Dawn Marie's condition grew progressively worse, and she died on August 9, 1977.

Thorpe attempted to prove that the baby's death was not caused by his spanking but rather by previous injuries the baby had suffered. Thorpe referred to a third incident in which the baby had struck her head. This occurred just three or four days prior to July 29. Loretta was allegedly holding the baby in her arms in the kitchen and then dropped the baby on the floor. Thorpe testified that the baby's behavior worsened after this fall the baby cried continually and could not hold down her formula.

During cross-examination Thorpe conceded that he had never mentioned the fall episode to either the police or the hospital personnel. He also admitted that it was possible that in trying to quiet Dawn he had struck the baby more than once. Thorpe agreed with the prosecutor's suggestion that once a weight-lifting routine has begun, it should be continued on to its completion. Thorpe also said that during the routine, he did become "very high strung."

Thorpe first takes issue with the trial justice's charge on assault and battery. The trial justice gave the following charge:

"Also included in the facts of this case is a lesser offense. Assault and battery. A battery or assault and battery is the unlawful and wilfull touching of the person of another by the aggressor or by some subsequent object or force put in motion by such aggressor. You may consider this charge if you find the defendant not guilty of manslaughter. A person commits the crime of battery who knowingly and intentionally and unlawfully makes physical contact with another. The question that you must resolve is was the touching unlawful. That means without justifiable cause. You may take into consideration in making that determination all of the conduct of the defendant as to whether the touching was lawful or not. I instruct you that under the law of the State of Rhode Island no one has the right to inflict excessive corporal punishment upon a child. So, ladies and gentlemen of this jury, if you find that the state has proven beyond a reasonable doubt that the defendant committed the crime of assault and battery, or battery, then you must return a verdict of guilty. And, conversely, if you find that the state has failed to prove each and every essential element of a crime of assault and battery or battery beyond a reasonable doubt then equally it is your duty to return a verdict of not guilty." (Emphasis added.)

Thorpe argues that the trial justice erred when he failed to instruct the jurors that they would have to find that Thorpe acted maliciously when he spanked his daughter, in order to find him guilty of assault and battery. According to Thorpe, "malice" requires a higher threshold of culpability than "excessive." In addition, he claims that the term "excessive" gave the jury no indication of the requisite state of mind necessary to support an assault-and-battery conviction. Thorpe submits that the instruction given did not permit the jury to accept his theory: that he spanked Dawn Marie but once in an attempt to stop her hysterical shrieking by startling the infant so that she would calm down.

Although some believe that the doctrine "to spare the rod is to spoil the child" is outmoded, courts still recognize that some degree of corporal punishment is permissible. Accordingly, it is conceded that a parent has a right to use reasonable and timely punishment as may be necessary to correct faults in his/her growing children. State v. Bell, 223 N.W.2d 181 (Iowa 1974); Carpenter v. Commonwealth, 186 Va. 851, 44 S.E.2d 419 (1947); see Annot., 89 A.L.R.2d 396 (1963). Within the bounds of moderation and for the purpose of the best interests of the child, the parent is entitled to be the judge of what is required and the means to be adopted. State v. Fischer, 245 Iowa 170, 176-78, 60 N.W.2d 105, 108-09 (1953). As a general rule, ² a parent or one in loco parentis may inflict reasonable corporal punishment. See Ingraham v. Wright, 430 U.S. 651, 661, 674, 97 S.Ct. 1401, 1407, 1414, 51 L.Ed.2d 711, 724, 732 (1977); People v. Ball, 58 Ill.2d 36, 317 N.E.2d 54 (1974); State v. Coombs, 381 A.2d 288, 289 (Me.1978); Bowers v. State, 283 Md. 115, 126, 389 A.2d 341, 348 (1978); Annot., 89 A.L.R.2d 396 (1963).

However, it is clear that although the parent may use the rod, such an activity must be done with moderation. If a parent inflicts excessive or unreasonable corporal punishment upon his/her child, the parent is subject to criminal liability. People v. Ball, 58 Ill.2d 36, 317 N.E.2d 54 (1974); State v. Bell, 223 N.W.2d 181 (Iowa 1974); State v. Coombs, 381 A.2d 288 (Me.1978); Bowers v. State, 283 Md. 115, 389 A.2d 341 (1978); Carpenter v. Commonwealth, 186 Va. 851, 44 S.E.2d 419 (1947); Annot., 89 A.L.R.2d 396 (1963).

The test of unreasonableness is met at the point at which a parent ceases to act in good faith and with parental affection and acts immoderately, cruelly, or mercilessly with a malicious desire to inflict pain, rather than make a genuine effort to correct the child by proper means. State v. Hunt, 2 Ariz.App. 6, 20, 406 P.2d 208, 222 (1965). There is no inflexible rule that defines what, under all circumstances, is unreasonable or excessive force. The accepted degree of corporal punishment must vary in relation to the sensitivity and character of the child, the child's age, sex, physical condition, as well as in relation to the particular offense for which punishment is to be meted out. Id.; Carpenter v. Commonwealth, 186 Va. 851, 44 S.E.2d 419 (1947).

As mentioned, the clear weight of authority holds that a parent is subject to criminal liability when he/she inflicts excessive corporal punishment. Excessive corporal punishment is a proper standard because it accommodates the respective interests of the parent, the child, and society. Some courts do not differentiate between malice and excessiveness, implicitly holding that excessive punishment demonstrates malice or cruelty. State v. Hunt, 2 Ariz.App. 6, 406 P.2d 208 (1965); Bowers v. State, 283 Md. 115, 389 A.2d 341 (1978); Commonwealth v. Moore, 261 Pa.Super. 92, 97-98, 395 A.2d 1328, 1331 (1978); ...