State v. Wallace

• Decision Date: 19 February 1975
• Citation: 333 A.2d 72
• Parties: STATE of Maine v. Milton I. WALLACE.
• Court: Maine Supreme Court

Page 72

333 A.2d 72

STATE of Maine v. Milton I. WALLACE.

Supreme Judicial Court of Maine.

Feb. 19, 1975.

Chadbourn H. Smith, Vernon I. Arey, Asst. Attys. Gen., Augusta, for plaintiff.

Bernstein, Shur, Sawyer & Nelson, by Peter J. Rubin, Portland, Joseph L. Singer, Brunswick, for defendant.

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

ARCHIBALD, Justice.

Nine days after he was reported missing, the body of eight year old John Nason was found under a bed in the defendant's apartment, wrapped in a sheet in an 'advanced state of postmortem degeneration and discoloration, and gaseous putrification.' The ankles were tied together with a wire cord. Cause of death was attributed to asphyxiation. Simultaneously with the discovery of the body defendant was arrested, charged with the homicide and ultimately convicted by the jury of the felonious homicide punishable as murder. He has appealed. Our review of the entire record and the numerous points reserved on appeal convinces us that the appeal is without merit and must be denied.

We will deal with those points of appeal which were briefed and argued, considering the others to have been waived.

I-A

After the appellant had filed a motion seeking authority to retain a psychiatrist, the State, pursuant to 15 M.R.S.A. § 101, moved to have the appellant 'examined to determine his mental condition with reference to the issues of criminal responsibility.' This motion was granted over the objection of the appellant, who argues that this procedure violates his privilege against self-incrimination because, in effect, he is compelled to assist the State in furnishing evidence which could rebut the affirmative defense that the criminal act charged was the product of either mental disease or mental defect. This precise issue was recently decided adversely to the position of the appellant. State v. Buzynski, 330 A.2d 422 (Me.1974). We see no occasion to discuss the issue further and adhere to our position in Buzynski.

I-B

Appellant has also argued that, as a matter of due process, no such examination should be conducted by doctors associated with State institutions. He theorizes that doctors employed in state supported hospitals operated for the treatment of those suffering from mental illness would be prone to express an opinion adverse to the person being examined since they would prefer not to have patients in such institutions who are accused of violent crimes.

Secondly, appellant contends if such a state employed psychiatrist should conclude that the patient was not mentally ill and then, following a verdict of 'not guilty by reason of insanity,' is required to accept such a person as a patient, the treatment given under those circumstances would, at the very best, be minimal and ineffective.

This argument is supported by neither citation of authority nor the presentation of any facts. Suffice it to say that we do not feel inclined to characterize the motivations of the psychiatric personnel of our State institutions as suggested by this argument. Certainly it is a matter beyond our power to notice judicially. We, therefore, reject this contention.

II-A

Appellant sought to suppress certain critical evidence found by two police officers in a search of the apartment, including the body of the decedent and numerous items of personal property of both the decedent and the appellant. Following a lengthy hearing on this motion, the Justice refused to suppress the evidence, having satisfied himself 'beyond a reasonable doubt' that appellant had consented to the search. He found that the two officers had been voluntarily admitted to the apartment at the specific invitation of the appellant.

Appellant argues the consent to search was illegally obtained because one officer had told the appellant that if he did not give consent, a search warrant would in fact be obtained and that it would be useless under those circumstances to refuse. It is true that a police report signed by one of the officers involved contained this language:

'Det. Perry also requested permission from Mr. Wallace to search the apt. Mr. Wallace agreed to the search. Det. Perry also informed Mr. Wallace that we could go and get warrants to search legally. Mr. Wallace said that was not necessary, that we could search.'

At the suppression hearing both officers denied the literal import of this language. Officer Banks, who had signed the report above quoted, insisted in his testimony that Detective Perry had merely told Mr. Wallace that if consent to search was not given, he 'would try to obtain a search warrant and search the apartment with one.'

Thus, the Justice was confronted with a purely factual problem. He saw the witnesses, heard them testify, both on direct and cross-examination. We cannot substitute our judgment for his on the issue of credibility and, therefore, are unable to say that there was error in his ultimate conclusion that the consent to search was voluntary. Evidence thus obtained is admissible. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Niemszyk, 303 A.2d 105 (Me.1973).

II-B

Appellant, apparently recognizing the vulnerability of his initial argument, further urges us to adopt a rule mandating a search warrant in all cases where exigent circumstances do not exist. He argues that such a rule would avoid difficult factual questions and would require police officers to meet the Fourth Amendment standards of probable cause. We are not persuaded, in cases involving consent searches, that we should adopt more rigid Fourth Amendment standards than those acceptable to the United States Supreme Court. In Schneckloth the Supreme Court specifically ruled that it was

'equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.'

412 U.S. at 219, 93 S.Ct. at 2043-44.

We reject this argument.

III

Over objection the decedent's mother was allowed to testify that she had a conversation with her son in the vicinity of 5:00 p.m. on the day that he disappeared. She testified that he had asked her for his allowance of fifty cents which she refused, and he also asked if he could take some of his father's money out of a 'penny bank,' which request was likewise refused. After these conversations the young boy left the apartment and was never seen again by his mother. The Justice below ruled:

'If there is any hearsay objection, it's being overruled because it's not being offered for the truth and to the extent that it's relevant, to show the boy's activity, it's admissible.'

The record also indicates that after John Nason left his mother he was in contact with two other people from each of whom he sought to obtain a small amount of money. This evidence was admitted without objection.

This evidence was relevant to show the activities of the decedent at or about the time of the commission of the crime and we view the testimony as though it was a verbal act descriptive of his activities. We find no error in the ruling of the Justice below. State v. Ranger, 149 Me. 52, 98 A.2d 652 (1953).

IV

On cross-examination of the defense psychiatrist homosexuality was characterized by him in this language, 'I would consider it a disease or mental defect.' The State called a psychiatrist as a rebuttal witness. During the process of his examination he was allowed to testify, over objection, that, in psychiatric terms, sexual deviation is not a disease.

Appellant has argued that the question and answer objected to invaded the province of the jury because whether or not the appellant had a mental disease could only be answered by the jury.

State v. Durgin, 311 A.2d 266, 268 (Me.1973), defined in general terms the perimeters of expert psychiatric testimony where a defendant pleads not guilty by reason of insanity. There we held:

'Expert testimony may be utilized to describe the mental and emotional condition of the accused at the time the conduct complained of was committed, except that the expert should not give his opinion as to the cause of the conduct.' (Emphasis supplied.)

In Durgin we cited with approval cases from the District of Columbia, Washington v. United States, 129 U.S.App.D.C. 29, 390 F.2d 444 (1967), and McDonald v. United States, 114 U.S.App.D.C. 120, 312 F.2d 847 (1962). These cases elaborated on the so-called Durham rule first established by that same Circuit in Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954), and subsequently adopted by the Maine Legislature as 15 M.R.S.A. § 102. A closer look now at Washington is helpful in resolving the question before us and explaining our language quoted above in Durgin where we held a psychiatrist could describe the 'mental and emotional condition' of the accused.

In Washington the Court denounced expert testimony which consisted merely of psychiatric labels which were nothing more than professional shorthand and meaningless to a jury. It noted a special problem with psychiatrists using such labels as 'product' and 'mental disease or defect' because they related to the ultimate jury question. The Court ruled it was improper to state whether or not the alleged criminal action was the 'product' of a mental disease or defect. However, it went no further. 'It can be argued that psychiatrists should also be prohibited from testifying whether the defendant suffered from a 'mental disease or defect,' since this too is part of the ultimate issue. But unlike the term 'product,' the term 'mental disease or defect' may have some clinical significance to the psychiatrist. . . .'

Washington v. United States, 390 F.2d at 456.

Underlying the court's allowance of such testimony is the requirement that there be a proper distinction made for the jury between the medical and the legal meaning of 'mental disease and defect.'

The testimony of the State's...