State v. White

• Decision Date: 24 May 1983
• Citation: 460 A.2d 1017
• Parties: STATE of Maine v. Francis W. WHITE, Sr.
• Court: Maine Supreme Court

Page 1017

460 A.2d 1017

STATE of Maine v. Francis W. WHITE, Sr.

Supreme Judicial Court of Maine.

Argued Jan. 13, 1983.

Decided May 24, 1983.

James E. Tierney, Atty. Gen., Wayne S. Moss (orally), James McKenna, James M. Bowie, Linda S. Crawford, Matthew F. Dyer, Asst. Attys. Gen., Augusta, for plaintiff.

Goodspeed & O'Donnell by Joseph M. O'Donnell (orally), David A. Cloutier, Augusta, for defendant.

Before McKUSICK, C.J., and GODFREY, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ.

VIOLETTE, Justice.

After a jury trial in Superior Court, Knox County, Francis White, Sr. was found guilty of the murder, 17-A M.R.S.A. § 201(1)(A) & (B), of his two-month old son, Francis, Jr. On appeal, White raises numerous claims of error. We affirm his conviction.

FACTS

In April 1980, Francis White, Jr. was born to defendant and Margo McKenna, an unmarried couple living together in Gardiner. Early on the morning of June 11, 1980, White ran from their phoneless apartment to request emergency medical help at the Gardiner Public Safety Building. A rescue squad responded and found the baby warm but not breathing and without a pulse. Cardiopulmonary resuscitation (CPR) was immediately administered and the baby rushed to the hospital, where he lived on a respirator until his death on July 29.

Emergency room physicians noted no external signs of trauma and their original diagnosis was near miss crib death (SIDS--sudden infant death syndrome). X-rays, however, revealed numerous (32) fractures, which were determined to have resulted from at least three episodes; one occurring the night the baby was admitted to the hospital, one about three weeks prior to that date, and one about four to six weeks prior to admission. The baby had suffered arm and leg fractures, rib fractures, and "avulsion" fractures (fractures at the joints of the long bones caused by violent shaking). Cause of death was listed as multiple bone fractures with post traumatic cerebral necrosis (brain damage due to lack of oxygen).

White was indicted for murder and McKenna for manslaughter. At the close of all the evidence in their joint trial, the presiding justice, upon McKenna's motion, ordered a judgment of her acquittal.

I. Depraved Indifference Murder Statute

White's indictment charged him with either "intentionally or knowingly" having caused the death of Francis White, Jr. ¹ or "engag[ing] in conduct which manifested a depraved indifference to the value of human life and which in fact caused the death of Francis White, Jr." ² At trial, White unsuccessfully moved for the dismissal of the "depraved indifference" charge, claiming that it was unconstitutional as applied to him. Following his conviction under both alternatives, White again raises constitutional objections to Maine's depraved indifference murder statute.

First, White contends that depraved indifference murder is not rationally distinguishable from the crime of manslaughter, 17-A M.R.S.A. § 203, and that the more severe penalty possible for depraved indifference murder is thus necessarily arbitrary and therefore invalid. In State v. Crocker, 435 A.2d 58, 63-67 (Me.1981), however, we explicitly rejected such an attack. In Crocker, we discussed the differences between the two crimes and concluded that, although they differ only by "a matter of degree," id. at 67, they are constitutionally distinguishable.

White's second argument is that " 'a person of ordinary intelligence' could not 'reasonably understand' " that his conduct was prohibited by the depraved indifference statute. See State v. Parker, 372 A.2d 570, 573 (Me.1977) (quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989, 996 (1954)). He contends that, in light of medical testimony that many persons are not aware that vigorous shaking may be harmful to a baby, "the ordinary person ... could hardly have been expected to know that the risk was substantial."

That extremely vigorous shaking of a baby can, alone, constitute depraved indifference is noted in W. LaFave & A. Scott, Jr., Criminal Law § 70 at 543 (1972). From the evidence presented at trial, moreover, the jury could have concluded that White shook the baby with "severe to very, very, very severe" force, that he did so on at least three occasions, and that the baby had, at least once before, briefly stopped breathing. We therefore conclude that the depraved indifference statute gave the defendant adequate notice that his conduct in question was proscribed.

II. Incriminating Statements

On October 7, 1980, following his indictment for the baby's death, White was arrested by State Police Detective Richard Cook and taken to the Kennebec County Sheriff's Office. Cook, despite knowing that White was represented by counsel and that White's counsel had requested Cook not to question White, then asked White if he understood the nature of the charges against him. As White began to cry and make incriminating statements, Cook took out his note pad to record White's remarks and suggested that White "probably should hold his statements back." ³

Before trial, White moved to suppress his statements on the grounds that they violated both his Sixth Amendment right to counsel and his Fifth Amendment privilege against self-incrimination. Following a hearing in chambers, the presiding justice denied White's motion, holding that Detective Cook's initial question to White did not constitute interrogation and that "[w]hatever happened thereafter was blurted out by the defendant and consently [sic] given, and I find that [White's statements] were voluntarily given beyond a reasonable doubt."

A. Sixth Amendment Right to Counsel

The Sixth Amendment requires suppression of statements made when the State intentionally creates a situation likely to induce a defendant to make incriminating statements without the assistance of counsel. United States v. Henry, 447 U.S. 264, 274, 100 S.Ct. 2183, 2189, 65 L.Ed.2d 115, 125 (1980); see Brewer v. Williams 430 U.S. 387, 400-01, 97 S.Ct. 1232, 1240-41, 51 L.Ed.2d 424, 437-38 (1977) Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246, 250 (1964).

On appeal, the presiding justice's ruling on the admissibility of a confession will be upheld if "the evidence in the record provides rational support for the conclusions he reached." State v. Bleyl, 435 A.2d 1349, 1358 (Me.1981); see State v. Collins, 297 A.2d 620, 625 (Me.1972). Our review of this record fails to convince us that the presiding justice erred in finding no violation of White's Sixth Amendment rights.

Although the presiding justice did not explicitly frame his ruling in terms of Henry, he did rule that Detective Cook's asking whether White understood the charges against him "was a proper question" and that White's statements were all given voluntarily. The justice would have been warranted to conclude that Cook's initial question to White was a routine formality and that Cook's suggestions that White refrain from speaking absent his attorney, while not exceptionally vigorous, were not at all intended to elicit incriminating responses. Cook's remark that "you had to be careful when you are handling children" did not constitute exemplary police conduct; we do not, however, find that as a matter of law it was "deliberately and designedly set out to elicit information" from White. See Brewer v. Williams, 430 U.S. at 399, 97 S.Ct. at 1240, 51 L.Ed.2d at 436-37.

B. Fifth Amendment Privilege Against Self-Incrimination

White also argues that his statements were involuntary and were the result of custodial interrogation in violation of his right to counsel. Again, however, we find that the record provides ample support for the presiding justice's conclusions that White's statements were both voluntary and not the result of interrogation. Cf. State v. Theriault, 425 A.2d 986, 989 (Me.1981).

White notes that, in State v. Estes, 418 A.2d 1108, 1111 (Me.1980), we cited the Supreme Court's holding in Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297, 307-08 (1980), that "interrogation" refers "not only to express questioning, but also to any words or actions on the part of police ... that the police should know are reasonably likely to elicit an incriminating response from the suspect." In Estes, however, we also noted that "[b]rief, routine questions posed to a suspect during 'booking' procedures, for example, do not constitute 'interrogation.' " 418 A.2d at 1111 (quoting State v. Simoneau, 402 A.2d 870, 873 (Me.1979)). The presiding justice did not err in categorizing Detective Cook's remarks under the latter heading.

Finally, White contends that his statements were not "the product of free will and rational intellect," State v. Caouette, 446 A.2d 1120, 1123 (Me.1982), and therefore not voluntary. See Collins, 297 A.2d at 626. The only evidence of White's mental state, however, is that he began crying after Detective Cook asked if he understood the charges. This, alone, is insufficient to negate the presiding justice's conclusion that White's statements were voluntarily given.

III. Surprise Witnesses

On Friday, September 24, 1981, two days into White's trial and after the State had presented most of its medical testimony, the State announced that it had just located two additional witnesses. ⁴ Ralph Robbins and Shirley Flye had lived above White and McKenna's apartment and were to testify that they heard White, during several arguments with McKenna, threaten the baby's life. After that disclosure, the State made the witnesses available to the defendants.

The presiding justice noted that the testimony was extremely damaging to White's case and took White's objections to its admission under advisement. On Monday, the justice heard the witnesses' voir dire testimony and decided to permit the testimony to be admitted; he further ordered a continuance of the trial until that Thursday. White appeals from the denial of his ...