State v. Flewelling

524 A.2d 765, 1987 Me. LEXIS 709
CourtSupreme Judicial Court of Maine
DecidedApril 27, 1987
StatusPublished
Cited by4 cases

This text of 524 A.2d 765 (State v. Flewelling) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Flewelling, 524 A.2d 765, 1987 Me. LEXIS 709 (Me. 1987).

Opinion

SCOLNIK, Justice.

Peter Flewelling appeals from a judgment entered on a jury verdict in the Superior Court (Somerset County) convicting him of aggravated assault (Class B), 17-A M.R.S.A. § 208 (1983), and reckless conduct (Class C), 17-A M.R.S.A. § 211 (1983). Fle-welling contends, inter alia, that (1) the State improperly used an involuntary statement, and (2) the court erred in instructing the jury as to the applicability of the defense of self-induced intoxication. Because we agree that the State improperly used an involuntary statement, we vacate the judgment.

I.

This case arises out of the March 26, 1985 shooting by Peter Flewelling of his girlfriend, Allison Bickford, at Bickford’s apartment in Fairfield. Although the shooting itself is undisputed, the events surrounding the incident are in dispute. The only eyewitnesses to the shooting were [766]*766Flewelling and Bickford, neither of whom had a clear recollection of the actual shooting. In essence, the defendant sought to explain Bickford’s injuries as an accidental result of his own suicide attempt. The State characterized the shooting as an attempted murder.

Bickford recalled seeing the defendant seated on a couch in her apartment with a gun and holster lying next to him. After asking him to remove the gun from the apartment, she sat down in a chair situated next to the couch. She next recalled feeling a blow to the right side of her face, and saw the defendant pointing the gun towards his own face. The defendant, a veteran who was totally disabled from injuries sustained in an automobile-related accident, suffered chronic pain as a result of the amputation of his right leg. He testified that, on the morning of the shooting, he was in great pain and with increasing frequency considered suicide. He recalled raising the gun to his head but being unable to pull the trigger. He had no recollection, however, of shooting Bickford. Bickford’s neighbor, who lived adjacent to Bickford’s apartment, overheard Flewelling and Bickford arguing on the morning of the shooting. In particular, she at one point heard Bickford say that she was going to call the police, to which defendant responded “go ahead because there is going to be nothing left of either you or me.”

Medical and ballistics experts testified that Bickford was shot at very close range by a bullet from the defendant’s gun, a .357 Dan Wesson. Bullet fragments from the gun were found in Bickford’s apartment in the living room window casing, outside on the walkway leading to the next apartment building, and in Bickford’s wound. Although recovered from the shooting at the time of trial, Bickford had a scar where the bullet struck her cheek. Medical testimony revealed that the gunshot wound could have been fatal or caused serious brain damage had the bullet entered Bickford’s skull a few millimeters from the actual bullet entrance.

The defendant was indicted on two counts of aggravated assault and one count each of attempted murder, reckless conduct and criminal threatening with the use of a dangerous weapon. He entered pleas of not guilty and not guilty by reason of insanity. The State later dismissed one of the counts of aggravated assault. A jury trial commenced on May 21,1986. On May 28th, the jury found the defendant guilty of aggravated assault and reckless conduct and not guilty on the other two counts.

II.

The defendant first challenges the State’s use of an involuntary statement. The statement was transcribed on an inmate health history form he was asked to complete upon his initial arrival at the Somerset County Jail. A correctional officer at the jail asked the defendant questions from the form, and completed the form based on the defendant’s responses.

Without informing either the defendant or the court, the State obtained a copy of the defendant’s statement and attempted to use it on two occasions, once on its cross-examination of the defendant to impeach his testimony, and a second time as substantive evidence. At the time of its first attempted use, the court, over defense counsel’s objection, permitted the State to show the statement to the defendant in order to refresh his recollection. The defendant, however, testified that he had no recollection of any of the questions asked on the form. The State then asked the defendant the following:

Q. Were you ever asked this specific question: “Have you ever attempted suicide?”
A. I don’t remember the questions specifically ...
Q. Is it possible sir, that in response to that question, the question being: “Have you ever attempted suicide?” that you responded no?
A. I would say it is very possible. It’s not a subject one is proud of.
Q. That was your statement on the very day that this took place?
A. No—
MR. SANDY [Defense Counsel]: Objection, Your Honor....
[767]*767THE COURT: ... Sustained.

At a conference in chambers, the defendant moved for a mistrial. He objected to the use of the form on the grounds that it had not been provided to him in discovery and that he had not been given an opportunity to move to suppress the form. The State argued that it did not intend to introduce the form as evidence in its direct case, and had only recently obtained the form over the noon recess. The court stated that the form should have been made available to the defendant before it was used at trial:

... [T]he day of springing these surprise documents has long since gone by. If this was not given to the Defendant by discovery and you are going to use it, the appropriate way to handle that would have been to give a copy to [the defense counsel] and see if he believes it should be brought to the attention of the Court.

Despite its concerns regarding the improper use of the statement by the State, however, the court nevertheless concluded that the defendant failed to make a timely objection to the State’s use of the statement for impeachment purposes. The court therefore denied the motion for a mistrial, but provided the defendant an opportunity to call the officer who handled the health history form and to offer any additional related evidence.

Upon the State’s later attempt to introduce the statement into evidence, the court found that the defendant’s responses to the questions asked of him were made under circumstances demonstrating that they were not the product of his free will. The court therefore excluded the statement as one made involuntarily.

Because the defendant failed to make a timely objection to the use of the statement, we review under the obvious error standard. M.R.Evid. 103(d); M.R. Crim.P. 52(b). That standard

calls for the reviewing court to apply its best judgment to all the circumstances of the case at hand to determine whether inadmissible evidence received at trial without objection was in its probable effect upon the jury ‘a seriously prejudicial error tending to produce manifest injustice.’

State v. True, 438 A.2d 460, 467 (Me.1981), quoting State v. Baker, 409 A.2d 216, 219 (Me.1979). We find that the State’s use of the statement constituted obvious error for the following reasons.

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Bluebook (online)
524 A.2d 765, 1987 Me. LEXIS 709, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-flewelling-me-1987.