State of Maine v. Roland L. Cummings

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2017 ME 143
Docket: Ken-16-36
Argued: March 3, 2017
Decided: July 6, 2017

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

STATE OF MAINE

v.

ROLAND L. CUMMINGS

SAUFLEY, C.J.

[¶1] Aurele Fecteau, a ninety-two-year-old retiree living alone in his

own home in Waterville, was stabbed to death in his bed during a burglary.

Roland L. Cummings was found guilty by a jury of the murder, along with two

other crimes. Cummings appeals only from the judgment of conviction of

murder entered by the court (Kennebec County, Murphy, J.) after a trial in

which the State presented the murder charge on alternative theories—

intentional or knowing murder and depraved indifference murder. Cummings

argues that the evidence was insufficient to support the finding that he was

the person who committed the murder, and in the alternative, he argues that,

due to the evidence of sixteen stab wounds to Fecteau’s torso, the killing was

so certainly a knowing or intentional murder that the jury should not have
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been instructed on depraved indifference murder. Thus, he contends that the

court erred in allowing the State to proceed on alternative theories. We affirm

the judgment.

I. BACKGROUND

[¶2] Cummings appeals from the judgment of conviction of murder,

17-A M.R.S. § 201(1)(A), (B) (2016). He does not challenge his additional

convictions of burglary of a dwelling (Class B), 17-A M.R.S. § 401(1)(A), (B)(4)

(2016), and theft by unauthorized taking or transfer (Class C), 17-A M.R.S.

§ 353(1)(A), (B)(6) (2016).

[¶3] When the evidence is viewed in the light most favorable to the

State, the jury could rationally have found the following facts beyond a

reasonable doubt with respect to the murder conviction. See State v. Maine,

2017 ME 25, ¶¶ 2, 28, 155 A.3d 871. On May 21, 2014, Cummings forced his

way into Fecteau’s home. Cummings knew Fecteau, who was the father of one

of his friends. Cummings stabbed Fecteau sixteen times in the torso, causing

his death; took money and jewelry; and fled. That night, Cummings sold two

pieces of the stolen jewelry and used a $100 bill stolen from Fecteau to

purchase drugs. He also paid a debt to an acquaintance for drugs using

half-dollar coins stolen from Fecteau’s home.
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[¶4] One of Fecteau’s sons, after unsuccessfully trying to reach his

father by phone on May 22 and 23, went to his father’s house on May 23. He

discovered his father’s body, and the police began an investigation.

[¶5] In June 2014, Cummings was charged by complaint with a single

count of murder alleging intentional or knowing murder or depraved

indifference murder. See 17-A M.R.S. § 201(1)(A), (B). Later that month, he

was charged by indictment with murder, id.; burglary of a dwelling (Class B),

id. § 401(1)(A), (B)(4); burglary (Class B), 17-A M.R.S. § 401(1)(A), (B)(2)

(2016); and theft (Class C), id. § 353(1)(A), (B)(6).

[¶6] The court held a six-day jury trial from November 12 to 19, 2015.

The State’s case included testimony from a Maine Crime Lab DNA analyst, who

found Cummings’s DNA on the out-turned pockets of Fecteau’s pants and on

one of the rings stolen from Fecteau. After the State presented its case,

Cummings unsuccessfully moved for a judgment of acquittal on all counts. See

M.R.U. Crim. P. 29(a). Cummings presented additional evidence but did not

testify. With the State’s consent, the court acquitted Cummings of the second

burglary count.

[¶7] Before the court instructed the jury, Cummings objected to the

proposed jury instructions on murder, arguing that the evidence could not
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support a finding of depraved indifference, and he again moved for a

judgment of acquittal. The court overruled the objection and denied the

motion.

[¶8] The State and Cummings offered closing arguments, after which

the court delivered instructions to the jury orally and in writing. With respect

to the murder charge, the court instructed on the alternative theories of

intentional or knowing murder and depraved indifference murder.

[¶9] The jury found Cummings guilty of murder, burglary of a dwelling,

and theft. Cummings moved for a new trial, and the court denied his motion.

See M.R.U. Crim. P. 33.

[¶10] After a sentencing hearing, the court sentenced Cummings to life

imprisonment for murder, ten years’ imprisonment for burglary, and two

years’ imprisonment for theft, with the burglary and theft sentences to be

served concurrently with the murder sentence. The court ordered Cummings

to pay $4,500 to the Victims’ Compensation Fund to reimburse the fund for a

portion of the Fecteau family’s funeral expenses. Cummings appealed from

the judgment of conviction of murder and applied for review of his sentence.
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See 15 M.R.S. §§ 2115, 2151 (2016);1 M.R. App. P. 2, 20. The Sentence Review

Panel denied his application for sentence review. State v. Cummings, No.

SRP-16-37 (Me. Sent. Rev. Panel Mar. 29, 2016); see 15 M.R.S. § 2152 (2016);

M.R. App. P. 20(f). We now consider Cummings’s appeal.

II. DISCUSSION

A. Sufficiency of the Evidence that Cummings Killed Fecteau

[¶11] Cummings first argues that there was insufficient evidence for

the jury to find him guilty of murder because his DNA was found only on a

stolen ring and on the pockets of pants recovered from Fecteau’s apartment—

not on Fecteau’s body—and his possession of stolen items cannot establish

that he killed Fecteau.

[¶12] “When reviewing a judgment for sufficiency of the evidence, we

view the evidence in the light most favorable to the State [to] determin[e]

whether the fact-finder could rationally have found each element of the

offense beyond a reasonable doubt.” Maine, 2017 ME 25, ¶ 28, 155 A.3d 871

(alterations in original) (quotation marks omitted). We defer to all credibility

determinations and reasonable inferences drawn by the fact-finder, “even if

1 Section 2151 of title 15 was recently amended to reference the Maine Rules of Unified Criminal

Procedure. See P.L. 2015, ch. 431, § 26 (effective July 29, 2016) (codified at 15 M.R.S. § 2151(2)
(2016)).
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those inferences are contradicted by parts of the direct evidence.” Id.

(quotation marks omitted).

[¶13] Relevant here, a “person is guilty of murder if the person:

A. Intentionally or knowingly causes the death of another human being; [or]

B. Engages in conduct that manifests a depraved indifference to the value of

human life and that in fact causes the death of another human being.”

17-A M.R.S. § 201(1).

[¶14] On the record presented, there is more than sufficient evidence

from which the jury rationally could find, based on reasonable inferences

drawn from circumstantial and DNA evidence connecting Cummings with the

murder and burglary, that Cummings was the person who caused Fecteau’s

death. See 17-A M.R.S. §§ 35(1)(A), (2)(A), 201(1)(A) (2016); Maine, 2017 ME

25, ¶ 28, 155 A.3d 871; see also State v. Belhumeur, 2015 ME 150, ¶ 6, 128

A.3d 646 (stating that the same standard of review is applied whether the

evidence is circumstantial or direct). The remaining question is whether

depraved indifference murder was properly submitted to the jury as an

alternative to intentional or knowing murder.
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B. Alternative Charge of Depraved Indifference Murder

[¶15] Cummings argues that the sixteen stab wounds inflicted on

Fecteau were so likely to cause death that they could only have been inflicted

with the conscious object to cause death or with knowledge that death was

practically certain to result. See 17-A M.R.S. §§ 35(1)(A), (2)(A), 201(1)(A).

He therefore contends that the evidence can demonstrate only intentional or

knowing murder—not depraved indifference murder, id. § 201(1)(B)—and

that because one or more of the jurors may have improperly found him guilty

based on depraved indifference, the conviction must be vacated for a lack of

unanimity.

[¶16] With respect to questions of law, including the construction of

statutes, our review is de novo. See State v. Kendall, 2016 ME 147, ¶ 14, 148

A.3d 1230; State v. Kimball, 2016 ME 75, ¶ 10, 139 A.3d 914. “A person acts

intentionally with respect to a result of the person’s conduct when it is the

person’s conscious object to cause such a result,” whereas “[a] person acts

knowingly with respect to a result of the person’s conduct when the person is

aware that it is practically certain that the person’s conduct will cause such a

result.” 17-A M.R.S. § 35(1)(A), (2)(A). A person acts with “depraved

indifference to the value of human life” in Maine if the person’s “conduct,
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objectively viewed, created such a high tendency to produce death that the

law attributes to him the highest degree of blameworthiness.” State v. Saenz,

2016 ME 159, ¶ 23, 150 A.3d 331 (quotation marks omitted).

[¶17] To find a defendant guilty of depraved indifference murder, “the

adjudicator must conclude that the defendant consciously . . . engaged in

conduct that he should have known would create a very high degree of risk of

death or serious bodily injury and it must also under the circumstances [have

been] unjustifiable for him to take the risk.” Id. (alterations in original)

(quotation marks omitted). “Put differently, death-producing conduct will

justify a verdict of guilty of depraved indifference murder if a jury could find

that that conduct was so heinous in the eyes of the law as to constitute

murder.” Id. (quotation marks omitted).

[¶18] The depraved indifference murder statute, section 201(1)(B), has

replaced a common law definition of murder that allowed a fact-finder to

convict a person of murder upon “proof of conduct which objectively evaluated

is characterized by a high death producing potential.” State v. Woodbury, 403

A.2d 1166, 1172-73 (Me. 1979) (quotation marks omitted). Depraved

indifference is derived from the concept of “implied malice,” which is distinct

from the state of mind characterized by the Criminal Code as recklessness
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because recklessness requires a subjective awareness of a risk. Id. at 1172-73

& n.9.

[¶19] We have not construed depraved indifference as incorporating a

culpable mental state. Instead, we have construed section 201(1)(B) “to deal

with those few instances in which, although the defendant did not act

intentionally or knowingly, his conduct, objectively viewed, created such a high

tendency to produce death that the law attributes to him the highest degree of

blameworthiness.” State v. Lagasse, 410 A.2d 537, 540 (Me. 1980) (emphasis

added); see also State v. Thongsavanh, 2007 ME 20, ¶ 38, 915 A.2d 421 (“The

offense does not require evidence of a defendant’s subjective state of mind.”).

[¶20] Because direct evidence of a defendant’s intent or knowledge can

be difficult to obtain, the State may charge depraved indifference murder as

an alternative to intentional or knowing murder, in a single count, in cases

where the defendant’s intent is not known when the defendant is charged. See

State v. Hickey, 459 A.2d 573, 581-82 (Me. 1983); Lagasse, 410 A.2d at 540. If,

after the evidence has been presented, the evidence could not establish

depraved indifference murder, the court “may decline to instruct on the

depraved indifference charge.” Hickey, 459 A.2d at 582. When there are

disputed facts regarding the defendant’s knowledge or intent at the close of
10

evidence, however, the fact-finder must determine if the State has proved the

elements of either form of murder, whether based on an inference of the

defendant’s knowledge or intentions, or, in those cases where it exists, direct

evidence of the defendant’s state of mind; or based on an objective view of the

nature of the conduct. See, e.g., State v. True, 2017 ME 2, ¶¶ 1, 3, 21, 153 A.3d

106 (affirming a murder conviction pursuant to section 201(1)(A) or (B)

when the evidence showed that the defendant punched and kicked the victim

while another man stabbed the victim in the back of the neck and choked him

with a brake cable); State v. Erskine, 2006 ME 5, ¶¶ 6-7, 9-11, 889 A.2d 312

(affirming a murder conviction pursuant to section 201(1)(A) or (B) when the

evidence showed that the victim suffered a head injury consistent with the use

of a hammer, found in the defendant’s apartment, on which the victim’s DNA

was discovered).

[¶21] Because depraved indifference murder may be charged and tried

as an alternative to intentional or knowing murder in a single charge, see

Erskine, 2006 ME 5, ¶ 19, 889 A.2d 312, a unanimous verdict can be reached

even if individual jurors disagree about whether the murder was an

intentional or knowing murder or a depraved indifference murder, id., as long

as the evidence presented to the jury is sufficient to support each of the
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alternative theories, see id.; Maine, 2017 ME 25, ¶ 28, 155 A.3d 871. Each

juror, or the court as fact-finder in a jury-waived trial, thus determines

whether (1) the State proved beyond a reasonable doubt that the defendant

acted knowingly or intentionally in killing another person; (2) the State

proved beyond a reasonable doubt that the conduct, although not undertaken

with the intent to kill or with knowledge that the conduct was practically

certain to cause death, demonstrated a depraved indifference to the value of

human life; or (3) the State failed to prove either theory beyond a reasonable

doubt. 17-A M.R.S. §§ 35(1)(A), (2)(A), 201(1)(A), (B).

[¶22] Contrary to Cummings’s argument, the repeated stabbing that is

reflected in the evidence here could be directly probative of whether

Cummings’s actions manifested a depraved indifference to the value of human

life. See id. § 201(1)(B). It was exclusively within the jury’s province to decide

whether Cummings intended to kill Fecteau, was aware that his conduct

would practically certainly result in Fecteau’s death, or killed Fecteau through

conduct manifesting a depraved indifference to the value of human life. See id.

§§ 35(1)(A), (2)(A), 201(1)(A), (B). As we have held, “the alternative theories

of committing murder, through either intentionally or knowingly causing the

death of another or by engaging in conduct that manifests a depraved
12

indifference to the value of human life and that in fact causes the death of

another, are permissible alternatives and not separate offenses.” Erskine,

2006 ME 5, ¶ 19, 889 A.2d 312. The jurors need not unanimously agree on the

theory of murder that they found was proved. See id.

[¶23] The evidence presented here, taken in its entirety, could support

more than one theory of murder. Specifically, a juror could rationally find—

based on the evidence presented—that Cummings stabbed Fecteau repeatedly

(1) with the conscious object to cause Fecteau’s death, (2) with the knowledge

that Fecteau’s death was practically certain to result from his conduct, or

(3) without intent or knowledge but manifesting a depraved indifference to

the value of human life. 17-A M.R.S. §§ 35(1)(A), (2)(A), 201(1)(A), (B).

A juror finding that the stabbings did not demonstrate a knowing or

intentional murder could nonetheless find, for instance, that Cummings

intended to incapacitate Fecteau to facilitate the burglary, or had a frenzied

reaction to Fecteau waking up during the burglary, and repeatedly stabbed

him, which, “objectively viewed, created such a high tendency to produce

death that the law attributes to [the defendant] the highest degree of

blameworthiness.” Saenz, 2016 ME 159, ¶ 23, 150 A.3d 331 (quotation marks

omitted); see 17-A M.R.S. § 201(1)(B).
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[¶24] In sum, depraved indifference murder was properly charged as

an alternative to intentional or knowing murder in a single count, see Erskine,

2006 ME 5, ¶ 19, 889 A.2d 312, and the evidence was sufficient to support any

of the alternative theories of murder. We discern no error in the jury

instructions or the resulting jury verdict and conviction.

The entry is:

Judgment affirmed.

Tina Heather Nadeau, Esq. (orally), The Law Office of Tina Heather Nadeau,
PLLC, Portland, for appellant Roland L. Cummings

Janet T. Mills, Attorney General, and Donald W. Macomber, Asst. Atty. Gen.
(orally), Office of the Attorney General, Augusta, for appellee State of Maine

Kennebec County Superior Court docket number CR-2014-600
FOR CLERK REFERENCE ONLY