MAINE SUPREME JUDICIAL COURT                                      Reporter of Decisions
Decision: 2015 ME 62
Docket:   Ken-14-313
Argued:   April 7, 2015
Decided:  May 12, 2015

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



                                STATE OF MAINE

                                          v.

                                MARK P. MURPHY

JABAR, J.

         [¶1] Mark P. Murphy appeals from a judgment of conviction of elevated

aggravated assault (Class A), 17-A M.R.S. § 208-B(1)(A) (2014); elevated

aggravated assault (Class A), 17-A M.R.S. § 208-B(1)(B) (2014); and aggravated

assault (Class B), 17-A M.R.S. § 208(1)(A) (2014), entered by the trial court

(Marden, J.) after a jury-waived trial. Although Murphy raises several issues on

appeal, we focus on his arguments that (1) the court erred by failing to ensure that

he knowingly and voluntarily waived his right to testify on his own behalf, (2) the

evidence presented at trial compelled a conclusion that he was not criminally

responsible for his conduct, and (3) the court erred by sentencing him on

duplicative criminal charges for the same conduct in violation of constitutional

protections against double jeopardy. We vacate the judgment and remand to the
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trial court for consolidation of the three counts through entry of a single

conviction, and for entry of a sentence on the single charge.

                                I. BACKGROUND

      [¶2] “The following facts are drawn from the court’s written judgment, as

supported by the record, viewing the evidence in a light most favorable to the

State . . . .” State v. Gurney, 2012 ME 14, ¶ 2, 36 A.3d 893.

      [¶3] Mark Murphy was involuntarily committed to Riverview Psychiatric

Center (Riverview) in 2006. He was later diagnosed with schizoaffective disorder,

post-traumatic stress disorder, personality disorder, and bipolar disorder with

psychosis.

      [¶4] On March 15, 2013, Murphy was informed that his usual weekend trip

to visit his parents was cancelled due to Riverview’s staff’s concerns about

Murphy’s increasing paranoia and delusional thinking. Murphy responded to the

revocation of his “pass” with anger and frustration, as he “felt that the

postponement was arbitrary and punitive.”

      [¶5] The next day, March 16, Murphy asked to review his medical records,

to go on an unsupervised walk, and to Skype with his parents. A Riverview nurse

instructed him on how to make a formal request for his medical records, which

Murphy did, and told him that he would not be allowed to go on a walk or go to the

computer lab unsupervised. These are privileges Murphy would normally have,
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but the nurse did not allow them because she had safety concerns. Murphy went to

his room without incident.

      [¶6] A short while later, the victim, a Riverview mental health worker,

conducted a resident check on Murphy’s floor. Murphy had, in the past, said that

he did not like the victim and did not want her on his floor. Murphy came out of

his room, saw the victim, and then turned and entered the bathroom. As the victim

went to check the bathroom, she felt someone breathing down her neck behind her.

She turned and saw Murphy standing directly behind her. Murphy said, “I’m

sorry,” and began stabbing the victim with the tip of a pen. Murphy continuously

struck the victim as she lay in the fetal position, covering her face with her hands.

      [¶7] Another Riverview worker ran over to help as Murphy knelt on the

ground and continuously swung at the victim. Murphy inadvertently struck the

other worker with his elbow as he swung at the victim, knocking the other worker

to the floor. Murphy, who had threatened the other worker with physical violence

in the past, then turned and started to come toward her before another Riverview

patient was able to subdue him.

      [¶8] Murphy was restrained and placed in a seclusion room. He appeared

angry and was aggressive and hostile toward Riverview staff. Days after the

assault, Murphy expressed his rage at Riverview staff for having revoked his

privileges, and particularly blamed the staff for cancelling his visit with his
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parents. As late as four days after the assault, Murphy angrily denounced the

unfairness of his being denied a pass, and referred to the pass system as “a game.”

He did not, at that time, offer any explanation for the attack, and he told his

psychiatrist that he did not recall the incident.

      [¶9] The victim sustained injuries to her forehead, face, and hand, and had

visible scarring at the time of trial. She underwent surgery and, at the time of trial,

was engaged in therapy to regain strength in her hand.

      [¶10] On April 17, 2013, Murphy was indicted on two counts of elevated

aggravated assault and one count of aggravated assault. Count I alleged that

Murphy “intentionally or knowingly cause[d] serious bodily injury . . . with the use

of a dangerous weapon, a pen.” See 17-A M.R.S. § 208-B(1)(A). Count II alleged

that he “engage[d] in conduct that manifested a depraved indifference to the value

of human life and . . . caused serious bodily injury . . . with the use of a dangerous

weapon, a pen.” See 17-A M.R.S. § 208-B(1)(B). Count III alleged that he

“intentionally, knowingly, or recklessly cause[d] serious bodily injury to [the

victim].” See 17-A M.R.S. § 208(1)(A).

      [¶11] In June, during meetings with a forensic psychologist, Dr. Andrew

Wisch, and a forensic psychiatrist, Dr. Carlyle Voss, Murphy reported for the first

time that he had attacked the victim because he wanted to marry her but, because

she was already married, knew he could not. He told the forensic examiners that,
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because the victim’s vows included “’til death do you part,” he decided that he

could marry her if he killed her and then brought her back to life. He explained

that when he went into the bathroom just before the assault, he observed a clogged

toilet and interpreted that as a sign that he had to go through with the assault. He

said that he had apologized to the victim because he knew he was taking her away

from her husband.

      [¶12] Murphy pleaded not criminally responsible by reason of insanity, see

17-A M.R.S. § 39 (2014), and a bench trial was held on October 1, 2013.

      [¶13] At trial, Wisch testified that he was skeptical of Murphy’s explanation

for the assault because the circumstances did not corroborate Murphy’s reported

motivation for attacking the victim. Wisch testified that there was no evidence that

Murphy was misperceiving reality or was unaware of what he was doing at the

time of the assault, pointing particularly to the fact that he said “I’m sorry” right

before the attack. Wisch stated that this, as well as other interactions Murphy had

had with Riverview staff throughout the day, was indicative of reality-based

thinking on Murphy’s part. He testified that “the most prominent theme” both

before and after the assault was Murphy’s anger toward the staff for revoking or

delaying his privileges.   Wisch opined that the circumstances suggested that

Murphy had the capacity to appreciate the wrongfulness of his actions at the time

of the assault.
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      [¶14] The State rested after Wisch’s testimony. The court, cognizant of

timing, asked Murphy’s counsel how many witnesses he intended to call.

Murphy’s counsel replied, “Just Dr. Voss, Your Honor.” Murphy’s counsel then

called Voss to the stand.

      [¶15] Voss opined that, at the time of the attack, Murphy was having

psychotic delusions that impaired his ability to appreciate the wrongfulness of his

actions. Voss testified that Murphy’s mental state had been deteriorating in the

week before the assault, and that Murphy had been having psychotic perceptions

including paranoia about the staff interfering with his food. He testified that, in his

opinion, it was not Murphy’s anger about his privilege revocation that led to the

assault, but rather Murphy’s psychotic delusions. After Voss’s testimony, the

defense rested.

      [¶16] On January 23, 2014, the court issued a written judgment finding

Murphy guilty of all three counts. The court found that Murphy’s explanation was

“simply an attempt to create some psychotic explanation for a fit of anger,” and

concluded that Murphy “presented insufficient evidence that it is more likely than

not that at the time of the attack [he] was suffering from a severely abnormal

mental condition that grossly and demonstrably impaired his perception or

understanding of reality.” See 17-A M.R.S. § 39(2). The court sentenced Murphy

to fifteen years in prison, all but ten years suspended, and two years of probation
                                                                                7

on Count I; a concurrent five-year sentence, all suspended, and two years’

probation on Count II; and a concurrent two-year sentence, all suspended, and two

years’ probation on Count III. Murphy appeals to us from the conviction and the

sentence. See 15 M.R.S. § 2115 (2014); M.R. App. P. 2(b)(2)(A). The Sentence

Review Panel denied leave to appeal from the sentence.

                                 II. DISCUSSION

      [¶17]     We are unpersuaded by Murphy’s argument that there was

insufficient evidence of “serious bodily injury” to sustain an assault conviction,

17-A M.R.S. §§ 208(1)(A), 208-B(1)(A)-(B); see also 17-A M.R.S. § 2(23) (2014),

and do not discuss this argument further. We focus on Murphy’s arguments that

the court failed to ensure that he knowingly and voluntarily waived his right to

testify, that the evidence compelled a determination that he was not criminally

responsible, and that the court unconstitutionally sentenced him on duplicative

charges for a single incident.

A.    Waiver of Right to Testify

      [¶18] Murphy argues that, because the record is silent as to whether he was

aware of his right to testify and as to whether he waived that right personally or

through counsel, we must presume that there was no voluntary or intentional

waiver. We review “the ultimate issue of waiver” de novo. State v. Ericson,

2011 ME 28, ¶ 15, 13 A.3d 777 (quotation marks omitted).
8

       [¶19] We have recognized that “waiver of the right to testify is a flexible

concept that may be determined from the totality of all the circumstances, but that

must also be balanced with the privilege against self-incrimination because the

waiver of one is ‘essentially an election of the other.’” State v. Ford, 2013 ME 96,

¶ 19, 82 A.3d 75 (quoting State v. Tuplin, 2006 ME 83, ¶ 16, 901 A.2d 792).

       [¶20] In Ford, we required “that the record demonstrate that unrepresented

defendants are aware of and [understand] their right to testify as well as their

correlative right not to testify.” Id. ¶ 20 (alterations omitted) (quotation marks

omitted). Recognizing that it is a lawyer’s duty to advise a client as to his or her

rights, we declined to require trial courts to extend the same practice to represented

defendants. Id. ¶¶ 20-21. In the absence of evidence to the contrary, we assume

that represented clients were properly advised of their right to testify. Id. ¶ 21.

       [¶21] We decline to adopt the bright-line rule Murphy urges on appeal.

Because Murphy was represented by counsel and because the record does not

indicate otherwise, we assume that he was apprised of his constitutional right to

testify. In these circumstances, the trial record need not demonstrate an express

waiver for us to conclude that Murphy voluntarily and intentionally waived his

constitutional right to testify.
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B.    Sufficiency of Evidence of Mental Disease or Defect

      [¶22] Relying primarily on Dr. Voss’s testimony, Murphy argues that the

evidence compelled a determination that he was not criminally responsible for the

assault by reason of insanity. See 17-A M.R.S. § 39. In considering a challenge to

the sufficiency of the evidence, “[w]e review the evidence, and any reasonable

inferences that may be drawn from it, most favorably to the result reached by the

trial court.” Gurney, 2012 ME 14, ¶ 44, 36 A.3d 893.

      [¶23] Pursuant to 17–A M.R.S. § 39(1), “[a] defendant is not criminally

responsible by reason of insanity if, at the time of the criminal conduct, as a result

of mental disease or defect, the defendant lacked substantial capacity to appreciate

the wrongfulness of the criminal conduct.” “‘[M]ental disease or defect’ means

only those severely abnormal mental conditions that grossly and demonstrably

impair a person’s perception or understanding of reality.”         Id. § 39(2).    To

successfully assert the defense, a defendant must prove by a preponderance of the

evidence that he was not criminally responsible by reason of insanity. Gurney,

2012 ME 14, ¶ 45, 36 A.3d 893.

      [¶24] “Whether a defendant proved that he was not criminally responsible is

a question of fact for the fact-finder.” Id. ¶ 46. “When the court . . . has made a

factual finding adverse to the party with the burden of proof, we will overturn the
10

trial court’s finding only if the record compels a contrary conclusion.” Id.

(quotation marks omitted).

      [¶25] It was within the purview of the court to resolve any factual issues

and determine whether Murphy proved by a fair preponderance of the evidence

that he lacked the requisite capacity to be criminally responsible for his conduct,

and Murphy’s commitment to Riverview did not give rise to any presumption of

mental incapacity that would excuse him from criminal responsibility. See State v.

Gatcomb, 389 A.2d 22, 25-26 (Me. 1978). Further, the court was free to accept or

reject the opinions of the competing experts, Dr. Wisch and Dr. Voss.

      [¶26] It was not error for the court to accept Dr. Wisch’s testimony that

Murphy’s actions derived from anger and not, as Dr. Voss testified, from mental

disease or defect. The record does not compel a contrary conclusion.

C.    Double Jeopardy

      [¶27] The record demonstrates that the State charged Murphy with multiple

counts “not to charge separate criminal acts, but as alternative charges for the same

criminal act.” State v. Robinson, 1999 ME 86, ¶ 12, 730 A.2d 684. Although

M.R. Crim. P. 7(c) allows for alternative charging when the same criminal act may

have been completed in several ways, charging a defendant with multiple crimes

for the same criminal act implicates the defendant’s right to be free from double
                                                                                   11

jeopardy as guaranteed by U.S. Const. amend. V and Me. Const. art. I, § 8. Id.

¶¶ 12, 14.

      [¶28] When, as here, the State presents its alternative charging theories as

multiple counts based on one criminal act, “court action to consolidate the

duplicative counts is appropriate to assure that a person cannot be convicted or

punished more than once for the same criminal act.” Id. ¶ 13. Although it is clear

from the record that the court contemplated that it was sentencing Murphy for a

single incident, and not three separate assaultive acts, the court did not consolidate

the duplicative counts prior to entering its judgment of conviction or its sentence.

There must be a single operative charge upon which Murphy was convicted and

that provides the basis for the court’s sentence. Because we cannot be certain

which of the three counts the trial court would select as the operative charge, we

remand to the trial court for identification of the single count of which Murphy was

convicted, dismissal of the remaining two counts, and entry of a final sentence on

the merged charge.

      The entry is:

                      Judgment vacated. Remanded to the Superior
                      Court for entry of a judgment of conviction of a
                      single consolidated charge and sentence on the
                      single consolidated charge.
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On the briefs:

        Scott F. Hess, Esq., Law Office of Scott F. Hess, LLC,
        Augusta, for appellant Mark Murphy

        Maeghan Maloney, District Attorney, and Fernand LaRochelle,
        Dep. Dist. Atty., Kennebec County District Attorney, Augusta,
        for appellee State of Maine


At oral argument:

        Scott F. Hess, Esq., for appellant Mark Murphy

        Maeghan Maloney, District Attorney, for appellee State of
        Maine



Kennebec County Superior Court docket number CR-2013-247
FOR CLERK REFERENCE ONLY
