State v. Moulton

• Decision Date: 16 August 1984
• Parties: STATE of Maine v. Perley MOULTON, Jr.
• Court: Maine Supreme Court

Page 155

481 A.2d 155

STATE of Maine v. Perley MOULTON, Jr.

Supreme Judicial Court of Maine.

Argued May 10, 1984.

Decided Aug. 16, 1984.

John R. Atwood, Dist. Atty., William R. Anderson (orally), Asst. Dist. Atty., Belfast, for the State.

Anthony W. Beardsley (orally), Ellsworth, for defendant.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, WATHEN, GLASSMAN, and SCOLNIK, JJ.

McKUSICK, Chief Justice.

Defendant Perley Moulton, Jr. appeals from his convictions for theft, 17-A M.R.S.A. § 353 (1983) (Class B), burglary, 17-A M.R.S.A. § 401 (1983) (Class C), and theft, Class C, entered after a jury-waived trial in Superior Court (Waldo County). Defendant argues that the Superior Court erred by admitting in evidence 1) the results of a search of the garage premises in Belfast used by defendant and 2) a recording made by the police of defendant's conversations with a co-defendant who was wearing a body wire transmitting device. We reject his appeal as to the search and seizure issue, but agree that the Superior Court should have excluded the evidence obtained by the body wire recordings.

The State appeals from orders of the Superior Court that dismissed three counts of theft against Moulton for lack of proper venue. We agree with the State and remand those counts of theft for restoration to the docket.

In April 1981, a Waldo County grand jury indicted Perley Moulton and Gary Colson on three felony counts of theft by receiving two trucks and some auto parts, in addition to a misdemeanor count of theft by receiving an automobile. Moulton moved to suppress evidence seized as a result of a search of the garage premises formerly occupied by the auto dealership of Belfast Dodge. ¹ By order dated February 11, 1982, the Superior Court denied the motion to suppress as to most of the items involved.

During November and December 1982, meetings were held between co-defendant Gary Colson and Belfast police officers which resulted in a tap being placed on Colson's phone and a wire placed on his body to transmit an in-person conversation Colson had with Moulton. The recordings from the body wire produced additional evidence later used against Moulton.

On January 21, 1983, a Waldo County grand jury handed down seven indictments against Moulton. Since the new indictments covered the incidents alleged in the original indictments as well as several new charges, the original indictments against Moulton were subsequently dismissed. Moulton moved to suppress the statements recorded by Gary Colson and again moved to suppress the evidence seized as a result of the search at Belfast Dodge. On June 14, 1983, a different Superior Court justice denied the motion as to the statements made to Colson, and on September 2, 1983, that justice denied the motion as to the Belfast Dodge search on the ground that the issue had already been decided in the February 11, 1982, order.

The seven indictments were disposed of as follows. The Superior Court accepted defendant's guilty pleas on two indictments for theft (Docket Nos. CR-83-10, 11). Without trial, the court dismissed two indictments for theft (Docket Nos. CR-83-12, 14) for improper venue. On September 6-8, 1983, a jury-waived trial on all the other indictments was held in Superior Court. At the conclusion of the trial, on motion of defendant's counsel, the court dismissed one of the indictments for theft for improper venue (Docket No. CR-83-15). Defendant was found guilty of both theft and burglary (Class C) as charged in two counts in Docket No. CR-83-13 and of theft (Class B) as charged in Docket No. CR-83-16; and he now appeals those convictions. The court found defendant not guilty of the arson charge (Docket No. CR-83-16).

I. State's Appeal: Venue

The three indictments dismissed on venue grounds involved similar fact patterns. In each, the indictment charged that Moulton "did obtain or exercise unauthorized control over the property of another," to wit, three motor vehicles. Moulton allegedly took each vehicle in Penobscot County and brought them into Waldo County.

These indictments track the language of 17-A M.R.S.A. § 353 (1983), which provides:

A person is guilty of theft if he obtains or exercises unauthorized control over the property of another with intent to deprive him thereof.

The Superior Court ruled that, in each case, a completed theft under section 353 occurred prior to the time Moulton brought the vehicles into Waldo County. The crime defined in section 353, however, has a continuing nature and Moulton would continue in violation of section 353 when he took a stolen vehicle into another county. See Crosby v. State, 232 Ga. 599, 600, 207 S.E.2d 515, 517 (1974); Brown v. State, 281 So.2d 924, 927 (Miss.1973). As we said in Mayo v. State, 258 A.2d 269, 270 (Me.1969), "[i]f goods are stolen in one county and carried by the thief into another county, he may be prosecuted for the crime in either county." In such circumstances, the crime of theft is committed in both counties and, by M.R.Crim.P. 18, the State may choose the county in which to prosecute. ² People v. Jennings, 10 Cal.App.3d 712, 89 Cal.Rptr. 268 (1970); State v. Bassett, 86 Idaho 277, 284-85, 385 P.2d 246, 250 (1963); Jones v. Commonwealth, 453 S.W.2d 564 (Ky.1970); 22 C.J.S. Criminal Law § 185(18), at 480 (1961).

We therefore sustain the State's appeal of the dismissal of the three charges of theft for want of proper venue. As a consequence, we remand those cases to the Superior Court for further proceedings. There is no double jeopardy problem with a retrial in Docket No. CR-83-15, which was dismissed at the conclusion of trial. The Superior Court ordered dismissal of that charge on defendant's motion. Before granting defendant's motion the Superior Court made certain that defendant and his counsel understood that dismissal would render defendant subject to prosecution on the same charge in Penobscot County. By seeking dismissal, defendant must run the risk that the State might prevail on appeal, thereby permitting a retrial. See United States v. Scott, 437 U.S. 82, 99-100, 98 S.Ct. 2187, 2198, 57 L.Ed.2d 65 (1978) (dismissal after full trial, on the defendant's motion, for pre-indictment delay).

II. Defendant's Appeal

A. Recorded statements

At trial the State introduced in evidence a recording of a conversation between co-defendants Gary Colson and Perley Moulton. The Superior Court, in a pretrial suppression hearing, had found that the manner in which the police made this recording did not violate Moulton's sixth amendment right to counsel. We reverse.

On November 4, 1982, Gary Colson called Police Chief Keating and said that he had been receiving threats regarding the criminal charges pending against Colson and Moulton. On November 6, 1982, Colson met with Moulton, at which meeting Moulton allegedly revealed his plans to kill Gary Elwell, a State's witness. Twice within the next four days, Colson met with Chief Keating and Officer Rexford Kelley. Colson discussed the threats he had received from someone other than Moulton, as well as Moulton's plans to kill Elwell and to threaten other witnesses. Chief Keating had previously been informed that other witnesses in the Moulton case had reported receiving threatening phone calls. With Colson's consent, Chief Keating placed a recording device on Colson's phone. Colson recorded three telephone conversations he had with Perley Moulton. ³ Gary Colson also arranged to meet Moulton in late December, 1982. In preparation for this meeting, Chief Keating provided Colson with a body wire transmitter. By Colson's use of the body wire, the police were able to record Colson's conversation with Moulton. That lengthy conversation focused on the upcoming trial on the charges against Moulton and Colson. During the conversation Moulton made several incriminating statements that were later used against him at trial.

The sixth amendment requires suppression of an accused's statement if, after the initiation of adversary proceedings, the State, or its agent, has deliberately elicited an incriminating statement, see Massiah v. United States, 377 U.S. 201 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964), or the State has intentionally created a situation "likely to induce a defendant to make incriminating statements," see United States v. Henry, 447 U.S. 264, 274, 100 S.Ct. 2183, 2189, 65 L.Ed.2d 115 (1980); State v. White, 460 A.2d 1017, 1021 (Me.1983). The Superior Court found that the State did not deliberately elicit or create a situation likely to induce Moulton to make incriminating statements. On appeal, the justice's ruling on this issue "will be upheld if 'the evidence in the record provides rational support for the conclusions he reached'." Id. (quoting State v. Bleyl, 435 A.2d 1349, 1358 (Me.1981)).

In its ruling the Superior Court focused upon the motives of the Belfast police officers who dealt with Colson in setting up the body wire recording system. The Superior Court found that the recordings were made "for legitimate purposes not related to the gathering of evidence concerning the crime for which the defendant had been indicted." On our review, we find ample evidence that supports this conclusion. Chief Keating was concerned about Colson's safety and about gathering information relating to possible threats made against other witnesses in the case against Moulton.

Although, as the police knew, Moulton was represented by counsel and had exercised his right to remain silent, the police were free to gather information via the body wire regarding possible crimes, such as the threats against witnesses, not already the subject of judicial proceedings. See United States v. DeWolf, 696 F.2d 1 (1st Cir.1982). However, the State's valid purpose in investigating other criminal activity cannot remove from constitutional scrutiny evidence thereby uncovered that relates to alleged criminal acts for which the right to counsel has already attached. As explained in...