State v. Boutot

• Citation: 325 A.2d 34
• Parties: STATE of Maine v. Edward R. BOUTOT.
• Decision Date: 05 September 1974
• Court: Supreme Judicial Court of Maine (US)

Page 34

325 A.2d 34

STATE of Maine v. Edward R. BOUTOT.

Supreme Judicial Court of Maine.

Sept. 5, 1974.

Vernon I. Arey, Malcolm L. Lyons, Asst. Attys. Gen., Augusta, for plaintiff.

Fitzgerald, Donovan & Conley, P.A. by Duane D. Fitzgerald, J. Michael Conley, III, Bath, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

WEATHERBEE, Justice.

At about 10:30 on the night of September 13, 1971, Mrs. Morehead had just returned to her residence in Freeport with two male guests when the Defendant, a jealous suitor, made a sudden and unwelcome appearance in her living room. When Mrs. Morehead asked the Defendant to leave, he struck her in the face with his fist and then shot both of the guests with a .22 semi-automatic pistol which he was carrying. Mr. Garrett was hit four times in the chest and died immeditely. Mr. Butler was shot once in the chest and survived. The Defendant took their billfolds from the two fallen men and also took the keys to Mr. Butler's car. He then forced Mrs. Morehead to go with him in Mr. Butler's car. Mr. Butler recovered sufficiently to enable him to telephone the police. The Defendant and Mrs. Morehead were stopped by police in Brunswick soon after midnight. When the Defendant was unable to produce the registration to the car, the officers told him to get out of the vehicle. As he did so, the Defendant told the officers, 'I'll make it easier for you. There is a gun under the front seat.' The Defendant was arrested and the officers later searched the car and seized the gun.

The Defendant was indicted for felonious homicide in the penalty degree of murder in the death of Mr. Garrett and for assault with intent to kill for his shooting of Mr. Butler. The two charges were consolidated for trial in the Cumberland County Superior Court. Mrs. Morehead and Mr. Butler testified as to the events surrounding the shootings and a ballistics expert testified that three of the four bullets found in Mr. Garrett's body had been fired from the gun (damage to the fourth bullet made identification impossible) which was found under the driver's seat of the car in which the Defendant left the scene of the crimes. Medical evidence established that death resulted to Mr. Garrett when three bullets pierced the victim's heart and one struck his aorta.

The Defendant did not testify. He presented several witnesses whose testimony was concerned mainly with the events of Mrs. Morehead's relationship with the Defendant and with Mr. Butler during her husband's absences on naval duty and with the large quantities of alcoholic beverages consumed by all the parties on the day of the shootings.

The Justice refused to submit the issue of voluntary manslaughter to the jury. He gave the jury the option of three possible verdicts as to Mr. Garrett's death-guilty of felonious homicide in the penalty degree of murder, guilty of involuntary manslaughter and not guilty. He reduced the charge as to the Defendant's attack on Mr. Butler to assault of a high and aggravated nature. The Defendant was a beneficiary of the jury's remarkable compassion and was found guilty of involuntary manslaughter as to Mr. Garrett's death and of simple assault upon Mr. Butler.

The Defendant has appealed both convictions, claiming as errors (1) the refusal of the Justice to suppress evidence of the gun which was found by a search of Mr. Butler's car and (2) the manner in which the Justice's instructions to the jury dealt with the principle of self-defense.

The refusal of the Justice to suppress evidence of the gun found in a search of Mr. Butler's car

The Presiding Justice conducted a hearing on the Defendant's Motion to Suppress before the trial commenced. Throughout this hearing the State insisted that the Defendant had no right to lawful possession of the car and, thus, had no standing to object to the search. The Defendant took the position that the Defendant's possessory status as to the car was irrelevant.

After hearing the testimony of several witnesses, the Justice denied the motion to suppress 'upon the authority of Chambers v. Maroney, 399 U.S. 42 (1970)'. ¹ He made no ruling as to the Defendant's standing to object. The trial then commenced and the testimony of several witnesses was heard by the jury. Some of this testimony suggested the existence of additional facts which might be relevant to the validity of the search. The Justice then excused the jury, reopened the suppression hearing and received additional testimony from several witnesses. At its conclusion he again ruled that the search was valid under the principles announced by Chambers v. Maroney, supra. As befofe, he made no ruling as to the State's contention that the Defendant lacked standing to object to the validity of the search. The gun was admitted into evidence.

The final ruling which the Justice made on the motion to suppress was based upon testimony which had been presented to him during the first suppression hearing, the completed portion of the trial and the second suppression hearing. This consisted of the testimony of the surviving victim, Mr. Butler, of various police officers who had examined the scene of the shooting, who had participated in the stopping and securing of Mr. Butler's car and who arrested the Defendant, as well as medical and other testimony concerning the wounds suffered by the two victims. The testimony that the Justice had heard relevant to the suppression issue may be summarized as follows:

Mr. Butler testified concerning the Defendant's sudden appearance in Mrs. Morehead's house and the Defendant's immediate unexplained shooting of Mr. Butler and Mr. Garrett. He testified that as he lay on the floor, partially conscious, he heard Mrs. Morehead screaming and felt someone going through his back pocket and removing his wallet. And then he heard his car starting up and leaving. Both Mrs. Morehead and the Defendant had disappeared. When he was able to get to his feet, he called the police on the telephone and reported the incident. Then he walked out to the edge of the highway to await the arrival of the police.

The police testimony revealed that they found Mr. Butler, seriously wounded, at the highway and Mr. Garrett, dead inside the house, with several empty .22 cal. shells lying on the floor. The police learned from Mr. Butler the make and registration number of the car and the name of the Defendant. Roadblocks were established and at about midnight Mr. Butler's car was stopped by the police. Mrs. Morehead immediately jumped out of the car and ran to the police cruiser. When the Defendant was unable to produce a registration certificate to the car, the police ordered him out of the car and the Defendant then made the statement, 'I'll make it easier for you. There is a gun under the front seat.' The Defendant was arrested and taken from the scene and an officer was left to keep the car secure. During the interval before the car was towed away to a garage where it was locked to await the arrival of State Police specialists who searched it at about 4:30 a. m., two other police officers had opened the car door and leaned in to verify the presence of the gun under the front seat.

Mrs. Morehead testified very briefly at the first hearing to suppress. ² She said that upon the Defendant's sudden appearance at her home he struck her a severe blow in the face which dazed her. He took Mr. Butler's car keys which were lying on the dishwasher and forced her to go with him in the car, leaving Mr. Butler 'laying on the floor'. She testified that Mr. Butler had left the car with her for her use during that summer while he was overseas and she had permitted the Defendant to use the automobile on several occasions during that time. Upon Mr. Butler's arrival back in Maine, a week before, she had returned the car to him. Mr. Butler was not present at the time of the first hearing and it was stipulated that if he were present he would testify that he was the owner of the car; that he did not give the Defendant permission to use it; and that he did not give police permission to conduct a search of it. His testimony later at trial disputed none of these facts. There was no testimony, whatever, to the effect that the Defendant had any lawful authority to use Mr. Butler's car that night.

At the conclusion of the second hearing on the motion to suppress, the Justice again found that the police had adequate probable cause to search the car, that the search at 4:30 a. m. was a valid search under the principles announced by Chambers v. Maroney, supra, and that its validity was unaffected by the two prior limited searches. Again, the Justice made no reference to the State's contention that the Defendant lacked standing to object to the search.

This standing issue is properly before us. The State has persisted in this position throughout the hearing and the appeal. The fact that the Presiding Justice chose to base his denial of the motion on one of two alternate gounds urged by the State does not foreclose the State's contention as to the other ground. On this record, a finding that the search was valid carries no implication that the Justice must also have found that the Defendant had standing to raise the issue of validity.

The United States Supreme Court in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) examined the qualifications necessary to give a defendant standing to move to suppress as 'a person aggrieved by an unlawful search and seizure' under Rule 41(e) of the Federal Rules of Criminal Procedure, in the light of the Constitution's prohibition against unreasonable searches and seizures. The Court said:

'In order to qualify as a 'person aggrieved by an unlawful search and seizure' one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a...