State v. Carr

• Decision Date: 24 November 1997
• Citation: 704 A.2d 353
• Court: Maine Supreme Court
• Parties: STATE of Maine v. Christopher A. CARR.

Page 353

704 A.2d 353

1997 ME 221

STATE of Maine v. Christopher A. CARR.

Supreme Judicial Court of Maine.

Argued Oct. 6, 1997.

Decided Nov. 24, 1997.

Stephanie Anderson, District Attorney (orally), Julia Sheridan, Asst. Dist. Atty., Portland, for the State.

David Beneman (orally) Levenson, Vickerson & Beneman, Portland, for defendant.

Before WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.

WATHEN, Chief Justice.

¶1 Defendant Christopher Carr appeals from the judgments entered in Superior Court (Cumberland County, Crowley, J.) after a jury verdict finding him guilty of three counts of arson, four counts of attempted murder, one count of aggravated criminal mischief, and one count of violating a protective order. On appeal, defendant challenges the sufficiency of the indictment, the court's suppression ruling, an evidentiary ruling, the sufficiency of the evidence, and the sentences. We find that one of the arson counts in the indictment is insufficient. We vacate the judgment on that single count, affirm the judgments on the remaining counts, and remand for resentencing.

¶2 The facts presented at trial may be summarized as follows: Defendant and his wife were separated and involved in divorce litigation that included a dispute over the custody of their three-year-old son. The wife had petitioned for protection from abuse and received a protective order from the District Court. At approximately 2:00 a.m. on July 28, 1995, the Brunswick police and fire departments were notified of two fires at the wife's residence. She lived in a second floor apartment, in a four-unit, wood-framed building. A staircase extended from the ground to a porch on the second floor. One of the two doorways opening onto the porch provided the sole means of access to the wife's apartment. On the evening in question, the wife, her son, and her parents were sleeping in the apartment. They awoke to find a fire burning on the porch directly in front of their door. They observed another fire on the parents' truck parked at the foot of the stairway leading to the porch. They extinguished the fires and the wife called 911 from a neighbor's phone after finding that her phone had been rendered inoperable by the fire.

¶3 The State contended at trial that defendant set the fires in an effort to kill his wife, his three-year-old son, and his wife's parents. Fire investigators testified that there were two separate fires on the exterior of the building--one at the foot of the apartment door and one on the outside wall of the apartment. The burns on the wall suggested a flammable substance had been used to start the fire. The investigators testified that they believed the fires on the door and the wall were set before the truck was set on fire.

¶4 Defendant testified and admitted that he set fire to the truck, but maintained that the fire on the door and wall was accidental. He offered the explanation that the can of Coleman fuel he used as an accelerant to start the truck fire ignited in his hands and landed on the porch when he threw it aside. In an effort to remove it from the porch, he kicked it and it came to rest in front of the apartment door. He stated that he removed the can and attempted to stamp out the fire, but acknowledged that the status of the fire on the door and wall was at least uncertain when he left. He maintained that he had no intention of harming the occupants of the apartment. The jury returned a verdict of guilty on four counts of attempted murder, three counts of arson, ¹ one count of aggravated mischief, and one count of violating a protective order. Defendant was sentenced to 30 years, with all but 25 years suspended, on the attempted murder and arson counts.

Sufficiency of the Indictment

¶5 Defendant first argues that one of the three charges of arson set forth in the indictment is defective because it fails to allege an essential element of the crime charged. We agree. Count VI of the indictment alleges:

that on or about the Twenty-eighth day of July 1995 in the Town of Brunswick, County of Cumberland and State of Maine, the above-named defendant Christopher Carr did start, cause or maintain a fire or explosion which recklessly endangered the occupants therein.

Missing is the necessary allegation that defendant started a fire "[o]n his own property or the property of another." 17-A M.R.S.A. § 802(1)(B)(1) (1983 & Supp.1996). Although one of the other arson charges, Count V, refers to the apartment as "the property of another" and names the owner, each count stands alone and must aver the essential elements of the crime charged. State v. Pierce, 438 A.2d 247, 255-56 (Me.1981). We vacate the conviction on Count VI and remand with instructions to dismiss. ²

The Suppression Ruling

¶6 Prior to trial, defendant moved to suppress evidence obtained as a result of an investigatory stop of his vehicle and alternatively moved to suppress statements he later made to a police officer. At the suppression hearing, the State presented the testimony of Officer Ramsey of the Brunswick Police Department. Officer Ramsey responded to the 911 call and when he arrived, he found evidence of a vehicle fire and an apartment fire. He spoke with defendant's wife, and she identified defendant's handwriting from an inscription in the dirt near the truck that referred to her in derogatory terms. Based on his own knowledge of defendant's prior problems with his wife, Officer Ramsey dispatched an order for an officer to check and see if defendant was at his home. Officer Lever of the Bath Police Department responded to the radio dispatch. He was given defendant's address, a description of his vehicle, its registration number, and was told that defendant was a suspect in an arson case involving his wife. After checking defendant's home twice without success, Officer Lever saw defendant driving his vehicle toward his home. The officer turned on his blue lights and defendant stopped in his own driveway.

¶7 Defendant first maintains that Officer Lever did not have a reasonable and articulable suspicion to make an investigatory stop because the collective knowledge of the police was not communicated to him and he was not ordered to detain or question defendant. Reasonable and articulable suspicion to conduct an investigatory stop can rest on the collective knowledge of the police. State v. Gervais, 394 A.2d 1183, 1189 (Me.1978) (holding that collective knowledge of the police transmitted by radio dispatch justified stopping a vehicle). In dealing with related questions concerning the validity of warrantless arrests, we have noted that probable cause is evaluated from collective information known to the police rather than the personal knowledge of the arresting officer. State v. Smith, 277 A.2d 481, 488 (Me.1971). We have also noted that there may be cases "in which certain police information could not be considered as supportive of probable cause if not communicated." We went on to observe, however, that this "rule must be applied on a case-by-case basis." State v. Parkinson, 389 A.2d 1, 8 at n. 8 (Me.1978).

¶8 Although the radio communication did not explicitly instruct the officer to detain defendant, it did so implicitly. The officer was told that defendant was a suspect in an arson involving his wife. When he passed defendant driving down the street, the officer did not know if defendant would stop or attempt to leave. It was reasonable for the officer to conclude from the radio dispatch that he was to stop defendant if necessary.

¶9 Because an investigative stop is justified on the basis of the collective knowledge of the police, and because an order to stop defendant was reasonably inferred by the officer, the court did not err in determining the officer had a reasonable and articulable basis for stopping defendant's vehicle. See State v. Eastman, 1997 ME 39, 691 A.2d 179.

¶10 Defendant next argues that once Officer Lever stopped his vehicle and requested information from him, he was subjected to custodial interrogation. He argues that because he was not given an immediate Miranda warning, his subsequent statements to the police, including those which were obtained at the police station after he was properly advised of his rights, should have been suppressed. A Miranda warning is required only if a defendant is in custody and subject to interrogation. State v. Powell, 640 A.2d 209, 210 (Me.1994) (citing State v. Cumming, 634 A.2d 953,...