State v. Carter

• Decision Date: 26 September 1978
• Citation: 391 A.2d 344
• Parties: STATE of Maine v. Chester Maynard CARTER, Jr. and Paul Dennis Shiplett.
• Court: Maine Supreme Court

Page 344

391 A.2d 344

STATE of Maine v. Chester Maynard CARTER, Jr. and Paul Dennis Shiplett.

Supreme Judicial Court of Maine.

Sept. 26, 1978.

Henry N. Berry, III, Dist. Atty., Peter G. Ballou, Deputy Dist. Atty., Richard Kelly, Asst. Dist. Atty., Portland, Stephen Moriarty, Law Student (orally), for plaintiff.

McTeague, Higbee & Tierney by Ralph L. Tucker, Brunswick (orally), for defendant Carter.

Bernstein, Shur, Sawyer & Nelson by Peter J. Rubin, Portland (orally), for defendant Shiplett.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.

GODFREY, Justice.

Appellant Chester Carter was charged by indictment with robbery while armed with a dangerous weapon under 17-A M.R.S.A. § 651(1) and with aggravated assault under 17-A M.R.S.A. § 208. ¹ Appellant Paul Shiplett was indicted only on the robbery charge. After a joint trial, both appellants were found guilty by a jury and convicted.

I.

Appellants urge that the trial court erred in denying their motion to suppress evidence which was the product of the search of the car appellants were using and the arrest of appellants. The following facts concerning the arrest and search were before the court. Portland Police Officer Walton related facts brought to his attention a few minutes after 7:00 p. m. and about twenty-five minutes before sighting appellants:

"We were broadcast from the Dispatcher's office that an armed robbery had taken place at Judy's Market on Brown Street in Westbrook. The subjects were described as two white males, one 5'8 -5'10 , the other subject 6', heavy built. The vehicle described was a blue Chevrolet around a 1970."

The robbery had taken place at about 6:45 in the evening. At 7:30 p. m. Officer Walton noticed a blue car with two occupants parked across the street from Eddie's Variety on Auburn Street in Portland. The car was parked in a no-parking area though Eddie's has parking for twenty cars. As he drove by the car, Officer Walton noticed the occupants staring at him. Officer Walton stepped on his brake to find out their reaction, and they drove off toward the city.

Officer Walton turned his car around and followed the automobile. When it turned off into a gas station, he parked his cruiser in a driveway obliquely opposite the station to observe the appellants in their car. He noticed the passenger bend over in the front seat of the automobile as if to stuff something under the seat. He also saw that the driver wore glasses. He had received additional information over the police radio that one holdup suspect from the Westbrook incident wore glasses. He also learned that the robbery suspect had used a handgun. After the car resumed travel on Auburn Street, Officer Walton stopped it.

Appellant Carter was removed from the driver's seat, questioned but not frisked, and locked in the police cruiser. Appellant Shiplett was removed from the car, and the police officers searched under the passenger's seat and found a handgun. Appellants were arrested and the car was impounded. At police headquarters additional items, including two stockings, were removed from the car.

Before trial appellants moved to suppress the items taken from the car at the scene of the stop and at the police station. The motion was denied. On appeal appellants assert that the trial court erred in finding probable cause for the search. Appellants concede that if the search that produced the gun was lawful then the subsequent search of the car was lawful.

In reviewing a determination of probable cause, we will not set aside the trial court's finding unless it is clearly erroneous. State v. Parkinson, Me., 389 A.2d 1 (1978). Probable cause for the warrantless search of an automobile exists when facts are known that would entitle a reasonable and cautious person to believe that the search would disclose criminal conduct or items that would aid in identifying or establishing the commission of a crime. State v. Walker, Me., 341 A.2d 700, 703 (1975). A warrant is not required for search of an automobile on the road if there is probable cause to believe it is carrying contraband. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

The trial court's finding of probable cause to search was not clearly erroneous. The testimony revealed similarity between appellants' vehicle and that involved in the Westbrook robbery less than an hour earlier. The officer testified concerning numerous suspicious activities by appellants including the apparent stuffing of something under the seat of the car. The trial court had the opportunity to observe Officer Walton as he testified and to assess his accuracy and his ability to observe those details. The trial court did not commit reversible error in denying the motion to suppress.

II.

Appellants allege two errors in the trial court's instructions to the jury. Their challenge to the instruction on the meaning of "dangerous weapon" as used in the applicable version of 17-A M.R.S.A. § 651(1) (Supp.1976), has been resolved in the State's favor by State v. Frye, Me.,390 A.2d 520 (1978). They also assert that the court should have instructed the jury it had to find the stolen property belonged to Rita LaChance as alleged in the indictment. The testimony at trial indicated that although the property was taken from Rita LaChance she was merely an employee of Judy's Cash and Variety and not the owner of the cash in the register. However, 15 M.R.S.A. § 752 (1964) excuses this variance. See State v. Kimball, Me., 359 A.2d 305 (1976).

III.

The other issue on appeal requiring discussion is appellants' challenge to the sufficiency of the evidence. Both appellants moved for a judgment of acquittal at the close of the State's case and after trial. All motions were denied and appellants now ...