State v. Carter

• Decision Date: 21 February 1980
• Parties: STATE of Maine v. Eugene CARTER.
• Court: Maine Supreme Court

Page 56

412 A.2d 56

STATE of Maine v. Eugene CARTER.

Supreme Judicial Court of Maine.

Feb. 21, 1980.

Michael D. Seitzinger (orally), Charles K. Leadbetter, Pasquale J. Perrino, Jr., Asst. Attys. Gen., Augusta, for plaintiff.

Butler & Bilodeau by William Thomas Hyde (orally), Wallace A. Bilodeau, Skowhegan, for defendant.

Before McKUSICK, C.J., and WERNICK, GODFREY, NICHOLS and GLASSMAN, JJ.

McKUSICK, Chief Justice.

A Superior Court jury (Somerset County) convicted defendant of criminal homicide in the second degree under 17-A M.R.S.A. § 202(1)(A)(Supp.1976) as it existed on the date of the offense, July 24, 1977. Defendant was sentenced to Maine State Prison for 50 years. On appeal he principally contends that the admission in evidence of the confession he had made after his indictment and prior to the appointment of counsel violated his sixth amendment right to counsel, notwithstanding his knowing and intelligent waiver of that right prior to making the confession. We, however, reject any per se rule that would make inadmissible any and all post-indictment confessions made in absence of counsel. Our review of the record reveals no reversible error in the conduct of defendant's trial, and accordingly we affirm his conviction.

For the purposes of considering defendant's claims on appeal, we need only briefly summarize the evidence presented to the jury. The partially decomposed body of eighteen-year-old Catherine Ann Pooler was found on August 8, 1977, buried in a shallow grave near the riding stable area of Camp Modin in Canaan. Some two weeks before, around 9:30 p. m. on July 24, 1977, two witnesses saw defendant walking with Cathy Pooler on Route 2 in the direction of Camp Modin road, some one or two miles distant. It was the last time that Cathy Pooler was seen alive.

Another witness, Laurie Ann Vigue, testified that around ten o'clock that evening she was in the vicinity of Camp Modin with a group of young people when she heard "a girl kind of screaming like, 'You're hurting me. Stop it.' " The screams appeared to be coming from the area of the riding stable. Glenn Schwartz, an employee of Camp Modin, testified that around 10:30 that evening he was driving a jeep on the camp road in the direction of Route 2 when he observed a young man walking toward him. The young man passed the jeep on the driver's side and his face was clearly visible in the headlights for six seconds. Schwartz gave a detailed description of the man in August, after the victim's body had been discovered, and later identified defendant as that person both out of court on the basis of photographs, composite drawings, and a lineup and in court at trial.

Among the other evidence against defendant at trial were the statements ¹ he made to police shortly after the body was found, admitting that he had been with Cathy Pooler on the evening in question but denying any knowledge of her death and specifically denying that he had been on the Camp Modin premises at any time that evening, in direct conflict with the later testimony of Schwartz. Finally, there was evidence of defendant's confession given both orally and in writing to Detective Parker of the Maine State Police within 24 hours of his arrest on February 23, 1978, two days after his indictment. ²

On October 2 and 3, 1978, a hearing was held in Superior Court on defendant's suppression motions concerning both the confession and Schwartz's identification testimony. The motions were denied. The trial that immediately followed resulted in a hung jury. On November 27-30, 1978, a second trial was had, resulting in the conviction now on appeal to this court.

Defendant's principal claim of error relates to the Superior Court's denial of his motion to suppress evidence of his confession, obtained by a police detective while he was in custody after arrest on indictment but prior to arraignment. In support of this contention he argues: (1) that his confession was not "voluntary" under the due process standard of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); (2) that he did not effectively waive his right to counsel according to the waiver standard of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and (3) that the right to counsel, made independently applicable to him by the sixth amendment, compels automatic exclusion of his confession since it was made after indictment without the presence of counsel.

Turning to the circumstances surrounding defendant's confession, the evidence adduced at the suppression hearing disclosed the following chain of events. Around noontime on February 23, 1978, defendant was taken into custody and transported to the Somerset County jail. Upon booking, he was given his Miranda warnings, declined to waive his rights, and was taken to a cell. No further attempt to interrogate was made that afternoon, and, contrary to one of his factual contentions on appeal, there was no evidence at the suppression hearing at which defendant himself testified that he at any time specifically requested to see a lawyer. Sometime after supper, however, defendant requested to speak with Detective Parker of the Maine State Police. Parker had known defendant for some time prior to the Pooler homicide and had been involved in the investigation. Earlier that afternoon, Parker had conducted a search of defendant's camp, with the latter's consent.

The detective arrived at the county jail around 8:00 that evening and found defendant waiting for him in the sheriff's office. Defendant requested Parker to sit and talk with him, but Parker left briefly to have supper, returning at 9:00 p. m. at defendant's request. Defendant wanted to learn from Detective Parker what the police had turned up in their search of his camp. After defendant indicated that he had stolen a CB radio that was at his camp, Parker immediately gave defendant his Miranda warnings and ascertained that he fully understood them. Defendant then affirmatively waived his rights, indicating that he wanted to continue talking and that he did not wish to have an attorney present.

For the next few hours, Parker and defendant discussed CB radios and "CB talk" and whatever else happened to be on defendant's mind. At 12:30 a. m., Parker suggested that it was getting late and told defendant he would come back in the morning to resume their discussion, but defendant urged him to remain, pointing out that he was used to staying up all night listening to his CB radio. Their conversation at this point concerned several fights that Carter had recently gotten into, and there was no mention of the Cathy Pooler case. At 2:00 a. m. Parker again suggested that they both retire, but defendant insisted on continuing their conversation. There was a period of silence and Parker asked defendant if he would like to talk about the Cathy Pooler case, to which he responded, "Why not?"

Before asking any specific questions the detective thoroughly and cautiously readvised defendant of his Miranda rights, asking defendant to read them aloud from a printed form and to explain what he understood them to mean. Defendant indicated that he wanted to discuss the case with Parker and that he did not wish to have an attorney present. For roughly an hour, defendant narrated the story of his murder of Cathy Pooler, and the detective later reduced the story to writing. With two deputies present, defendant was carefully read his Miranda rights again, this time from the typewritten statement at the top of the page on which the confession was written. In particular, his right to have an attorney present was explained, and defendant unequivocally indicated that he wished to waive that right. The statement was then read to him word by word in the presence of the two deputies, and he signed it.

We affirm the correctness of the Superior Court's conclusions that Carter's confession was made voluntarily and that he knowingly and intelligently waived each of his Miranda rights, including the right to have an attorney present. There was no evidence of threats, intimidation, or coercion, or of deprivation of food or other basic needs. Defendant appeared neither mentally incompetent nor under the influence of drugs or alcohol. He had demonstrated his understanding of his rights by his initial refusal to waive them upon booking. Significantly, it was defendant who had initiated the interrogation session and who then insisted that Detective Parker remain to talk with him. Despite the lateness of the hour, he appeared alert and fully aware of his surroundings.

Defendant nevertheless argues that the right to counsel, made applicable here by the prior commencement of judicial proceedings against him, Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), is of such paramount importance that it may not be waived unless he has first consulted with an attorney. Any confession given before he did so should, he asserts, be held per se inadmissible. We disagree. Neither the sixth amendment to the federal constitution nor article I, section 6 of the state constitution requires our courts to impose such a rule.

In Massiah v. United States, relied upon heavily by defendant here, the Supreme Court found a violation of the defendant's sixth amendment right to counsel "when there was used against him at his trial evidence of his own incriminating words . . . deliberately elicited from him after he had been indicted and in the absence of his counsel." 377 U.S. at 206, 84 S.Ct. at 1203. That case did not, however, deal with the question whether the sixth amendment right to counsel could be validly waived. Thirteen years later, in Brewer v. Williams, also relied on by defendant, the Court strongly intimated that post-indictment waiver of the right to counsel is not impermissible per se. It concluded, 430 U.S. at 405-06, 97 S.Ct. at 7243:

The...