State v. Cooper

• Decision Date: 14 December 1992
• Parties: STATE of Maine v. Kevin COOPER.
• Court: Maine Supreme Court

Page 1011

617 A.2d 1011

STATE of Maine v. Kevin COOPER.

Supreme Judicial Court of Maine.

Argued Nov. 18, 1992.

Decided Dec. 14, 1992.

R. Christopher Almy, Dist. Atty., Jeffrey Silverstein (orally), Asst. Dist. Atty., Bangor, for the State.

Schuyler G. Steele (orally), Newport, for defendant.

Before WATHEN, C.J., and GLASSMAN, CLIFFORD, COLLINS and RUDMAN, JJ.

RUDMAN, Justice.

Kevin Cooper appeals from the judgments entered in the Superior Court (Penobscot County, Smith, J.) following a jury trial that resulted in Cooper's conviction on charges of attempted murder, robbery, and aggravated assault.

On September 6, 1990, the victim was attacked with a knife, seriously wounded, and left lying in a wooded area in Glenburn. Three weeks later, Cooper was arrested in Topsfield, Massachusetts in the possession of the victim's automobile. After being held in Topsfield for a few hours, Cooper was transferred into the custody of two law enforcement officers of the Penobscot County Sheriff's Department, Frederick Clarke, Jr. and James Wooster. During the return trip to Bangor, Cooper was questioned and, as a result, made some incriminating statements. After his indictment, Cooper sought to suppress statements made during his trip from Massachusetts to Bangor. The Superior Court, (Penobscot County, Kravchuk, J.) concluded that all statements made by Cooper were voluntary and that no violation of the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), had taken place. Shortly before trial, the Superior Court (Penobscot County, Smith, J.) denied Cooper's motion for a change of venue based on Cooper's assertion that substantial pretrial publicity precluded him from impaneling an impartial jury. During the course of his trial, Cooper's attorney attempted to elicit testimony concerning reasons why the victim retired from his position at the University of Maine at Presque Isle contending that such testimony was appropriate in that it concerned the victim's ability to tell the truth on the witness stand and also reflected the victim's state of mind at the time of the attack. The trial court sustained the state's objection on the ground of relevance.

Following trial, the jury returned a guilty verdict on all the counts and Cooper was sentenced on the attempted murder conviction to thirty years with all but twenty-seven years suspended, and four years probation on his release from prison, and concurrent sentences of twenty years on the robbery count, and ten years on the aggravated assault count.

Thereafter, Cooper filed a timely notice of appeal and, in addition, sought sentence review. Leave to appeal from the sentence was granted to be considered with the appeal. See 15 M.R.S.A. § 2152 (Supp.1991). We affirm both the convictions and the sentences.

I. COOPER'S MOTION TO SUPPRESS

Cooper first argues that during the trip from Massachusetts to Bangor, he was under the influence of drugs adversely affecting his mental faculties and making him incapable of knowingly and voluntarily waiving his rights against self-incrimination. The trial court found otherwise, reasoning that "the objective evidence coupled with the testimony of Officers Clarke and Wooster suggest the [defendant] is not out of touch with reality and lacking in the requisite mental faculties to waive his rights and make a statement to the police." The trial court concluded that "beyond a reasonable doubt ... the state has shown that these statements were voluntary...."

We review the trial court's finding as to Miranda issues for clear error. State v. Thompson, 603 A.2d 479, 480 (Me.1992); State v. Leone, 581 A.2d 394, 397 (Me.1990). "The hearing justice's determination that a statement was voluntary will not be overturned if the evidence rationally supports that determination." State v. Bragg, 604 A.2d 439, 440 (Me.1992).

In ruling on the admissibility of the defendant's statements, the trial court must find by a preponderance of the evidence that he knowingly, intelligently, and voluntarily waived his Miranda rights, and that his statements were voluntary beyond a reasonable doubt. State v. Gosselin, 594 A.2d 1102, 1105 (Me.1991); State v. Bleyl, 435 A.2d 1349, 1358 (Me.1981); State v. Collins, 297 A.2d 620, 626-27 (Me.1972). The trial justice's determination in the present case that Cooper's statements were voluntary and not in violation of Miranda is rationally supported by the evidence presented at the suppression hearing and, therefore, is not clearly erroneous.

Deputy James Wooster testified that he read Cooper his Miranda rights and that Cooper provided an oral response of "yes" to each segment. Furthermore, Wooster noticed nothing unusual about Cooper's physical and mental condition. In fact, Wooster stated that Cooper gave appropriate answers to all of the questions asked by Detective Clarke. Detective Clarke, an investigator experienced in observing drug users, also testified that he noticed nothing unusual about Cooper's reactions or his responses to questions that would indicate that he was impaired. Finally, the Superior Court's finding is further supported by the striking detail with which Cooper testified concerning his activities on the day of his interrogation. In particular, he remembered being read his rights and stated that he knew what his rights were.

There was no evidence presented indicating that the officers acted in a coercive or intimidating manner. Rather, the officers testified that Cooper was both calm and responsive to questioning. Additionally, Cooper was aware of the nature of the charges pending against him in Maine. Finally, Cooper failed to present any medical evidence demonstrating that his state of mind was impaired at the time of the questioning by the two sheriffs. Rather, Cooper simply testified that he "smoked some weed and smoked some crack" on the morning of the interview. Even if the Court believed that testimony, that fact alone does not compel a finding that the defendant was unable to understand and voluntarily waive his rights. See State v. Tribou, 488 A.2d 472, 475 (Me.1985) (defendant had been drinking and smoking marijuana); State v. Finson, 447 A.2d 788, 792 (Me.1982) (even a person heavily intoxicated is not necessarily incapable of waiving constitutional rights). Therefore, in light of the evidence introduced at the suppression hearing, the record rationally supports the conclusion that Cooper's waiver of his Miranda rights was knowing, intelligent, and voluntary, and that the statements he made were voluntary. As a result, the Superior Court did not commit clear error.

II. COOPER'S MOTION FOR CHANGE OF VENUE

Cooper's motion for a change of venue was based on his assertion that the case had attracted substantial pretrial publicity in both the Bangor and Presque Isle areas making "the selection of an impartial jury nearly impossible." As the State correctly points out, Cooper has failed to provide us with a transcript of the hearing on the motion for a change of venue. In addition, he failed to attach to his motion any exhibits in support of his position. In short, the record does not contain any examples of "substantial pretrial publicity" or "considerable press coverage."

We have consistently held that the appellant "has the affirmative duty of supplying this court with an adequate record on which consideration can be given to the arguments advanced in support of the appeal." State v. Addington, 518 A.2d 449, 451 (Me.1986); State v. Meyer, 423 A.2d 955, 956 (Me.1980) (quoting Summit Realty, Inc. v. Gipe, 315 A.2d 428, 429 (Me.1974)). In Addington, 518 A.2d at 451, we could not review the trial court's denial of the defendant's motion for a change of venue because the defendant failed to include in the record "the allegedly prejudicial news articles, the transcript of the motion hearing, and the transcript of the jury selection from which the publicity's impact might be gauged." Id. Similarly, in State v. Johnson, 479 A.2d 1284, 1286 (Me.1984), we concluded that "[a]ny argument that defendant may have that the publicity in this case was so prejudicial as to render a fair trial within Cumberland County an impossibility is defeated by defendant's failure to make a record of any pretrial publicity." Id.

Ordinarily the determination of venue is within the sound discretion of the trial court, and will not be overturned absent a showing that either (1) the court abused that discretion, or (2) there exists facts demonstrating "intensive and extensive pretrial publicity of an invidious nature tending to arouse general ill will and vindictiveness against the accused." Addington, 518 A.2d at 451 (citations omitted); State v. Coty, 229 A.2d 205, 210 (Me.1967). In the latter instance, a change of venue is mandated by the fourteenth amendment of the United States Constitution. Addington, 518 A.2d at 451; 1 D. Cluchey & M. Seitzinger, Maine Criminal Practice, § 21.5, at V-17 (1992). However, in the present case, by failing to comply with his affirmative obligation to provide an adequate record, Cooper has failed to demonstrate any constitutional violation or abuse of the trial court's discretion in its ruling on his motion for change of venue from Penobscot County. See Addington, 518 A.2d at 451.

III. TESTIMONY CONCERNING THE VICTIM'S DEPARTURE FROM HIS JOB

During the course of the trial, Cooper's attorney asked the victim the following question on cross-examination: "Did you actually retire from the University of Maine at Presque Isle, or did you resign?" The state objected on the ground that the testimony would be irrelevant. The court sustained the state's objection. Cooper's attorney argued at trial, and reasserts on appeal, that the testimony was relevant for two reasons. First, he asserts that the victim lied on direct examination when he stated that he retired from the University. In particular, Cooper believes that the victim resigned because his sexual...