State v. Cote

Decision Date02 March 1982
Citation444 A.2d 34
PartiesSTATE of Maine v. Percy F. COTE.
CourtMaine Supreme Court

David M. Cox, Dist. Atty., R. Christopher Almy, Gary F. Thorne, Margaret Kravchuk, (orally), Asst. Dist. Attys., Bangor, for plaintiff.

Vafiades, Brountas & Kominsky, Charles E. Gilbert, III (orally), Bangor, for defendant.

Before GODFREY, NICHOLS, ROBERTS, VIOLETTE and WATHEN, JJ.

VIOLETTE, Justice.

Defendant Percy Cote appeals from a judgment of conviction entered in the Superior Court, Penobscot County, following a jury verdict finding him guilty of trafficking in scheduled drugs (17-A M.R.S.A. § 1103). On appeal Cote makes the following arguments: (1) that the presiding judge abused his discretion in denying the defendant's motion for a bill of particulars; (2) that the presiding judge abused his discretion in denying the defendant's motion for a partial transcript of the grand jury testimony; (3) that the presiding judge committed reversible error by overruling defense counsel's objection to a line of questioning; (4) that the evidence was insufficient to support a finding of venue in Penobscot County; (5) that the evidence was insufficient to convict the defendant on a theory of accomplice liability; and (6) that the presiding judge committed reversible error by refusing to give the so-called 'procuring-agent defense' instruction to the jury. We deny the appeal and affirm the judgment of conviction.

FACTS

On February 12, 1981, two undercover police officers met with the defendant, Percy Cote, at his residence in Presque Isle. During a conversation, in which the two officers told Cote they wanted to buy large amounts of drugs, Cote told the officers he could get them ten pounds of marijuana and one ounce of rock cocaine. On February 15, 1981, the two officers returned to Cote's residence and Cote made a phone call, in their presence, to an individual named Percy. While still on the phone, Cote quoted prices to the officers, and they agreed to the prices given. On February 17, 1981, the officers again met with Cote at his residence, Cote phoned his "connection", and then Cote and the two officers drove to Bangor to buy the drugs. Upon their arrival in Bangor, they met Percy Sargent (Cote's connection). Following Sargent's directions they proceeded to an apartment in Holden. At the apartment, Sargent went inside while the others remained in the car, brought out one bag of marijuana, eventually reentered the apartment and returned to the car with all ten pounds. During this time Mr. Cote, sitting in the back seat, smelled the first pound, and helped count the remaining nine bags. After the drugs had changed hands but before payment was made, the officers arrested Cote and Sargent.

(1) Bill of Particulars

On appeal, the defendant argues that his motion for a bill of particulars should have been granted so that he could have prepared an adequate defense. The defendant was charged in the indictment with "trafficking in scheduled drugs" (17-A M.R.S.A. § 1103). Trafficking is defined in section 1101(17) of Title 17-A and that definition includes four subsections which in content provide for four different ways to traffick in drugs. 1 The substance of defendant's motion was that he was unaware of whether the State based its case on subsection (C) or (D) of section 1101(17) (both sides having agreed subsections (A) and (B) were inapplicable to the facts).

The purpose of a bill of particulars is to enable the defendant to prepare an adequate defense, to avoid prejudicial surprise at trial, and to establish a record upon which to plead double jeopardy if necessary. State v. Larrabee, Me., 377 A.2d 463, 465 (1977). A motion for a bill of particulars is addressed to the discretion of the presiding judge. In considering whether such a motion was properly denied, we must examine the record to determine what facts were known to the defendant prior to trial.

The transcript of the hearing on the motion for a bill of particulars indicates that the defendant was made aware of the fact that the State had sufficient evidence to go to the jury on both subsections (C) and (D). The defendant had thereby learned of the essential facts upon which his indictment was based and cannot now claim prejudicial surprise at trial or that he had inadequate facts upon which to prepare a defense. Similarly, we find no merit in defendant's argument that denial of his motion for a bill of particulars left him without a sufficient record upon which to plead double jeopardy if the need arose. 2 The presiding judge did not abuse his discretion in denying this motion.

(2) TRANSCRIPT OF GRAND JURY TESTIMONY

The defendant argued below and on appeal that he had a "particularized need" for the grand jury testimony of the two undercover police officers involved in this case. The particularized need alleged was that the defendant wished to raise the defense of entrapment and wanted to establish that defense through cross-examination of the two officers. The motion was denied as untimely and for failure to show a particularized need.

The defendant's motion was made on June 3rd, and heard on June 8th, four days prior to trial. At the time of the hearing, the testimony had not yet been transcribed and therefore, the judge was unable to review the testimony requested by the defendant. Clearly, there was no abuse of discretion in denying the motion as untimely. Further, the defendant's general statement in his motion that he needed the transcript to establish entrapment, without the support of specific references or a more detailed explanation of his need, does not demonstrate a particularized need. See State v. Doody, Me., 432 A.2d 399, 402 (1981). The motion was properly denied.

(3) OBJECTION TO TESTIMONY OVERRULED

At trial, the defendant objected to testimony by one of the undercover officers regarding the defendant's alleged statement to the officer that he could get them one ounce of rock cocaine along with the ten pounds of marijuana. Although the defendant is correct that M.R.Evid. 404(b) makes inadmissable other crimes, wrongs or acts to prove the character of the defendant, the evidence was not offered for that purpose. The evidence was offered to show the defendant's intention to sell drugs. The Advisers' Note to Rule 404(b) specifically states that "(Rule 404(b)) does not exclude the evidence when offered for another purpose, such as proof of ... intent ..." Field and Murray, Maine Evidence 67 (1976); see also State v. Carlson, Me., 304 A.2d 681 (1973). The presiding judge correctly overruled the objection.

(4) VENUE

The defendant claims for the first time on appeal that the evidence was insufficient to support venue in Penobscot County. Notwithstanding the fact that the defendant raises this issue for the first time on appeal, we find that the evidence on this record...

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16 cases
  • State v. Hebert
    • United States
    • Maine Supreme Court
    • July 28, 1982
    ...would have functioned to enable the defendant to prepare an adequate defense and avoid prejudicial surprise at trial. See State v. Cote, Me., 444 A.2d 34, 36 (1982). There is no indication that the defendant petitioned the court to issue such an order. See Crocker, 435 A.2d at 68. The defen......
  • State v. Borucki
    • United States
    • Maine Supreme Court
    • February 20, 1986
    ...he may prepare a defense, and to avoid prejudicial surprise at trial. State v. Wedge, 322 A.2d 328, 330 (Me.1974). See also State v. Cote, 444 A.2d 34, 36 (Me.1982). A bill of particulars affects the scope of the State's proof at trial and renders it subject to the principle of fatal varian......
  • State v. Walker
    • United States
    • Maine Supreme Court
    • March 25, 1986
    ...of a bill of particulars is to help a defendant to prepare an adequate defense by narrowing the scope of the State's proof. State v. Cote, 444 A.2d 34, 36 (Me.1982); State v. Davenport, 326 A.2d 1, 10 (Me.1974) (quoting State v. Benner, 284 A.2d 91, 99 (Me.1971)). We observe that this bill ......
  • State v. Balanza
    • United States
    • Hawaii Supreme Court
    • June 2, 2000
    ...case applied Simione to require a bill of particulars before a defendant could utilize the procuring agent defense. In State v. Cote, 444 A.2d 34 (Maine 1982), the Maine Supreme Court, after having held that the trial court had properly denied the defendant's motion for a bill of particular......
  • Request a trial to view additional results

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