State v. Degen
| Decision Date | 14 December 1988 |
| Citation | 552 A.2d 2 |
| Court | Maine Supreme Court |
| Parties | STATE of Maine v. James H. DEGEN. |
Janet Mills, Dist. Atty., Patricia Reynolds, Asst. Dist. Atty., Auburn, for the State.
Anthony K. Ferguson, Fales & Fales, Lewiston, for defendant.
Before ROBERTS, WATHEN, GLASSMAN, CLIFFORD, HORNBY and COLLINS, JJ.
The defendant, James H. Degen, appeals from a judgment of the Superior Court (Androscoggin County, Delahanty II, J.) affirming his conviction in the District Court (Lewiston, Beliveau, J.) for operating under the influence of intoxicating liquor (OUI), or having excessive alcohol in his blood, 29 M.R.S.A. § 1312-B (Supp.1981) and for failing to stop at a red light, 29 M.R.S.A. § 947(3) (1978 & Supp.1988). We affirm.
Degen was stopped by Officer Michael Mathieu of the Lewiston Police Department after driving through a red light. Officer Mathieu testified that he detected an odor of alcohol, observed Degen's bloodshot eyes and slow and slurred speech, that Degen grabbed the seat for support while exiting the vehicle, swayed from side to side while walking, and was unable to perform satisfactorily several field sobriety tests. Consequently, Degen was arrested and taken to the Lewiston Police Station, where he was given a breath balloon test to measure the content of alcohol in his blood. The breath sample was sent to the Department of Human Services Public Health Laboratory. In addition to the testimony Officer Mathieu, the State presented Harold Booth, a chemist employed by the Department, who testified, over the objection of Degen, that the analysis of Degen's breath sample revealed a blood-alcohol level of .16% alcohol by weight. The trial court found Degen guilty of both offenses and his appeal to this court followed his unsuccessful appeal to the Superior Court.
Degen first argues that the court committed error in denying his motion to suppress the blood-alcohol test results based on an absence of probable cause for the officer to arrest for operating under the influence. 1 Based on Officer Mathieu's testimony concerning the odor of alcohol, Degen's bloodshot eyes and slow and slurred speech, the difficulty Degen had maneuvering and in performing the field sobriety tests, as well as his driving through a red light, there was ample evidence on which the court could conclude that there was probable cause to arrest Degen for operating under the influence. State v. Anderson, 447 A.2d 827, 829 (Me.1982).
Degen further contends that Booth should not have been allowed to testify concerning the test results. Booth had with him photocopies of his log entries and notes made while conducting the gas chromatograph test used to determine the blood-alcohol content of the sample; he referred to those notes and read from them in his testimony. 2 The original notes were at Booth's laboratory in Augusta. The District Court overruled Degen's "best evidence rule," M.R.Evid. 1002, 3 objection to Booth's testimony.
Booth did not sufficiently recall the actual chemical analysis of Degen's breath test, so as to testify about it from his present memory, see M.R.Evid. 612, but his testimony met the requirements of recorded recollection under M.R.Evid. 803(5). 4 He had a present memory that the notes were a record of matters previously known to him, made by him at a time when his memory was fresh, and known by him to be accurate. Cope v. Sevigny, 289 A.2d 682, 687-88 (Me.1972). The best evidence rule is applicable to material being used as past recollection recorded, Id. at 688, and because the originals were in Augusta, the notes did not fall within any of the exceptions to the best evidence rule set out in M.R.Evid. 1004. 5 The testimony was admitted contrary to the best evidence rule. However, ...
To continue reading
Request your trial
-
State v. Legassie
...it, there was no error because Legassie does not dispute the accuracy of the content of the printout of the messages. See State v. Degen, 552 A.2d 2, 4 (Me. 1988) (holding that the admission of testimony that violated the best evidence rule was harmless error because the defendant did not a......
-
State v. Kneeland
...State v. Beaulieu, 550 A.2d 68 (Me.1988); State v. Lewry, 550 A.2d 64 (Me.1988); State v. Poole, 551 A.2d 108 (Me.1988); State v. Degen, 552 A.2d 2 (Me.1988). See also Sheldon, Vehicle Stops and the Maine Constitution, 3 Me.B.Jour. 182 (1988); Moss, OUI Stops: Proving That Your Suspicion Is......
-
State v. Discher
...of the matters described. Cope v. Sevigny, 289 A.2d 682, 688 (Me.1972) (citations omitted, emphasis in original); see also State v. Degen, 552 A.2d 2, 3 (Me.1988). In the present case, the Superior Court determined that the foundational requirements were met as to each witness and ruled tha......
-
State v. Navarro
...Navarro's motion to strike Morgner's testimony on the ground that its admission violated the best evidence rule articulated in State v. Degen, 552 A.2d 2 (Me.1988). On appeal, Navarro challenges this A. The Testimony We agree with Navarro that State v. Degen controls. Like the present case,......