State v. Desjardins

• Decision Date: 11 May 1979
• Citation: 401 A.2d 165
• Parties: STATE of Maine v. Frederick DESJARDINS.
• Court: Maine Supreme Court

Page 165

401 A.2d 165

STATE of Maine v. Frederick DESJARDINS.

Supreme Judicial Court of Maine.

May 11, 1979.

David M. Cox, Dist. Atty., Gary F. Thorne (orally), Asst. Dist. Atty., Bangor, for plaintiff.

Hall & DeSanctis by Richard W. Hall, Bangor, (orally), for defendant.

Before McKUSICK, C. J., WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ., and DUFRESNE, A. R. J.

DUFRESNE, Active Retired Justice. ¹

Frederick Desjardins (defendant) was tried upon a three-count indictment charging him with the following offenses; count I unlawful trafficking in a schedule W drug, i. e. cocaine, on August 26, 1977, pursuant to 17-A M.R.S.A. § 1103; count II unlawful trafficking in a schedule X drug, i. e. phencyclidine, on September 21, 1977, also under 17-A M.R.S.A. § 1103; count III unlawful furnishing of a schedule Z drug, i. e. marijuana, on September 21, 1977, contrary to 17-A M.R.S.A. § 1106. Found guilty on all three counts by jury verdict in the Superior Court (Penobscot County), the defendant appeals from the ensuing judgments. We deny the appeal.

Facts

James Leighton, a police officer, was employed as a Unit Commander with the Division of Special Investigation (DSI) under the Department of Public Safety of the State of Maine. He was an undercover drug investigator for the Department in its efforts to ferret out the drug traffic and bring the drug dealers to justice. Assigned to the County of Penobscot, he had befriended an informant who had proven reliable. On August 26, 1977 this informant advised Leighton that cocaine could be gotten from the defendant Desjardins. They proceeded to Desjardins' residence at 6 Water Street, in Orono, and Leighton paid Desjardins the sum of $100 for a vial of cocaine. The State's expert chemist did later confirm that the drug was in fact cocaine.

On September 21, 1977 Officer Leighton contacted the defendant by phone and made arrangements to purchase from him that evening a thousand "hits" of phencyclidine for $850. The meeting was scheduled for 6:00 p. m. at the defendant's home. The blind having been set as to time and place in the attempt to make this second purchase of drugs from the defendant, Leighton then moved onto the preparation for the catch. He contacted Officer Stevens, the Unit Commander with the DSI in the area, to plan the arrest of the defendant upon the consummation of the prospective drug sale. Pursuant to the formulated course of action devised for the conclusion of Desjardins' drug activities, Leighton did appear at the defendant's home that evening equipped with a small transmitter hidden upon his person which relayed the conversation between the officer and the defendant to police officers stationed close by in a patrol car. When the officers who were monitoring the conversation determined that the drug sale had been effected, the order was given to move in. Under the supervision of Officer Stevens, the police, some in uniform and others in plain clothes, did enter the Desjardins residence and the defendant was placed under arrest in the living room of the house where the transaction with Officer Leighton had taken place. On his way through the kitchen, Officer Crowley, as had Officer Leighton when he came in, did notice in plain view a clear plastic bag containing what he believed to be marijuana. He asked the defendant, who, by this time, had been fully advised of his Miranda rights, if there was any other "dope" in the house, to which Desjardins answered that several paper bags and suitcases in the kitchen contained respectively marijuana and related drug paraphernalia. All the marijuana and the suitcases with their contents were seized and later admitted in evidence with the express statement by defense trial counsel that there were no objections to the admissibility of these exhibits.

In his points on appeal, the defendant claims that the Superior Court Justice at trial committed reversible error, when he permitted the State's exhibits consisting of the marijuana and the related drug paraphernalia to go to the jury, whether the evidence was in plain view or otherwise, because, so he asserts, the police invasion of the privacy of his home, excepting for Officer Leighton, originated from the electronic interception of the oral communications between Leighton and himself and under the circumstances was subject to the provisions of 15 M.R.S.A. § 712, which specifically proscribe the use of the fruits of such police activity in court. Section 710, Title 15, M.R.S.A., makes it a criminal offense for "(a)ny person, Other than an employee of a common carrier as defined in this chapter or A law enforcement officer carrying out practices otherwise permitted by this chapter, who willfully intercepts, attempts to intercept . . . . any wire or oral communication." (Emphasis provided) Section 712, Title 15, implements the reference exception in section 710, but includes therein an express exclusionary provision respecting Any evidence obtained through such interception. ² The defendant argues that the police monitoring in the instant case, even if permissible under 15 M.R.S.A. § 712, does not sanction the use of the information obtained through the interception to give the officers probable cause to believe that a felony was being committed in the Desjardins apartment as a basis to support the subsequent seizure of the marijuana and related drug paraphernalia, since, under the overriding mandate of the statute, Any evidence obtained from such interception Shall not be admissible in a court of law. We need not reach the issues presented by the defendant in connection with the possible application of 15 M.R.S.A. § 712 to the facts of this case. Such issues are not properly before us and we decline to determine them on the instant inadequate record.

We note again that at trial the defendant affirmatively asserted that he had no objection to the admissibility of the marijuana and drug paraphernalia seized by the police from his home on September 21, 1977. Under such circumstances, we recognize that the issue could still be properly subject to review in the appellate court, if it were presented unsuccessfully to the trial court in a pretrial motion to suppress.

In State v. Hazelton, Me., 330 A.2d 919 (1975), it was held that a pre-trial ruling denying the suppression of evidence upon hearing of a motion to suppress pursuant to Rule 41(e) Ipso facto saves the point for appellate review without need for an objection at trial. Thus, the defendant's affirmative response at trial that he had no objection to the admissibility of the evidence, without more, will not be considered a waiver of the objection raised at the pre-trial hearing which under the Hazelton ruling is automatically saved for appellate review.

Absent, however, the presentation of this particular issue to the trial court for adjudication, either at the pre-trial hearing on the motion to suppress or at the trial itself, the defendant's present theory of inadmissibility of the evidence, if advanced for the first time before the appellate tribunal, would come too late. It is a well established principle of appellate procedure in criminal proceedings that a foundation must be laid in the trial court for review of the claim of error by the appellate court. State v. Inman, Me., 350 A.2d 582 (1976); State v. Pike, Me., 306 A.2d 145 (1973); State v. Wheeler, Me., 252 A.2d 455 (1969).

The issue, as previously indicated, was not raised during the course of the trial; it could have been, if it was not presented to the trial court in the defendant's motion to suppress. Indeed, as ruled in State v. Bishop, Me., 392 A.2d 20 (1978), the mandatory aspect of Rule 41(e) did not apply to the instant case, where the defendant's trial occurred prior to the Bishop decision.

From this record, however, it does not appear that the issue was articulated at the hearing upon the motion to suppress the evidence. Neither the motion itself to suppress, nor the decision of the Justice below thereon, was made a part of this record. The burden is on the defendant appellant to provide the appellate court with an adequate record in connection with the specific claim of error. State v. Bellanceau, Me., 367 A.2d 1034 (1977); Rule 39(g), M.R.Crim.P. As stated in Grondin v. Coyne, Me., 395 A.2d 459, at 460 (1978):

"It is an appellant's burden to support its appeal with a record sufficient to allow an appellate court the opportunity to adequately review those issues presented."

True, the transcript of the hearing on the suppression motion is part of this record and, if it appeared clearly therein that the particular issue had been presented to the presiding Justice, the absence of the motion to suppress and the Court's decision thereon might not foreclose our consideration of the point on its merits. See State v. Boutot, Me., 325 A.2d 34 (1974); State v. Hume, 145 Me. 5, 70 A.2d 543 (1950).

The record does fully disclose the circumstances surrounding the electronic interception of the Leighton Desjardins conversation which preceded the police entry into the Desjardins residence and the subsequent seizure of the evidence, which the defendant now says should not have been admitted against him at trial. But, nowhere does it appear that the exclusionary clause of 15 M.R.S.A. § 712 was being pressed before the Court as a basis for the suppression of the seized marijuana and related drug paraphernalia. The statute was never mentioned. As a matter of fact, at the conclusion of the hearing, the defendant's attorney made the following requests which seemingly would clearly indicate that the present issue was not raised in the Court below. "Your Honor, rather than comment on what I would like to say, if the Court would permit me and reserve its ruling and give me at least 10 days, I would like to submit a short brief both On the facts that were elicited here and The law on the search and seizure.

(Defendant's attorney): And further, if it...