State v. Emery

Decision Date09 May 1973
Citation304 A.2d 908
PartiesSTATE of Maine v. Charles EMERY.
CourtMaine Supreme Court

Joseph E. Brennan, County Atty., Donald G. Lowry, Asst. County Atty., Portland, for plaintiff.

Jack L. Schwartz, Portland, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE and ARCHIBALD, JJ.

DUFRESNE, Chief Justice.

On the evening of July 29, 1971, at about 8:00 p. m., in the Town of Standish, Maine, one Harold E. Gallant, while tending his small antique business shop, was approached by a male person whom he later identified as the defendant. This person, according to Mr. Gallant's testimony, had a cash register in used condition which he wanted to sell and purportedly had in the automobile parked in the Gallant driveway at the time. It was then daylight and, after some conversation lasting about three minutes, the man, convinced of Mr. Gallant's distinterest in purchasing that type of merchandise, returned to the car and departed with a companion-driver. About one hour later, the same person, so Mr. Gallant testified, reappeared, but, since the store was then closed, he was received on the porch leading to the home part of the building. It was then dusk, but they conversed for some ten minutes under an electric light bulb of probably 100 watts. This time the man had a holster and pistol to sell, for which he was asking $10.000. Again, Mr. Gallant expressed a lack of interest, but, on the individual's insistence, he did take the holster and gun in hand, made a thorough inspection of the gun and finally offered to give $5.00 for the goods. This was accepted. Reaching into his left rear pocket, Mr. Gallant took out his wallet, when his face was sprayed with a substance stated in testimony to be like tear gas and his wallet, containing some four hundred dollars, was snatched from his hand. A minor scuffle ensued during which Mr. Gallant threw his body against the door that had slammed against the man's wrist, but to no avail. The robber escaped in the waiting car.

Shortly after the robbery, the authorities were at the Gallant place to investigate. In search for fingerprints, the deputy sheriff was only able to lift from the door jamb streaks too badly blurred to obtain useable prints. Offered the holster and gun, he examined them, but made no attempt to obtain fingerprints. His explanation was that the dull leather of the holster, with its rough and scuffed surface, presented no appropriate spot where a test for fingerprints would be feasible, and the carved checkered-pattern criss-cross lines of the gun's wooden handle would prevent fingerprint adherence. Informed by Mr. Gallant as to his own handling of the gun when he examined it for purchase, the deputy did not check the metal part for prints, stating at subsequent hearing he felt, at the time of investigation, that Mr. Gallant's handling of the gun would have ruined any prints that might have been on it. The officer made note of the serial number of the gun, but left both the holster and the gun with Mr. Gallant, in whose possession they remained from the day of the robbery to the time of trial. They were not introduced as evidence, neither by the State nor the defendant. The good faith of the officer is not questioned.

1. Suppression of evidence

Convicted by jury of the crime of robbery under 17 M.R.S.A., § 3401, the defendant seeks to have the conviction set aside for claimed prejudicial error in the denial of his pretrial motion for discovery under Rule 16(a) of the Maine Rules of Criminal Procedure. In this motion dated January 6, 1972 the Court below was asked to order the State to obtain the gun and holster from Mr. Gallant and 'cause them to be inspected for any possible evidence which may help to shed some light on the guilt or innocence of the Defendant.' The parties have stipuated that, at all times material, the defendant was indigent and the gun and holster were in the possession of Mr. Gallant and not in the possession of the authorities. The defendant contends that, if laboratory tests for fingerprints had been run on the gun and holster, these might possibly have disclosed prints of unidentified persons, and, if so, such evidence would have bolstered his alibi by tending to prove that the gun and holster had been offered for sale to Mr. Gallant by some person other than himself. The defendant at trial did offer alibi evidence from himself, his sister and a friend, which evidence was obviously rejected by the jury.

Under Rule 16(a), M.R.Crim.P., it is provided:

'Upon timely motion of a defendant and upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable, the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph designated books, papers, documents, or tangible objects which are within the possession, custody, or control of the state, including * * * the results or reports of physical examinations and scientific tests, experiments, and comparisons. The order shall specify the time, place, and manner of making the inspection and of taking the copies or photographs and may prescribe such terms and conditions as are just.' (Emphasis added.)

If the gun and holster, at the time the motion for discovery was made, were in the possession, custody and control of the State, we are satisfied that, under the liberal interpretation and application to be accorded Rule 16(a), M.R.Crim.P. and notwithstanding the State's claim, if made, that the requested laboratory tests would be an exercise in futility, nonetheless, the defendant would have been entitled to an order of the court permitting such tests to be made under such safeguards as the court deemed just and reasonable to protect the evidence and its return to court. See, State v. Cloutier, 1973, Me., 302 A.2d 84; Maine Practice, Glassman, Commentary § 16.3. Because the State has, or can easily secure, the services of scientists and technicians to conduct scientific tests and experiments, which advantage is hardly available to indigent defendants, it is only fair that discovery under Rule 16(a), M.R.Crim.P. should make it possible for indigent defendants to have the same opportunity concerning evidence within the possession, custody, or control of the State. Where in the instant case, the evidence (gun and holster) was not 'within the possession, custody, or control of the state,' the denial of the defendant's motion was clearly correct. Shaw v. Robbins, D.C.1972, 338 F.Supp. 756.

In State v. Toppi, 1971, Me., 275 A.2d 805, we said that the ruling of the Court below was proper, since there was no showing the requested criminal records were within the possession, custody or control of the State. However, in a footnote, we indicated that, where the witness had lived in many places, the defendants were indigent and the witness was known by the State to be its principal witness, the State should have been ordered to make the necessary investigation on behalf of the defendants, but we saw no error, since counsel had in fact obtained the information and had used the same at the trial. This comment was undoubtedly occasioned by the fact that the State has the ability readily to secure such evidence as criminal records of State's witnesses, whilst such records usually are not easily obtainable by counsel for indigents. A gun and holster in private ownership and possession are not to be compared to criminal records in possession of governmental authorities.

However, the defendant contends that, notwithstanding the fact Rule 16(a), M.R.CrimP. limits its operation to cases in which the tangible objects or other things sought to be discovered are within the possession, custody, or control of the State, there is an affirmative duty on the prosecuting attorneys representing the State to assist the defnedant in presenting the truth at trial, and, in the discharge of that duty, prosecuting officials must, not only disclose evidence materially favorable to the defendant, but help in obtaining the same. He argues that the denial of his motion was tantamount to suppression of evidence material to his defense of alibi and a denial of due process. We disagree.

This Court did say, in State v. Wood, 1928, 127 Me. 197, 142 A. 728:

'A trial before a jury is an investigation of matters of fact, its sole purpose being to ascertain the truth. All competent evidence tending toward that result should be produced. It is the plain duty of prosecuting officers to make every efffort to prosent all of the facts and to assist the respondent in his effort to do the same.'

The Court, however, did not intend by this statement to cast the duty on the prosecution to furnish the defendant with evidence which it does not have in possession, custody or under its control, nor to compel it to undertake the investigatory functions of defense counsel. There was no affirmative duty on the prosecution in the instant case to seek out the gun and holster from Mr. Gallant for the purpose of having tests made thereon for fingerprints in the light of the officer's good-faith opinion that such tests would be negative under the circumstances.

We are mindful of Peoples v. Hocker, 1970, 9 Cir., 423 F.2d 960, in which defendant's murder conviction was upheld on appeal against Peoples' contention that police failure to conduct fingerprint, paraffin and other ballistic tests to determine whether the victim had not shot herself amounted to suppression of evidence and a denial of due process. After recognizing that '(i)t would be an exceedingly delicate task to endeavor to establish criteria to tell when a certain quantum of police investigation constitutes due process and when it does not,' the Court went on to say that 'better investigation would have been helpful to the jury. But * * * the investigation was not so poor as to amount to a deprivation of due process, much less a suppression of evidence such as there was in ...

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6 cases
  • State v. York
    • United States
    • Maine Supreme Court
    • 29 de agosto de 1974
    ...been impermissibly suggestive although not involving the use of a one-way mirror. State v. Carlson, Me.1973, 308 A.2d 294; State v. Emery, Me.1973, 304 A.2d 908; Trask v. State, Me.1968, 247 A.2d 114 (see also, Trask v. Robbins, 1st Cir. 1970, 421 F.2d 773); State v. Galloway, Me.1968, 247 ......
  • State v. Cugliata
    • United States
    • Maine Supreme Court
    • 20 de abril de 1977
    ...transcript not 'within the possession, custody, or control of the State.' State v. Burnham, Me., 350 A.2d 577 (1976); State v. Emery, Me., 304 A.2d 908 (1973). This contention misses the mark because some of defendants' requests for the Grand Jury testimony were by motions other than those ......
  • Ouimette, In re
    • United States
    • Rhode Island Supreme Court
    • 21 de julho de 1975
    ...by reason of its probative effect upon important issues in the case, whether of facts or credibility of witnesses.' State v. Emery, 304 A.2d 908, 912-13 (Me.1973). The test has also been expressed as where the evidence has been patentily immaterial, the harmless error standard has been appl......
  • State v. Barlow Jr.
    • United States
    • Maine Supreme Court
    • 12 de junho de 1974
    ...issue unresolved. Subsequent cases have made it elear that no such right attaches. State v. Rowe, 1974, Me., 314 A.2d 407; State v. Emery, 1973, Me., 304 A.2d 908; State v. Northup, 1973, Me., 303 A.2d 1; State v. Boyd, 1972, Me., 294 A.2d ...
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