State v. Hassapelis

• Decision Date: 30 July 1979
• Parties: STATE of Maine v. Nicholas HASSAPELIS.
• Court: Maine Supreme Court

Page 232

404 A.2d 232

STATE of Maine v. Nicholas HASSAPELIS.

Supreme Judicial Court of Maine.

July 30, 1979.

Henry N. Berry, III, Dist. Atty., Peter G. Ballou, Deputy Dist. Atty., William Keefe, Law Student (orally), Portland, for plaintiff.

Terence Farrell (orally), Portland, for defendant.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.

DELAHANTY, Justice.

After a bench trial, preceded by a suppression hearing, held in Superior Court, Cumberland County, the defendant was convicted of conspiracy to commit armed robbery, 17-A M.R.S.A. §§ 151(1), 651, and sentenced to two and one-half years in the Maine Correctional Center. On appeal, he argues that (1) the indictment under which he was charged failed adequately to inform him of the details of the crime he was alleged to have committed and (2) certain physical evidence seized by the police should not have been admitted against him at trial. We deny the appeal.

An examination of the transcripts of the trial and of the suppression hearing, taken in the light most favorable to the court's verdict, reveals the following sequence of events.

The object of the defendant's criminal design was The Place, a Portland pizza shop located on Forest Avenue near Pitt Street. Jimmy MacDonald worked at The Place from time to time doing odd jobs in return for cigarettes and other favors. MacDonald and the defendant knew each other well having lived in the same building sometime previously; furthermore, the defendant stated that he and Shelby MacDonald, Jimmy's sister, were engaged to be married. Early in December, 1977, the defendant asked Jimmy MacDonald various questions about the operation of The Place. From MacDonald's answers, he learned that it remained open until 2:00 a. m. on Saturdays and Sundays and that the proprietor made his night deposits at the Canal Bank just three buildings down Forest Avenue from The Place.

On one occasion, the defendant, his brother, Theodore, MacDonald, and another teenager named Donald French left MacDonald's house together and drove to a secluded parking lot. Remaining inside the car, the defendant explained to MacDonald that he was considering "hitting" or "robbing" The Place and asked if MacDonald would be interested in joining them. ¹ He refused.

Apparently concluding that the defendant was poised to strike, MacDonald approached the proprietors of The Place and told them to be prepared for a robbery. Robert Litman, one of the proprietors, passed MacDonald's tip along to the Portland police and the information was relayed to all officers responsible for patrolling the area in question.

One of the policemen who was aware of the tip was Officer John Whitmore. At 1:50 a. m. on Sunday, December 18, 1977, Whitmore was driving south on Forest Avenue. He checked The Place, noticed that there were customers inside, and turned right on Pitt Street. Ten or fifteen feet up Pitt Street, he saw a red and white jeepster parked facing The Place with two men inside. The jeepster's engine was on, its lights were off, and the two men were watching The Place. As Whitmore drove past the jeepster, he observed that when the driver noticed him "he (the driver) kind of double taked and immediately bent down toward the floor of the . . . jeep." The person in the passenger seat "kind of raised up in the seat and watched (Whitmore) go all the way past him." Whitmore made two left turns, parked on a parallel block, and called Portland Police Officer Christopher Murphy to inform him that "(there was) a possible 1090 (armed robbery) that was going to occur at The Place." From his position, Whitmore observed Murphy's cruiser going north on Forest Avenue. He then saw the jeepster pull out and drive south on Forest Avenue while both occupants peered into The Place. The jeepster turned right and drove slowly past Whitmore's cruiser. Whitmore radioed Murphy that the jeepster was moving and followed after it. Eventually, Whitmore pulled the jeepster over and Murphy arrived, parking in front of the jeepster so as to cut off all avenues of escape.

Officer Murphy testified that he observed the driver holding a black object in his hands. As he approached the jeepster, Officer Murphy noticed the driver bend directly forward and appear to "stuff" it under the seat. Murphy opened the driver's side door, asked the driver for his license and registration, and asked him to get out of the jeepster. He then escorted the driver to the back of the vehicle and informed Whitmore of the earlier furtive gesture. When questioned about that gesture, the driver explained that he was adjusting the emergency brake. Looking into the car, however, Whitmore noticed that the emergency brake was located not underneath the driver's seat but on the left side of the steering wheel under the dashboard. Thereupon, Whitmore looked under the driver's seat and found a ski mask wrapped into a ball. Unfurling the mask, he found a loaded .22 Browning semi-automatic pistol with the safety off. At that he instructed Murphy to place the driver under arrest and ordered the passenger to leave the car. By this time a squadron of police cars had arrived on the scene and the two suspects were handcuffed, placed under arrest, and escorted into separate cruisers.

At trial, both Murphy and Whitmore identified the defendant as the passenger and his brother, Theodore Hassapelis, as the driver.

After the suspects had been secured, Murphy and Whitmore returned to the jeepster and resumed their search. Opening the passenger's side door, Murphy reached in and seized a zippered "gym bag" lying on the floor in front of the seat. He unzipped the bag, pulled apart the handles, and took out the following items: a loaded .22 Ruger semi-automatic pistol, a baseball cap, a dish towel, two more ski masks, a hunting knife, a sheath, newspapers, gloves, a binocular case, and a flashlight which was turned on. A pair of binoculars was also discovered on the floor of the rear compartment. After the search was completed, the jeepster was impounded and taken to the station.

At trial, the defendant and his brother took the stand. Their explanation for their activities was such as to give lameness a bad name. They stated that they were accustomed to having guns and knives about for as long as they could remember and that they had done some target shooting near their grandmother's house, where the defendant lived, on the afternoon prior to their arrest. Although they usually left the pistols and the binoculars, which they claimed to have used for checking targets, in the defendant's room at their grandmother's house, for no apparent reason they decided that on that particular day they would go straight into Portland and take the guns and the binoculars with them.

They arrived at MacDonald's house at roughly 8:00 p. m. and departed at around 1:30 a. m. Sunday morning. The defendant stated that at some time during that mid-December evening he had gone out to his car, which had been parked in front of the house for two days, and had worked on it in the pitch-blackness.

The defendant, his brother, and their mother, who was called by the defense, testified that the jeepster always ran roughly after being started and that it was common practice in the family to let it run for ten to fifteen minutes after starting it. Theodore Hassapelis testified that he drove off as soon as he had started the car. He could give no reason for this departure from the norm.

Despite the fact that they intended to spend the night at the house where Theodore was living, they drove off in the opposite direction down Pitt Street toward The Place. The jeepster stalled just 25 feet short of Forest Avenue, and they pulled over to let it warm up for ten or fifteen minutes, shutting off all of the battery-drawing accessories. Thereafter, they circled back to MacDonald's house to check the defendant's car. Theodore, who testified first, explained that "we just always go by to check it." The defendant explained that he had forgotten to lock the car after having worked on it earlier that evening.

The court found the defendant guilty beyond reasonable doubt of conspiracy to commit armed robbery.

I

The defendant argues that the indictment ² was fatally deficient. He points out that under 17-A M.R.S.A. § 651 a person can commit robbery in a variety of ways depending upon whether the person threatens or actually uses force and, if a threat is used, what the threat sought to accomplish. The defendant argues that the phrase "robbery while armed with a firearm" is defectively imprecise because it fails to inform him which category of robbery he is accused of having conspired to commit.

That on or about the eighteenth day of December, 1977, in the City of Portland, County of Cumberland and State of Maine, the above named defendant NICHOLAS HASSAPELIS, with the intent that conduct he performed which in fact would constitute a crime, namely, Robbery While Armed with a Firearm against one Robert H. Litman, Robert H. Litman doing business as "The Place" or employees thereof, did agree with another person, namely, one T________, a juvenile, to engage in such conduct; the said NICHOLAS HASSAPELIS and the said T________ did engage in a substanial step toward commission of the crime, namely, the said NICHOLAS HASSAPELIS did proceed with the said T________ to the vicinity of a variety store known as "The Place" on Forest Avenue in said Portland just before 2:00 A.M., the time at which the said store closed, in an automobile with two loaded .22 caliber pistols and three knitted ski masks which would cover most of a person's face, and did sit in the said automobile on a side street across Forest Avenue from the said store and observe the said store.

In State v. Chick, Me., 263 A.2d 71, 76 (1970), we noted that

in conspiracy cases, if the deed to be accomplished or purpose to be promoted by the confederacy is in itself criminal or unlawful...