State v. Hider, Docket No. C

• Decision Date: 05 August 1998
• Docket Number: Docket No. C
• Citation: 715 A.2d 942
• Parties: STATE of Maine v. Mark HIDER. um-96-591.
• Court: Maine Supreme Court

Page 942

715 A.2d 942

1998 ME 203

STATE of Maine v. Mark HIDER.

Docket No. Cum-96-591.

Supreme Judicial Court of Maine.

Argued Feb. 2, 1998.

Decided Aug. 5, 1998.

Andrew Ketterer, Attorney General, Donald W. Macomber (orally), James M. Cameron, Asst. Attys. Gen., Augusta, for the State.

Peter W. Evans, Portland, for defendant.

Before WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN and DANA, JJ.

CLIFFORD, Justice.

¶1 Mark Hider appeals from a judgment entered in the Superior Court (Cumberland, Cole, J.) following a jury trial in which he was found guilty of trafficking in schedule Z drugs (Class C) in violation of 17-A M.R.S.A § 1103 (Supp.1997). ¹ Hider contends that the Superior Court erred in admitting illegally obtained evidence, denied his right to a speedy trial, subjected him to double jeopardy, impermissibly refused to allow him to question prosecution witnesses about his dispute with the Portland Police Department, and admitted unfairly prejudicial evidence. He also alleges the evidence was not sufficient. We affirm the judgment.

¶2 Testimony from Hider's second trial, ² from which this appeal is taken, provides the following facts. In September 1992, a Portland police officer was tracking a robbery suspect through fields and woods with a trained canine. The dog, trained in narcotics identification, indicated the presence of narcotics in the area. The officer then saw thirty to forty marijuana plants six to ten feet in height, partially surrounded by flower and vegetable gardens. From the garden area he noted two buildings approximately sixty to ninety feet away. He broke off a leaf from one of the plants that was later identified as marijuana. Based on this discovery, a warrant was obtained to search a residential house and karate studio located at 70 Cobb Avenue. While the warrant was being prepared, the officers learned that Hider, who appeared to be the owner of the premises to be searched, ³ was involved in a lawsuit involving a concealed weapons permit and was known to possess a large quantity of weapons. ⁴

¶3 A Special Entry (or "SWAT") team made a forcible, unannounced entry into the karate studio, then searched the residence and studio. In the house, officers discovered marijuana in the room of Hider's son who resided in the house with his mother, Hider's former wife. Marijuana pipes, seeds and residue were also discovered elsewhere in the house. Officers dug up and seized the 44 marijuana plants, which when dried totalled 6.5 pounds with a street value of between $1200 to $1700 per pound. Hider's son provided conflicting reports, initially telling police that the plants were his father's. At trial, however, he testified that he planted and raised the marijuana and that his father was not involved. Hider was present during the search of the studio, where officers found a scale of the type typically used to weigh marijuana or cocaine, empty packages of rolling papers, what appeared to police to be a running balance sheet of drug sales, and a silver case containing marijuana residue. Hider was convicted of trafficking in schedule Z drugs. ⁵

¶4 Upon remand of the case after we vacated Hider's first conviction, ⁶ Hider was re-indicted by the Cumberland County Grand Jury on January 6, 1995, for aggravated trafficking (Class B) in violation of 17-A M.R.S.A § 1105 (1983 & Supp.1997). An additional allegation that Hider possessed firearms at the time of the alleged trafficking made the charge a Class B offense. Pursuant to 17-A M.R.S.A. § 1252(5-A)(A), the new charge carried a minimum two-year sentence of incarceration that could not be suspended.

¶5 Following an unsuccessful motion by the State to join the new indictment with the original case, and a motion by Hider alleging that the prosecution was vindictive, the State dismissed the prior indictment and moved to amend the new indictment to eliminate any reference to firearms, reverting back to the same Class C felony offense charged in the original 1992 indictment.

¶6 The court held a hearing on a new motion to suppress all evidence obtained both as a result of the initial entry onto the property and of the search pursuant to the warrant, essentially the same motion as that filed prior to the first trial. Relying on the transcript of the May 6, 1993 hearing on the motion to suppress held prior to the first trial, the court (Fritzsche, J.). denied the motion.

¶7 On March 28, 1996 Hider filed a pro se motion alleging deprivation of a right to a speedy trial. The court denied the motion on April 28, 1996, and ordered the case to be set on the next trial list. Following a second motion to dismiss for lack of a speedy trial on August 19, 1996, the trial took place on August 22, 1996. The jury returned a guilty verdict, and Hider was sentenced to a nine-month term of imprisonment with all but 90 days suspended. This appeal followed.

I.

A.

¶8 Hider challenges the denial of his motion to suppress. As to part of his basis for filing his motion to suppress, he is collaterally estopped. Our decision in Hider I, ⁷ precludes his challenge to the officer's inadvertent entry into the marijuana patch. We have held that "[i]n a separate proceeding between the same parties, collateral estoppel bars relitigation of issues that were actually litigated in the first proceeding." State v. Moulton, 481 A.2d 155, 161-62 (Me.1984) (original order on suppression motion was not invalidated by re-indictment on more serious charges since defendant had "every incentive to litigate" at the first hearing "fully and vigorously") (quoting Restatement (Second) of Judgments § 27 (1982)). Defendants have frequently been precluded from re-litigating denials of motions to suppress. See Richard B. Kennelly, Jr., Precluding the Accused: Offensive Collateral Estoppel in Criminal Cases, 80 Vir.L.Rev. 1379, 1386 (1994) ("[i]nvoking collateral estoppel against the accused is more easily justified regarding suppression motions than regarding a substantive element of the offense."). Whether collateral estoppel would be fair and appropriate has been analyzed, in the context of a suppression hearing, as follows First, there obviously must be an identity of issues in the two proceedings. Second, a defendant must have had sufficient incentive to have vigorously and thoroughly litigated the issue in previous proceedings.... Third, the defendant estopped must have been a party to the previous litigation. Fourth, the applicable law must be identical in both proceedings.... Fifth and finally, the first proceeding must result in a final judgment on the merits that provides the defendant not only the opportunity to appeal, but also sufficient incentive.

Id. at 1385 (citing United States v. Levasseur, 699 F.Supp. 965 (D.Mass.1988), rev'd on other grounds, 846 F.2d 786 (1st Cir.1988)). ⁸ Hider vigorously litigated the identical motion to suppress based on the officer's initial entry onto the land and his discovery of the marijuana patch prior to his first trial. The law relating to such an entry was the same then as it is now, and the case ended in a judgment on the merits that allowed Hider the opportunity and incentive to litigate the issue on appeal. Collateral estoppel precludes relitigation of the same initial entry issue.

B.

¶9 Because the law applicable to the forced entry into Hider's karate studio, however, has changed, Hider is not estopped from challenging that entry anew. In Hider I we rejected Hider's challenge to the unannounced entry into his studio, holding that there is no "knock and announce" requirement in Maine and "no prohibition against forcible entry if the circumstances warrant it." Hider I, 649 A.2d at 15. Following that decision and prior to the second trial, the United States Supreme Court decided Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). The court in Wilson held that the common law "knock and announce" principle forms a part of the Fourth Amendment reasonableness inquiry. See Wilson, 514 U.S. 927, 115 S.Ct. at 1916. Because Hider's conviction was vacated, and thus not final, the Wilson decision has retroactive effect, and the police conduct must be evaluated pursuant to the new standard. See Thompson v. State, 625 A.2d 299, 300 (Me.1993) (new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced); see also State v. Bouchles, 457 A.2d 798, 801 (Me.1983) (modifications of search and seizure rules are applied to pending cases).

¶10 In Wilson, the Court left to state courts the task of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment. ⁹ See 514 U.S. 927, 115 S.Ct. at 1918-19 ("We simply hold that although a search or seizure of a dwelling might be constitutionally defective if police officers enter without prior announcement, law enforcement interests may also establish the reasonableness of an unannounced entry.") (Emphasis added).

¶11 Although at trial the State elicited convincing evidence of the police officers' awareness that a large quantity of weapons were likely to be found in the search, thus providing a justification for the unannounced entry, see Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 1421-22, 137 L.Ed.2d 615 (1997) (when no-knock entry is challenged, police must have reasonable suspicion that knocking and announcing presence would be dangerous or futile or inhibit effective investigation of crime), the State's showing at the suppression hearings prior to both trials was minimal. At the suppression hearing prior to the first trial, the State provided the trial court with an attested copy of the warrant, the affidavit, and the inventory. The affidavit contained a paragraph stating that firearms were being concealed on the property, but the affiant's basis for that belief was merely that through his experience and training it was not uncommon for many of those involved...