State v. Hudson

• Decision Date: 06 September 1974
• Citation: 325 A.2d 56
• Court: Maine Supreme Court
• Parties: STATE of Maine v. Edward HUDSON.

Page 56

325 A.2d 56

STATE of Maine v. Edward HUDSON.

Supreme Judicial Court of Maine.

Sept. 6, 1974.

Thomas E. Delahanty, II, County Atty., Peter Garcia, Asst. County Atty., Auburn, for plaintiff.

Charles H. Abbott, Lendall L. Smith, Lewiston, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

WEATHERBEE, Justice.

On June 19, 1973 a jury sitting in Androscoggin County found the Defendant guilty of an armed assault (17 M.R.S.A. § 201-A) committed against one Raymond Bouchard. From this conviction the Defendant Hudson has appealed to this Court. We deny his appeal.

The alleged assault took place shortly after lunch time on March 13, 1973 in Lewiston as Bouchard was leaving a pawn shop. Bouchard testified that the Defendant approached him and told him not to 'squeal' on him in regard to a certain criminal matter. Then, he said, the Defendant pulled out a handgun, touched it to Bouchard's stomach, and said: 'Look, I don't care, I'll shut you up right now.' The Defendant then put away the revolver and left the scene.

Bouchard then went to his mother's home, reported the matter to the police and was told to come to the police station. He walked to the police station and gave a statement to the police there. A police officer testified that a radio call went out to him as the officer on the beat. The record shows only that this officer was told to 'look for' the Defendant and that the Defendant was said to be carrying a gun. The officer then patrolled his entire beat looking for the Defendant and finally saw him entering the bar of a local hotel. He radioed for assistance and, when another officer responded, the two policemen entered the bar in time to see the Defendant going into the washroom. When the Defendant came out, the officers accosted him and a limited search and questioning took place which will be discussed later. The officers then found the gun in the washroom.

Another State's witness, Alfred Bolduc, testified that he had been with the Defendant on the afternoon of March 13. He stated that twice the Defendant gave him a loaded revolver but that Bolduc gave it back on each occasion after a short lapse of time. One of these transfers occurred when Hudson and Bolduc approached a police officer on the street. Bolduc also stated that Hudson placed the same gun behind a broom in the men's room of the hotel outside which the Defendant was later arrested for armed assault. The arrest took place in mid-afternoon of March 13, 1973.

The Defendant presented the testimony of two friends and his brother, two of whom said they observed Mr. Bouchard talking with the Defendant and that it appeared to have been a friendly conversation, and the third claimed to have seen Bouchard with the gun earlier that day.

The Defendant propounds four arguments on appeal, which we will consider in order.

1. The admission into evidence of statements made by the Defendant to the police concerning the whereabouts of a gun

First, the Defendant urges that the Justice below erred by admitting into evidence two statements uttered by the Defendant. The Defendant contends that his two responses to police questions about the existence of a gun were not admissible in court because he was not advised of his rights under Miranda v. Arizona. ¹ The State suggests that Miranda does not apply because the Defendant was not in custody and was subjected only to a 'stop and frisk' to protect the officers and possible bystanders.

Because no objection was raised at trial as to the admissibility of these statements, ² we treat the issue under the 'obvious error' standard of review. State v. McKeough, Me., 300 A.2d 755 (1973); State v. Collins, Me., 297 A.2d 620 (1972); M.R.Crim.P., Rule 52(b).

Our decision requires review of the familiar standards imposed upon policemen for the benefit of suspects in custody under Miranda. That case itself clearly delineates when certain persons must be apprised of their rights:

'(T)he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. (Emphasis added.)

While Miranda involved police interrogation inside a room at police headquarters, later cases have held that a suspect may be significantly deprived of his freedom outside that setting. Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969); Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968); Annot., 31 A.L.R.3d 565 (1970).

In State v. Petersen, Me., 268 A.2d 482 (1970) we held that Miranda did not apply in a criminal case where the Defendant's admission at the scene of a car accident was otherwise voluntary, where the police officer had no knowledge of the commission of an offense, and where the focus of suspicion had not fallen on the Defendant. In that instance Miranda warnings were not necessary because the Defendant was not in custody or otherwise deprived of his freedom.

The record shows the following undisputed facts:

Shortly after 2:30 p. m. that day, the officers confronted the Defendant at a local hotel bar. At that time, Bouchard had given a statement to the police and the collective knowledge of the police undoubtedly gave them probable cause to arrest the Defendant without a warrant. See State v. Smith, Me., 277 A.2d 481, 488-489 (1971). He was not only a suspect, he was the sole suspect in the alleged crime. However, as far as the record shows, the two police officers who participated in the disputed 'questioning' knew only that Headquarters had instructed one of them by radio to 'look for' the Defendant who was said to be carrying a gun.

The officers saw the Defendant enter the washroom at the bar. They stationed themselves outside the washroom door and when the Defendant appeared he was accosted by the officers, one of whom seized the Defendant's elbows and raised his arms slightly. The other told the Defendant of their orders and said they intended to frisk ³ him. As he proceeded to do this, the officer asked the Defendant where the gun was. The Defendant answered that 'he did not have the gun with him'. This same officer then asked the Defendant what he had done with the gun and the Defendant's reply was 'that he had sold it about 5 minutes before, that he no longer had it'. The Defendant was then released and the officers entered the washroom and, after unsuccessfully searching two persons in the washroom, they found, hidden behind a broom, a gun which the victim identified as the one used by the Defendant. The officers then left the hotel and arrested the Defendant who was on the sidewalk outside.

The State urges that the warnings were not necessary because the police acted properly under the 'stop and frisk' rationale enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Terry allows police to detain and make a limited, protective search for weapons when the officer has a reasonable belief that the person is armed and presents a danger to the officer and others nearby. Under that principle the policeman need not have probable cause to arrest and make a full-blown search. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

On these facts we have no doubt that the two officers were justified in detaining the Defendant briefly as they did and in requiring him to submit to a limited Terry type protective search. The precise issue before us, however, is whether incriminating answers given by the detained suspect in response to police questioning should be admitted for jury consideration where the suspect had not been given the benefit of Miranda warnings. First, we have no doubt that this Defendant was significantly deprived of his freedom and that his statements were the result of custodial interrogation-although brief-and that Miranda would have demanded the exclusion of this testimony if it had dealt with almost any other area than that of the presence of a dangerous weapon. Are a suspect's answers to such questions excepted from the operation of the Miranda rule? We find nothing in the language of the United States Supreme Court which suggests that they are excepted.

We find little precedent anywhere to assist us in determining what role, if any, the officers' questioning and the Defendant's answers may play in a defensive search. Terry, of course, was speaking of Fourth Amendment rights and its holding was directed to protection of the officer and others nearby, rather than to assisting the officer to obtain evidence.

We note that, soon after Terry, in Orozco v. Texas, supra, the United States Supreme Court considered facts with some similarity to our own. The defendant had shot and killed a man at a restaurant, and the officers entered his bedroom at a rooming house four hours later and detained him there while he was immediately and briefly questioned. The defendant was asked his name, whether he had been at the restaurant that night and if he owned a pistol. When he admitted owning a pistol, he was then asked where the pistol was. He answered that it was in a washing machine in another room in the building. It was found there and ballistic tests indicated that it had fired the fatal shot.

The defendant's incriminating statements concerning the gun and his presence at the scene of the shooting were admitted at trial over the defendant's objections. The Court, in a terse opinion, found that the absence of a Miranda warning barred the State's use of the incriminating statements. The Court did not see fit to distinguish between the defendant's admissions that he had...