State v. Kehling
| Decision Date | 27 December 1991 |
| Citation | 601 A.2d 620 |
| Parties | STATE of Maine v. Norman G. KEHLING. |
| Court | Maine Supreme Court |
Michael Cantara, Dist. Atty., Alfred, David Gregory (orally), University of Maine School of Law, Portland, for the State.
Craig T. Gardner (orally), Gardner, Gardner & Murphy, Saco, for defendant.
Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD and COLLINS, JJ.
After a jury trial the Superior Court (York County, Brodrick, J.) convicted defendant Norman G. Kehling of arson, 17-A M.R.S.A. § 802 (Supp.1991), and sentenced him to 40 years, the maximum term of imprisonment for that Class A offense. On Kehling's appeal, we find no reversible error in either his conviction or his sentence. Contrary to his contentions, the admission in evidence of his statement to his probation officer did not violate his privilege against self-incrimination under the United States or Maine Constitution and the playing to the jury of a recorded telephone conversation between him and his wife did not violate Maine's Interception of Wire and Oral Communications Act, 15 M.R.S.A. §§ 709-713 (Supp.1991). As to the sentence, we find no misapplication of principle or abuse of discretion in the court's imposition of the maximum term of years.
The jury found Kehling guilty of willfully setting a nighttime apartment house fire in Biddeford. The trial evidence established the following circumstances of the crime: In the evening of November 3, 1989, Kehling went to a Biddeford bar to celebrate his job promotion at a local waste-treatment plant. Late in the evening, after he had consumed a considerable amount of alcohol, he got into a fight with another patron and the bar owner and was ejected from the bar. Outside the bar, Kehling, shouting profanities and threatening to stab and shoot the bar owner and to burn the bar down, insisted that he be readmitted. He resisted the attempts of his wife to get him to leave the area. After several warnings that his drunken and disorderly conduct would lead to his arrest, the Biddeford police did arrest him and took him to the police station. At the station, he threatened to do physical harm to the arresting officer and threatened to blow up the police station.
Released on bail, Kehling went to his brother's apartment where he made a telephone call to his wife, threatening to kill her, their son, and his wife's mother. He called his mother-in-law and repeated his threats to kill his wife. He went to his mother-in-law's house and tried to push through her door while making threats to kill her and her daughter. Finally he returned to the Biddeford apartment he shared with his wife, and there other tenants in the building heard him threaten his wife. "I'm going to burn you out, I'm going to get you," he screamed, adding emphasis to his threat with profanity. When his mother-in-law called the apartment to check if his wife was all right, he answered the phone and said, "She's dead and you're next." Sometime later the wife left the apartment. Just before 3:00 a.m. in the early morning of November 4, Kehling set fire to the apartment and hurriedly left the apartment house, without doing anything to warn ten other tenants who were asleep in the building. In the ensuing conflagration, from which those other persons managed to escape with no help from defendant, the whole apartment building was destroyed beyond repair.
On account of that fire, the York County grand jury indicted Kehling for arson. Prior to trial, he filed a motion to suppress two statements he made in telephone calls later on the day of the fire, one to his probation officer and the other to his wife. The Superior Court refused to suppress either statement. Following a 3 1/2-day trial, the jury found defendant guilty after one hour of jury deliberation. The court then ordered a psychological evaluation and a presentence report; the report recommended the maximum sentence. The court on June 1, 1990, after hearing, sentenced Kehling to 40 years imprisonment.
At the time of the fire Kehling, as a result of a prior conviction, was on probation subject to conditions that he notify his probation officer of any change of address and of any contact with the police and that he answer any reasonable question of his probation officer. Sometime during the morning of November 4, 1989, Kehling called his probation officer's home and left a message on the officer's telephone answering machine asking the officer to call him back. The probation officer called the Biddeford Police Department and learned that Kehling was going to be arrested and questioned about the fire in his building. When in the afternoon the probation officer returned Kehling's call, Kehling told him that he had moved from his apartment because of a fire. The probation officer asked defendant "What happened?" and defendant replied: "[I] was on the telephone when [I] noticed a fire in the apartment and [I] fled from the house."
On defendant's pretrial motion to suppress the admission of that statement, the Superior Court held that since defendant was not in custody at the time he made the telephone statement and since he was not compelled to answer the probation officer's question, the statement was admissible. Defendant argues on appeal that the right to remain silent was self-executing in the circumstances of this case and that the probation officer's failure to give a Miranda warning makes defendant's response to the question "what happened" inadmissible. We uphold the denial of the motion to suppress.
The case at bar is on all fours with Minnesota v. Murphy, 465 U.S. 420, 435, 104 S.Ct. 1136, 1146, 79 L.Ed.2d 409 (1984), in which the Supreme Court held that "a State may require a probationer to appear and discuss matters that affect his probationary status" and that "such a requirement, without more, does not give rise to a self-executing [Fifth Amendment] privilege." Murphy specifically addressed and flatly rejected defendant's present argument that the probation officer's question should be viewed as an attempt to elicit incriminating evidence from him, especially since the officer knew defendant was going to be arrested and questioned: "The mere fact that an investigation has focused on a suspect does not trigger the need for Miranda warnings in non-custodial settings, and the probation officer's knowledge and intent have no bearing on the outcome of this case." Id. 465 U.S. at 431, 104 S.Ct. at 1144 (citation omitted).
Citing State v. Carisio, 552 A.2d 23 (Me.1988), defendant also argues that his statement to the probation officer was not voluntary under article I, section 6, of the Maine Constitution. In Carisio we held that "[a] confession is voluntary if it results from the free choice of a rational mind, if it is not the product of coercive police conduct, if under all the circumstances, its admission would be fundamentally fair." Id. at 25. Nothing in the present record suggests any violation of Carisio. Kehling initiated the contact with his probation officer that morning. He made his incriminating statement on the probation officer's return call which lasted no more than a couple of minutes. The probation officer did not threaten or coerce Kehling, nor did he threaten Kehling with arrest if he did not talk. On the contrary, the officer testified that if Kehling had said that he did not want to continue talking, the officer would not have pursued his question any further. The trial court committed no error in finding that defendant's statement was not compelled. 1
Later in the morning of the fire, Kehling telephoned his mother-in-law's house and had a heated conversation with his wife, in the course of which he made incriminating remarks. The mother-in-law made a tape recording of the conversation and that recording was played to the jury at his trial.
By state law, 15 M.R.S.A. § 713, the contents of an "intercepted" wire communication are not admissible in court. A wire communication, however, is not "intercepted" for purposes of the statute, and so is not protected, if either the sender or the receiver has given prior authority for it to be recorded. Id. § 709(4)(C). 2 The admissibility of Kehling's recorded telephone conversation with his wife turns on whether the mother-in-law in making the recording had the prior authority of either or both Kehling and his wife.
In construing the parallel provision of federal law prohibiting the interception of a wire communication except where "one of the parties to the communication has given prior consent to such interception," 18 U.S.C.A. § 2511(2)(c), (d) (Supp.1991), the United States courts of appeals have held that the prior consent may be implied. Those courts define implied consent as " 'consent in fact' which is inferred 'from surrounding circumstances indicating that the party knowingly agreed to surveillance.' " Griggs-Ryan v. Smith, 904 F.2d 112, 116-17 (1st Cir.1990) (quoting United States v. Amen, 831 F.2d 373, 378 (2d Cir.1987)). In the case at bar, the Superior...
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