State v. Koucoules

• Decision Date: 11 December 1974
• Citation: 343 A.2d 860
• Parties: STATE of Maine v. Theresa KOUCOULES.
• Court: Maine Supreme Court

Page 860

343 A.2d 860

STATE of Maine v. Theresa KOUCOULES.

Supreme Judicial Court of Maine.

Dec. 11, 1974.

John Atwood, Vernon I. Arey, Asst. Attys. Gen., Augusta, for plaintiff.

Berman, Berman & Simmons, P. A., by Jack H. Simmons, Lewiston, Powers Bradford & Palmer, by Carl O. Bradford, Freeport, for defendant.

DUFRESNE, Chief Justice.

Theresa Koucoules, the defendant below, pursuant to Rule 41(e), M.R.Crim.P., filed in the Superior Court a pre-trial motion to suppress for use at trial certain evidence of the State which she contends was obtained by an unlawful search and seizure. The Justice who heard the motion granted only partial relief. Aggrieved by the partial denial of her motion, the defendant, pursuant to Rule 37A(b), M.R.Crim.P., moved that the interlocutory ruling be reported to the Law Court for determination before any further proceedings be taken in the action. The presiding Justice did report the matter as requested. The State, with the written approval of the Attorney General, seasonably countered with a motion 'that an order issue allowing it to cross-appeal.' See, 15 M.R.S.A., § 2115- The reference motion to suppress was filed after the Grand Jury for the County of Cumberland, on May 8, 1973, had indicted the defendant for unlawful homicide punishable as murder in the death of her husband, George Koucoules, on or about October 1, 1972. We summarize the evidence necessary to a proper consideration of the legal propriety of the rulings on the motion to suppress, intimating no opinion as to the true state of events leading up to the victim's death, nor as to the defendant's criminal responsibility therefor.

A. The Justice granted the State's motion. Both appeals are properly before us.

The defendant testified that at approximately 5:00 a. m. on October 1, 1972 she went to a neighbor's home for help, because there was 'something wrong' with her husband. She did not know exactly what was wrong with Mr. Koucoules, but had found him cold and bloody, and was unable to wake him. After telephoning the police, the neighbor returned with the defendant to the Koucoules residence. There, in the bedroom, he observed the dead body of Mr. Koucoules.

The first officer to arrive at the scene was Sergeant Vermette of the Brunswick Police. He testified that he arrived at 5:02 a. m., whereupon he was directed into the bedroom by the neighbor, Mr. Berube. He observed what appeared to be a bullet wound in the head of the victim and, upon feeling the body for warmness, concluded that the defendant's husband was dead.

The Medical Examiner, Captain Joy and Chief Favreau of the Brunswick Police were summoned to the scene. Within minutes, Officers Thomason and Fournier of the Brunswick Police Department arrived. Sergeant Vermette, who was Mrs. Koucoules' cousin, then directed Officer Fournier to remain with Mrs. Koucoules to make sure she would be all right. He also instructed one of the other officers to call Mrs. Koucoules' physician. Dr. Bachrach responded to the call and remained at the scene for some thirty-five to forty-five minutes, departing between 5:45 and 6:00 a. m.

Members of the State Police homicide unit began to arrive at approximately 7:00 a. m., Detective Greely being the first to appear. Detective Manduca of the State Police arrived at approximately 8:30 a. m. Detective Manduca testified that he specialized in firearms identification, photography, and 'checking for preservation of evidence.' It appears from the record before us that he and Sergeant Lessard of the State Police were the officers principally responsible for processing the scene, in this case, the bedroom in which the body was found, and gathering what evidence appeared material and relevant in connection with the homicide. From his observations of the deceased, Detective Manduca made a preliminary determination that the bullet wound was caused by a .22 caliber weapon. A .25 caliber pistol and bullet clip were found in the top bureau drawer, but there was no sign of any .22 caliber weapon in the bedroom. On the floor Detective Manduca found part of a spent bullet and, following the removal of the body at approximately 9:30 a. m., he came upon a cartridge case between the mattress and headboard of the bed. Prior thereto, other evidence had been seized from the bedroom, but, for present purposes, it is unnecessary to itemize the various articles found. ¹

The evidence in this record would indicate that the defendant left the residence in the company of relatives sometime between 9:30 and 10:30 a. m. The State contends that, before leaving, Mrs. Koucoules gave the police permission to search the house. The circumstances surrounding the alleged consent will be touched upon in The officers had been informed by the defendant and by her son that Mr. Koucoules kept several guns in the house, one of which was a .22 caliber handgun. They intensified their efforts to find the missing weapon after the defendant had gone. Chief Favreau in his search for the gun entered an upstairs bedroom and observed a partially opened closet door. Inside the closet he observed an opening in the ceiling which led to a superadjacent attic crawl space. He summoned Sergeant Dionne and 'boosted him up' into the crawl space. The opening was partially covered by a piece of 'press board' which Dionne apparently moved aside to allow entrance into the space above. There, he saw a quantity of insulation, a small cardboard box, and a holster containing a .22 caliber pistol. He passed the gun down to Chief Favreau, while he himself climbed further into the crawl space in search of a bullet clip for the weapon. At this point one of the State Police officers stated that the weapon should be returned to the attic for the purpose of photographing it in its original location. Sergeant Dionne then replaced the gun and went downstairs with the other officers.

greater detail when the legality of the search is considered.

There was then some discussion concerning the matter of a search warrant, and one of the State Police officers telephoned the Attorney General's Office. As a result of the ensuing conversation, the officers decided that a search warrant would be sought. The time was then approximately eleven in the forenoon.

Detective Greely then left to obtain a warrant, accompanied by Captain Joy of the Brunswick Police. The record contains conflicting estimates as to the time at which they returned with the search warrant, the earliest being 1:00 p. m., and the latest being approximately 4:10 p. m. During their absence the remaining officers had maintained control over the premises, although it does not appear that any further search was conducted at theat time. When they did return with the warrant, the search was resumed. Detective Manduca returned to the crawl space and took possession of the weapon after photographing it. At the same time, he seized a sample of the insulation earlier observed by Sergeant Dionne, the crawl space cover, and a small ladder on which there was an unidentified stain. ² Thereafter, the officers continued unsuccessfully to search for a bullet clip for the weapon, and for a money bag in which Mr. Koucoules reportedly had placed the receipts from his restaurant business. By 6:30 p. m., all officers had departed from the scene.

At the conclusion of the hearing on the motion to suppress, the presiding Justice recited his combined findings of fact and conclusions of law in extended detail. He treated the search as a warrantless one, because the significant part of the search had been done without a warrant and also because the warrant itself had been obtained upon an affidavit which, by not disclosing the previous search for, and discovery of, the gun, gave a false impression to the complaint justice and amounted to a fraud upon a judicial officer. ³

Nevertheless, the Justice found applicable two exceptions to the warrant requirement, subject to certain limitations. He applied this Court's decision in State v. Champman, 1969, Me., 250 A.2d 203 (dealing with the right and duty of police officers to 'process the scene' of a homicide), to uphold the seizure of all items except for the ladder, insulation, and crawl space cover. In support of this ruling, the Justice viewed Chapman as sanctioning a 'reasonably limited search, a search necessary to accomplish the immediate purposes of the officers,' and not 'a license to forever after (sic) rummage through the personal effects of the household which is being searched . . ..' He further reasoned that the .22 caliber pistol had been 'seized' when Sergeant Dionne first found it, even though it had been replaced and later 'found' again, and he concluded that at that time the officers were still acting reasonably within the time limits which he construed Chapman to impose. He ruled, however, that the items ordered suppressed had not earlier been seized and in fact had not been seized until 'some four and a half or five hours later,' at which time, so he concluded, the Chapman justification had expired.

The Justice also circumscribed the consent search exception with similar limitations.

He found from the preponderance of the evidence that Mrs. Koucoules did give a valid consent to a search of the premises. This consent, he held, encompassed the bedroom in which the body was found, as well as the upstairs area, including the attic crawl space, and would suffice to authorize the seizure of all items taken, excepting, however, the ladder, insulation, and crawl space cover.

We quote the Justice's reasoning which led him to suppress the items specified:

'However, again, it seems to me that consent to search is not a wide open consent which means that officers are free at will to forever rummage through the personal property of the individual who has consented. I think it is a consent to a reasonable and limited search. It is a consent to one search. (sic) Not a consent to a series of searches and,...