State v. Longley

• Decision Date: 01 November 1984
• Citation: 483 A.2d 725
• Parties: STATE of Maine v. Gordon LONGLEY.
• Court: Maine Supreme Court

Page 725

483 A.2d 725

STATE of Maine v. Gordon LONGLEY.

Supreme Judicial Court of Maine.

Argued Sept. 17, 1984.

Decided Nov. 1, 1984.

Gene Libby, Dist. Atty., Michael Saucier, Pamela Knowles Lawrason, Asst. Dist. Attys., Brett Dwight Baber, Law Student (orally), Alfred, for plaintiff.

Edward J. Titcomb (orally), Titcomb, Fenderson & Knight, Flaherty & Flaherty, Kevin S. Flaherty, Sanford, for defendant.

Before McKUSICK, C.J., and ROBERTS, VIOLETTE, WATHEN, GLASSMAN, and SCOLNIK, JJ.

McKUSICK, Chief Justice.

After a jury-waived trial in the Superior Court (York County), defendant Gordon Longley was convicted of manslaughter, Class C, 17-A M.R.S.A. § 203(1)(A) (1983); of leaving the scene of a personal injury accident, 29 M.R.S.A. § 893 (1978); and of operating after suspension, 29 M.R.S.A. § 2184 (Supp.1983-1984). Those convictions arose out of an incident in which Police Officer Robert Gallant was struck by an automobile and killed as he stood on the shoulder of Route 9 in Berwick. On his appeal from those convictions, Longley alleges that the Superior Court justice sitting without a jury committed reversible error in five respects. We find no merit in Longley's first three points on appeal, all involving evidentiary rulings. We do, however, agree with Longley that the trial justice in announcing his finding of Longley's guilt of manslaughter made an erroneous statement that "driving under the influence is both reckless and criminally negligent driving, per se." Since the justice may have applied an erroneous standard of law, we vacate the manslaughter conviction and remand for the justice to reexamine the whole evidence on that count without applying any per se rule. Because of the remand, we do not consider defendant's fifth contention that there was insufficient evidence to convict him on the manslaughter count. If defendant appeals the judgment entered on the manslaughter count on remand, his contention of insufficiency of the evidence will then be ripe for this court's consideration. We, however, do here review the record on the charges of leaving the scene and of operating after suspension, and we conclude that the trial justice had ample evidence before him to support those convictions. Therefore, we affirm those latter convictions.

Facts

At approximately 9:00 p.m. on September 11, 1982, Officer Robert Gallant of the Berwick Police Department stopped an automobile on Route 9 to investigate an argument between two of its passengers, Elizabeth Reid and her brother, Roger Turgeon. The vehicle pulled off the road into the driveway of the Dyer residence on the northwesterly side of Route 9. As Officer Gallant spoke with Turgeon, Reid walked out of the driveway onto the highway, with the intention of hitchhiking to her home in Berwick. Recognizing the danger she was in, Gallant went to where Reid was standing in an attempt to convince her to return to the Dyer driveway. Officer Gallant succeeded in getting Reid to move three feet from the edge of the pavement onto the gravel shoulder. Gallant stood between Reid and the paved roadway.

During the same period of time, defendant Longley was driving his AMC Hornet southwest on Route 9 towards Berwick. The trial court specifically found that because of the amount of beer and marijuana Longley had consumed that day, he was operating his vehicle while under the influence of alcohol and drugs. The record fully supports that finding. At 9:10 p.m. Longley's vehicle drove past the Dyer home and struck Officer Gallant, causing him fatal injuries. Elizabeth Reid was also injured. Longley pulled his car to the side of the highway some 600 feet beyond the scene of the accident. He and his two passengers got out of the Hornet and began to walk toward the Dyer home. Jack Henry, one of Longley's passengers, convinced the others that a thrown rock was responsible for the thump they had heard and that they should drive on. They returned to the car and did so.

The next day, after hearing about the officer's death, defendant Longley sought out Chief Perron of the Somersworth, New Hampshire, police department and volunteered information concerning his involvement in the accident. Longley then turned himself in to the Berwick police.

I. Excited Utterance

Over defendant's objections, the trial justice permitted four witnesses to testify about statements made by Elizabeth Reid at the scene soon after the accident. Reid said: "[T]he son of a bitch came right off the road and hit us" and "a car hit us, it's like they did it on purpose." On appeal, defendant Longley contends that the justice erred in ruling that Reid's statements came within the excited utterance exception to the hearsay rule, M.R.Evid. 803(2). We reject defendant's contention.

The trial court must find three foundational facts for the admission of a hearsay statement as an excited utterance: (1) that a startling event occurred, (2) that the hearsay statement related to the startling event, and (3) that the hearsay statement was made while the declarant was under the stress of excitement caused by that event. State v. Walton, 432 A.2d 1275, 1277 (Me.1981), interpreting M.R.Evid. 803(2). We review the trial justice's foundational finding by the "clearly erroneous" test. State v. Hafford, 410 A.2d 219, 220 (Me.1980).

Prior to the fatal accident Reid had experienced a difficult day. She had attended an afternoon wedding where she consumed seven or eight beers, and she drank an additional two or three beers later in the day. In the minutes preceding the accident she was arguing with her brother and was so upset that she attempted to hitchhike home. During her brief conversation with Officer Gallant, Reid began to cry. Given this "stressful" situation, defendant on appeal contends that although the first two prongs of the Walton test are met, Reid's statements, made within one to ten minutes of when the auto struck Officer Gallant, were not made under the stress of excitement caused by that event.

Defendant's contention lacks merit. The stress felt by the declarant need not be solely the product of a single event. "The trustworthiness of an excited utterance ... is based upon the theory that the impact of the event produces an utterance that is 'spontaneous and unreflecting'." State v. Walton, 432 A.2d at 1277 (quoting State v. Ellis, 297 A.2d 91, 93-94 (Me.1972)).

Although Elizabeth Reid had consumed a significant amount of beer on September 11, 1982, and had been arguing with her brother, whatever stress she had suffered earlier that day was dwarfed by the events after 9:00 p.m. As she stood only a foot or two from Officer Gallant, a vehicle traveling at least 40 m.p.h. headed toward the pair. Reid saw the lights of the approaching auto. She saw the vehicle strike and kill Gallant. Reid was herself hit, either by the car or by Gallant's flying body. She received serious bruises on her leg, and her nose was broken in six places. Reid testified, and the officers to whom she made the statements agreed, that after the accident she was "hysterical."

It was not clearly erroneous for the trial justice to conclude that Reid's statements were spontaneous and unreflecting and that they came within the excited utterances exception to the hearsay rule.

II. Defendant's Statements Made in Absence of Miranda Warnings

At trial defendant's counsel made an ongoing objection to the testimony of Chief Ronald Perron of the Somersworth, New Hampshire, police department regarding a conversation between Chief Perron and defendant Longley on the morning after the accident. Longley now claims that the conversation is inadmissible because Chief Perron had not first read him the Miranda warnings. At trial Chief Perron testified about the conversation as follows:

When he approached me [at a softball game] he said, "Could I see you in private for a minute?"

I said "sure." We walked up towards the tennis courts which is about 50 yards away from where I was seated and I said, "What's the problem?"

And he said, "I'd like to talk to you about the incident that happened last night over in Berwick involving the police officer."

I said, "What about it?"

He said, "I think I may have been involved in that."

I said, "What do you think?"

He said, "We had been partying that night, I was feeling pretty good."

I said, "What happened?"

He said, "I was out on Route 9 and I drove by where I saw some people on the side of the road." He said, "And we felt an impact on the car and I drove down the road a little ways and I stopped. I looked back to see if there was anything going on, if anybody was going to come after, and nobody came so I left."

I said, "What do you want to do about that now?"

He said, "I want to do the right thing, whatever is the right thing to do."

I said, "The right thing to do is go to Berwick police and tell them the whole story."

He said, "Okay. That's what I want to do."

I said, "Do you have a car?"

He said, "no" and I said, "Would you like me to take you down?

He said, "yes." I explained to him he didn't have to go if he [didn't want] to, if he didn't I would probably have to arrest him.

He said, "No, I want to go do the right thing."

The warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), must be given only when police engage in custodial interrogation. The State has the burden of proving by a preponderance that the Miranda warnings were not required, State v. Philbrick, 436 A.2d 844, 850 (Me.1981); but the trial court's ruling will be upheld if the record "provides rational support for [its] determination." State v. Bleyl, 435 A.2d 1349, 1358 (Me.1981). In the case at bar, the trial justice had ample support for his finding that Longley, when he made his statements to the Somersworth police chief, was subjected to neither police custody nor police interrogation. Therefore, Miranda did not apply.

"A person is in custody for the purposes of Miranda only when he is deprived of his...