State v. Marden, 7549

• Decision Date: 07 February 1996
• Docket Number: Docket No. P,No. 7549,7549
• Citation: 673 A.2d 1304
• Parties: STATE of Maine v. William MARDEN. . DecisionLawen 92 459
• Court: Maine Supreme Court

Page 1304

673 A.2d 1304

STATE of Maine v. William MARDEN.

Supreme Judicial Court of Maine.

Decision No. 7549.

Law Docket No. Pen 92 459.

Submitted on Briefs Sept. 22, 1995.

Decided Feb. 7, 1996.

R. Christopher Almy, District Attorney, Jeffrey M. Silverstein, Assistant District Attorney, Bangor, for the State.

Mark A. Perry, Archer, Perry and Jordan, P.A., Brewer, for Defendant.

Before WATHEN, C.J., and GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.

DANA, Justice.

William Marden appeals from a judgment of conviction and his sentence entered in the Superior Court (Penobscot County, Kravchuk, J.) on a jury verdict finding him guilty of arson, 17-A M.R.S.A. § 802 (1983 & Supp.1995). Marden contends that the judge abused her discretion when she failed to recuse herself and erred in denying his motion to suppress statements he made to the police. He also contends that it was obvious error for a police detective to give an expert opinion as to the source of smoke on Marden's sleeve, and that there was insufficient evidence to support his conviction. Finally, Marden contends that the sentence is excessive. We affirm the judgment and vacate the sentence.

The following evidence was submitted to the jury. On the evening of January 4, 1992, a fire occurred at 50 Ohio Street in Bangor. A state fire investigator concluded that the fire was intentionally set. A tenant at 50 Ohio Street who lived on the second floor across the hall from Cheryl Cole, Marden's ex-girlfriend, heard people leaving Cole's apartment at approximately 7:15 or 7:30 p.m. At approximately 9 p.m. the tenant heard someone coming up the stairs and then, after a few minutes, run down the stairs. Three to five minutes later the smoke detector went off. When the tenant went into the hallway she saw smoke coming out of Cole's apartment, and called the fire department.

Earlier in the evening, Cole, Marden, and others were drinking in Marden's apartment at 15 Union Place, which is directly behind 50 Ohio Street. Marden appeared angry because Cole was sitting on another man's lap and flirting with him. Marden left his apartment at approximately 7:00 p.m. There was conflicting testimony regarding what time Marden returned. ¹ Soon after Marden returned to his apartment fire trucks arrived at 50 Ohio Street. Two witnesses testified that Marden visited them at their apartment at approximately 6:40 p.m. and left at 8:40 p.m.

A police officer who directed traffic at the fire scene testified that Marden approached him wearing a denim jacket and blue jeans, and appeared intoxicated and angry. A detective of the Bangor Police Department interviewed Marden that evening. Marden told the detective that he had been partying at his apartment, left, and visited friends for 10-15 minutes. Marden said he then returned and changed his clothes, stayed for 20 minutes, and then left again for another 10-15 minutes to go to a tavern. Marden explained that a neighbor had told him about the fire when he returned, and he went to the scene to investigate. Marden also told the detective that he was not upset with Cole or anyone at the party. The police seized Marden's jacket.

I. Recusal

Marden contends that the trial judge erred when she denied his motion for recusal on the grounds that she was biased against him because she was acquainted with the owner of the apartment building where the fire occurred and she had prosecuted Marden for juvenile crimes in her former capacity as an assistant district attorney.

"[N]o judge should preside in a case in which he is not wholly free, disinterested, impartial and independent." In re Bernard, 408 A.2d 1279, 1282 (Me.1979) (citing Norton v. Inhabitants of Fayette, 134 Me. 468, 470, 188 A. 281, 282 (1936)). This principle conforms with a criminal defendant's due process rights provided by the state and federal constitutions. In re Bernard, 408 A.2d at 1282. A judge who previously acted as one of the party's attorneys cannot then sit in judgment to determine the rights of both parties to the same cause. Norton, 134 Me. at 471, 188 A. at 282. The fact that a judge was a prosecutor in a previous prosecution of the defendant, however, has been held not to disqualify her from sitting. See 48A C.J.S. Judges § 114 (1981). Recusal is a matter within the broad discretion of the trial court. Estate of Tingley, 610 A.2d 266, 267 (Me.1992). There is nothing in this record to indicate that the judge did not render her decisions and orders impartially. See Estate of Tingley, 610 A.2d at 267 (probate judge did not abuse his discretion in declining to disqualify himself because his nephew was on hospital board that filed claim against the estate where orders were not tainted by judicial bias or prejudice). Because the judge in this case disclosed to the parties her acquaintanceship with the building owner whose participation in the case was minimal, and because their acquaintanceship was slight, she acted within her discretion in denying Marden's motion.

II. Motion to Suppress

Marden moved to suppress the statements he made to the police on the basis that they were obtained in violation of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The court denied Marden's motion.

Marden first contends that a detective misstated the warnings required by Miranda when he told Marden that he had the right to stop answering questions because Miranda requires that the interrogation must stop if the defendant invokes his right to remain silent. ² We review a trial court's finding as to Miranda issues for clear error. State v. Cooper, 617 A.2d 1011, 1013 (Me.1992). A finding is clearly erroneous only if there is no competent evidence in the record to support it. State v. Navarro, 621 A.2d 408, 413 (Me.1993). The State must prove by a preponderance of the evidence that the Miranda rights were properly read to the suspect. State v. Hewes, 558 A.2d 696, 700 (Me.1989).

"Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. Once the warning has been given Miranda requires that if the defendant indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent the interrogation must cease. Id. at 473-74 86 S.Ct. at 1627-28. If the defendant indicates that he wants an attorney the interrogation must cease until an attorney is present. Id.

Marden's right to cut off questioning was arguably misstated by the detective when he stated that if Marden invoked his right to silence or right to an attorney he had the right to stop answering questions, because it is the interrogation that must cease. In State v. Ayers, 433 A.2d 356, 365 (Me.1981), cert. denied, 466 U.S. 941, 104 S.Ct. 1919, 80 L.Ed.2d 466 (1984), however, we endorsed the reasoning that "Miranda does not contemplate a 'ritualistic recital' but rather, is directed to insuring that the substance of the constitutional rights of a person in custody be intelligibly conveyed to him." In Ayers we concluded that although the sergeant failed to inform the defendant that he had a right to have counsel present at all times during questioning the defendant was adequately informed of his Miranda rights. Id. (citations omitted).

We conclude in the instant case that Marden was sufficiently informed of the substance of his Miranda rights. On review of the record, Marden's responses and his summaries of the meaning of the warnings indicate that he understood his rights to silence and to counsel and the consequences of waiving those rights. ³

Marden also contends that he did not knowingly and voluntarily waive his Miranda rights because as a man with minimal education he was interrogated late at night after he had been drinking all day, was agitated and in pain, and misunderstood his right to counsel and his right to terminate the questioning.

The State has the burden of proving by a preponderance of the evidence that the accused's waiver of his Miranda rights was made "knowingly, understandingly, and voluntarily." State v. Leone, 581 A.2d 394, 397 (Me.1990). After the detective read each warning he made sure Marden understood them by asking Marden to explain what each one meant to him. Marden signed a Miranda-waiver sheet acknowledging that he understood his Miranda rights and agreed to submit to questioning at that time without an attorney present. Even if Marden were intoxicated it does not necessarily mean he was unable to understand and voluntarily waive his constitutional rights. See Cooper, 617 A.2d at 1013-14 (accused voluntarily waived his Miranda rights notwithstanding evidence he smoked marijuana and crack); State v. Clark, 475 A.2d 418, 420 (Me.1984) (intoxicated defendant is not necessarily incapable of waiving constitutional rights or giving voluntary statement). The evidence rationally supports the court's finding that Marden waived his Miranda rights.

Marden next contends that the detective failed to terminate the interrogation when Marden invoked his right to remain silent by saying "no comment," and that the detective's warning to Marden that he could "sit here all night with Marden saying no comment to every question" denied him his right to retract his waiver and reassert his right to remain silent.

The "right to cut off questioning" is described in Miranda as follows:

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise....