State v. Mitchell

Decision Date09 August 1978
Citation390 A.2d 495
PartiesSTATE of Maine v. Gary Lee MITCHELL.
CourtMaine Supreme Court

Charles K. Leadbetter (orally), Arthur A. Stilphen, Asst. Attys. Gen., Augusta, for plaintiff.

Daniel G. Lilley, Portland (orally), for defendant.


POMEROY, Justice.

Appellant Gary Lee Mitchell was convicted by a jury of second degree Criminal Homicide, 17-A M.R.S.A. § 202. From judgment entered on the verdict he now seasonably appeals.

Several issues have been raised for our consideration. The first concerns the propriety of the trial justice's denial of a motion to suppress certain evidence.

The second relates to the admissibility of a wallet belonging to the victim. Appellant contends that its admission was so prejudicial as to outweigh any probative value.

Appellant also claims error was committed when the justice below admitted the testimony of the medical examiner who based his opinion on a "high probability" rather than on the standard of "reasonable medical certainty." Appellant contends next that it was error to exclude evidence of the victim's violent nature.

Finally, an attack is made on the sufficiency of the evidence.

We deny the appeal.

The jury would have been justified in believing the following facts. On the morning of November 15, 1976 a tenant of an apartment building in Portland observed a body lying in the alleyway behind the apartment. The police were notified and they arrived to investigate. During the course of the investigation the police found that a vacant third floor apartment showed signs of blood and a struggle. Blood near the window suggested that the victim had been thrown out the window.

In an attempt to locate people having some connection to the apartment, the police were eventually led to appellant, among numerous others. All individuals so located, including appellant, were asked to go to the Portland Police Department for routine questioning and for the purpose of making statements. Appellant, who had been located around 9:00 p. m., made a statement in which he detailed his activities on November 14 and 15, but denied knowing anything about the alleged homicide. There is no indication that the police did not believe the statement at that time. In any event, appellant remained at the station to await the completion of the transcription of his statement so that he could then read and sign it. Because of a delay in transcribing the statement due to a large backlog of work, appellant remained at the police station for some hours.

During the course of making his statement, appellant had mentioned that a friend, Ms. Irvine, with whom he was then living had also had some connection with the apartment. Police officers were then sent to interview Ms. Irvine. It became impossible to complete the interview at that time, however, because Ms. Irvine's child was awake and creating disturbances. The officers decided, with Ms. Irvine's acquiescence, to return sometime later in the evening.

After this abortive interview, while appellant was still waiting at the police station police officers accompanied the victim's wife and son back to the victim's apartment which had not been entered since the events leading to the alleged homicide. Immediately upon entering the apartment the victim's wife noticed that a robbery had occurred. She thereupon listed and described some of the items that had been taken.

At some point after the discovery of the robbery, the police decided to reinterview Ms. Irvine. Upon being freely readmitted to the apartment shared by appellant and Ms. Irvine, the police observed items which corresponded to the items taken from the victim's apartment. After questioning, Ms. Irvine told the police that appellant had brought the items into the apartment in the early morning hours of November 15. The officers decided not to seize the items at that time, but with Ms. Irvine's consent, one officer was left in the apartment.

When the officers returned to the police station they found appellant still waiting there and they informed him that they wished to question him further. Appellant was then read his Miranda rights. After being confronted with the fact that the police had found the allegedly stolen items in his apartment, appellant eventually admitted killing the victim and throwing him out the window. Appellant was arrested and asked to sign a consent form allowing the police to remove the items he had taken from the victim's apartment. After the consent form was signed, the police picked up the items in appellant's apartment.

During the trial the State produced evidence, some of which will be discussed later, tending to show that robbery was the motive for the killing. Appellant testified in his own behalf claiming self-defense.

I. Motion to Suppress

At trial, appellant moved to suppress the statements he had made to the police as well as all the items the police had seized in his apartment. In essence, appellant contends that he should have been read Miranda warnings before he gave his first statement to the police. Without the Miranda warning the information gained from the statement, that Ms. Irvine had some connection to the apartment where the alleged homicide took place, and all the following actions taken by the police, including appellant's ultimate confession, were fruit of the poisonous tree, See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and thus inadmissible against him.

Appellant also argues that the second entry into his apartment, when the police officers saw the allegedly stolen items, was improper since it was a warrantless search without any of the attending circumstances which might otherwise validate such a search. Accordingly, the seizure of the items and the resulting confession should have been suppressed, again as fruit of the poisonous tree.

Finally, appellant claims that the consent form that he signed was not a knowing or intelligent waiver of his Fourth Amendment rights. Appellant bases this claim on his allegation that both the length of his detention at the police station after he had made his statement and his use of depressants at the time resulted in his incompetency to make such a waiver. Thus, once again he claims that the items seized and the ultimate confession were inadmissible.

We disagree with all contentions.

We turn to a chronological analysis of all police behavior of which complaint is made.

At the hearing held on appellant's motion to suppress, the presiding justice found that appellant's first statements made at the stationhouse were legally admissible since Miranda warnings were not required under the circumstances. The statements were also found to be voluntary beyond a reasonable doubt.

The determination of the trial justice regarding the admissibility of a confession will not be set aside

. . . if, in accordance with the correct legal principle specifying the ultimate burden and requisite cogency of proof, the evidence provides rational support for the conclusions he reached. . . .

State v. Collins, Me., 297 A.2d 620, 625 (1972).

The evidence before us clearly supports a determination that appellant was not in custody and had not been deprived of his freedom in any significant way. Appellant had freely accompanied the police to the station and he voluntarily agreed to wait there until his statement could be typed. No custodial interrogation had taken place and no Miranda warnings were required. See State v. Lewis, Me., 373 A.2d 603 (1977); State v. Inman, Me., 350 A.2d 582 (1976). Similarly, the record supports the justice's finding that the statement was voluntary beyond a reasonable doubt. While appellant did testify that he had taken depressants before he was interviewed initially, there was other credible evidence that appellant was "alert", "sober", and "perfectly normal." No constitutional blemish appears in regard to appellant's first statement.

The presiding justice further found that the police officers' second entry into the apartment shared by appellant and Ms. Irvine was legally proper. Accordingly, the justice found that the ultimate confession was not impermissibly "tainted."

Again these findings find ample support in the record.

It is clear that the police officers entered the apartment with the valid consent of Ms. Irvine. A search conducted pursuant to consent is a well recognized exception to the requirement that searches be conducted only after issuance of a warrant by a disinterested magistrate upon a showing of probable cause. E. g., State v. McLain, Me., 367 A.2d 213, 216 (1976). In order for the consent to be valid, however, there must be some "objective manifestation of consent" given, either by words or gestures. Moreover, the person giving consent "must bear an appropriate relationship to the property to be searched." Id. at 216-17.

All these requirements are satisfied here. Ms. Irvine voluntarily admitted the police into an apartment where she lived and contributed to the rent. 1

It is also clear from the record that once the officers entered the apartment, the stolen items were in plain view and were not obtained by any search. Under these circumstances there was no violation of appellant's Fourth Amendment right to be free of unlawful searches and seizures. See State v. McLain, supra at 218; State v. Fitzherbert, Me., 361 A.2d 916, 920 (1976); State v. Little, Me., 343 A.2d 180, 183 (1975). Accordingly, no unlawful taint attached to appellant's confession after he had been confronted with the fact that the police had discovered the items in his apartment.

We turn next to appellant's contention that the consent form which he signed was not a knowing or intelligent waiver of his Fourth Amendment rights.

Prior to the presiding justice's ruling on the motion to suppress, appellant's attorney stated that he considered the consent...

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