State v. Morton

• Decision Date: 29 January 1979
• Citation: 397 A.2d 171
• Parties: STATE of Maine v. Thomas MORTON.
• Court: Maine Supreme Court

Page 171

397 A.2d 171

STATE of Maine v. Thomas MORTON.

Supreme Judicial Court of Maine.

Jan. 29, 1979.

Michael D. Seitzinger (orally), Asst. Atty. Gen., Charles K. Leadbetter, John Atwood, Vernon Arey, Asst. Attys. Gen., Augusta, for plaintiff.

Sanborn, Moreshead, Schade & Dawson by Gordon H. Smith (orally), Augusta, for defendant.

Before McKUSICK, C. J., and WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ.

McKUSICK, Chief Justice.

Following a jury trial in Somerset County, to which venue was transferred by consent of the parties pursuant to Rule 21(b) M.R.Crim.P., defendant Thomas Morton was convicted of two counts of felonious homicide, 17 M.R.S.A. § 2651 (repealed P.L. 1975, c. 499, § 15), for the murders of Florence and Joaquin Bettencourt. ¹ On appeal, defendant raises numerous claims of error. We deny the appeal.

Around 8:30 p. m. on December 9, 1973, a power failure in Liberty, Maine, left both the home of Florence and Joaquin Bettencourt and Mr. Bettencourt's nearby used clothing store without electric light. Mr. Bettencourt closed his store around 8:45 p. m., a bit earlier than usual, and returned home.

Sometime between 8:30 and 9:00 p. m. one of the Bettencourts' neighbors heard gunshots. Four days later a Waldo County Deputy Sheriff discovered the bodies of the Bettencourts on the premises of their residence. Mr. Bettencourt had been shot in the chest with shotgun pellets and in the forehead by a .22 caliber bullet. Mrs. Bettencourt suffered gunshot wounds from two different weapons, one of which appeared to be some kind of an automatic pistol. The Bettencourt home had been ransacked and the telephone wires cut. No money was found on the persons of either of the Bettencourts. Spattered candle wax drippings were found throughout the house.

Five days after the discovery of the murders police seized a tan Oldsmobile driven by defendant. A search of the car revealed wax drippings similar to those found in the Bettencourt home. Within one week of the vehicle search, defendant left the State of Maine for Florida.

I. Sufficiency of the Evidence

Defendant contends that the evidence adduced by the State fails to support the jury's verdict. We disagree. The jury had before it testimony of Morton's extrajudicial admission of participation in the murders, and the rest of the evidence, though circumstantial, was convincing and substantial.

Of critical importance was the testimony of prosecution witness Harold Smith. He testified that in mid-November of 1973, about three weeks prior to the Bettencourt murders, defendant, along with three other accomplices including Smith himself, met to discuss and plan a robbery. One of the accomplices said he knew of an old man, Joaquin Bettencourt, who ran a used clothing store and usually carried large sums of money on his person. Noting that the store owner often carried a gun, the accomplice commented that it might prove necessary to kill him if he offered any resistance. No objection was voiced to the plan, and the four conspirators agreed to rob Bettencourt as he returned home from his store that evening. They drove to the Bettencourt residence and arrived at 9:00 p. m. It was agreed that Smith would cut the telephone wires running to the Bettencourt home. Before he could finish that task, however Smith was observed, and the conspirators abandoned the robbery attempt. Smith testified that while the conspirators fled from the scene in a tan Oldsmobile driven by defendant, Morton commented that it would be "at least a month before the heat died down." ²

The jury was apprised of numerous similarities between the November attempted robbery testified to by Smith and the December murders. First, both incidents occurred on a weekend, in the vicinity of 9:00 p. m., the store's customary closing time. Significantly, prosecution witness Regina Jackson testified that on December 9, 1973, the night of the murders, she overheard one of Morton's companions say to him: "We've got to get going because we've got to be there by nine." Second, similar weapons were used on both occasions. Smith testified that Morton carried a twelve gauge shotgun during the attempted robbery of mid-November and that one of his accomplices was armed with a .22 caliber revolver and another with an automatic pistol. Ammunition recovered by a pathologist who conducted the autopsies of the Bettencourts included shotgun pellets, a .22 caliber bullet, and ammunition that could have been fired by an automatic pistol. Third, an attempt was made to cut the phone wires during the November incident; the wires were found cut when the December murders were discovered.

Given the obvious similarity between the Modus operandi of the two crimes and defendant's November statement that it would be "at least a month before the heat died down," the jurors were entitled to infer that Morton, having participated in one unsuccessful robbery attempt, returned to the Bettencourt home for a second attempt during which the murders occurred.

The presence in defendant's car ³ of wax drippings chemically consistent with the drippings found in the Bettencourt home after the murders added circumstantial evidence of defendant's guilt. Finally, and most importantly, Morton's erstwhile girlfriend, Judith Harvey, testified that Morton told her he had been involved in the Bettencourt murders and said that he had "plugged" Mrs. Bettencourt "full of holes" because he was afraid that if he allowed her to live she might have been able to identify him.

The trial testimony of co-conspirator Smith and girlfriend Harvey, the incriminating wax drippings, and defendant's departure from the State of Maine shortly after his car was seized and searched afforded the jury ample grounds for finding defendant guilty of the Bettencourt murders beyond any reasonable doubt.

II. Search of the Tan Oldsmobile

Defendant does not dispute the fact that at about 4:00 p. m. on December 18, 1973, the Maine State Police received information giving them probable cause to believe that a tan Oldsmobile, registered to one Marlene Roderick of Waterville, Maine, had been used in the commission of the Bettencourt murders. Waterville police placed the vehicle, then located in the Roderick driveway, under police surveillance. Simultaneously, the State Police commenced preparation of an affidavit for a search warrant. Before a warrant could be issued and executed, however, Waterville police noted that the car was being moved.

The vehicle was stopped by Waterville police officers on a public highway around 10:00 p. m. The driver turned out to be the defendant, Thomas Morton. The vehicle was then towed by Arbo's Wrecker Service to Arbo's Garage on Grove Street in Waterville. Officers from the Maine State Police laboratory traveling from Augusta arrived in Waterville at Arbo's Garage sometime between 11:30 and 11:45 p. m. They conducted a search of the car and discovered traces of wax drippings, later determined to be similar to drippings found in the Bettencourt home.

Morton contends that the police conducted an unconstitutional warrantless search and that consequently all evidence stemming from the search of the vehicle ought to have been suppressed. After a pretrial hearing, the presiding justice denied defendant's motion to suppress, noting, inter alia, that the exigent circumstances doctrine of Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), validated the warrantless search. We find the presiding justice's ruling correct.

When there is probable cause to search an automobile stopped on a public highway, immediate warrantless searches are constitutionally permissible because of the movable nature of the vehicle. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). If the attendant circumstances make an immediate search on the highway unsafe or impractical, the car may be moved to a more convenient location. If a search is promptly conducted after its arrival there, the probable cause factor extant on the public highway remains in force, and the warrantless search is constitutionally permissible. Chambers v. Maroney, supra, 399 U.S. at 52, 90 S.Ct. 1975; Texas v. White, 423 U.S. 67, 68, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975); State v. Cress, Me., 344 A.2d 57, 63-64 (1975).

Here, the need to employ trained officers who knew how to preserve delicate evidentiary material, such as wax drippings and blood stains, made an immediate search on the public highway impractical. The short delay between the car's arrival at Arbo's Garage and the commencement of the search was attributable to the fact that those trained officers had to travel from Augusta to Waterville. The vehicle search commenced as soon as they arrived and was expeditiously carried out without unnecessary delay. We conclude there was no error in the denial of defendant's pretrial motion to suppress the evidence obtained in the search of the car.

III. Discovery Issues

A. Financial Assistance

Pursuant to former Rule 16(a) of the Maine Rules of Criminal Procedure, ⁴ defendant filed a pretrial discovery request seeking, inter alia, all documents relating to moneys paid by the State to any of the prosecution witnesses as compensation for their expenses incurred while attending other criminal trials. At a pretrial discovery hearing, the prosecuting attorney testified that the State had spent money during the course of the earlier trial of Morton's accomplice, Charles Heald, to reimburse witnesses for bus tickets, motel costs, and, in one instance, a car rental. The presiding justice observed that evidence regarding those payments would be of little use to defendant. They would not significantly impeach the credibility of the State's witnesses because these witnesses did not profit by testifying for the prosecution; they were merely reimbursed for the expenses they incurred in the course of appearing as State witnesses. Accordingly, the presiding justice denied...