State v. Norris
| Docket Number | Som-22-182 |
| Decision Date | 31 August 2023 |
| Citation | 2023 ME 60 |
| Parties | STATE OF MAINE v. NICHOLAS W. NORRIS |
| Court | Maine Supreme Court |
1
2023 ME 60
STATE OF MAINE
v.
NICHOLAS W. NORRIS
No. Som-22-182
Supreme Court of Maine
August 31, 2023
Argued: April 6, 2023
James M. Mason, Esq. (orally), Handelman & Mason LLC, Brunswick, for appellant Nicholas W. Norris
Aaron M. Frey, Attorney General, and Jason Horn, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee State of Maine
Panel: STANFILL, C.J., and MEAD, JABAR, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.
CONNORS, J.
[¶1] Nicholas W. Norris appeals from a judgment of conviction of two counts of aggravated trafficking of scheduled drugs (Class A), 17-A M.R.S. § 1105-A(1)(H), (M) (2023), and one count of unlawful trafficking in scheduled drugs (Class B), 17-A M.R.S. § 1103(1-A)(A) (2023), and a judgment of criminal forfeiture, 15 M.R.S. § 5826 (2023), entered by the trial court (Somerset County, Mullen, C.J.) after a jury trial. He challenges the denial of his motion to suppress evidence and argues that his right to a speedy trial was violated. We affirm.
I. BACKGROUND
A. The Tracking Warrant and Search Warrant
[¶2] On January 23, 2020, a special agent with the Maine Drug Enforcement Agency (MDEA) applied for a search warrant authorizing the
installation and use of an electronic tracking device on a black 2011 Ford Fiesta registered to Norris. The request was based largely on information provided by a confidential informant (CI) and a confidential source (CS). The trial court (Penobscot County, Lucy, J.) issued the warrant, and the special agent installed the tracking device on Norris's vehicle on February 5, 2020.
[¶3] Two weeks later, the special agent applied for a second search warrant, seeking authorization to search Norris's vehicle and person for evidence of drug trafficking. The affidavit filed in support of the search warrant included the information contained in the tracking warrant affidavit and additional information obtained from in-person surveillance by MDEA special agents, the tracking device, and a cooperating defendant (CD). The trial court (Campbell, J.) issued the warrant.
[¶4] On February 21, 2020, at the direction of MDEA special agents, a state trooper stopped Norris's vehicle on the ramp of Exit 157 of Interstate 95, near Palmyra and Newport. The special agents executed the search warrant and found large quantities of cocaine, fentanyl, and heroin, as well as $1,781 in cash, in Norris's vehicle.
B. The Trial Court Proceedings
1. The Proceedings in Penobscot County
[¶5] The State filed a complaint in the trial court in Penobscot County, charging Norris with aggravated trafficking of scheduled drugs and unlawful trafficking in scheduled drugs. Several months later, in July 2020, a Penobscot County grand jury indicted Norris. The State alleged in the indictment that the crimes were committed in Newport.
[¶6] The following month, Norris filed a motion to suppress the evidence seized pursuant to the two warrants. Citing the state and federal constitutions, Norris argued primarily that the warrants were not supported by probable cause because the supporting affidavits-which relied heavily on the information provided by the CI, CS, and CD[1]-did not establish the basis of each informant's knowledge, the circumstances of the informants' cooperation, or the reliability of the informants.
[¶7] The trial court (A. Murray, J.) held a suppression hearing in April 2021. The evidence offered at the hearing included the warrants with
accompanying affidavits and inventories of the information and items seized, as well as brief testimony from the special agent who authored the warrant applications. On cross-examination, the special agent testified that the exit ramp where Norris was stopped is close to the border of Penobscot County and Somerset County and that it is possibly located in Palmyra, not Newport. With respect to the second search warrant, the special agent testified that he did not provide Norris with a copy of the search warrant or a receipt for the seized property, the inventory was not made in Norris's presence, and he did not indicate on the form in whose presence the inventory was made. Although not raised in his written motion to suppress, Norris argued orally that the evidence should also be suppressed because of the special agent's failure to adhere to the requirements of M.R.U. Crim. P. 41. In July 2021, the trial court denied Norris's motion and scheduled the matter for a trial the following month.
[¶8] On the first day of trial, before the jury was sworn, the State filed a notice of dismissal of the indictment pursuant to M.R.U. Crim. P. 48(a). The State explained that it had determined that law enforcement stopped Norris in Somerset County, approximately 1,800 feet from the boundary with Penobscot County and, therefore, the "hundred rods rule" did not apply,[2] barring the case
from being tried in Penobscot County. The State expressed that it intended to indict Norris in Somerset County. Norris objected to the dismissal, insisted that the trial proceed in Penobscot County, and argued that his right to a speedy trial was being violated. The court (Anderson, J.) ruled that it had to accept the notice of dismissal and that because the matter had been dismissed, Norris no longer had a speedy trial claim in that proceeding. The court told Norris that he might have recourse in Somerset County if the State refiled the charges in that venue.[3]
2. The Proceedings in Somerset County
[¶9] Two days later, on August 26, 2021, the State indicted Norris in Somerset County, and a warrant issued. Norris was eventually arrested. At his initial appearance on November 12, 2021, the matter was scheduled for docket call on November 29. Although the matter had been immediately scheduled for trial, Norris requested a continuance and a dispositional conference. Just before the dispositional conference in January 2022, Norris's attorney moved
to withdraw from the case. After a couple of changes in defense counsel, the court (Mullen, C.J.) held a jury trial in April 2022.
[¶10] At the beginning of the trial, the State and Norris informed the court that they were stipulating to the adoption of the suppression order from Penobscot County.
[¶11] After two days of hearing testimony and viewing exhibits, the jury found Norris guilty on the three drug charges. The court entered a judgment on the jury's verdict and found that $1,500 was subject to criminal forfeiture. Norris was sentenced to twelve years of imprisonment, with all but five years suspended, and four years of probation. Norris timely appealed.
II. DISCUSSION
A. Norris's speedy trial claim under the Maine Constitution fails because he did not adequately assert his right, and his claim under the United States Constitution fails under obvious error review.
[¶12] Norris argues that his right to a speedy trial was violated under both the Maine and United States Constitutions.[4]
1. Norris's speedy trial claim fails under the Maine Constitution because he did not adequately assert his right.
[¶13] Under our primacy approach, we address the state claim first and consider the federal claim "only if the state constitution does not settle the issue." State v. Moore, 2023 ME 18, ¶ 17, 290 A.3d 533 (quotation marks omitted).
[¶14] Article I, section 6 of the Maine Constitution secures the right to a speedy trial. We recently explained in some depth the scope of that right in Winchester v. State, 2023 ME 23, ¶¶ 14-39, 291 A.3d 707. In that decision, we articulated a four-factor balancing test for evaluating a speedy-trial claim, examining (1) the length of the delay, (2) the reasons for the delay, (3) the assertion of the right, and (4) prejudice. Id. ¶¶ 25-31. Although these are the same four factors evaluated under the United States Constitution, see Barker v. Wingo, 407 U.S. 514, 530-33 (1972), we noted that one difference between the federal and Maine tests "is that a failure to assert the right can be determinative under the Maine Constitution but not under the United States Constitution," Winchester, 2023 ME 23, ¶ 33, 291 A.3d 707.
[¶15] Norris argues that he adequately asserted his right to a speedy trial on two occasions. First, he points to his claim of a speedy-trial violation in the Penobscot County proceedings. See supra ¶ 8. But he attempted to assert his
right after the State had dismissed the indictment. There is no right to a speedy trial on dismissed charges. See State v. O'Clair, 292 A.2d 186, 191 (Me. 1972); State v. Harriman, 259 A.2d 752, 755 (Me. 1969). Moreover, when the indictment was dismissed, the trial court told Norris that his recourse would be in Somerset County if the charges were refiled. But Norris did not file a motion demanding a speedy trial in Somerset County, and he did not move to dismiss the Somerset County indictment for lack of a speedy trial.[5] See State v. Couture, 156 Me. 231, 245, 163 A.2d 646, 656 (1960) ("It seems that the proper method for raising the question of violation of the right to a speedy trial is by motion addressed to the court at which the indictment is pending."); State v. Smith, 400 A.2d 749, 754 (Me. 1979) (indicating that the form and timing of the assertion of the right matters).
[¶16] Norris also points to the motion to withdraw filed by his attorney in Somerset County, in which his attorney stated:
Although Mr. Norris asked this Court at his initial appearance to schedule a trial in Somerset County as soon as possible, defense counsel was already scheduled to conduct several trials in December of 2021 and moved for a continuance. . . . Mr. Norris continues to insist on a speedy trial.
But there is no evidence in the record that Norris demanded a speedy trial at his initial appearance in Somerset County, and any demand would have been negated by his contemporaneous request for a continuance. See...
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