State v. Parkinson

• Decision Date: 05 June 1978
• Parties: STATE of Maine v. Keith James PARKINSON.
• Court: Maine Supreme Court

Page 1

389 A.2d 1

STATE of Maine v. Keith James PARKINSON.

Supreme Judicial Court of Maine.

June 5, 1978.

Henry N. Berry, III, Dist. Atty., Peter G. Ballou (orally), Deputy Dist. Atty., Portland, Joanne Sataloff, Law Student, for plaintiff.

Terence Farrell (orally), Portland, for defendant.

Before DUFRESNE, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ.

DUFRESNE, Active Retired Justice. ¹

Keith James Parkinson appeals from the judgments of conviction entered in the Superior Court (Cumberland County) after jury verdicts of guilty on each count of a three-count indictment, the first count charging an attempt to break and enter the apartment of Omer Breau and Connie Breau at 120 Dartmouth Street, in Portland, with intent to steal therefrom in violation of 17 M.R.S.A., § 251, ² the second count charging the actual breaking and entering of the apartment of Gayle Reed at 469 Brighton Avenue, in Portland and stealing therefrom Ms. Reed's black onyx and diamond ring in violation of 17 M.R.S.A., § 2103, ³ the third count charging also the actual breaking and entering of the apartment of Raoul Barsalou at 16 Rudman Road, in Portland and stealing therefrom Mr. Barsalou's "Gerard Pequadant" wristwatch. The appeal is denied.

Parkinson bases his claim of reversible error at the trial level on the ground that his arrest by Officer Frederick Bowring of the Portland Police Department was without probable cause and in violation of his constitutional rights under the Fourth-Fourteenth Amendments to the United States Constitution ⁴ and under Article I, § 5 of the Constitution of Maine. ⁵ From that premise of an initial illegal arrest, he contends Mrs. Breau's out-of-court and in-court identification, as well as the seized plastic strips and the stereo tapes, were the "fruit of the poisonous tree" and should have been suppressed as evidence at trial. We disagree on all scores.

Preservation of objections for appellate review

Counsel for Parkinson, prior to trial, moved to suppress for use as evidence at trial Mrs. Breau's out-of-court identification as well as her prospective in-court identification pursuant to Rule 41(e), M.R.Crim.P. The defendant also sought the suppression of the cases of tapes taken by the police from the automobile of his companion on this occasion, but did not include in his pretrial proceeding a request for the exclusion of the plastic strips seized from his person by Officer Bowring. After hearing, a Justice other than the Justice presiding at trial denied the defendant's pretrial motion to suppress the identification testimony and the use of the tapes as evidence, while granting some relief with which we are not concerned in this appeal. When such evidence was introduced at trial, however, no objections were voiced to the out-of-court identification by Mrs. Breau, nor to her in-court identification. Insofar as the two boxes of tapes are concerned, the defendant's counsel at trial, upon the Court's inquiry from him as to any objections, answered that he had none. On the other hand, the Court ruled at trial, over the defendant's objections, that the plastic strips were admissible, because they were legally seized in the course of a lawful arrest.

Mere failure to object at trial to the admissibility of evidence which the court in pretrial proceedings refused to suppress will not preclude appellate review of the unfavorable ruling on the motion to suppress. State v. Hazelton, Me., 330 A.2d 919, 922 (1975). Counsel's failure to renew at trial his objection to the evidence will not be construed as a waiver and the ruling on the motion will preserve the point on appeal, unless the record should disclose special circumstances calling for the non-application of the rule. Taylor v. State, 337 So.2d 773 (Ala.Cr.App.1976), cert. quashed, 337 So.2d 776 (Ala.1976). See also State v. Connolly, 133 Vt. 565, 350 A.2d 364, 367 (1975); Riojas v. State, 530 S.W.2d 298, 301 (Tex.Cr.1975); United States v. Lemon, 550 F.2d 467, 473 (9th Cir. 1977). Thus, the correctness of the ruling below which refused to suppress the identification testimony is properly before us for review.

Absent special circumstances indicating a conscious and intelligent waiver at trial of any objections to evidence concerning which counsel had raised objections and the same had been overruled at a pretrial suppression hearing, counsel's statement at trial, induced by the court's express inquiry that he had no objection to the evidence, without more, did not constitute an abandonment of his previous position, but merely indicated his acknowledgment of the court's ruling on the issue. State v. Richards, 229 N.W.2d 229 (Iowa 1975); Lawn v. United States, 355 U.S. 339, 353, 78 S.Ct. 311, 319-320, 2 L.Ed.2d 321 (1958). But see Martelly v. State, 230 Md. 341, 187 A.2d 105, 107 (1963). Hence, the propriety of the ruling below which denied the defendant's pretrial motion to suppress the two boxes of tapes was properly preserved for our review.

The reviewability of the seizure of the plastic strips taken from the person of the defendant by Officer Bowring rests on other grounds. Although counsel for the defendant did, prior to trial, present to the court and press his motion to suppress testimonial evidence relating to the identification of the defendant and the real evidence consisting of the two boxes of tapes, his motion to suppress the plastic strips was made for the first time during trial. He conceded knowing the strips had been seized and were in the possession of the State. Although the trial Justice stated that the defendant should have raised this issue in his pretrial suppression motion, nevertheless, he did say he could not see any basis for excluding the plastic strips as it appeared they had been properly seized "to" a lawful arrest and denied their suppression in relation to the State's motion for their admission in evidence.

True, Rule 41(e), M.R.Crim.P., like Rule 41(e) of the Federal Rules of Criminal Procedure, provides that a motion to suppress evidence claimed to have been obtained by an unlawful search and seizure shall be made before trial or hearing "unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion." Some authorities say that this requirement of the rule implements a sound judicial practice designed to prevent interruption in the orderly course of a trial and to avoid a break in the continuity of the jury's attention necessarily resulting from a collateral inquiry into the lawfulness or unlawfulness of evidence in connection with Fourth Amendment rights violation. However, we need not decide in this case whether the defendant would have lost his right to object to the admissibility of the plastic strips which he could have moved to suppress prior to trial, but failed to do, since the Justice below, in the exercise of discretion expressly vested in him by the rule, did not rest his decision on the untimeliness of the objection, but rather ruled on the merits of the question. In such circumstances, the issue is preserved for appellate review. See Giacona v. United States, 257 F.2d 450 (5th Cir. 1958), cert. denied, 358 U.S. 873, 79 S.Ct. 113, 3 L.Ed.2d 104; Sumrall v. United States, 382 F.2d 651 (10th Cir. 1967), cert. denied, 389 U.S. 1055, 88 S.Ct. 806, 19 L.Ed.2d 853; United States v. Colon, 559 F.2d 1380, 1382, n. 1 (5th Cir. 1977).

1. Legality of the arrest

The defendant's all-embracing argument bases Parkinson's request for reversal of his convictions and for a new trial in each of the three cases on the ground that his original warrantless arrest was made without probable cause and, thus, his out-of-court and in-court identification by Mrs. Breau, the plastic strips taken from his person and the boxes of tapes removed from the car were fruits of the poisonous tree and inadmissible in evidence against him for having been obtained in violation of his rights of privacy protected by the Constitutions of the United States and of the State of Maine, citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

A. Facts

The record evidence surrounding Parkinson's arrest may be summarized as follows: It was around 2:30 o'clock in the afternoon of October 23, 1975, when Mrs. Connie Breau, while at the kitchen window of her first floor apartment in a multiple dwelling house numbered 120 Dartmouth Street, in the City of Portland, observed two young men approaching the rear of the building. She saw them come up the back stairs to enter the hallway. Her sixth sense caused her to slip the latch on her kitchen door for the purpose of locking herself in. At first, she elected to ignore a series of loud knocks on the door. Moments later, however, a noise like the rustling of paper attracted her attention. She then observed in the crack between the kitchen door and the door frame a plastic strip protruding about one inch and a half on the inside and moving slowly upwards toward the latch. Unnerved by the incident, she asked in a shrieking voice what they wanted. To their responsive inquiry, whether one Peter Campbell lived there, ⁶ she answered in the negative and put them on the defensive by saying: "Does that mean you have to break my door down?" Mrs. Breau thereafter closely followed their immediate retreat from the building. She saw them enter the automobile parked on Dartmouth Street in front of the house, a light blue Mercury sedan with a Maine license plate numbered 547-687. She had time to jot down on paper the license number before they started off without delay toward Forest Avenue.

Mrs. Breau then called the Portland police. Although the pretrial transcript would seem to indicate that Mrs. Breau's original communication to the police might have been only to the effect that two men had just tried to open her back door and that they had left in a car the license number of which was 547-687, she testified at trial that she had...