State v. Poulin

• Decision Date: 06 August 1970
• Citation: 268 A.2d 475
• Parties: STATE of Maine v. Richard J. POULIN.
• Court: Maine Supreme Court

Page 475

268 A.2d 475

STATE of Maine v. Richard J. POULIN.

Supreme Judicial Court of Maine.

Aug. 6, 1970.

William H. Clifford, Jr., County Atty., Auburn, for plaintiff.

Gaston M. Dumais, Lewiston, for defendant.

Before WILLIAMSON, C. J., and WEBBER, MARDEN, DUFRESNE, WEATHERBEE, and POMEROY, JJ.

MARDEN, Justice.

On appeal from a conviction for breaking, entering and larceny in the nighttime.

The case arises from a series of events occurring in Lewiston on the late evening on January 5, and early morning of January 6, 1969. The respondent, whose car and person were known to the Lewiston Police, was first observed operating his automobile in Lewiston at about 11:30 p. m. on January 5, 1969. At this time both the car and the respondent were recognized by Officer S, the car by its registration number, and the respondent while lighting a cigarette when stopped at a traffic light. The car identified by registration number was observed again shortly after midnight in another part of the City, by the same officer.

At about 1:50 a. m. of January 6, 1969 Officer B operating a police cruise car, met a car coming toward him on Avon Street, but before the cruiser and the oncoming car met to pass, the oncoming car turned easterly into a driveway and as Officer B approached the driveway, one man dismounted from the passenger side and ran away. This car, the same earlier seen belonged to the respondent. As Officer B approached the automobile he noted that the trunk lid was open and in the trunk of the car was a safe, the size of which he approximates as 2 2 2 , another witness 2 2 3 and weighing 250-300 pounds. He reported his observation to police headquarters by radio. Avon Street is westerly of four streets, Avon, Winter, Summer and Spring in the order named. Holland Street runs from the northerly end of Avon easterly across Winter, Summer and Spring and continues easterly. Southerly from Holland is Bridge Street running from the southerly end of Winter easterly across Summer and Spring and continuing easterly, and next southerly is West Bates Street running from Avon Street easterly across Summer and Spring and continuing easterly. Winter Street terminates easterly of Avon, westerly of Summer and northerly of West Bates. The Eastern Fire Protection Company property (Eastern) lies on the easterly side of Spring between Holland and Bridge Streets. From within the rectangle formed by Avon Street on the west, Spring Street on the east, Holland Street on the north and West Bates Street on the south and the adjoining Eastern property, comes much of the circumstantial evidence in the way of footprints in the snow which bear upon the conviction.

At about 2:30 a. m. in the morning Detective F started the motor and drove the Poulin car from the driveway on Avon Street to the police garage. The starting switch was such that no key was needed. In the process of this removal a black glove for the left hand was observed in the seat of the car and upon arrival at the police garage the officer took the glove from the car and marked it for identification.

Meantime Officer D in response to radio information went to Bridge Street and as he passed a residence identified as No. 17 on that Street, known to be the residence of appellant's parents, he saw the appellant entering the house approaching at a run from the direction of Eastern. This occurred at about 1:55 a. m. and the officer thereafter 'stood' guard at Eastern. Also meantime, Officer R, in response to radio information, arrived in the vicinity of 17 Bridge Street at about 2:00 a. m. and a few minutes thereafter as a taxi approached and appellant emerged it, Officer R addressed Poulin and requested it, Officer R. addressed Poulin and requested him to come to the Police Station. Poulin replied 'okey, I want to speak to my father first,' Poulin re-entered the home at 17 Bridge Street and upon his return to the Street, entered the rear sea of the police car and Officer R took him to the Police Station where he was 'booked for investigation' at 2:45 a. m. At this time Pulin's personal belongings were taken from him, which items included a black glove for the right hand. It was at this time that he was deprived of his freedom and must be considered arrested.

Up to this time to break had been reported to the police, but the safe had been recognized by Officer R as similar to ones in business establishments covered by his patrol and, in pursuing the identity of the safe, a break in the 'L & B' Service Station with a safe missing was discovered by Officer R about 3:00 a. m.

Captain H came into the case sometime prior to 3:20 a. m. and at 3:20 to 3:30 a. m. he inspected the Poulin automobile in the police garage, observed the safe in the open trunk and found on the floor of the front seat on the passenger side of the vehicle a tool commonly known as a wrecking bar or a crowbar of which he took possession and marked it for identification.

At about 4:00 a. m. Captain H interviewed Poulin, and gave him the Miranda warning. At about 5:00 a. m., photographs of the safe in the car were taken. Thereafter, at about 6:00 a. m. appellant was booked for breaking, entering and larceny in the nighttime.

After daybreak Officers inspected the area between the point where the car was abandoned on Avon Street and thence easterly across lots toward Eastern and at places on Winter, Summer and Spring Streets, and at Eastern found footprints in the snow, the heel of which made a distinctive impression. Thereafter footprints with the same characteristics were found at the scene of the break at L & B Service Station. At about 10:00 a. m. Poulin's shoes were taken from him and compared with the footprints previously observed. The pattern on the heel of Poulin's shoe and the impression in the snow matched.

From the trial, in which the accused did not take the stand, resulting in the conviction, seven points of appeal were designated.

(1) For denial of a motion for acquittal.

(2) and (3) Alleging that the verdict was contrary to the evidence.

(4) That the Court erred in admitting the testimony of Officers B, D, R, C, H, P, and F 'to which objections were made.'

(5) Error in charging the jury that the defendant did not have to take the stand followed by an instruction as to inference of guilt from stolen goods in the defendant's possession which 'he does not explain * * * away by testifying in his behalf.'

(6) Disproportionate use of the word 'guilt' as compared with use of the word 'innocent' in the charge to the jury.

(7) 'The defendant was substantially prejudiced and deprived of a fair trial by reason of the following circumstances:

'The State's evidence in its entirety was developed after the police illegally seized and searched defendant's car without probable cause and without a search warrant and further illegally detained and arrested defendant without probable cause and without any warrant for his arrest and illegally seized his shoes without his permission while he was being detained.'

The charge against appellant was founded largely upon circumstantial evidence, which can support a conviction. State v. Merry, 136 Me. 243, 247, 8 A.2d 143. Here the presence of the accused and his car upon the streets, the appearance later of his car on Avon Street with the safe in the trunk, the flight of an occupant of the car, appellant's appearance in the Avon-Bridge Street area by observation almost immediately thereafter, the tracks in the snow in that area which his shoes matched, the black gloves, the break at the filling station from which the safe came, and the same footprints there, were properly for jury consideration under proper instructions,-which were given.

Upon this evidence it cannot be found that a jury was not competent to find that the accused was a party involved. Points of appeal 1, 2 and 3 are denied.

The contention of error in the admission of the testimony of seven officers does not identify the areas of aggrievement and such blanket designation is insufficient to require review, absent an exceptional case. McKown v. Powers, 86 Me. 291, 293, 29 A. 1079, and State v. Carleton, 148 Me. 237, 239, 92 A.2d 327. Refusing to recognize this case as the exceptional one is of no prejudice to appellant for the only recorded objections upon which to base point of appeal 4 are as follows:

To the admission of the photograph of the car offered through Officer F who took it because the safe was not 'tied in' and that it was too 'remote' in connection with the defendant.

The photograph was qualified as a fair and accurate representation of what it purported to depict.

To the admission of appellant's shoes because they were not tied in with the offense, that they were taken against the appellant's will, that there was no evidence that appellant was wearing them at pertinent times.

To the admission of photographs of the footprints taken at L & B Service Station, that the officer photographer was not qualified, and that there was no evidence as to when the footprints were made.

Here also the photograph was qualified as a fair and accurate representation of what it purported to depict.

To the admission of the crowbar, that it was not found in the possession of the defendant, that its connection with defendant was too remote.

The presiding Justice considered the objections as expressed and made it clear that the 'weight' to be given the exhibits as evidence was for the jury. There was no error. Point 4 is denied.

Explaining to a jury, as was here required, that the law does not require an accused to take the witness stand in his own behalf (15 M.R.S.A. § 1315) and in the same instructions to explain that stolen goods in the possession of the accused soon after they were taken raises an inference of guilt if the accused does not account for that possession, State v. Lizotte, Me., 230 A.2d 414, (5-7) 418, is delicate, though both instructions are sound in law.

Instructing the jury in...