State v. Sargent

• Decision Date: 26 July 1976
• Citation: 361 A.2d 248
• Parties: STATE of Maine v. Percy E. SARGENT.
• Court: Maine Supreme Court

Page 248

361 A.2d 248

STATE of Maine v. Percy E. SARGENT.

Supreme Judicial Court of Maine.

July 26, 1976.

David M. Cox, Dist. Atty., Paul Chaiken, Eugene Beaulieu, Asst. Dist. Attys., Bangor, for plaintiff.

Garth K. Chandler, Bangor, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, ^* POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

POMEROY, Justice.

In State v. Cloutier, Me., 302 A.2d 84 at 86-87 (1973), this court discussed in great detail the intended scope of Rule 16(a), M.R.Crim.P., dealing with discovery and inspection. In that opinion we took great pains to point out that the rule intends that the court may impose appropriate safeguards to protect evidence and that it specifically is authorized to specify the time, place, and manner for making an inspection of evidence in the State's custody under 'such conditions and terms as are just.'

Despite our lengthy dissertation on the subject, we find the issue of the State's obligation under Rule 16(a), M.R.Crim.P., raised again in this appeal.

That issue, and others, are raised in this appeal by this defendant against whom judgment was entered upon a jury verdict of guilty of unlawful sale of marijuana. 22 M.R.S.A. § 2384.

We deny the appeal.

It was the State's claim that the appellant made an unlawful sale of marijuana to an undercover agent of the Penobscot Reginal Special Investigation Unit. The sale is alleged to have taken place on May 22, 1974, at about 4 p. m.

Approximately a month before the trial was scheduled to commence, appellant's counsel sought leave of court under Rule 16(a), M.R.Crim.P., to examine certain records which were in the custody of the Maine State Police and were being retained at the Thomaston police barracks. The court not only granted the motion but also granted a two-week continuance of the trial in order to give counsel time to make the requested examination.

The evidence reveals that the records which appellant sought to examine were records allegedly stolen from a gasoline station at which appellant was employed. The records were being retained by the police as evidence in a criminal proceeding not involving this appellant. The court specified that the inspection could be made but that it had to be made at the police barracks in Thomaston where the records were being kept. Appellant's counsel never availed himself of the opportunity thus afforded.

The issue arose in the trial court in this factual framework: Appellant's former employer was called as a witness. He testified that after appellant's indictment he reviewed his business records to determine whether the appellant was 'on the job that day.' He was asked what the records showed, but the State interposed objection, following which the employer testified that in October, following the appellant's indictment in September, he (the witness) was the victim of a robbery by the appellant's brother, Richard, who took the records from him. The witness stated that the brother, Richard, was at the time of appellant's trial an inmate at Maine State Prison. The records about which he sought to testify, he said, were recovered by State Police officers from Richard Sargent and were at the time of appellant's trial held by the police at the Thomaston barracks as evidence against Richard Sargent.

The appellant's counsel at that point declared he had no more questions of the witness. The court then ruled that the witness could testify to his recollection of what the records revealed. The witness stated, in answer to the prosecutor's question, that his records

'would indicate at best that Percy Sargent was working for (the employer) on this particular day.'

The record reveals that just before the trial started, when it came to the attention of the presiding justice that appellant's counsel had not availed himself of the opportunity to examine the records, the court offered a further continuance in order to accomplish the inspection. This offer was refused and the trial proceeded.

Appellant now claims that the circumstances under which the inspection was ordered permitted was an unreasonable restriction upon his right of discovery under Rule 16(a). This rule reads as follows:

'Upon timely motion of a defendant and upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable, the court shall order the prosecuting attorney to permit the defendant to inspect and copy or photograph designated books, papers, documents, or tangible objects which are within the possession, custody, or control of the state, including written or recorded statements or confessions made by the defendant or a co-defendant, written or recorded statements of witnesses, transcripts of the testimony of witnesses before the grand jury, and the results or reports of physical examinations and scientific tests, experiments, and comparisons. The order shall specify the time, place and manner of making the inspection and of taking the copies or photographs and may prescribe such terms and conditions as are just.' ¹

The reasonableness of the conditions imposed by the court under which a defendant may examine evidence in possession of the State will obviously vary greatly from case to case. The conditions, if any, to be imposed are left largely to the discretion of the presiding justice. State v. Cloutier, supra. In the absence of a clear abuse of such discretion, the court's ruling must stand.

In the instant case we find there is no abuse of discretion.

The justice's order placed the records at the appellant's attorneys' disposal in Thomaston. It is clear that the records were voluminous, and it was necessary for the State Police to retain custody of them for use in a pending trial not involving appellant. It was sufficient here with the court ordered the State to make evidence in its possession available to appellant's counsel who could have made the inspection requested through the exercise of reasonable effort.

The conditions imposed were reasonable and not unduly burdensome.

This point raised by appellant in this appeal is without merit.

The undercover agent who identified the appellant as the person who sold him the marijuana described the seller as weighing approximately 180 lbs. and being between 5 10 and 5 11 tall. The officer also testified that he had been with the seller for only ten minutes on...