State v. York

• Decision Date: 29 August 1974
• Citation: 324 A.2d 758
• Parties: STATE of Maine v. Bernest A. YORK, Jr. STATE of Maine v. Charles P. HEALD.
• Court: Maine Supreme Court

Page 758

324 A.2d 758

STATE of Maine v. Bernest A. YORK, Jr.

STATE of Maine v. Charles P. HEALD.

Supreme Judicial Court of Maine.

Aug. 29, 1974.

Arthur C. Hathaway, County Atty., Dover-Foxcroft, for plaintiff.

Stanley W. Brown, Jr., Belfast, for defendants.

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

DUFRESNE, Chief Justice.

Bernest A. York, Jr. and Charles P. Heald were separately indicted by the Grand Jury in and for the County of Piscataquis at the November Term, 1971 of the Superior Court in said County for the crime of attempting to commit a criminal offense, ¹ to wit, the offense of breaking and entering with intent to commit larceny. ² The fool-proof building involved was the 'Some Place Else' restaurant in Greenville, Maine, which the defendants were charged with the attempt to burglarize during the night of October 6, 1971. Their consolidated trial pursuant to Rule 13, M.R.Crim.P. resulted in a guilty verdict against both defendants. York was sentenced to a term of six months in the county jail, while Heald's punishment was imprisonment in Maine State Prison for a term of not less than 1 1/4 years and not more than 2 1/2 years. Both have appealed to this Court. Their appeals are denied.

Resort to the evidence received at the hearing on the defendants' motion to suppress and at the trial must be detailed to some extent in order to analyze and resolve the contentions and issues raised by the multiple points on appeal.

The 'Some Place Else' restaurant is situated in Greenville, Maine at the intersection of Pritham Avenue and Dorr Street. Pritham Avenue runs in an east-west direction and Dorr Street is a dead-end street running northerly from Pritham. The restaurant occupies the northwest corner of the intersection and has an east-side entrance on Dorr Street and a south-side entry-way on Pritham Avenue.

Raymond A. Manske and his wife, Marion, owned the restaurant and its contents. On October 3, 1971 they had closed it, locked all the doors and left the premises in the care of Mrs. Alice Tracy, who, during the afternoon of October 6, 1971 had inspected the place. She testified the doors of the restaurant were than locked, the glass on the east-side door was intact and the hasp thereon was firmly attached.

At approximately 11 p. m. that evening, Cindy Breton, a young lady in her teens who lived on the east side of Dorr Street and had just gotten into bed for the night, first heard a 'hitting' noise, followed by the sound of breaking and falling glass. This sonic disturbance, she testified, came from the back end of the restaurant. From her second-floor bedroom window she saw a figure cross Dorr Street diagonally from the 'back' or north side of the restaurant. Cindy's father, Adrien Breton, on her summons joined his daughter at the bedroom window where both observed the figure make a quick return across Dorr Street to the area behind the restaurant. They then observed another figure standing near a propane gas tank to the rear of the building. At this point Mr. Breton left the room to telephone Marvin Jones, a State Trooper, who lived in the vicinity, advising him of his observations. Returning to the bedroom window, Mr. Breton resumed his 'first base bleacher seat.' Both witnesses then saw the two figures emerge from the rear of the restaurant and proceed northerly in the middle of Dorr Street past the Breton residence. Cindy described their gait as 'faster than a normal walk.'

While proceeding northerly on Dorr Street the two figures passed beneath a street light. The Bretons then observed the individuals were both male. Miss Breton thought she saw their faces clearly enough to recognize them later, but she was unable to do so. She did, however, testify that one had darker hair than the other, one wore light colored pants and a green field jacket or shirt, and both had red gloves on. In his description of the two men on the witness stand, Mr. Breton said that one was taller than the other, both wore red gloves, but no hat, and they were dressed in light colored pants, but darker jackets. He stated that the taller of the two had what he described as a 'lantern jaw.' ³

As the two men proceeded north on Dorr Street, they disappeared from the Bretons' line of vision. Within a matter of 'minutes or seconds' a car appeared on Dorr Street from the direction in which the two men had been going. The vehicle at first was traveling without lights, but they were turned on as the automobile passed the Breton house. Mr. Breton observed that the car was dark green and had a peculiar taillight configuration with two lights on either side, one above the other. He furnished this information to Trooper Jones shortly thereafter, with the disclosure that the make of the car was a Ford. He further noticed as the automobile was passing by the house under the illumination provided by the street light that the driver of the vehicle was wearing a dark 'arny type' field or fatigue jacket and pants of a lighter color of the same hue as those worn by one of the men who had just previously walked up Dorr Street.

Both witnesses saw the green Ford sedan make a left turn from Dorr Street onto Pritham Avenue and proceed easterly towards Greenville Village.

Within minutes Trooper Jones arrived at the scene and went directly to the restaurant. He found the outer screen door or the east-side entrance partially open, the pane of glass nearest to the doorknob on the inner door broken, and glass on the floor inside the restaurant. A safety hasp and padlock on the inner door had been separted from the door casing. The hinged part of the hasp, ordinarily attached to the door casing, contained four screws which were no longer affixed to the frame of the door.

Mr. Breton joined the officer at the restaurant and fully related to him what he and his daughter had witnessed. It does not appear from this record, however, that he then disclosed to the law man the noteworthy facial characteristic of one of the individuals, his 'lantern jaw.'

The officer then returned to his vehicle. He stated that this was approximately eight to ten minutes after Mr. Breton had called him on the phone. Joined by Deputy Sheriff John Owens as he was proceeding towards the village, the State Trooper continued on easterly on Pritham Avenue.

Less than one mile from the 'Some Place Else' restaurant, Officer Jones observed the taillights of a car flashing on and off in the area behind what is described in the record as Pickett's Garage. Because the garage was closed and the streets of the village were otherwise vacant, the trooper drove itno the area behind the garage to investigate what was going on. There, he saw a green Ford with two vertically aligned tailights on either side of the vehicle. He noted that the car contained two male occupants, one taller than the other.

In response to Officer Jones' inquiry, the man in the driver's seat identified himself as the defendant Heald. The person on the passenger side was the defendant York. The officer testified that York was wearing an army fatigue jacket and light khaki or 'suntan' pants. He could not recall Heald's attire. The two men stepped out of the car when the trooper asked them to do so. As he alighted, the defendant Heald left open the door on the driver's side of the automobile. Through the open door, the officer observed on the front seat a scredriver which he described as being heavier than the ordinary household type and having a six-inch blade. He then placed the defendants under arrest, seized the screwdriver, reached under the front seat and found two pairs of red gloves which he also seized.

Shortly therafter, Mr. Breton came to Pickett's Garage in response to a telephone call from police headquarters in Augusta. When he arrived, the defendants were still standing beside the green Ford with their hands on the vehicle. Mr. Breton was asked if he had earlier seen these two men or the vehicle. He identified the car and answered that he could identify the defendant Heald by his 'lantern jaw.' He later testified that he also relied on Heald's hairline and 'slicked back' hair style, although the record does not indicate whether he mentioned these latter features at the out-of-court show-up. He was unable, however, to make a positive facial identification of York.

Prior to their trial, the defendants unsuccessfully filed a motion to dismiss their indictments and a motion to suppress the red gloves and screwdriver. At trial, the screwdriver was admitted over the objection that it was irrelevant and immaterial, the gloves over the 'same objection' and the additional argument that they were the product of an illegal search and seizure.

Without objection, Mr. Breton made an in-court identification of Heald as one of the men he had seen near the restaurant. The Court ruled that there was no positive identification of York, but, over objection, Mr. Breton was allowed to say that York was with Heald at Pickett's Garage. The only grounds articulated in support of the objection were relevance and materiality.

The defendants have now formalized their points on appeal as follows: 1) it was error to deny their motion to suppress, and error to admit the gloves and screwdriver, because there was no probable cause for an arrest or search, the search was not incident to a valid arrest, and the plain view doctrine is inapplicable; 2) it was error to deny their motion to dismiss the indictments; 3) it was error to admit hearsay testimony (unspecified) of Officer Jones; 4) it was error to allow the in-court identification by Mr. Breton, because it was tainted by the out-of-court show-up which, defendants argue, violated their right to counsel and was so 'dangerously suggestive' as to deprive them of due process of law; 5) it was error to deny their motion for acquittal at the close of the State's case; and finally, 6) it was error to deny their motion for a jury...