STATE OF MAINE CUMBERLAND, ss.
STATE OF MAINE
v. ORDER ON MOTION TO SUPPRESS C; C?UJ 1-- L
,,',=-;:> ~
RICHARD NEWCOMB ~~.: ~~~:~ ~.~ I', I (>' ;:_-~ ::~;: C.:J " I .~_.~ -n '-"] :.~ - ....
INTRODUCTION Y:J Pending is Newcomb's motion to suppress evidence arising out of statemeJi~ , '
made by him without the Miranda warning when the officer first encountered him and
while waiting to leave the scene at Picnic Point on Peak's Island. Newcomb is charged
with two counts: assault, Class D, in violation of 17-A M.R.S.A. § 207(1)(A), and
criminal threatening, Class D, in violation of 17-A M.R.S.A. § 209(1).
On September 2, 2007, just before 1:30 a.m., Les Smith and Dan Rose, Portland
Police Officers assigned to Peak's Island, were dispatch to Picnic Point for a party with a
campfire. They parked their vehicle, approached Picnic Point by a foot path and
discovered a group of people who had been to a wedding in the afternoon and who were
paying guitars and bongo drums and some local kids had joined them. There had been
some arguing or fighting but the officers determined that it had been mutual and did not
make any arrests. The officers directed the island kids to put out the fire, clean up and go " home. The officers returned to their vehicle to watch for underage drinking and make
sure the island kids left the area. Within ten minutes, the officers were dispatched to the \ same area for reported fighting. The officers were advised that someone had been chased \.)
1 into the water. As the officers approaohed Picnic point, they split off onto different
paths. At the fire pit, officer Smith met seven to twelve individuals who said a hunch of
island kids jumped one of them from behind and chased him into the water. They
pointed to the area where this happened. Officer Smith saw a man running along the
rocks, the grOUP of people ye\led, "That's the one who did this." officer Smith took off
after him. yelling at him to stop. The man stopped running and Smith caught up to him.
With his flashlight, Smith recognized the male as Dickie Newcomb, a young man he
knew from the island. Newcomb had cuts on his knuckles and he was very wet. Officer
Smith asked him, "What happened?" Newcomb responded, "I was in a fight."
Newcomb and Officer Smith walked around Picnic Point until they came back to the
entrance to the point to wait for Officer Rose. Officer Smith directed Newcomb to sit
down and wait. Moments later, OffIcer Rose and Harvath, another male, arrived from
separate paths. The man pointed to Newcomb and stated, "He is the one who hit me; say
your VOlce. ewcomb stood up stating, "1 did not try to drown something so I can hear ." N him. I tell you noW, I hit him. 1 did not try to drown him. If anything, 1 saved his life, 1
pulled him out of the water and he even thanked me when 1 pulled him out of the water."
1 try to drown me, you tried to kill m~l" B) thi~ tim~, The male said , "Not true, you d'd
several . people had gathered around wlthm . . an eight-foot rad'lUS yelling t N stating he should go t .. 1 ' a cwcomb and a Jal. The officers tried to qUIet . the crowd Offi S' to get Newcomb out o f t h ' . lcer filth decided ., ere so SmIth and Newcomb returned to h . ~. wait for Officer Rose h . t e pohce vehicle to .--" . w a remamed with the group of people W . . pohce vehicle the cro d . . htle walkmg back to the w was yellmg that they wanted N attempted murder R ewcomb to go to jail for . ose explaine d t0 Newcomb that he w auld get summonsed for simple . .. .
FO
2 assault. Newcomb kept repeating what he had said before, he "did not try to drown him,"
admitting he hit him, he pulled him out of the water and Harvath thanked him when he
pulled him out of the water. Other than the original question from Officer Smith when he
first encountered Newcomb and asked him "what happened", neither officer asked
Newcomb any questions. The officers were focused throughout in trying to find out what
happened, to quell the angry people at the fire pit and to end the partying. The officers
thought it best to separate the two men, Newcomb and Harvath, and get their statements
at a later time.
The officers were armed and in uniforms. Miranda was not administered to
Newcomb. The officers never placed Newcomb in handcuffs or restrained him
physically. They did transport him out of the area and summonsed him for assault.
Discussion
In support of his motion, Newcomb argues that any statements were made in
violation of his Miranda rights and law enforcement knew or should have known that the
circumstances were likely to elicit incriminating statements. Defendant relies on
Pennsylvania v. Muniz, 496 U.S. 582 (1990). In Muniz, the Unites States Supreme Court
"was called on to decide 'whether various incriminating utterances of a drunk-driving
suspect, made while performing a series of sobriety tests, constitute testimonial responses
to custodial interrogation for purposes of the Self-Incrimination Clause of the Fifth
Amendment. '" State v. McKechnie, 1197 ME 40, ,-r 8, 690 A. 2d 976, 978. In Muniz, the
Supreme Court concluded that Miranda required the suppression of defendant's response '.
to the question regarding the date of the defendant's sixth birthday, but did not agree that
the entire audio portion of the videotape should have been suppressed. The Supreme
3 Court distinguished between the content of the response from the physical inability of the
defendant to respond clearly, such as slurring of speech and other evidence of lack of
coordination revealed by the defendant's response to the officer's direct questions. Thus,
the Supreme Court did not deem field sobriety tests to be communicative in nature, but
rather "tests designed to reveal a 'lack of muscular coordination' that may evidence
impairment resulting from the use of alcohol." McKechnie, 1997 ME ~ 9, 690 A. 2d at
978 (quoting Muniz, 496 U.S. at 592).
In the case at hand, Officer Smith asked only one question, "what happened"
when he first came upon the scene and called to Newcomb to stop. There are no other
direct questions by an officer. What followed is that Officer Smith asked Newcomb to
accompany him to the entrance of Picnic Point where he was to meet the other officer.
When they reached the meeting area, Officer Smith directed Newcomb to be seated on a
rock while they awaited the return of the other police officer. The other officer arrived at
the same time as Harvath, another individual - not connected to law enforcement - when
Harvath yelled out a comment to Newcomb eliciting a response from Newcomb. A
Miranda warning is required only if a defendant is in custody and subject to
interrogation. See, e.g. State v. Swett, 1998 ME 76, ~ 4, 709 A. 2d 729, 730. "The
Miranda rule does not apply to spontaneous statements that are not a response to ... ", t; v' interrogation." State v. Lear, 1998 ME 273,722 A. 2d 1266, citing Muniz, 496 U.S. 605. ~.:
Without deciding whether Newcomb was in custody, the question is whether this was "::. police interrogation. The officers did not elicit incriminating statements or admissions, . ~
nor should the officers have known that the other individual would shout something that ...... '
would elicit incriminating statements or admissions.
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF MAINE CUMBERLAND, ss.
STATE OF MAINE
v. ORDER ON MOTION TO SUPPRESS C; C?UJ 1-- L
,,',=-;:> ~
RICHARD NEWCOMB ~~.: ~~~:~ ~.~ I', I (>' ;:_-~ ::~;: C.:J " I .~_.~ -n '-"] :.~ - ....
INTRODUCTION Y:J Pending is Newcomb's motion to suppress evidence arising out of statemeJi~ , '
made by him without the Miranda warning when the officer first encountered him and
while waiting to leave the scene at Picnic Point on Peak's Island. Newcomb is charged
with two counts: assault, Class D, in violation of 17-A M.R.S.A. § 207(1)(A), and
criminal threatening, Class D, in violation of 17-A M.R.S.A. § 209(1).
On September 2, 2007, just before 1:30 a.m., Les Smith and Dan Rose, Portland
Police Officers assigned to Peak's Island, were dispatch to Picnic Point for a party with a
campfire. They parked their vehicle, approached Picnic Point by a foot path and
discovered a group of people who had been to a wedding in the afternoon and who were
paying guitars and bongo drums and some local kids had joined them. There had been
some arguing or fighting but the officers determined that it had been mutual and did not
make any arrests. The officers directed the island kids to put out the fire, clean up and go " home. The officers returned to their vehicle to watch for underage drinking and make
sure the island kids left the area. Within ten minutes, the officers were dispatched to the \ same area for reported fighting. The officers were advised that someone had been chased \.)
1 into the water. As the officers approaohed Picnic point, they split off onto different
paths. At the fire pit, officer Smith met seven to twelve individuals who said a hunch of
island kids jumped one of them from behind and chased him into the water. They
pointed to the area where this happened. Officer Smith saw a man running along the
rocks, the grOUP of people ye\led, "That's the one who did this." officer Smith took off
after him. yelling at him to stop. The man stopped running and Smith caught up to him.
With his flashlight, Smith recognized the male as Dickie Newcomb, a young man he
knew from the island. Newcomb had cuts on his knuckles and he was very wet. Officer
Smith asked him, "What happened?" Newcomb responded, "I was in a fight."
Newcomb and Officer Smith walked around Picnic Point until they came back to the
entrance to the point to wait for Officer Rose. Officer Smith directed Newcomb to sit
down and wait. Moments later, OffIcer Rose and Harvath, another male, arrived from
separate paths. The man pointed to Newcomb and stated, "He is the one who hit me; say
your VOlce. ewcomb stood up stating, "1 did not try to drown something so I can hear ." N him. I tell you noW, I hit him. 1 did not try to drown him. If anything, 1 saved his life, 1
pulled him out of the water and he even thanked me when 1 pulled him out of the water."
1 try to drown me, you tried to kill m~l" B) thi~ tim~, The male said , "Not true, you d'd
several . people had gathered around wlthm . . an eight-foot rad'lUS yelling t N stating he should go t .. 1 ' a cwcomb and a Jal. The officers tried to qUIet . the crowd Offi S' to get Newcomb out o f t h ' . lcer filth decided ., ere so SmIth and Newcomb returned to h . ~. wait for Officer Rose h . t e pohce vehicle to .--" . w a remamed with the group of people W . . pohce vehicle the cro d . . htle walkmg back to the w was yellmg that they wanted N attempted murder R ewcomb to go to jail for . ose explaine d t0 Newcomb that he w auld get summonsed for simple . .. .
FO
2 assault. Newcomb kept repeating what he had said before, he "did not try to drown him,"
admitting he hit him, he pulled him out of the water and Harvath thanked him when he
pulled him out of the water. Other than the original question from Officer Smith when he
first encountered Newcomb and asked him "what happened", neither officer asked
Newcomb any questions. The officers were focused throughout in trying to find out what
happened, to quell the angry people at the fire pit and to end the partying. The officers
thought it best to separate the two men, Newcomb and Harvath, and get their statements
at a later time.
The officers were armed and in uniforms. Miranda was not administered to
Newcomb. The officers never placed Newcomb in handcuffs or restrained him
physically. They did transport him out of the area and summonsed him for assault.
Discussion
In support of his motion, Newcomb argues that any statements were made in
violation of his Miranda rights and law enforcement knew or should have known that the
circumstances were likely to elicit incriminating statements. Defendant relies on
Pennsylvania v. Muniz, 496 U.S. 582 (1990). In Muniz, the Unites States Supreme Court
"was called on to decide 'whether various incriminating utterances of a drunk-driving
suspect, made while performing a series of sobriety tests, constitute testimonial responses
to custodial interrogation for purposes of the Self-Incrimination Clause of the Fifth
Amendment. '" State v. McKechnie, 1197 ME 40, ,-r 8, 690 A. 2d 976, 978. In Muniz, the
Supreme Court concluded that Miranda required the suppression of defendant's response '.
to the question regarding the date of the defendant's sixth birthday, but did not agree that
the entire audio portion of the videotape should have been suppressed. The Supreme
3 Court distinguished between the content of the response from the physical inability of the
defendant to respond clearly, such as slurring of speech and other evidence of lack of
coordination revealed by the defendant's response to the officer's direct questions. Thus,
the Supreme Court did not deem field sobriety tests to be communicative in nature, but
rather "tests designed to reveal a 'lack of muscular coordination' that may evidence
impairment resulting from the use of alcohol." McKechnie, 1997 ME ~ 9, 690 A. 2d at
978 (quoting Muniz, 496 U.S. at 592).
In the case at hand, Officer Smith asked only one question, "what happened"
when he first came upon the scene and called to Newcomb to stop. There are no other
direct questions by an officer. What followed is that Officer Smith asked Newcomb to
accompany him to the entrance of Picnic Point where he was to meet the other officer.
When they reached the meeting area, Officer Smith directed Newcomb to be seated on a
rock while they awaited the return of the other police officer. The other officer arrived at
the same time as Harvath, another individual - not connected to law enforcement - when
Harvath yelled out a comment to Newcomb eliciting a response from Newcomb. A
Miranda warning is required only if a defendant is in custody and subject to
interrogation. See, e.g. State v. Swett, 1998 ME 76, ~ 4, 709 A. 2d 729, 730. "The
Miranda rule does not apply to spontaneous statements that are not a response to ... ", t; v' interrogation." State v. Lear, 1998 ME 273,722 A. 2d 1266, citing Muniz, 496 U.S. 605. ~.:
Without deciding whether Newcomb was in custody, the question is whether this was "::. police interrogation. The officers did not elicit incriminating statements or admissions, . ~
nor should the officers have known that the other individual would shout something that ...... '
would elicit incriminating statements or admissions. See Rhode Island v. Innis, 446 U.S. t;'
4 291 (1980). Thus Newcomb was not subject to interrogation. Newcomb's responses to
Harvath's statements and the spontaneous repetition of his statements as Newcomb and
Officer Smith walked out of the area and away from the crowd were not the result of
police interrogation.
When Officer Smith first approached Newcomb and asked "what happened" also
did not constitute custodial interrogation. The line between statements obtained as part
of a "general investigation" and those secured in "custodial interrogation" was not
crossed. See State v. Philbrick, 436 A. 2d 844,849 (Me. 1981). There was nothing
improper in Officer Smith's inquiry of Newcomb - "What happened?" "Such a neutral
and impersonal request for information at that initial stage qualified as a general on-the
scene questioning which police officers have a duty to carry on in their conventional
investigation of criminal incidents or activities." Id. Officer Smith knew nothing of the
circumstances about what Newcomb was doing in the area; Newcomb had not been one
of the island kids at the fire pit when the officers were dispatch to Picnic Point the first
time.
The entry will be: Defendant's motion to suppress is denied.
~A. May 19,2008 Wheeler . I; ~. ;"
Justice, Superior Court
.. f ....