State v. Seger

532 A.2d 1013, 1987 Me. LEXIS 826
CourtSupreme Judicial Court of Maine
DecidedOctober 28, 1987
StatusPublished
Cited by1 cases

This text of 532 A.2d 1013 (State v. Seger) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Seger, 532 A.2d 1013, 1987 Me. LEXIS 826 (Me. 1987).

Opinion

CLIFFORD, Justice.

Michael Seger appeals his conviction of attempted murder, 17-A M.R.S.A. §§ 152, 201 (1983), gross sexual misconduct, 17-A M.R.S.A. § 253 (1983), and two counts of kidnapping, 17-A M.R.S.A. § 301 (1983), entered after a jury trial in the Superior Court, Androscoggin County. Seger contends that the court erred: (1) in failing to suppress out-of-court identifications made by the victim, (2) in excluding evidence of another crime that occurred shortly after the incident involved in this case and (3) because there was insufficient evidence to support a finding of guilt on any of the charges. We affirm the judgment.

This case arises out of the following facts. On Saturday, August 16, 1986, the victim, a woman in her 20’s, drove to the Country Kitchen Thrift Shop in Auburn with her two year old son, the younger of her two children. After buying some baked goods she returned to her car in the Thrift Shop parking lot. It was approximately 3:00 p.m. As she was putting her son in his car seat, she noticed a yellow car drive into the parking lot. The car parked beside her and a man quickly emerged. He forced the victim and her son into her car at knife point. She was forced to lie on the front seat of her car as her assailant drove away with her and her son towards New Auburn. The assailant stopped the car in a small open field near the Prospect Hill golf course and sexually assaulted the victim. The assailant then tied the victim’s hands behind her back with her belt, and tied her legs together with the shoelace from her left sneaker. When she asked how she would be able to take care of her son if she was tied up, the assailant responded “Don’t worry. You’re not going to have to take care of the baby.” She then broke free from her restraints and struggled briefly with the assailant. Her assailant hit her on the head repeatedly with an empty soda bottle and stabbed her numerous times throughout her body, inflicting grievous wounds. Her assailant fled in her car, leaving her lying on the ground with her son standing beside her.

The victim staggered to a house close by, taking her son with her. Two nearby golfers heard her cries for help and summoned aid. After emergency surgery at Central Maine Medical Center, she made a slow recovery.

[1015]*1015On the following day, August 17, the victim was awake and alert in her hospital bed as she recuperated from the previous day’s surgery. She gave a description of her assailant to Lieutenant Steven Mehal-cik and Detective Normand Guay of the Auburn Police Department. She described her assailant as a white male with a beard and wearing black framed glasses. He had acne on his face. She noticed the bottom portion of a reddish tattoo on one of his forearms. He was wearing jean pants, a jean jacket and sneakers. Based on her description, a composite drawing was made of the suspect.

On August 21, Detective Guay showed the victim a photographic array of six men, none of whom had beards or glasses. Detective Guay had received tips implicating two of the subjects pictured in the array. The victim did not recognize any of the subjects as her assailant.

In the meantime, another tip led Detective Bruce Bartlett of the Auburn Police Department to telephone Seger. Seger voluntarily came to the station to be interviewed. A photograph was taken of his face and another photograph was taken of a red tattoo on his right arm. Seger’s license was also taken, with his permission, and his license picture was enlarged. The license photo showed Seger with a beard and glasses with black frames. He had since shaved his beard and was no longer wearing glasses.

On August 24, Detectives Bartlett and Guay visited the victim in the hospital. They had with them a photo array of five photos from the police department’s files and the enlarged license photo of Seger. All six subjects in the array wore glasses and had beards. The victim could not speak due to a tracheotomy tube that had recently been inserted in her windpipe, but she was alert. She identified the defendant as her assailant by pointing and nodding her head. She was then shown the photographs of the defendant’s face and tattoo that had been taken at the police station, and she identified each one as being that of her assailant. Seger was then arrested.

A suppression hearing was held in the Superior Court on October 9 regarding the victim’s identification of the defendant’s pictures on August 24. The motion justice ruled that the identification procedure was not impermissibly suggestive.

On November 9, a live lineup was conducted at the Androscoggin jail. The defendant participated in the lineup and was represented by counsel. The victim identified the defendant as being her assailant. At the trial, the victim again identified the defendant as being her assailant. After deliberating, the jury returned its verdict of guilty as to all charges.

I.

Seger’s first contention is that the out-of-court identification procedures used by the police were impermissibly suggestive. We disagree.

The due process clause of the fourteenth amendment to the United States Constitution protects criminal defendants from the use of evidence derived from suggestive out-of-court identifications that are “ ‘conducive to an irreparable mistaken identification.’ ” State v. True, 464 A.2d 946, 949 (Me.1983), quoting from Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). See also State v. Boucher, 388 A.2d 907, 908 (Me.1978); State v. Rowe, 314 A.2d 407, 412-13 (Me. 1974).

If the motion justice does determine that the police used an unduly suggestive procedure in obtaining the challenged out-of-court identifications, the identification evidence is inadmissible against the defendant unless the motion justice makes a further finding that the “ ‘corrupting influence’ of the suggestive procedures was outweighed by the reliability of the identification.” State v. Toussaint, 464 A.2d 177, 179-80 (Me.1983).

A review of the record in this case reveals that the photographic identification was not unduly suggestive. The police did not suggest to the victim that any of the pictures showed a suspect in the case. Seger claims that his enlarged license pho[1016]*1016to was different in appearance from the other photos used by the police and thereby suggestive. The motion justice found that Seger’s picture was not dramatically different from the others shown to the victim, and nothing persuades us that this finding was error. Nor can we disagree with the motion justice’s finding that the photographs of Seger’s face and his tattoo (shown to the victim after she identified Seger in the array) did not result in a suggestive identification procedure.

Next, Seger claims that the live lineup procedure was suggestive, relying on Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). Seger was represented by counsel at the lineup. No objection was made to the live lineup procedure either at the lineup or at trial. Seger raises his objection for the first time in this appeal.

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532 A.2d 1013, 1987 Me. LEXIS 826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-seger-me-1987.