State v. Thurlow

485 A.2d 960, 1984 Me. LEXIS 854

• Court: Supreme Judicial Court of Maine
• Decided: December 13, 1984
• Status: Published

Opinions

McKUSICK, Chief Justice.

On this appeal, defendant Brian Thurlow challenges a decision of the Superior Court (Penobscot County) not to suppress evidence obtained against him in a Terry1 — type investigatory stop of the automobile he was driving on February 6, 1980, on a public street in Bangor. In the process of routinely checking the identities of the occupants of the stopped vehicle, the police officer discovered that the driver was defendant Thurlow who, as an habitual offender, had had his license indefinitely revoked. Following his indictment for operating a motor vehicle while an habitual offender, 29 M.R.S.A. § 2298 (Supp.1984-1985), Thurlow moved to suppress that identification evidence as the fruit of an unlawful stop by the police. On June 8, 1980, a Superior Court justice, after a full hearing, denied the motion to suppress. Later that same month defendant was convicted in a jury-waived trial conducted by the same justice.

Defendant on appeal from that conviction challenges as clearly erroneous the justice’s finding that the vehicle stop was justified by an articulable suspicion of criminal activity. He also argues that the trial court abused its discretion in allowing the State to reopen its case to present additional evidence after it had rested. Finding no merit in either contention, we deny the appeal.

Immediately after his conviction in June 1980 defendant took an appeal; but for a variety of reasons, including the replacement of his original appointed counsel and the departure from Maine of the court reporter who had recorded the suppression hearing, prosecution of his appeal was delayed. When the new defense counsel’s efforts to obtain a transcript of the 1980 proceedings on defendant’s suppression motion proved unavailing, he presented to the same Superior Court justice who had heard that motion a written narrative statement recounting the 1980 proceedings.² At a hearing held on May 9, 1984, that justice orally supplemented defendant’s narrative statement,³ and then approved that statement as so supplemented for inclusion in the record on appeal pursuant to M.R. Crim.P. 39(b). That narrative statement with the justice’s 1984 oral supplementation constitutes the record on the basis of which appellant Thurlow asks us to hold that the Superior Court’s June 3, 1980, denial of his suppression motion was clearly erroneous. What is before us, however, does not establish any clear error on the part of the Superior Court.

A police stop of a vehicle on a public street for the purpose of investigating crime involves a minimal intrusion upon the interests protected by the fourth amendment and its counterpart in the Maine Constitution. See Terry v. Ohio, 392 U.S. 1, 16-20, 88 S.Ct. 1877-79 (1968); State v. Griffin, 459 A.2d 1086, 1089-90 (Me.1983). For such an investigatory stop without a warrant to be “reasonable” under controlling constitutional mandates, the police need not have probable cause to believe a crime has been committed or is about to be committed; they need have only an articulable suspicion that criminal activity is afoot. Id. Whether for a particular vehicular stop the police had the required articulable suspicion is always a question of fact to be decided by the trial judge who hears the witnesses at the suppression hearing. He, and he alone, passes upon the credibility and weight of that testimony and decides what inferences and deductions can reasonably be drawn therefrom. Cf. Dunton v. Eastern Fine Paper Co., 423 A.2d 512, 514-17 (Me.1980) (findings of fact in workers’ compensation cases). In exactly the same way that we review any other finding of fact by a trial court, the Law Court will reverse a nonsup-pression decision based on the factual finding of articulable suspicion only if the record presented to us on appeal establishes that the finding is clearly erroneous. State v. Fillion, 474 A.2d 187, 190 (Me. 1984); see also True v. State, 457 A.2d 793, 795 (Me.1983). With the limited view that the substitute record on appeal gives us in the case at bar, we cannot ascribe clear error to the justice who heard all the live testimony on the suppression motion.

A number of circumstances objectively support the justice’s finding that the police did have the articulable suspicion that justified them in checking up on the occupants of the parked car, who had been looking “straight into” Young’s Market for more than an hour after dark on a mid-winter evening. “[Tjhere had been several Nite Owl robberies in Bangor within a fairly short period of time prior to that.” The car was parked on a side street across from the market at a spot where the occupants could look directly into the store; that spot “was an unusual place to park a car because of the steepness of the street, and it was rarely, if ever, that anyone parked there.” The reliability of the observations and suspicions of the clerk at Young’s Market was a matter to be sized up by the suppression justice. From all that we can know from the truncated record on appeal, the Bangor police, through acquaintanceship with the complaining clerk and through confirmation of her suspicions by their own familiarity with the steep hill on which the driver of the car had chosen to park in a position to look straight into the market, were entitled to give considerable weight to her complaint. In any event, the suppression justice was in a far better position than are we to give the totality of the circumstances a proper appraisal. We must defer to his factual assessment made immediately after hearing the witnesses.

Defendant’s other contention, that it was improper for the trial judge to allow the State to reopen its case, is likewise unfounded. At trial, the State entered in evidence what it believed to be a document certified by the Secretary of State and stating defendant’s driving status. The motion to admit that document drew an objection from defendant's counsel. As it turned out, counsel for the State had mistakenly-offered the wrong piece of paper, and rested before discovering the error. When the court pointed out that the State’s exhibit did not correspond with its oral argument, the prosecution moved to reopen its case for the purpose of presenting the correct document. The court granted the motion, and the proper document was received in evidence. The decision to allow the motion under M.R.Crim.P. 26(c) is to be reviewed only for an abuse of discretion. State v. Colomy, 407 A.2d 1115, 1119 (Me.1979). No such abuse of discretion is present in this case. Defense counsel was fully aware of the intended nature of the first document submitted and objected to its admission in evidence. In this circumstance, defendant was not prejudiced in any way by the reopening of the State’s case.

The entry is:

Judgment affirmed.

WATHEN and SCOLNIK, JJ„ concurring.

1 . So named after Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

2 . The pertinent part of defendant’s narrative statement reads as follows:

Officer John Roach, a patrolman in the Bangor Police Department, who had been employed in that capacity for approximately a year-and-a-half, was on duty in his uniform and in a marked police cruiser at approximately 6:19 p.m. on the evening of February 6, 1980. He was in the area of Jackson Street in Bangor, Maine pursuant to a radio communication from Sergeant Guerin of the Bangor Police Department. The nature of the call from Sergeant Guerin was that someone suspicious was hanging around lurking in a dark car across the street from Young’s Market.

3 . The justice’s 1984 recollection of the 1980 suppression proceeding was as follows:

[TJhere was evidence in the case that this young lady at Young's Market on Ohio Street was tending the market, working in the market, and she observed a car across the street, a side street from Ohio that went up the hill towards the stand pipe; and it was a steep street, and this car was parked there. It had been there an hour or more, and she had observed it several times with two people sitting in the car, and they were looking straight into the store, and she was uncomfortable because there had been several Nite Owl robberies in Bangor within a fairly short period of time prior to that. She called the police and made a complaint, and Sergeant Guerin then got in touch with the patrol car in which Officer Roach was in, and Officer Roach went down to investigate the complaint, having had the description of the car and the license number, and he followed the car, stopped the car, inquired of the Defendant operator for his license and registration. The Defendant said he had no license with him. He looked at the registration, and it was in a woman’s name who turned out to be the Defendant’s mother. He obtained the operator’s name and date of birth and called in on the radio for a computer check, and it came back that the Defendant was a habitual offender. He arrested the Defendant and they went to the jail. When they processed him, as they call it, asked him to dump out the contents of his pockets on the table, lo and behold, his notice of being a habitual offender appeared.

[Officer] Roach didn’t have himself very much information. He simply got a call that there was a suspicious looking car and to go check it out. Then when he got there and the car moved, he, as the narrative says, he called back Sergeant Guerin who had the information from the young lady; and the information he had from the young lady is, as I have stated, that she observed the car there and the car was on that steep hill, and there was testimony also that it was an unusual place to park a car because of the steepness of the street, and it was rarely, if ever, that anyone parked there in the witness’ observation.