State v. Karl

97 A.3d 106

2014 ME 90

STATE of Maine

v.Karl V. KITTREDGE.

Docket No. Ken–13–439.

Supreme Judicial Court of Maine.

Argued: May 14, 2014.

Decided: July 10, 2014.

Thomas J. Carey, Esq., Vienna, on the briefs and argued, for appellant Karl Kittredge.

Maeghan Maloney, District Attorney, Prosecutorial District IV, Augusta, on the briefs and argued, for appellee State of Maine.

Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.

SAUFLEY, C.J.

[¶ 1] The focal issues in this appeal are (1) whether Karl V. Kittredge was in custody when two Maine State Police Troopers interviewed him at the probation office after his probation officer asked him to report there and (2) whether Kittredge's statements at that interview were made voluntarily. Kittredge appeals from a judgment of conviction entered by the trial court ( Murphy, J.) upon a jury verdict finding him guilty of theft by unauthorized taking or transfer (Class C), 17–A M.R.S. § 353(1)(A), (B)(4) (2013). In addition to his challenge to the court's denial of his motion to suppress statements made during the police interview, Kittredge argues that the court improperly presented to the jury an uncharged count of theft by receiving stolen property, 17–A M.R.S. § 359 (2013), and that the evidence was insufficient to support his conviction. We affirm the judgment.

I. BACKGROUND

[¶ 2] The record, viewed in the light most favorable to the jury's verdict, supports the following facts. See State v. Ormsby, 2013 ME 88, ¶ 2, 81 A.3d 336, cert. denied, ––– U.S. ––––, 134 S.Ct. 1523, 188 L.Ed.2d 457 (2014). Sometime before June 2012, Kittredge installed a safe in the bedroom cupboard of the victim, who was his wife's friend, as a favor to the victim so that she could protect her prescription medications and other valuables.

[¶ 3] On June 11, 2012, the victim had a bad migraine headache. Kittredge's wife left the residence where she and Kittredge were staying to take the victim to the hospital. Kittredge was on probation at the time, having pleaded guilty to multiple counts of burglary and theft in 2008.

[¶ 4] After Kittredge's wife departed, Kittredge, his adult son, and the friend with whom Kittredge and his wife were residing had a conversation in which they discussed the fact that the victim had medications in her residence. Kittredge's son then left and later called Kittredge to pick him up. Kittredge and his friend, traveling in a white van, picked Kittredge's son up at or close to a vacant lot near the victim's residence. When Kittredge stopped to pick up his son, he could see that his son was carrying the victim's safe in a bag. Kittredge drove to his mother's house in Pittston, and Kittredge took some of the pills that had been in the safe.

[¶ 5] When the victim came home, she found that her door had been pried open and her safe was missing. The safe's contents were worth more than $1,000 and included medications, including oxycodone, jewelry, and cash. Although the victim had a video security system in place, the videotape had been removed. Kittredge knew about the camera surveillance system because he had observed the cameras while at the victim's home. Kittredge's son had never been in the victim's bedroom before, and the victim had not told him about the surveillance system.

[¶ 6] Kittredge was charged by complaint in November 2012, and then by indictment in January 2013, with burglary (Class B), 17–A M.R.S. § 401(1)(A), (B)(4) (2013), and theft by unauthorized taking or transfer (Class C), 17–A M.R.S. § 353(1)(A), (B)(4). He pleaded not guilty, and, for purposes of both the criminal case now on appeal and a separate motion to revoke his probation, he moved to suppress evidence of statements he made to law enforcement during an August 16, 2012, interview held at the probation office.

[¶ 7] At the hearing on that motion, the court heard testimony from one of the two troopers who interviewed Kittredge and from Kittredge himself. The court found the following facts, which are supported by testimony offered at the hearing. Kittredge's probation officer asked him to come to the probation office, and Kittredge complied with the request. When he arrived, he met two state troopers who were in uniform and armed. He went into a room with the two troopers, and the three of them sat down. The troopers told him that he was not under arrest but that they would like to speak with him about something that had happened at the victim's apartment. No Miranda warnings were read to Kittredge. Kittredge was seated in front of a closed but unlocked door, and he knew that he was free to leave the room, though he was not sure that he would be allowed to leave the building. There was a recorder in plain sight, but, for reasons that cannot be determined, the recorder did not record the conversation.

[¶ 8] The troopers gave Kittredge some information about what they knew, and, at some point, Kittredge denied being involved. The troopers on more than one occasion told him that they had information from another witness that made them believe that he was not telling the truth. Kittredge broke down and said, “[T]hat friggen son of mine.” He looked sad and said that he was the one who usually got in trouble. He then made incriminating statements. The entire interview lasted from forty-five minutes to an hour.

[¶ 9] Neither of the troopers made promises to Kittredge, though they suggested that Kittredge should cooperate because it might help him with the district attorney's office. They told him it was best to tell the truth. The troopers did not make threats, did not physically restrain Kittredge in any way, and did not make threatening gestures. Although the court did not make a finding on the matter, Kittredge does not dispute that he left the probation office at the end of the questioning.

[¶ 10] The court determined that Kittredge spoke voluntarily and that Miranda warnings were not required because Kittredge was not in custody. Accordingly, the court denied Kittredge's motion to suppress.

[¶ 11] The court held a two-day jury trial in August 2013. The state trooper who testified at the suppression hearing also testified at trial. Among other things, he testified that Kittredge admitted to him that he had picked up his son, had driven to his mother's house in Pittston, had seen the victim's safe inside his son's duffel bag, and had taken oxycodone pills from the safe.

[¶ 12] The State also offered testimony from the victim, from a neighbor of the victim who saw the white van on June 11, 2012, and from the owner of a jewelry store where Kittredge's son pawned jewelry stolen from the victim. Kittredge offered the testimony of the friend who had been with him on June 11, 2012. Kittredge did not testify.

[¶ 13] After the evidence was presented, the State moved for the court to instruct the jury on a count for receiving stolen property as a lesser included offense. The court granted the motion over Kittredge's objection because theft by receiving stolen property is an alternative basis for a theft charge and is subject to consolidation pursuant to 17–A M.R.S. § 351 (2013). The jury found Kittredge not guilty of burglary but guilty of both theft counts and determined that the property was worth more than $1,000. The court merged the two theft counts, resulting in a single conviction for theft by unauthorized taking or transfer. See id.

[¶ 14] After a sentencing hearing, the court sentenced Kittredge to five years of imprisonment, with all but forty-two months of that term suspended, to be served concurrently with the forty-two-month sentence that he was ordered to serve when the court determined that he violated the conditions of his probation by engaging in new criminal conduct after his 2008 convictions. The court further imposed a term of two years of probation and ordered Kittredge to pay $3,975.99 in restitution to the victim and twenty-five dollars to the victims' compensation fund. Kittredge timely appealed. See15 M.R.S. § 2115 (2013); M.R.App. P. 2(b)(2)(A).

II. DISCUSSION

A. Motion to Suppress

[¶ 15] “We review the denial of a motion to suppress for clear error as to factual issues and de novo as to issues of law, and will uphold the court's denial of a motion to suppress if any reasonable view of the evidence supports the trial court's decision.” State v. Diana, 2014 ME 45, ¶ 11, 89 A.3d 132 (quotation marks omitted).

1. Determination of Custody

[¶ 16] Although a person ordinarily must invoke the Fifth Amendment privilege against compelled self-incrimination to receive the benefit of its protections, see Minnesota v. Murphy, 465 U.S. 420, 429, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), a “[s]tatement[ ] made by a person subjected to custodial interrogation who is not first given Miranda warnings [is] inadmissible against that person at trial,” State v. Nadeau, 2010 ME 71, ¶ 53, 1 A.3d 445; see Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (requiring law enforcement officers to warn individuals about pertinent constitutional rights before conducting a custodial interrogation). Such warnings are “necessary only if a defendant is: (1) in custody; and (2) subject to interrogation.” Nadeau, 2010 ME 71, ¶ 53, 1 A.3d 445 (quotation marks omitted).

[¶ 17] There is no dispute that Kittredge was subject to interrogation. Thus, the question presented is whether he was in custody. “The determination of whether an individual was in custody is a mixed question of fact and law. In reviewing a court's custody determination, we defer to the court's factual determinations, but we review de novo the determination of whether an individual was in custody.” State v. Lowe, 2013 ME 92, ¶ 13, 81 A.3d 360 (quotation marks omitted). If the trial court's findings, reached by a preponderance of the evidence, “are properly supported by competent evidence in the record, and neither party challenges those factual findings[,] [t]he question is whether those...