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State v. David Anglin

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 89
Docket:	Lin-99-746
Submitted
on Briefs:	April 26, 2000
Decided:	May 17, 2000

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.




STATE OF MAINE v. DAVID ANGLIN


WATHEN, C.J.

	[¶1]  David Anglin appeals from a judgment entered in the Superior
Court (Lincoln County, Marsano, J.) convicting him of operating under the
influence in violation of 29-A M.R.S.A. § 2411(1) (1996).{1}  On appeal, Anglin
contends  that the court erred in admitting evidence that he refused to
answer police questions following the Miranda warning, that the court
improperly admitted his statement that he had been drinking, and that the
evidence was insufficient to support his conviction.  Finding no error, we
affirm the judgment.
	[¶2]  The relevant facts presented at trial may be summarized as
follows: At around 11 p.m. on March 17, 1999, Robert Blagden, a tow truck
operator, retrieved a call from his answering machine about a car that had
gone off the road in Dresden.  Blagden recognized the caller as his niece,
Sarah McDonald and, after determining that his services were still needed,
drove his truck to her house.  Once there, he discovered a car completely off
the travel lane with one side down in the ditch.   The road curved at that
point; the car had left the road on the outside of that curve.  Blagden did not
know how long the message had been on his machine, nor how long the car
had been off the road.
	[¶3]  David Anglin was waiting at the car when Blagden arrived and
asked Blagden to tow the car to Richmond.  The two men walked into the
ditch to look at the car; as they did so, Anglin stumbled into Blagden. 
Blagden pointed out that Anglin had nearly hit a road sign; Anglin was not
even aware a sign was there until Blagden pointed it out to him.  Blagden
wondered why Anglin wanted the car towed because the car was undamaged
and could have been driven once it had been taken out of the ditch.  Blagden
turned his truck around to hitch and tow the car.  As he did so, Anglin
walked away, stopping about 50 yards down the road.  At that point, Blagden
called the Sheriff's Department because he was suspicious about Anglin's
behavior.
	[¶4]  Blagden started to tow the car, but before it was out of the
ditch, Anglin had walked back to the truck and asked Blagden to drive him,
but not the car, to Richmond.  Blagden refused.  Anglin then said that he
thought the road wasn't sanded properly and told Blagden that this was not
the first time he had left the road on this curve.  Anglin felt that the road
was quite poorly maintained.  All of these statements surprised Blagden. 
The road was perfectly clear, with no snow or ice; Blagden could see no
reason why anyone would feel the road needed sand.  Both Blagden and the
two deputy sheriffs who later arrived on the scene testified that the roads
were not slippery and did not pose any difficulty for travel.  Despite Anglin's
statement about prior accidents on this curve, Blagden believed that Anglin
was not sure where he was.  
	[¶5]  Approximately five minutes after Blagden's call, Deputies Brian
Collamore and Dan Sceviour of the Lincoln County Sheriff's Department
arrived.  Collamore interviewed Anglin and noticed that Anglin had difficulty
getting his license out of his wallet, that his eyes were glassy and bloodshot,
and that Anglin had alcohol on his breath.  Sceviour noticed that Anglin's
speech was slurred and that his eyes were bloodshot.  Anglin admitted that
he was operating the car that night and that he had two drinks with his
dinner approximately two hours earlier.  Collamore had Anglin perform a
number of field sobriety tests, concluded that Anglin was operating under
the influence, and arrested him.  Once Anglin reached the station, Sceviour
administered a breath test.  This test, given after midnight, indicated that
Anglin had a blood alcohol level of 0.16. 
	[¶6]  Anglin was charged by complaint in the District Court with a
violation of 29-A M.R.S.A. § 2411.  The case was transferred to the Superior
Court for a jury trial, but, once in that court, Anglin waived that right.  Prior
to trial, Anglin filed a motion in limine, arguing that certain statements he
made to the police should not be admitted at trial.  The motion was
continued until trial.  At trial, Anglin objected to the admission of his
statement that he had had a couple of drinks before the police arrived at the
accident.  The court overruled the objection.  Shortly thereafter, the State
introduced testimony to the effect that Anglin had invoked his right to
silence after Collamore had given him the Miranda warning.  At the
conclusion of the evidence, Anglin renewed his objection to the admission of
this evidence and requested that the testimony be stricken or that the court
declare a mistrial.  The court denied Anglin's motions and, following closing
argument by counsel, found Anglin guilty.{2}  Although the court concluded
that the State had failed to prove that Anglin had been under the influence
of intoxicants because it failed to show Anglin was impaired when he drove,
the court concluded that the State had proved that Anglin had operated a
vehicle "while having a blood alcohol of 0.08 percent or more."  Anglin
appeals from the judgment. 
	[¶7]  Anglin's first argument on appeal attacks Deputy Collamore's
reference to Anglin's silence after the Miranda warning.  Ordinarily, the
prosecution may not seek to use the defendant's invocation of the Fifth
Amendment right to remain silent to create an inference of guilt.  See
Griffin v. California, 380 U.S. 609, 613 (1965).  This rule has been extended
to instances in which the prosecution seeks to use a defendant's post-arrest,
post-Miranda silence to impute guilt.  See Doyle v. Ohio, 426 U.S. 610, 618
(1976).  Although Griffin/Doyle provide significant protection for
defendants, these cases do not require reversal every time the prosecution
comments upon a defendant's silence.  The Supreme Court has
distinguished between cases "[w]here the prosecutor on his own initiative
asks the jury to draw an adverse inference from a defendant's silence, [and]
where . . . the prosecutor's reference to the defendant's opportunity to
testify is a fair response to a claim made by defendant or his counsel . . . ."
United States v. Robinson, 485 U.S. 25, 32 (1988).  There is no Fifth
Amendment violation when the prosecution has made a "fair response" to a
defendant's argument.  See id.; Amirault v. Fair, 968 F.2d 1404, 1406 (1st
Cir. 1992); People v. Austin, 28 Cal.Rptr.2d 885, 895 (Cal. Ct. App. 1994)
("It must be remembered [that] the defendant's right to remain silent is a
shield.  It cannot be used as a sword to cut off the prosecution's 'fair
response' to the evidence or argument of the defendant.").  Anglin
challenges the State's question on re-direct:  "So at some point did you
consider asking him those questions?"  Collamore's answer:  "Right, but he
refused to answer after he was given Miranda."  
	[¶8]  When viewed in context, this is nothing more than the State's
"fair response" to arguments initially made by Anglin's counsel.  During the
preceding cross-examination of Collamore, defense counsel deliberately
questioned the thoroughness of Collamore's investigation by asking him: 
"Did you ask Mr. Anglin when his vehicle went into the ditch?" and "Did you
ask Mr. Anglin whether he had any alcohol to drink after the vehicle went
into the ditch?"  In this context the State properly elicited the reference to
Anglin's Miranda induced silence.  Defense counsel opened the door for the
State's questions and the court did not err in allowing the answer in
evidence.  See State v. Ifill, 574 A.2d 889, 891 (Me. 1990) (defense counsel
opened the door to evidence held inadmissible in a prior appeal).
	[¶9]  Anglin next argues that the State failed to meet its burden of
proving corpus delicti and that therefore his admissions to Deputy
Collamore regarding his drinking were improperly admitted into evidence. 
The corpus delicti rule places an evidentiary burden upon the State to
prevent convictions based solely upon the admissions of a defendant.  See 
State v. Chad B., 1998 ME 150, ¶ 6, 715 A.2d 144, 146.  The State must
"produce, exclusive of any confession or admission of the defendant, such
credible evidence as will create a substantial belief that the crime charged
has been committed by some person."{3}  State v. Curlew, 459 A.2d 160, 165
(Me. 1983).  The substantial belief standard resembles the probable cause
standard.  See State v. Michaud, 1998 ME 251, ¶ 8, 724 A.2d 1222, 1227. 
"In the context of the corpus delicti rule, [p]robable cause exists where facts
and circumstances within the [factfinder's] knowledge . . . would warrant a
prudent and cautious person to believe that someone committed the crime." 
See id.  (alterations in original).  The determination of whether the evidence
was "sufficient to establish a substantial belief [that a crime occurred] is a
question of law that we review de novo."  Id. ¶ 7, 724 A.2d at 1227.  
	[¶10]  Anglin operated a vehicle that left the road at some point on
March 17, 1999.  The road was not slippery or dangerous to driving.  When
Anglin was tested, his blood alcohol content was twice the legal limit.  This
test followed a period of approximately an hour, during which he was under
close observation and consumed no alcohol.  These facts are sufficient to
allow "a prudent and cautious person" to conclude that Anglin's blood
alcohol content exceeded the legal limit at the time he drove his car off the
road.
	[¶11]  Finally, Anglin's challenge to the sufficiency of the evidence to
support his conviction is without merit.
	The entry is:
					Judgment affirmed.

Attorneys for State: Geoffrey A. Rushlau, District Attorney F. Todd Lowell, Asst. Dist. Atty. 32 High Street Wiscassett, ME 04578 Attorney for defendant: Theodore K. Hoch, Esq. 38 Court Street Bath, ME 04530
FOOTNOTES******************************** {1} . The statute provides, in pertinent part: 1. Offense. A person commits OUI, which is a Class D crime unless otherwise provided, if that person operates a motor vehicle: A. While under the influence of intoxicants; or B. While having a blood-alcohol level of 0.08% or more. 29-A M.R.S.A. § 2411 (1996). {2} . Anglin had one previous OUI conviction within ten years, thus subjecting him to the minimum penalties in subsection (5)(B): (1) A fine of not less than $600, except that if the person failed to submit to a test at the request of a law enforcement officer, a fine of not less than $800; (2) A period of incarceration of not less than 7 days, except that if the person failed to submit to a test at the request of a law enforcement officer, a period of incarceration of not less than 12 days; (3) A court-ordered suspension of a driver's license for a period of 18 months; and (4) In accordance with section 2416, a court-ordered suspension of the person's right to register a motor vehicle . . . . 29-A M.R.S.A. § 2411(5)(B) (1996). Anglin was fined $600 and was sentenced to 10 days incarceration, "to be served at the Sagadahoc Second Offender Program." Anglin's license was also suspended for eighteen months. {3} . After the first requirement is met, the State must prove beyond a reasonable doubt that someone committed the crime charged; in this endeavor, it may use the defendant's admissions. See State v. Larson, 577 A.2d 767, 770 (Me. 1990). This, second, requirement in the corpus delicti rule is different from the general sufficiency of the evidence rule in that corpus delicti only requires proof that someone committed the crime charged whereas the evidence is only sufficient for conviction if there is proof that the defendant committed the crime charged. See id. at 771; State v. Buzzell, 617 A.2d 1016, 1019-20 (Me. 1992).