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State v. Carr
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:1997 ME 221
Docket:Cum-96-800
Argued:October 6, 1997
Decided:	November 24, 1997


Panel:WATHEN, C.J., and ROBERTS, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.




STATE OF MAINE v. CHRISTOPHER A. CARR


WATHEN, C.J.

	[¶1]  Defendant Christopher Carr appeals from the judgments entered
in Superior Court (Cumberland County, Crowley, J.) after a jury verdict
finding him guilty of three counts of arson, four counts of attempted murder,
one count of aggravated criminal mischief, and one count of violating a
protective order.  On appeal, defendant challenges the sufficiency of the
indictment, the court's suppression ruling, an evidentiary ruling, the
sufficiency of the evidence, and the sentences.  We find that one of the arson
counts in the indictment is insufficient.  We vacate the judgment on that
single count, affirm the judgments on the remaining counts, and remand for
resentencing.  
	[¶2]  The facts presented at trial may be summarized as follows: 
Defendant and his wife were separated and involved in divorce litigation that
included a dispute over the custody of their three-year-old son.  The wife
had petitioned for protection from abuse and received a protective order
from the District Court.  At approximately 2:00 a.m. on July 28, 1995, the
Brunswick police and fire departments were notified of two fires at the
wife's residence.  She lived in a second floor apartment, in a four-unit,
wood-framed building. A staircase extended from the ground to a porch on
the second floor.  One of the two doorways opening onto the porch provided
the sole means of access to the wife's apartment.  On the evening in
question, the wife, her son, and her parents were sleeping in the apartment. 
They awoke to find a fire burning on the porch directly in front of their
door. They observed another fire on the parents' truck parked at the foot of
the stairway leading to the porch.  They extinguished the fires and the wife
called 911 from a neighbor's phone after finding that her phone had been 
rendered inoperable by the fire.  
	[¶3]  The State contended at trial that defendant set the fires in an
effort to kill his wife, his three-year-old son, and his wife's parents.  Fire
investigators testified that there were two separate fires on the exterior of
the building -- one at the foot of the apartment door and one on the outside
wall of the apartment.  The burns on the wall suggested a flammable
substance had been used to start the fire.  The investigators testified that
they believed the fires on the door and the wall were set before the truck
was set on fire.
	[¶4]  Defendant testified and admitted that he set fire to the truck, but
maintained that the fire on the door and wall was accidental.  He offered the
explanation that the can of Coleman fuel he used as an accelerant to start the
truck fire ignited in his hands and landed on the porch when he threw it
aside.  In an effort to remove it from the porch, he kicked it and it came to
rest in front of the apartment door.  He stated that he removed the can and
attempted to stamp out the fire, but acknowledged that the status of the fire
on the door and wall was at least uncertain when he left.  He maintained that
he had no intention of harming the occupants of the apartment.  The jury
returned a verdict of guilty on four counts of attempted murder, three
counts of arson,{1} one count of aggravated mischief, and one count of
violating a protective order.  Defendant was sentenced to 30 years, with all
but 25 years suspended, on the attempted murder and arson counts. 
Sufficiency of the Indictment
	[¶5] Defendant first argues that one of the three charges of arson set
forth in the indictment is defective because it fails to allege an essential
element of the crime charged.  We agree.  Count VI of the indictment
alleges: 

that on or about the Twenty-eighth day of July 1995 in the Town
of Brunswick, County of Cumberland and State of Maine, the
above-named defendant Christopher Carr did start, cause or
maintain a fire or explosion which recklessly endangered the
occupants therein.

Missing is the necessary allegation that defendant started a fire "[o]n his
own property or the property of another." 17-A M.R.S.A. § 802(1)(B)(1)
(1983 & Supp. 1996).  Although one of the other arson charges, Count V,
refers to the apartment as "the property of another" and names the owner,
each count stands alone and must aver the essential elements of the crime
charged.  State v. Pierce, 438 A.2d 247, 255-56 (Me. 1981).  We vacate the
conviction on Count VI and remand with instructions to dismiss.{2}
The Suppression Ruling
	[¶6] Prior to trial, defendant moved to suppress evidence obtained as a
result of an investigatory stop of his vehicle and alternatively moved to
suppress statements he later made to a police officer.  At the suppression
hearing, the State presented the testimony of Officer Ramsey of the
Brunswick Police Department.  Officer  Ramsey responded to the 911 call
and when he arrived, he found evidence of a vehicle fire and an apartment
fire.  He spoke with defendant's wife, and she identified defendant's
handwriting from an inscription in the dirt near the truck that referred to
her in derogatory terms.  Based on his own knowledge of defendant's prior
problems with his wife, Officer Ramsey dispatched an order for an officer to
check and see if defendant was at his home.  Officer Lever of the Bath Police
Department responded to the radio dispatch.  He was given defendant's
address, a description of his vehicle, its registration number, and was told
that defendant was a suspect in an arson case involving his wife.  After
checking defendant's home twice without success, Officer Lever saw
defendant driving his vehicle toward his home.  The officer turned on his
blue lights and defendant stopped in his own driveway.
	[¶7]  Defendant first maintains that Officer Lever did not have a
reasonable and articulable suspicion to make an investigatory stop because
the collective knowledge of the police was not communicated to him and he
was not ordered to detain or question defendant.  Reasonable and articulable
suspicion to conduct an investigatory stop can rest on the collective
knowledge of the police.  State v. Gervais, 394 A.2d 1183, 1189 (Me. 1978)
(holding that collective knowledge of the police transmitted by radio
dispatch justified stopping a vehicle).  In dealing with related questions
concerning the validity of warrantless arrests, we have noted that probable
cause is evaluated from collective information known to the police rather
than the personal knowledge of the arresting officer.  State v. Smith, 277
A.2d 481, 488 (Me. 1971).  We have also noted that there may be cases "in
which certain police information could not be considered as supportive of
probable cause if not communicated."   We went on to observe, however,
that this "rule must be applied on a case-by-case basis." State v. Parkinson,
389 A.2d 1, 8 at n.8 (Me. 1978).
	[¶8] Although the radio communication did not explicitly instruct the
officer to detain defendant, it did so implicitly.  The officer was told that
defendant was a suspect in an arson involving his wife.  When he passed
defendant driving down the street, the officer did not know if defendant
would stop or attempt to leave.  It was reasonable for the officer to conclude
from the radio dispatch that he was to stop defendant if necessary.
	[¶9]  Because an investigative stop is justified on the basis of the
collective knowledge of the police, and because an order to stop defendant
was reasonably inferred by the officer, the court did not err in determining
the officer had a reasonable and articulable basis for stopping defendant's
vehicle.  See State v. Eastman, 1997 ME 39, 691 A.2d 179. 
	[¶10]  Defendant next argues that once Officer Lever stopped his
vehicle and requested information from him, he was subjected to custodial
interrogation.  He argues that because he was not given an immediate
Miranda warning, his subsequent statements to the police, including those
which were obtained at the police station after he was properly advised of
his rights, should have been suppressed.  A Miranda warning is required
only if a defendant is in custody and subject to interrogation.   State v.
Powell, 640 A.2d 209, 210 (Me. 1994) (citing State v. Cumming, 634 A.2d
953, 956 (Me. 1993)).  A trial court's determination of custody vol non will
be reversed only if it is not rationally supported.  State v. Powell, 640 A.2d at
211. 
	[¶11]  There is evidence in this record that rationally permits the
conclusion that defendant was not in custody when he spoke with the
officers in his driveway.  During the relevant period of time, he was never
confined  in any way and only one officer spoke with him at a time. Although
defendant testified at the suppression hearing that he did not feel free to
leave, the court was not bound to accept his testimony and other evidence
permitted the court to rationally conclude that a reasonable person, in those
circumstances, would not have felt constrained to the degree of a formal
arrest.  See  State v. Powell, 640 A.2d 209 (Me. 1994) (no custody where
defendant was questioned at his apartment for two hours without physical
constraint).  The court did not err.
Evidentiary Ruling
	[¶12]  Defendant argues that the court erred in admitting as a trial
exhibit a charcoal lighter fluid can allegedly found at the scene of the fire.{3} 
Officer Ramsey testified that he saw the can at the crime scene, waited for it
to be photographed, and later placed an evidence tag on the can at the
police station.  He did not specifically recall transporting the can to the
police station, but testified about his routine procedure in seizing evidence,
and stated that he would never tag evidence seized by another officer. 
Defendant contends that there was a break in the chain of custody that
renders the exhibit inadmissible.
	[¶13]  "Authenticity is cast in terms of conditional relevance issues
and a trial court's relevancy determinations are reviewed for clear error." 
State v. Poirier, 1997 ME 86, ¶ 4, 694 A.2d 448, 449.  Any break in the
chain of custody of the exhibit was minor and may affect the weight the jury
assigns to the evidence, but not its admissibility.  State v. Nason, 498 A.2d
252, 256 (Me. 1985).   The testimony of Officer Ramsey and others was
sufficient to make it more probable than not that the can introduced at trial
was the can seized at the crime scene.  Testimony regarding the officer's
routine procedure for handling evidence was sufficient to establish the
conditional authenticity of the exhibit.  See State v. VanSickle, 434 A.2d 31,
36 (Me. 1981).
Sufficiency of the Evidence
	[¶14]  Defendant challenges the sufficiency of the evidence for the jury
to find him guilty of attempting to murder his mother-in-law.  Defendant
admitted that he spoke with his father-in-law by phone just before the fire. 
He argues, however, that there is no evidence that he knew that his mother-
in-law was also present at the apartment.  We review the "evidence in the
light most favorable to the State to determine whether a fact-finder
rationally could find beyond a reasonable doubt every element of the offense
charged."  State v. Davis, 1997 ME 115, ¶ 7, 695 A.2d 1183, 1184. 
Contrary to defendant's assertion, there was sufficient evidence from which
a jury could rationally conclude that defendant knew that his wife's parents
traveled together and therefore, if their truck was in the driveway, he knew
both parents were visiting his wife.
Sentence Review
	[¶15] Finally, defendant argues that the court erred in setting his basic
sentence for four counts of attempted murder and three counts of arson
within the extended 20-to-40-year sentencing range for Class A crimes. 
The court imposed a separate sentence on each count but explained that it
viewed all of the counts together in determining the nature and seriousness
of each of the Class A crimes:

Even though the sentences that are to be imposed for this
conduct of the defendant are to be concurrent sentences, I
think that one looks at the entire picture of what the defendant
did. And the attempted murder charge informs the analysis on
the arson charge and the arson charge informs the analysis on
the attempted murder charge and the violation of the protection
from abuse gives context and character to the conduct the
defendant engaged in on July 28th 1995.

	[¶16] Because Count VI, an arson involving the endangerment of
persons, has been set aside, the court's sentencing analysis requires
reconsideration. Accordingly, we remand for resentencing and have no
occasion to address the sentencing issues raised on appeal.
  	The entry is:
Judgment with respect to Count VI vacated. 
Remanded with instructions to dismiss that
portion of the indictment.  Judgments with
respect to Counts I through IX, exclusive of VI,
affirmed.  Sentences are vacated and remanded for
resentencing.

Attorneys for State: Stephanie Anderson, District Attorney (orally) Julia Sheridan, Asst. Dist. Atty. 142 Federal Street Portland, ME 04101 Attorney for defendant: David Beneman, Esq. (orally) Levenson, Vickerson & Beneman P O Box 465 Portland, ME 04112-0465
FOOTNOTES******************************** {1} Count I through IV alleged that defendant attempted to murder each of the four occupants of the apartment. Count V alleged that defendant started a fire at the apartment with the intent to destroy the property, and Count VI alleged that he started a fire that recklessly endangered the occupants. Count VII alleged that he started a fire on the automobile with the intent to damage that property. {2} Because we direct the dismissal of Count VI, we need not address defendant's contentions that the arson charges in Counts IV and VI are "multiplicitous." {3} The content of this can is distinct from the Coleman fuel that defendant admitted he used to start the truck fire. The charcoal lighter was present at the scene before and after the fire. An expert witness for the State testified that soil samples in the area of the truck tested positive for a petroleum distillate consistent with the charcoal lighter fluid.