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State v. Franklin Higgins II
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2002 ME 77
Docket:	Pen-01-288	
Argued:	April 3, 2002
Decided:	May 8, 2002

	and LEVY, JJ.



	[¶1]  Franklin A. Higgins II appeals from the judgment of conviction
entered in the Superior Court (Penobscot County, Mead, C.J.) following a jury
verdict finding him guilty of murder pursuant to 17-A M.R.S.A. § 201(1)(A)
(1983).{1} Higgins asserts that the Superior Court erred by denying his motion to
suppress.  Finding no error, we affirm the judgment.
	[¶2]  On Sunday, February 28, 1999, Katherine Poor was found dead on
the kitchen floor of her farmhouse apartment.  When Maine State Police
Detective Joseph Zamboni arrived at the scene, he surmised that Poor had
been sexually assaulted immediately prior to her death.  A subsequent autopsy
revealed that Poor died as a result of multiple stab and puncture wounds to the
	[¶3]  Detective Zamboni returned to the crime scene on March 1,1999, to take pictures of the scene and to start collecting evidence.  While
taking pictures of Poor's apartment, he scanned the bathroom and noticed that
the toilet seat was in the up position.  Knowing that Poor lived by herself,
Detective Zamboni concluded that a man had been present in Poor's
apartment.  He gathered a number of items including, but not limited to,
Poor's diary, two Camel filter cigarette butts, and a list with people's names on
it.  Higgins's name, along with several others, appeared in Poor's diary and on
the list of names.  The diary included specific dates in February on which Poor
recorded that she had been visited by Higgins at her apartment. 
	[¶4]  Higgins voluntarily submitted to interviews with Maine State
Police detectives on March 1 and March 2, 1999. During the March 1 interview,
Higgins told the police that he had last seen Poor riding her bicycle several
days before her death and had last spoken with Poor two and a half weeks
before her death.  Higgins stated that Poor did not smoke and that he smoked
Camel filter cigarettes.  At the detectives' request, Higgins agreed to provide a
blood sample for DNA testing.  He denied killing Poor and claimed that he was
working on the night Poor died.  On March 2, Higgins contradicted his March 1
statement by telling the State Police detectives that the last time he had seen
and spoken with Poor was when he stopped by her apartment on the Thursday
before her death.
	[¶5]  On March 9, 1999, Detective Zamboni requested search warrants
to search Higgins's residence, vehicle, and person.{2}  On the same day, the
State Police developed a plan to simultaneously interview Higgins, his wife
Judy Higgins, his employer Frank Warren, and Warren's girlfriend.  The plan
was executed on the morning of March 10.  Detectives Preble and Keegan,
dressed in civilian clothing, located Higgins where he was working that day,
and asked him if they could speak to him regarding two men who were
acquaintances of Poor.  Higgins consented to speak with them and agreed to
leave his place of work and drive his truck to the Kenduskeag fire station.   The
detectives followed in their car.  
	[¶6]  When Higgins and the detectives arrived at the fire station, there
were at least three other plainclothes police personnel present.  Higgins and
the two detectives ascended a flight of stairs to a large, wide-open room where
there was a table and some metal chairs.  At 9:28 a.m., Detective Preble opened
the interview with Higgins by stating: "You're not under arrest, leave at any
time, okay?  You're not in custody.  This isn't what this [is] about . . . you
mentioned . . . ."  Higgins's first recorded verbal response was "Right."  At the
beginning of the interview, Higgins told the detectives that he had last seen
Poor on the Thursday before her death.  He initially denied having seen Poor on
the Friday and Saturday before her death; however, approximately one and a
half hours into the interview Higgins admitted that he was at Poor's apartment
on the night of her murder, but he insisted that she was alive when he left. 
Approximately three hours into the interview, Higgins contradicted his earlier
statements by admitting that he was at Poor's apartment when she died.  He
stated that he was trying to leave when Poor attacked him with a knife.  He
claimed that he struck the right side of her face with his open hand, knocking
her to the floor, and disarmed her.  Higgins claimed that when Poor started to
punch him, he struck her with the knife. 
	[¶7]  Toward the end of the interview, Detective Keegan asked Higgins if
he understood that when he arrived at the fire station he was not under arrest
and that he could have left at any time.  Higgins responded affirmatively. 
Throughout the interview the door to the room where Higgins was being
questioned was open; Higgins was not placed in any restraints; he never
requested an attorney; he never attempted to leave; and he never informed the
detectives that he no longer wished to speak to them.  During the interview,
Higgins indicated that he knew how the legal system worked and that he was
trying to help the detectives.  
	[¶8]  At 1:40 p.m., approximately four hours and twelve minutes after
Higgins arrived at the fire station, the interview was completed.  Higgins was
arrested shortly thereafter.  While awaiting trial, Higgins was incarcerated at
the Penobscot County Jail.  During this time, Higgins told four other inmates
that he had killed Poor. 
	[¶9]  While Higgins was being interviewed, other members of the State
Police executed a search warrant at Higgins's residence.  Among the articles
seized during the search was a pair of work boots belonging to Higgins.  On the
toe of the left boot was a red-brown stain.  The boots were sent to the crime
laboratory in Augusta for analysis, and a DNA profile obtained from the stain
located on the boot was compared to Poor's DNA profile.  In DNA analyst David
Muniec's opinion, the DNA profile taken from the stain on Higgins's left boot
matched Poor's DNA profile. 
	[¶10] Following his indictment on one count of intentionally and
knowingly causing the death of Katherine Poor in violation of 17-A M.R.S.A.
§ 201(1)(A) (1983) and one count of gross sexual assault in violation of 17-A
M.R.S.A. § 253(1)(A) (Supp. 2001),{3} Higgins filed a motion to suppress
pursuant to M.R. Crim. P. 41A seeking the suppression of physical evidence
obtained with the search warrants on the basis that they were obtained
without sufficient probable cause.  He also sought the suppression of his
March 10, 1999, oral statements claiming that they were obtained in violation
of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 
Following an evidentiary hearing, the court denied Higgins's motion to
suppress, finding that Higgins was not in custody for Miranda purposes at the
time that Higgins made the incriminating statements, and that there was
sufficient probable cause to issue the search warrants.  At Higgins's trial, his
incriminating statements and the pair of work boots obtained pursuant to the
search warrant were admitted into evidence.  Higgins now appeals the Superior
Court's denial of his motion to suppress. 
A.  Custodial Interrogation

	[¶11]  Higgins asserts that the Superior Court erred when it determined
that he was not subjected to a custodial interrogation.  The State contends
that an assessment of the evidence at the suppression hearing in light of the
factors listed in State v. Michaud, 1998 ME 251, ¶ 4, 724 A.2d 1222, 1226,
demonstrates that the Superior Court did not err when it found that Higgins's
"statements were made in a non-custodial setting and did not require
administration of the Miranda warnings."
	[¶12]  We have stated that "[a] person subject to interrogation while in
police custody must first be given a Miranda warning, otherwise statements
made in the course of the interrogation will not be admissible against that
person."  State v. Holloway, 2000 ME 172, ¶ 13, 760 A.2d 223, 228.  "The United
State Supreme Court has defined 'custodial interrogation' as 'questioning
initiated by law enforcement officers after a person has been taken into custody
or otherwise deprived of his freedom of action in any significant way.'" 
Michaud, 1998 ME 251, ¶ 3, 724 A.2d at 1226 (quoting Thompson v. Keohane,
516 U.S. 99, 107 (1995)).  "Therefore, a Miranda warning is necessary only if a
defendant is:  (1) 'in custody'; and (2) 'subject to interrogation.'"  Id. (citing
State v. Swett, 1998 ME 76, ¶ 4, 709 A.2d 729, 730).  "A defendant is 'in
custody' if subject to either:  (a) a formal arrest; or (b) a 'restraint on freedom
of movement [to] the degree associated with a formal arrest.'"  Id. ¶ 4, 724 A.2d
at 1226 (quoting Stansbury v. California, 511 U.S. 318, 322 (1994)).  
	[¶13]  In making a custody determination, courts must ascertain
whether "a reasonable person standing in the shoes of [the defendant] [would]
'have felt [that] he or she was not at liberty to terminate the interrogation and
leave.'"  Holloway, 2000 ME 172, ¶ 14, 760 A.2d at 228 (quoting Keohane, 516
U.S. at 112).  In Michaud, we stated that when a court is analyzing whether a
defendant is in custody, it may examine a number of objective factors,
including but not limited to the following:
(1) the locale where the defendant made the

(2) the party who initiated the contact; 

(3) the existence or non-existence of probable cause to
arrest (to the extent communicated to the defendant); 

(4) subjective views, beliefs, or intent that the police
manifested to the defendant, to the extent they would
affect how a reasonable person in the defendant's
position would perceive his or her freedom to leave; 

(5) subjective views or beliefs that the defendant
manifested to the police, to the extent the officer's
response would affect how a reasonable person in the
defendant's position would perceive his or her freedom
to leave; 

(6) the focus of the investigation (as a reasonable
person in the defendant's position would perceive it);
(7) whether the suspect was questioned in familiar
(8) the number of law enforcement officers present; 

(9) the degree of physical restraint placed upon the
suspect;  and 

(10) the duration and character of the interrogation. 
Michaud, 1998 ME 251, ¶ 4, 724 A.2d at 1226.  "These factors are not to be
viewed in isolation, but rather in their totality."  Holloway, 2000 ME 172, ¶ 19,
760 A.2d at 229.  "We will uphold a denial of a motion to suppress if any
reasonable view of the evidence supports the trial court's decision" and "review
any questions of law that arise in the analysis de novo."  State v. O'Rourke,
2001 ME 163, ¶ 12, 792 A.2d 262, 265 (citing State v. Thibodeau, 2000 ME 52,
¶ 5, 747 A.2d 596, 598); see also State v. Storey, 1998 ME 161, ¶ 8, 713 A.2d
331, 333 (reviewing historical facts deferentially, "but when the challenge is to
the legal conclusion drawn from the historical facts our review is de novo").
	[¶14]  Viewing the facts established at the suppression hearing in light
of the Michaud factors supports the finding that Higgins was not in custody at
the time of the March 10th interrogation.{4}  On the morning of March 10th,
Higgins agreed to speak with Detectives Preble and Keegan in keeping with his
earlier expressed desire to assist the police in their investigation.  He drove
himself to the fire station where he was led to a wide-open room on the second
floor.  Only two detectives were in the room with Higgins at any one time.
	[¶15]  The detectives informed Higgins that he was not in custody or
under arrest and was free to leave.  The detectives never restrained Higgins by
any means; the door to the room where he was being questioned was left open
throughout the interrogation.  The form of the interrogation was one of trying
to bond with Higgins; the detectives asked questions in a calm, conversational,
friendly, and non-confrontational manner; they never raised their voices; they
never informed Higgins that he was a suspect; and they offered Higgins
something to drink and permitted him to smoke.  Higgins never attempted to
leave and never indicated that he wished to terminate the discussion.  He also
never expressed a desire to speak to an attorney.  At one point, Higgins
indicated that he was trying to help the detectives in their investigation.
	[¶16]  As the interview progressed, the detectives sought to clarify
Higgins's prior statements and to reconcile those statements with entries in
Poor's diary.  After Higgins placed himself at Poor's apartment on the night of
her death, the scope of the questions narrowed and Higgins's actions became
the focus of the questioning.  This fact alone, however, is not enough to
convert a non-custodial setting into a custodial one requiring Miranda
warnings.  See, e.g., Stansbury, 511 U.S. at 323.  ("Although the 'focus' of an
investigation may indeed have been on Beckwith at the time of the interview . .
. he hardly found himself in the custodial situation described by the Miranda
Court as the basis for its holding." (quoting Beckwith v. United States, 425 U.S.
341, 347 (1976))); California v. Beheler, 463 U.S. 1121, 1124 n.2 (1983) (noting
that the Supreme Court previously "rejected the notion that the 'in custody'
requirement was satisfied merely because the police interviewed a person who
was the 'focus' of a criminal investigation").   
	[¶17]  Contrary to Higgins's assertions, the circumstances of this
interrogation are substantially different from those presented in Holloway.  In
Holloway, we determined that the circumstances gave rise to a custodial setting
"if not from the outset of the detectives' questioning, certainly when Holloway
asked and was denied an opportunity to end the interrogation so that he could
contact a lawyer." 2000 ME 172, ¶ 20, 760 A.2d at 230.  Unlike the facts of this
case, the police in Holloway never informed Holloway that he was free to leave;
the interrogation took place in confined quarters; the questions posed by the
police were confrontational and accusatorial; Holloway was informed that he
was a prime suspect; he was accused of lying and committing the murder; the
police prevented him from leaving; the police continued to interrogate Holloway
despite his repeated requests that they leave; and the police rejected Holloway's
request that the interrogation end so that he could contact an attorney.  Id. ¶¶
4-9, 21, 760 A.2d at 225-27, 230.   
	[¶18]  In marked contrast to the custodial interrogation in Holloway,
Higgins's demeanor and conduct throughout his interrogation manifested a
desire to cooperate and answer the detectives' questions.  Viewed objectively,
the detectives' conversational and non-confrontational response would have
caused someone in Higgins's position to conclude that, as stated at the outset
of the meeting, he remained free to discontinue the interrogation and leave if
he so chose.  In sum, the totality of the circumstances surrounding the March
10 interrogation supports the finding that Higgins was not "in custody" when
he made the incriminating statements.  Therefore, the Superior Court did not
err in denying Higgins's motion to suppress.

B.  Probable Cause for Search Warrant

	[¶19]  Higgins contends that the Superior Court should have granted
his motion to suppress the fruits of the search of his vehicle, residence, and 
person because Detective Zamboni's affidavit was fatally flawed, containing an
insufficient basis on which to base a finding of probable cause. 
	[¶20]  When we review a denial of a motion to suppress, "we review
directly the finding of the magistrate who issued the warrant that probable
cause existed."  State v. Crowley, 1998 ME 187, ¶ 3, 714 A.2d 834, 836.  "In
determining whether probable cause exists, the magistrate applies the 'totality
of the circumstances' test adopted in Illinois v. Gates, 462 U.S. 213, 103 S. Ct.
2317, 76 L. Ed. 2d 527 (1983)."  Crowley, 1998 ME 187, ¶ 3, 714 A.2d at 836. 
When applying the totality of the circumstances test the magistrate is required
"to make a practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him, including the 'veracity' and
'basis of knowledge' of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found in a particular
place."  Id.  "[C]ourts must give the affidavit a 'positive reading'" and review the
affidavit "with all reasonable inferences that may be drawn to support the
magistrate's determination."  Id. ¶ 4, 714 A.2d at 836.  Accordingly, courts
must accord deference to the magistrate's determination.  Id.; see also State v.
Lamson, 640 A.2d 1076, 1081 (Me. 1994). 
	[¶21] Contrary to Higgins's assertions, the affidavit accompanying the
search warrants contained sufficient information upon which to base a finding
of probable cause. "Probable cause exists when the officers' personal knowledge
of facts and circumstances, in combination with any reasonably trustworthy
information conveyed to them, would warrant a prudent person to believe that
the items to be seized are evidence of a crime."  State v. Kennedy, 645 A.2d 7, 9
(Me. 1994).  The affidavit stated that (1) Poor received a number of wounds and
was sexually assaulted; (2) she lived alone and her doors and windows showed
no sign of forced entry; (3) her wounds resulted in blood splattering on the
refrigerator and the kitchen wall opposite the refrigerator; (4) the toilet seat
was up in the bathroom; (5) two Camel filter cigarette butts were found in an
ashtray in the apartment; (6) although Poor did not smoke, she tolerated
smoking in her apartment but would clean the ashtrays almost immediately;
(7) the cigarette butts were of the same brand and type smoked by Higgins, and
the DNA on the cigarette butts matched Higgins's DNA; and (8) although Poor
and Higgins had an ongoing relationship, she was scared of him.  
		[¶22]  From a positive reading of these facts in their totality, it can
be reasonably inferred that Poor was brutally murdered by a male assailant
whom she knew; the type of wounds she received resulted in Poor's blood
splattering on her assailant; and Poor had an ongoing relationship with
Higgins who was at her apartment at or near the time she was murdered. 
Accordingly, a prudent person would be warranted to believe that the items to
be seized from Higgins's residence, vehicle, and person would provide evidence
of Poor's murder. 
	The entry is:
			Judgment affirmed.
Attorneys for State: G. Steven Rowe, Attorney General Donald W. Macomber, Asst. Attorney General (orally) Lisa Marchese, Asst. Attorney General 6 State House Station Augusta, ME 04333-0006 Attorneys for defendant: Donald F. Brown, Esq, (orally) 36 Penn Plaza Bangor, ME 04401 C. Peter Bos, Esq. Gray & Palmer 6 State Street, suite 407 Bangor, ME 04401-5104
FOOTNOTES******************************** {1} . Higgins was sentenced to forty-five years in prison for the crime. {2} . Initially, Detective Zamboni requested search warrants for Higgins's residence and vehicle. These warrants were issued by the District Court (Newport, MacMichael, J.), and a supplemental search warrant was issued by the District Court (Bangor, Gunther, J.) to search Higgins's person, including his clothing and footwear. The District Court issued the supplemental warrant based on the same facts and circumstances as described in the first affidavit. {3} . The State dismissed the gross sexual assault count on January 8, 2001. {4} . The State conceded that Higgins was interrogated.