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State v. Eastman
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Decision:  1997 ME 39
Docket: YOR-96-286
Submitted on briefs December 5, 1996
Decided March 12, 1997




	[¶1]  Defendant, Randy Eastman, appeals the judgment entered in the
Superior Court (York County, Crowley, J.) convicting him of operating under
the influence of intoxicants in violation of 29-A M.R.S.A. § 2411 (1996). 
Defendant argues on appeal that the District Court (Biddeford, MacNichol,
J.) erred in denying his motion to suppress certain evidence ultimately
admitted against him at trial and makes several other constitutional
arguments not presented to the trial court.  Finding no error, we affirm the
	[¶2]  The facts as developed at trial may be summarized as follows.  On
September 8, 1995, at approximately one o'clock in the morning, Officer
Charles Snow of the Saco Police Department was parked near a sports bar. 
He heard "several loud popping sounds like fire crackers going off" and saw
defendant driving his car out of a parking space that had smoke rising fromit.  A group of people were pointing at defendant's car.  The officer pursued
defendant for a short distance and he pulled over.  
	[¶3] On approaching defendant's driver-side window, the officer
noticed a strong odor of alcohol coming from inside the vehicle.  In
response to questioning, defendant told the officer that he had consumed
three beers that evening.  At that point, the officer asked defendant to get
out of his car to perform field sobriety tests.  After defendant got out of the
vehicle, the officer again smelled alcohol, saw that defendant had bloodshot
eyes, and noted that his speech was slurred.  The officer testified that he
then administered the horizontal gaze nystagmus test, the walk-and-turn
test, the one-leg stand test, a finger dexterity test, an alphabet test, and a
counting test.  He testified that defendant had difficulty in performing these
sobriety tests.  He then arrested defendant and transported him to the Saco
police station where a breath test indicated that his blood alcohol level was
	[¶4]  Defendant was charged with operating under the influence and
he entered a plea of not guilty.  Defendant then moved to suppress certain
statements he made after the officer stopped him.  A hearing on this motion
was held in the District Court (Biddeford, MacNichol, J.).{1}  The hearing,
unlike the written motion, focused on the legality of the field sobriety test
results.  Defendant challenged the results at the hearing on the ground that
they were:  (1) the fruit of an unreasonable seizure; and (2) evidence that he
was improperly compelled to furnish against himself in violation of Article I,
section 6 of the Maine Constitution.  The District Court rejected both of
these arguments and denied the motion to suppress. 
	[¶5] The case was transferred to the Superior Court for trial.  The jury
found defendant guilty.  He was convicted and sentenced to nine days in
county jail, his license and right to register a motor vehicle were suspended
for eighteen months, and he was ordered to pay a $750 fine plus surcharges
and fees.  Defendant now appeals 
I. Fourth Amendment
	[¶6]  The Fourth Amendment of the U.S. Constitution protects persons
against unreasonable searches and seizures.  In order to comply with these
provisions, a field sobriety test, like any investigatory stop, must be based on
"'specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion.'"  State v. Dulac, 600
A.2d 1121, 1122 (Me. 1992) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct.
1868, 1880 (1968)).  "A police officer may make an investigatory stop if at
the time of the stop the officer has an articulable suspicion, objectively
reasonable in light of all the circumstances, that the object of the search has
committed or is about to commit a crime."  State v. Wood, 662 A.2d 919,
920 (Me. 1995).  For the stop to be reasonable, the court must find "that the
officer actually entertained a concern and that the concern was reasonable
under the circumstances."  State v. Cusack, 649 A.2d 16, 18 (Me. 1994)
(quoting State v. Burnham, 610 A.2d 733, 734 (Me. 1992)).  
	[¶7] The officer testified at the suppression hearing that he asked
defendant to perform the tests because an odor of alcohol was coming from
his car and because defendant admitted that he had been drinking.  Defense
counsel cross-examined the officer and asked whether he had "any
suspicion" that he would find evidence of "intoxication" by asking defendant
to perform the tests and the officer answered "No."  On the basis of this
answer, defendant argued to the District Court and now argues on appeal
that the officer did not subjectively have the requisite articulable suspicion
to constitutionally administer the sobriety tests.  The District Court found
that, although the officer had no preconceived notion of how the tests "were
going to work out," the defense counsel misconstrued his testimony.  The
court concluded that he had good reasons for administering the tests that
were legally sufficient for Fourth Amendment purposes.
	[¶8] For purposes of determining the standard of review, we have held
that "[t]he nature of the detaining officer's subjective suspicion and the
nature of the observations upon which that suspicion is based are questions
of fact.  State v. Fillion, 474 A.2d 187, 190 (Me. 1984).  Whether an officer's
suspicion is objectively reasonable is a question of law."  Cusack, 649 A.2d at
18.  "The ultimate question of justification -- i.e. whether a reasonable
suspicion exists in the mind of the officer -- combines these elements.  We
will reverse the trial court's ultimate conclusion, containing as it does
determinations of fact and law, only if no competent evidence exists to
support it."  State v. Fillion, 474 A.2d 187, 190 (Me. 1984).
	[¶9]  The District Court found that the officer entertained a suspicion
that defendant was driving while under the influence of intoxicants.  See
Wood, 662 A.2d at 920-921 (reasonable basis for suspicion of being under
the influence can exist independently of any evidence of actual impairment). 
In addition, the court found that the officer had good reason to ask the
defendant to take the tests.  Given the officer's testimony as to his state of
mind, the smell of alcohol coming from defendant's car, defendant's
admission to having had three beers, and the fact that the officer suspected
defendant of igniting fireworks dangerously near others, the court did not
clearly err in concluding that the officer had a reasonable suspicion.
II. Maine Privilege Against Self-incrimination
	[¶10]  The Maine Constitution provides:

In all criminal prosecutions, the accused ... shall not be compelled to
furnish or give evidence against himself or herself ....

Me. Const., art. I, § 6.  Defendant contends that this language should be
broadly interpreted to prohibit the State from compelling criminal
defendants to submit to field sobriety tests because they are being
"compelled to furnish or give evidence" against themselves.  Field sobriety
test results are generally considered to be physical or non-testimonial
evidence.  Pennsylvania v. Muniz, 496 U.S. 582, 602-603 n. 16 (1990).  It is
undisputed that the federal privilege against self-incrimination{2} only
prohibits the compulsion of evidence of a testimonial or communicative
nature.  See e.g. Schmerber v. California, 384 U.S. 757, 761 (1966). 
Nevertheless, defendant argues that we should treat field sobriety test
results in the same manner as inculpatory statements.  To do this would
require us to abandon the distinction between testimonial and non-
testimonial evidence in the context of interpreting the Maine privilege and
ignore or overrule our historical stance on this subject.{3}  We decline to do
	[¶11] The federal and state privileges against self-incrimination serve
the same end.  As noted by the United States Supreme Court, "the
constitutional guarantees, however differently worded, should have as far as
possible the same interpretation."  Counselman v. Hitchcock, 142 U.S. 547,
584-585 (1892); see also Schmerber, 384 U.S. at 761 n.6 (denying that the
testimonial/non-testimonial distinction rests on the use of the word
"witness" in the fifth amendment).
	[¶12]  We have consistently interpreted the Maine privilege co-
extensively with the federal privilege.{4}   "These two constitutional provisions
are so similar in nature and identical in purpose that precedent with
respect to the construction of the one may well serve as precedent for the
construction of the other."  Gendron v. Burnham, 146 Me. 387, 395, 82 A.2d
773, 780 (1951).  Furthermore, in State v. Nason, we held that the Maine
Constitution is not violated when a defendant is compelled to produce
physical, non-testimonial evidence.  State v. Nason, 433 A.2d 424, 428 (Me.
1981).  The introduction of the field sobriety tests performed at the request
of the officer violated neither the state nor the federal privilege against self-
III. Alleged Constitutional Violations During Trial
	[¶13]  Defendant challenges several evidentiary rulings made during
trial on constitutional grounds.  At the trial, the court refused to allow
defendant to impeach the officer by using a hearsay document.  The court
also refused to permit defendant to ask the officer about the margin of error
of the intoxilyzer machine in the absence of some foundation that he was
qualified to testify about that subject.  Finally, the court precluded any
inquiry into the voluntariness of nystagmus because it was irrelevant given
that the State was not relying on the horizontal gaze nystagmus test result to
prove impairment.  Defendant contends that the combined effect of these
evidentiary rulings deprived him of a meaningful opportunity to cross-
examine the officer in violation of his right to confront adverse witnesses
and his right to a fair trial.  In addition, defendant argues that his right to a
fair trial was violated by certain remarks made by the prosecutor during
closing argument.{5}
	[¶14]  Even constitutional errors must be preserved for appellate
review.  State v. Jones, 580 A.2d 161, 163 (Me. 1990).  At no time before
the trial court did defendant assert his rights under the Confrontation
Clauses of either the federal or state constitutions.  None of what happened
below "can fairly be said to have raised for the presiding Justice's
consideration the issue of the constitutional right of confrontation now being
asserted on appeal."  State v. Christianson, 404 A.2d 999, 1005 n.1 (Me.
1979).  Similarly, defendant, after an initial objection to the State's remark
in question and a correction by the State, requested no further relief from
the trial court.  A defendant who fails to move for a mistrial due to an
improper closing remark or to request other relief "is taken to have
acquiesced in the corrective measures adopted by the trial justice."  State v.
Rose, 622 A.2d 78, 79 (Me. 1993) (citation omitted).  Because of defendant's
failure to raise his constitutional objections to the trial court's evidentiary
rulings and to the State's closing at trial, we will only review those rulings
and that remark for obvious error.  Christianson, 404 A.2d at 1005; State v.
Jacques, 537 A.2d 587, 589 (Me. 1988).  Defendant has failed to
demonstrate the obviousness of any error committed or that any injustice
done was so great that we "cannot in good conscience let the conviction
stand."  State v. Boyle, 560 A.2d 556, 557-558 (Me. 1989) (quoting State v.
True, 438 A.2d 460, 469 (Me. 1981).  
IV.  Sentencing {6}
	[¶15]  Defendant argues that the sentencing court impermissibly
punished him for exercising his right to a jury trial.  This contention is
unsupported by the record, and therefore without merit.  In this case, the
court expressly stated that it was not punishing defendant for going to trial
but noted that by doing so, defendant risked "that factors or facts are
developed to a greater extent that may somehow effect the sentencing that
might not have been brought out at a plea."  It considered defendant's trial
for the limited purpose of determining his "failure to take responsibility."  In
doing so, the court committed no error.  
	The entry is:
					Judgment affirmed.

Attorneys for State: Michael P. Cantara, District Attorney David D. Gregory, Esq., of counsel Jeffrey Moskowitz, Asst. Dist. Atty. P.O. Box 399 Alfred, ME 04002 Attorney for defendant: Michael J. Waxman, Esq. P O Box 375 Portland, ME 04112-0375
FOOTNOTES******************************** {1} Although there has been no objection by the State to its use, we note that the "transcript" of the District Court hearing presented to us on appeal was produced from duplicate tapes made available to defendant's counsel and was not ordered and transmitted to this court as required by the relevant rule. See M.R. Crim. P. 27(c) and M.R. Civ. P. 76H. Administrative Order Regarding Electronic Recording in the Superior and District Courts (Effective March 15, 1995) states that counsel may obtain duplicate tapes of any proceeding electronically recorded but that no "record or transcription made from a duplicate tape, nor any part thereof, shall be incorporated in or substituted for any portion of a transcript included in an official record without the consent of all parties to the proceeding and with the approval of the presiding justice or judge." In order to ensure the integrity of the appellate process, we will, in the future, reject substitute transcripts that do not affirmatively reflect the consent of all parties and the approval of the presiding judge. {2} The U.S. Constitution provides: "No person ... shall be compelled in any criminal case to be a witness against himself." U.S. Const., amend. V. {3} Defendant does not argue that any of the field sobriety tests are testimonial. {4} The procedures developed to protect defendants pursuant to the Maine privilege, however, differ somewhat from those employed by federal courts. See State v. Snow, 513 A.2d 274, 276 (Me. 1986) (citing State v. Collins, 297 A.2d 620, 627 (Me. 1972) (when an accused claims his statements are involuntary, then the State must establish voluntariness by proof beyond a reasonable doubt). {5} During its closing, the State made the following remark to the jury. The number of field sobriety tests. Well wouldn't you folks rather see a police officer be thorough in the field and do six field sobriety tests, which Officer Snow testified was his routine every time he does an OUI case, wouldn't you rather see an officer to (sic) use tests involving balance, test involving memory? At this point, defendant objected on the ground that the State was playing on the jurors' fears. The court noted "there's a way to discuss taking six tests without placing the jury in a position as to what they would like to see for the future." The prosecutor rephrased his argument and defendant requested no further relief. {6} We only review the legality of a sentence on direct appeal, not its propriety, and any infirmity must appear affirmatively from the record. Farnham, 479 A.2d at 889.