State v. Pelletier, 673 A.2d 1327 (Me. 1996). · Go Syfert
State v. Pelletier, 673 A.2d 1327 (Me. 1996). Cases Citing This Book View Copy Cite
33 citation events (11 in the last 25 years) across 2 distinct courts.
Strongest positive: State of Maine v. Scott (mesuperct, 2023-09-12)
Treatment trajectory · 1996 → 2026 · click a year to view as-of
1996 2011 2026
Top citers, strongest first. 23 distinct citers. How cited ↗
discussed Cited as authority (rule) State of Maine v. Scott
Me. Super. Ct · 2023 · confidence medium
The Defendant 2 During cross examination, the Defendant conceded that the record title remained in Nancy and Lewis Scott, both of whom are deceased, 3 See, State v, Pelletier, 673 A.2d 1327, 1329 (Me. 1996)( “A warrant must describe the property to be seized with such particularity that an executing officer will be able to identify it ‘with certainty.’ State v. Sweatt, 427 A.2d 940, 949 (Me,1981).
discussed Cited as authority (rule) State of Maine v. Smeal
Me. Super. Ct · 2022 · confidence medium
Moreover, "[e]vidence found lying in'open fields' ... is not considered to be the product of a search of a house for constitutional purposes and may be seized without a warrant." State v. Pelletier, 673 A.2d 1327, 1329 (Me. 1996) (upholding the warrantless seizure of a thermos stuffed with baggies of marijuana found 250-300 yards from the defendant's home).
cited Cited as authority (rule) State of Maine v. Dubois Livestock, Inc.
Me. · 2017 · confidence medium
State v. Pelletier, 673 A.2d 1327, 1329 (Me. 1996); see Dep’t of Envtl.
discussed Cited as authority (rule) State of Maine v. Gifford
Me. Super. Ct · 2017 · confidence medium
"A warrant must describe the property to be seized with such particularity that an executing officer will be able to identify it 'with certainty." State v. Pelletier, 673 A.2d 1327, 1329 (quoting State v. Sweatt, 427 A.2d 940, 949 (Me. 1981)).
cited Cited as authority (rule) State v. Dolloff
Me. · 2012 · confidence medium
Evid. 103(e); State v. Pelletier, 673 A.2d 1327, 1330 (Me.1996).
discussed Cited as authority (rule) State v. Dominique
Me. · 2011 · confidence medium
We note, after a thorough review of Dominique’s arguments on appeal and the record, that were we to ignore Dominique's failure to timely file a proper appendix and reach the appeal on its merits, we would affirm his conviction because (1) the court did not clearly err nor abuse its discretion to the prejudice of Dominique in allowing testimony regarding vertical gaze nystagmus, see State v. Taylor, 1997 ME 81, ¶ 10 , 694 A.2d 907, 910 ; (2) the court did not clearly err in permitting a testifying witness to refresh his recollection using a police report he had authored, see State v. Hamel, …
discussed Cited as authority (rule) State of Maine v. Bennett
Me. Super. Ct · 2009 · confidence medium
"A warrant must describe the property to be seized with such particularity that an executing officer will be able to identify it 'with certainty."1 State v. Pelletier, 673 A.2d 1327, 1329 (quoting State v. Sweatt, 427 A.2d 940, 949 (Me. 1981».
cited Cited as authority (rule) State v. Winslow
Me. · 2007 · confidence medium
State v. Pelletier, 673 A.2d 1327, 1330 (Me.1996). 1.
discussed Cited as authority (rule) State v. Kelly
Me. · 2000 · confidence medium
Here, although the question by the prosecutor implying that the witness should identify the defendant *193 as the guilty party is improper, the impropriety was neither “so highly prejudicial [nor did it] so taint[] the proceedings as virtually to deprive the defendant of a fair trial.” State v. Pelletier, 673 A.2d 1327, 1330 (Me.1996); compare State v. Tripp, 634 A.2d 1318, 1320 (Me.1994) (vacating for obvious error where prosecutor elicited a statement that another witness had lied on the stand, in a case where that witness’s credibility was a central issue in the case).
cited Cited as authority (rule) State v. Clarke
Me. · 1999 · confidence medium
P. 52(b); State v. Pelletier, 673 A.2d 1327, 1330 (Me.1996).
discussed Cited as authority (rule) State v. Lehman (2×) also: Cited "see"
Me. · 1999 · confidence medium
We disagree. [¶ 7] “A decision as to the constitutional adequacy of a search warrant is a *260 matter of law.” State v. Pelletier, 673 A.2d 1327, 1329 (Me.1996) (footnote omitted).
cited Cited as authority (rule) State v. Chesnel
Me. · 1999 · confidence medium
“Error is obvious only when it is so highly prejudicial and so taints the proceedings as virtually to deprive the defendant of a fair trial.” State v. Pelletier, 673 A.2d 1327, 1330 (Me.1996).
discussed Cited as authority (rule) State v. Stanton
Me. · 1998 · confidence medium
“Error is obvious only when it is so highly prejudicial and so taints the proceedings as virtually to deprive the defendant of a fair trial.” State v. Pelletier, 673 A.2d 1327, 1330 (Me.1996). [¶ 12] In State v. Greene, 512 A.2d 330 (Me.1986), we upheld a defendant’s conviction even though the prosecutor referred to the complainant as “this poor little girl, 11 year-old victim.” Id. at 334 .
cited Cited as authority (rule) State v. Oeur
Me. · 1998 · confidence medium
“Error is obvious only when it is so highly prejudicial and so taints the proceedings as virtually to deprive the defendant of a fair trial.” State v. Pelletier, 673 A.2d 1327,1330 (Me.1996).
discussed Cited as authority (rule) State v. Jackson
Me. · 1997 · confidence medium
State v. Pelletier, 673 A.2d 1327, 1330 (Me.1996) (we will not vacate a judgment for an error objected to at trial so long as it is highly probable that the jury’s determination of guilt was unaffected by the error).
cited Cited as authority (rule) State v. Fleming
Me. · 1997 · confidence medium
State v. Pelletier, 673 A.2d 1327, 1330 (Me.1996). [¶ 20] At the trial Fleming vigorously cross-examined all the expert witnesses on their labelling of the evidentiary samples.
cited Cited as authority (rule) State v. Thompson
Me. · 1997 · confidence medium
State v. Pelletier, 673 A.2d 1327, 1330 (Me.1996); M.R.Evid. 103(d); M.R.Crim.P. 52(a).
cited Cited as authority (rule) State v. Jordan
Me. · 1997 · confidence medium
State v. Pelletier, 673 A.2d 1327, 1330 (Me.1996).
cited Cited as authority (rule) State v. Sullivan
Me. · 1997 · confidence medium
State v. Pelletier, 673 A.2d 1327, 1330 (Me.1996); see also M.R.Crim.P. 52(a).
cited Cited as authority (rule) State v. Kaler
Me. · 1997 · confidence medium
See State v. Franklin, 478 A.2d 1107, 1110 (Me.1984) (new ground of objection advanced on appeal); State v. Pelletier, 673 A.2d 1327, 1330 (Me.1996) (failure to object at trial).
cited Cited as authority (rule) State v. Dignoti
Me. · 1996 · confidence medium
We disagree. ‘We review the search and seizure of evidence for constitutional adequacy de novo.” State v. Pelletier, 673 A.2d 1327, 1329 (Me.1996) (citation omitted).
cited Cited "see" Maine v. Miller
Me. · 1999 · signal: see · confidence high
See State v. Pelletier, 673 A.2d 1327, 1330 (Me.1996).
cited Cited "see" State v. Ray
Me. · 1999 · signal: see · confidence high
See State v. Pelletier, 673 A.2d 1327, 1330 (Me.1996).
Retrieving the full opinion text from the archive…
STATE of Maine
v.
Michael PELLETIER
Supreme Judicial Court of Maine.
Apr 2, 1996.
673 A.2d 1327
Neale T. Adams, District Attorney, John M. Pluto, Assistant District Attorney, Caribou, for the State., Thomas M. Mangan, Lewiston, for Defendant.
Wathen, Roberts, Glassman, Clifford, Rudman, Dana, Lipez.
Cited by 25 opinions  |  Published
[*1329] RUDMAN, Justice.

Michael Pelletier appeals from the judgments entered on jury verdicts in the Superi- or Court (Aroostook County, Pierson, J.) finding him guilty of two counts of unlawful trafficking in scheduled drugs, 17-A M.R.SA. § 1103 (1983 & Supp.1995), and two counts of aggravated trafficking in scheduled drugs, 17-A M.R.SA. § 1105(1)(C) (Supp. 1995). Pelletier challenges the denial of his motion to suppress evidence and the sufficiency of the evidence. He further argues that certain comments made by the State during its opening statement denied him a fair trial. We affirm the judgments.

I.

Pelletier moved to suppress as the products of an unreasonable search and seizure all evidence, documents, photographs, and videotapes seized in the police raid on his premises. He urges that the search warrant’s description of the premises to be searched lacks the constitutionally required specificity and that the seizure of a thermos filled with marijuana from its hiding place in woods behind his home was beyond the lawful scope of the warranted search. A decision as to the constitutional [1] adequacy of a search warrant is a matter of law. See State v. Duke, 655 A.2d 338, 340 (Me.1995). We review the search and seizure of evidence for constitutional adequacy de novo. Id.

A warrant must describe the property to be seized with such particularity that an executing officer will be able to identify it “with certainty.” State v. Sweatt, 427 A.2d 940, 949 (Me.1981). The warrant can leave nothing to the discretion of the executing officer as to what is to be taken. Marrón v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 75, 72 L.Ed. 231 (1927). Here the warrant’s description of property to be seized is sufficient to permit the executing officer reasonably to identify what is to be seized. The warrant does not allow officers to seize property at will and is constitutionally sufficient.

Here the warrant description of the residence to be searched, including its “appurtenances and outbuildings,” also makes it possible for drug agents to identify with reasonable effort and reasonable certainty the premises to be searched. The warrant therefore meets the constitutional safeguards as to specificity of place to be searched. State v. Brochu, 237 A.2d 418, 422 (Me.1967).

Evidence found lying in “open fields” outside the “curtilage” of Pelletier’s home is not considered to be the product of a search of a house for constitutional purposes and may be seized without a warrant. State v. Cayer, 617 A.2d 208, 210 (Me.1992) (citing Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 44, 446, 68 L.Ed. 898 (1924)). See also United States v. Dunn, 480 U.S. 294, 301,107 S.Ct. 1134,1139, 94 L.Ed.2d 326 (1987). The thermos stuffed with baggies of marijuana, which was found in the woods 250-300 yards behind Pelletier’s residence, was outside the curtilage of his home and therefore may not be excluded as the product of an unreasonable search.

II.

Pelletier challenges references made during the State’s opening statements to his income and assets and the State’s warning to the jury not to be misled by the discrepancy between Pelletier’s comfortable rural lifestyle and the desperate crack house lives of drug criminals portrayed in the mass media. Pel-letier argues these comments denied him a presumption of innocence and were so highly prejudicial as to constitute manifest injustice.

As we have previously stated,

[Wjhile a prosecutor “may strike hard blows, [she] is not at liberty to strike foul ones. It is as much [her] duty to refrain from improper methods calculated to produce wrongful conviction as it is to use every legitimate means to bring about a just one.”

[*1330] State v. Steen, 623 A.2d 146, 148 (Me.1993) (quoting State v. Collin, 441 A.2d 693, 697 (Me.1982)).

Pelletier did not object at the trial to the State’s reference to his income and assets. Pelletier did object at the close of the State’s opening statement to the comments made by the State in seeking to counter any inference by the jury that Pelletier’s rural lifestyle and confinement to a wheelchair insulated him from involvement in criminal conduct. The court declined to give a curative instruction to the jury.

When objection to prosecution statements is made at trial, we review prose-cutorial misconduct for harmless error pursuant to M.R.Crim.P. 52(a). We will not vacate a judgment for an error objected to at trial so long as it is highly probable that the jury’s determination of guilt was unaffected by the prosecutor’s comments. State v. Steen, 623 A.2d at 149 (citing State v. True, 438 A.2d 460, 467 (Me.1981)). When no objection to prosecution statements has been raised at trial, we determine on appeal whether the statement was improper and, if so, whether such improper conduct is obvious error pursuant to M.R.Crim.P. 52(b). State v. Marshall, 628 A.2d 1061, 1061 (Me.1993). Error is obvious only when it is so highly prejudicial and so taints the proceedings as virtually to deprive the defendant of a fair trial. State v. Magoon, 649 A.2d 1115, 1117 (Me.1994).

Here the prosecution statements to which Pelletier did not object at the trial do not constitute obvious error. The court’s ruling on those statements to which Pelletier did object at the trial does not constitute error.

III.

Pelletier contends the evidence is insufficient to establish his unlawful possession of marijuana and hashish and insufficient to establish his intent to transfer drugs to others for consideration. On the evidence presented a factfinder rationally could find beyond a reasonable doubt that Pelletier knew about the marijuana and hashish on his premises and that he had control over the drugs and could reduce them to his physical possession at his pleasure. The evidence is sufficient to find Pelletier in possession of marijuana and hashish and that Pelletier intended to sell the drugs.

Pelletier, a paraplegic, also was convicted of aggravated trafficking in marijuana and hashish. 17-A M.R.S.A. § 1105(1)(C) (Supp.1995). [2] He argues that the evidence is insufficient to establish that he was in possession of a firearm at the time of any drug trafficking. He argues that the weapons in his residence constituted a gun collection. We review the trial court’s construction of “possession” of a firearm with respect to the aggravated trafficking statute de novo for errors of law. See Community Telecommu [*1331] nications Corp. v. Loughran, 651 A.2d 373, 376 (Me.1994).

In construing the language of any statute we look first to the plain meaning of the words; where the plain words are ambiguous we construe the statute to effect legislative intent. See Marchand v. Eastern Welding Co., 641 A.2d 190, 192-93 (Me.1994). We have construed “possession” to include both actual and constructive possession. State v. Lambert, 363 A.2d 707, 711 (Me.1976).

Where the State alleges a crime of possession of a physical object, it must prove possession by showing that the accused at some time bore one of two relationships to the object: he either had immediate physical control or occupancy of the object or knew where it was and had the intention and ability to gain physical control or occupancy of it.

State v. Koehling, 381 A.2d 12, 14 (Me.1978).

The record establishes that Pelletier knew where the guns were and that he had the ability to gain physical control over them. A factfinder rationally could find beyond a reasonable doubt that Pelletier “possessed” his home arsenal at the time of his drug trafficking activities.

The entry is:

Judgments affirmed.

All concurring.

1

. Amendment IV of the Constitution of the United States provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
2

. 17-A.M.R.S.A. § 1105(1) (Supp.1995) provides in pertinent part:

1. A person is guilty of aggravated trafficking or furnishing scheduled drags if:
C. A person violates section 1103, 1104 or 1106, and, at the time of the offense, the person uses, carries, possesses or is armed with a firearm; ....

In 1989 the Legislature added section 1105(1)(C) to the definition of the offense of aggravated drag trafficking. P.L.1989, ch. 333 § 2. The title of the bill introducing the change, L.D. 1116, was “An Act to Increase the Penally for Drag Crimes Committed while in Possession of a Firearm.” The bill contained no separate statement of purpose. The addition of the firearm provision to elevate sentencing tracks the purpose of the federal drag aggravated trafficking statute, 18 U.S.C. § 924(c)(1) (1976 & Pamph.1995), which is analogous to the Maine statute except the federal statute for aggravating a drag offense with a firearm includes as aggravating circumstances only “uses or carries” while the Maine statute includes "uses, carries, possesses or is armed with.”

In Bailey v. United States, - U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the Supreme Court construed "use” of a firearm as that term is used in 18 U.S.C. § 924(c)(1) (1976 & Pamph. 1995) to mean more than a showing of mere possession. The court concluded that to establish "use” of a firearm pursuant to section 924(c)(1) the government must show "active employment” of a firearm. The court’s construction of "active employment” includes brandishing, displaying, bartering, striking with, and firing or attempting to fire a firearm. "Use" pursuant to the federal statute, 18 U.S.C. § 924(c)(1) (1976 & Pamph.1995), does not include placement of a weapon for later active use.