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STATE v. HERBEST12/6/1988
The defendant, Scott Herbest, appeals his conviction of manslaughter in the death of Michael Little, 17-A M.R.S.A. § 203 (1983), following a jury trial in Superior Court (Piscataquis County; Brown, A.R.J.). We affirm the judgment.
Michael Little, who the evidence showed was operating his motorcycle easterly on Route 16 in Sebec, was killed as the result of a broken neck. Little's motorcycle was rear-ended by an automobile in a high-velocity, severe-impact collision. The motorcycle and Herbest's 1977 AMC Gremlin were the two vehicles found at the scene. Just prior to the collision, the Gremlin was observed travelling east on Route 16 at high speeds and in a highly erratic manner. At the scene of the accident, an odor of alcohol emitted from Herbest, and from the Gremlin, which had several beer bottles and cans strewn about the inside. Herbest was taken to the Mayo Hospital in Dover-Foxcroft where he was overheard by a Maine State Police trooper making statements that he killed somebody on a motorcycle. After smelling alcohol on Herbest's breath, and observing his slurred, incoherent and rambling speech, glazed eyes and flushed complexion, the trooper concluded that Herbest was under the influence of alcohol and placed him under arrest. Samples of Herbest's blood were taken and showed a blood-alcohol level of 0.19 per cent by weight.
Herbest was charged with manslaughter, operating his motor vehicle in a reckless or criminally negligent manner and causing the death of Michael Little, 17-A M.R.S.A. § 203, and operating a motor vehicle while under the influence of intoxicating liquor or while having 0.10 per cent or more by weight of alcohol in his blood, 29 M.R.S.A. § 1312-B (1978 & Supp. 1987). Prior to trial, Herbest entered a plea of guilty to that portion of the charge under 29 M.R.S.A. § 1312-B charging operation while having 0.10 per cent or more by weight of alcohol in his blood without admitting that he was under the influence of alcohol. The plea was accepted by the trial court and the trial proceeded on the charge of manslaughter alone. After a three day trial, the jury
I.
Herbest first contends that he was deprived of his constitutional right against self-incrimination when the trial justice denied his motion to suppress the statements he made in the emergency room of the hospital overheard by Trooper Daniel Ouellette. Ouellette testified that Herbest said, "I killed someone. I killed a guy on a motorcycle. I didn't mean to do it. I want to kill myself." Ouellette testified that these statements were made by Herbest as he was being wheeled on a gurney through the reception area of the hospital emergency room, that the statements were not made in response to any questions from Ouellette or anyone else, and could be overheard by everyone in the area. Ouellette did not interrogate Herbest.
Herbest was neither in custodial circumstances nor under interrogation, and there was no requirement that warnings required by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), be given to him in order that the statements be admissible against him. State v. Price, 406 A.2d 883, 885 (Me. 1979). There was no evidence that any words were said or actions taken by Ouellette that were likely to elicit incriminating statements. Rhode Island v. Innes, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980).
For the first time in his reply brief, Herbest points to the failure of the trial justice to make an express finding that Herbest's statements were voluntary and contends that the absence of that finding compels our conclusion that the statements should not have been admitted against him. Becau
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