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State v. Chan

Superior Court of Maine, Aroostook

September 13, 2018

WAI CHAN Defendant


         Pending before the court is Defendant's motion to suppress pursuant to M.R.U.Crim.P.41A. Specifically, Defendant seeks suppression of the out-of-court identification made by Karin Wong arguing it was the product of unduly suggestive procedures. Defendant also argues that the State failed to preserve an original video recording resulting in a discovery or Brady violation which further impaired his right of confrontation of Karin Wong and Karin Wong's out-of-court identification, and therefore requests the court to suppress the video and identification. Hearing on the motion was held September 5, 2018 at which testimony was received from Michael Clark, Patricia Cyr, Officer Kevin St. Peter of Caribou Police and Officer Ricky Pelletier of Caribou Police. Also admitted into evidence was State Exhibit 1, which was a CD containing two video's showing an individual entering and leaving the home where the crime allegedly occurred which was taken by a surveillance camera situated at a nearby convenience store. For the reasons set forth herein, Defendant's motion is denied.


         For the purpose of this motion the following findings of facts are made:

         At approximately 9:15 pm on September 3, 2017 Karin Wong, who is the owner and proprietor of the Jade Palace, a local Chinese restaurant, made a report to Caribou Police that the home located at 904 Presque Isle Road had been broken into and a theft had been committed. This home was owned by Ms. Wong for the purpose of providing living arrangements for some of the cooks at her restaurant. Living in the home at that time were two cooks, "Jing" and "Mike". Because Jing and Mike spoke little or no English, Ms. Wong made the report on their behalf and provided translation during the police investigation.

         The police were told by Ms. Wong that the home had been broken into sometime between 10 am and 9 pm on September 3rd, after Jing and Mike had gone to work at the restaurant. Upon their return home from work around 9 pm the cooks discovered that their home had been entered, ransacked and that a laptop computer, electric shaver, shoulder bag and a large sum of money had been taken. Ms. Wong reported that the residents of the home kept the key for the main entry door hidden in the entry way, suggesting that is how the perpetrator made entry.

         When the police asked Ms. Wong and the victims if they had any suspects, Ms. Wong told them she thought it could be Wai Chan, the Defendant. Ms. Wong explained that Wai Chan had previously worked as a cook at the Jade for about two months, but about two weeks earlier he suddenly gave his notice that he was resigning and asked for his final paycheck. She did not know where Wai Chan had gone or was living in the two weeks since he quit work. But Ms. Wong told the police that while working for the Jade, Wai Chan also resided in the house at 904 Presque Isle Road and that he knew where the key was hidden and knew the schedule that the other cooks living in the home would be away at work. Ms. Wong also told the police that Wai Chan may have known that Mike kept a large sum of money in the home as Mike often spoke openly about financial matters. During the investigation Ms. Wong also told police that Wai Chan drove a 2006 silver Ford Taurus.

         At the scene at 904 Presque Isle Road, the police saw no evidence of forced entry. Inside the home, things were in disarray and several dresser drawers were open with items strewn about. No fingerprint evidence was obtained. When the investigation was commenced by the police, Wai Chan was not an individual known to them, and his being a potential suspect was based on the information Ms. Wong provided. Based on this information, police decided to investigate whether adjacent stores had surveillance cameras that included a view of the home at 904 Presque Isle Road.

         A few days later police, made contact with Mike's Quick Stop convenience store, which is located directly across the road from the home at 904 Presque Isle Road. Police spoke with Patricia Cyr, who was the store manager. Ms. Cyr confirmed that the store did have surveillance cameras that faced in the direction of the home across the street, and that the surveillance equipment retained digital video recordings. Police asked Ms. Cyr to review the recordings for September 3rd from morning (8 am) until dark. The testimony was not precise what the police asked Ms. Cyr to look for on the recording, but from the totality of the evidence it can be inferred she was asked to look for anything unusual, or anyone coming and going at unusual times. Ms. Cyr assigned this task to an employee, Ashley Michaud, and instructed Ashley to watch the video for the entire day, and to record on a sticky note all times when someone was seen coming or going from the house across the street.

         Upon watching the video, Ashley flagged for Patricia three specific time entries; the first one at approximately 9:40 am when people were observed leaving the home; the second from shortly after 2 pm when a sole individual was observed parking a car in the driveway and then entering the home; and the third and final flagged recording being shortly after 4 pm when a sole individual was seen leaving the home, walking to the parked car and then driving away. The video flagged for 9:40 am showing people leaving the home is consistent with the information provided by Ms. Wong that Jing and Mike left the home around 10 am to go to work at the restaurant.

         Ms. Cyr watched the video recordings for the three time-entries flagged by Ashley Michaud. She did not watch any other video from September 3rd. Ms. Cyr called Caribou Police to report something had been found on the video recording system for September 3rd, and she then put onto a USB thumb drive, or similar device, copies of the two video recordings from 2 pm and 4pm. Ms. Cyr made no changes or enhancements to the two videos she recorded onto the thumb drive.

         Pursuant to Ms. Cyr's call, Caribou Police Officer St. Peter met Ms. Cyr at the store and watched on the store's surveillance equipment the three video recordings that had been flagged by Ashley Michaud, and took from Ms. Cyr the thumb drive that contained the two recordings from 2pm and 4 pm. Police did not ask or instruct Ms. Cyr to provide any additional recordings or to save any of the digital data retained for September 3rd. Upon returning to the police station, the officer downloaded the two files onto the department's computer and stored them in a file designated for this investigation. Ms. Wong was then contacted and asked to come in to the station to review the videos.

         On September 19th, Ms. Wong went to the police station where the Officer St. Peter played for her viewing the two recordings. The two recordings were played on the system's Windows media player, with no enhancement, and with no capability to enlarge or "zoom". The officer asked Ms. Wong to watch the videos and indicate whether she could identify anyone. The officer did not provide to Ms. Wong any names or other identification material. Upon watching both videos Ms. Wong told the officer she believed the individual seen in the videos was Wai Chan but she could not be sure. And she also told Officer St. Peter she believed the car seen in the video was Wai Chan's. At that point, the officer asked Ms. Wong if she would be willing to go to Mike's Quick Stop to watch the videos as the store's equipment had the capability to zoom. Ms. Wong agreed.

         On September 21, Officer St. Peter took Ms. Wong to Mike's Quick Stop. On the store equipment, Ms. Cyr played for Ms. Wong the two recordings flagged for 2 pm and 4 pm. While playing the recordings, Ms. Wong asked Ms. Cyr to "zoom" or enlarge the images at various times and to also "stop" or "pause" the recording at various times. There is no data to record or establish to what degree the recording was enlarged. Upon viewing the "zoomed" recordings Ms. Chan made a positive identification that the individual seen in the two recordings was Wai Chan and the vehicle observed was his. Her identification was also based on mannerism and style of gait observed in the video. Ms. Wong also identified the shoulder bag being carried from the home by the suspect as belonging to one of the occupants of the house. Following Ms. Chan's watching the videos at the store, police did not ask or instruct Ms. Cyr to make any additional recordings and did not ask or instruct her to record or save any additional video material from September 3rd.

         Copies of the two video recordings originally saved by Ms. Cyr were included and presented to the defense as part of the discovery. At some date following September 3rd, all data for September 3rd that had been retained on the store's surveillance equipment was automatically written over by the system and lost. Due to the capacity of the equipment, all data in the surveillance recording system is automatically written over as new data is received, unless the data is otherwise ...

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