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STATE OF MAINE SUPERIOR CCNRT SUPERIOR COURT
jan 12 zuul CRIMINAL ACTION
KNOX; ss. DOCKET NO. CR-99-428
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STATE OF MAINE
v. DECISION AND ORDER
ON MOTION TO SUPPRESS
MALCOLM H. EMERY,
Defendant
This matter is before the court on the defendant’s motion to suppress
statements he made to a police officer, Det. Sgt. William Donnelly of the Rockland
Police Department. The State opposes the motion, so a testimonial hearing was
conducted and post-hearing memoranda have been submitted. The motion is
therefore i in . order for disposition.
Det. Donnelly interviewed the defendant seven times about a suspected arson
of an unoccupied dwelling which had occurred near the defendant’s home in the
early morning of September 24, 1999. The defendant seeks to suppress the content of
all these statements arguing that they were either involuntarily made or that, in two
instances, the statements were elicited in violation of Miranda requirements.
For purposes of the analysis to be applied to these seven interviews, they can
be assigned to three factual categories: one interview at the fire scene, four later
interviews before the arrest, and two custodial interviews at the Knox County Jail.
When a defendant makes a claim asserting his statements to the police were
involuntary, it is the State’s burden to establish the contrary beyond a reasonable
doubt before the challenged statements may be admitted as evidence at trial. State v.
Cole, 1997 ME 112,,J 6, 695 A.2d 1180, 1182.
Addressing the interview at the fire scene first, it is clear that nothing about
the circumstances of this conversation between Det. Donnelly and the defendant
suggest either a custodial situation or that the statements the defendant made were
involuntary. This conversation was brief, informal and friendly. Indeed, it appears
that the defendant was interviewed by Det. Donnelly on this occasion, not because
he was a suspect, but because he was a potential witness to the fire who lived next
door and had called the public safety authorities to respond. That the interview was
conducted in Det. Donnelly’s police cruiser is of little import. The interview
occurred in the early morning at the fire scene and few other places for private
conversation were likely available. No reasonable person in this circumstance
would have believed himself to be in police custody or in any way constrained by
the officer. State v. Powell, 640 A.2d 609, 610 (Me. 1994).
The next four interviews occurred later on the same day and on October 18, 20
and 28, 1999. These require a somewhat different analysis in that they were more
formalized exchanges of somewhat longer duration. However, as the defendant
apparently concedes, none of these interrogations were custodial. That is to say, as
noted infra, a reasonable person in the defendant’s position would not have
believed he was in police custody on these four occasions, “and constrained to a
degree associated with formal arrest.” Powell, id. As such, it was not necessary for
Det. Donnelly to have provided the defendant with the Miranda warnings or to
have secured from him a waiver of his Fifth and Sixth Amendment rights. State v.
Carr, 1997 ME 221, 10, 704 A.2d 353, 356.
Nevertheless, the defendant claims his statements during these interviews
were not voluntarily provided because Det. Donnelly induced them by misleading
the defendant about his rights. The transcripts of the interviews on these occasions,
however, show that Det. Donnelly never misled the defendant about his right to
remain silent or to have the assistance of counsel during the interviews. Indeed,
not only were these topics not discussed, the defendant demonstrated an awareness
that his conversations with Det. Donnelly entailed the risk of self-incrimination.
State’s Exhibit 4, p.1. Instead, Det. Donnelly throughout these conversations
promoted the theory, which he apparently did not believe to be true, that the fire
was probably an accident, that the defendant started it inadvertently, and that he
therefore could not or would not be charged with an accidental fire.! The transcripts
and the testimony at hearing do not specifically address why Det. Donnelly took this
approach, but it is fair to infer that he did so as a tactic designed to have the
defendant acknowledge some role in the fire. The tactic was a success, and the
defendant on three of these occasions orally or in writing acknowledged that he may
have started the fire accidentally by throwing a cigarette at the house while he was
intoxicated.
1 The transcript of the seventh interview, State’s Exhibit 8, p. 17, makes it plain that Det.
Donnelly believed that the defendant intentionally set the fire.
3
The defendant argues that this deceptive approach violated his due process
rights in that the statements were elicited from him contrary to the government’s .
responsibility to act with “fundamental fairness” because it engaged in conduct
which “offend{ed] the community’s sense of justice, decency and fair play.” State v.
Stade, 683 A.2d 164, 166 (Me. 1996). In support of this argument, he cites the court to
the case of State v. McConkie, 2000 ME 158, 7¥ 9-10, A.2d in which
our Law Court reversed the decision of a trial court which had denied a motion to
suppress a statement given to an officer after the officer had assured the suspect that
the “interview would stay confidential.” Jd. 4 4. Under such circumstances, the
court held, it was a denial of due process to have affirmatively misled the suspect to
believe the exact opposite of what was true about his right to remain silent and not
incriminate himself, namely that his statement would not be used against him
because it was confidential.
While the defendant in the case at bar may have been misled by the detective
as to the latter’s beliefs about the nature of the fire and the former’s role in it, the
defendant was always correctly told that if the fire were accidentally set there was no
crime, that arson required an intentional act,” and that if all the defendant did was
carelessly toss a cigarette at a house with no intent to damage or burn it, he could
not be successfully charged with arson. Indeed, the fact that the defendant has
admitted to Det. Donnelly that he may have started the fire in question by accident
advances the prosecution’s cause only modestly, absent other evidence that he
2 Arson requires proof of intentional conduct. State v. Barrett, 408 A.2d 1273, 1276 (Me. 1979).
4
started the fire intentionally. Importantly, then, unlike the facts in McConkie, id.,
this defendant was not misled in these interviews about either his constitutional .
rights or the law.
Moreover, all of these conversations took place in noncustodial
circumstances in a cooperative, non-confrontational atmosphere. During these
conversations, the defendant was, as noted, alert to the risk of self-incrimination.
That he accepted, unwisely perhaps, the detective’s entreaties about the possibility
that he set the fire accidentally, does not render his statements inadmissible. That is
because if a statement were made unwisely, or based on illogical reasoning, or in the
mistaken belief it might assist one’s situation, the law will not by virtue of such
miscalculations exclude such a statement as involuntary. State v. Hutchinson, 597
A.2d 1344, 1346 (Me. 1991).
From all of the evidence, it must therefore be concluded that the State has
established beyond a reasonable doubt that any written or oral statements the
defendant made to Det. Donnelly on September 24, October 18, 20 and 28, 1999, were
the product of the free choice of a rational mind and not the result of coercive or
unfair police conduct; as such they are voluntary and admissible in evidence. State
v. Smith, 615 A.2d 1162, 1163 (Me 1992).? Accordingly, the motion is to be denied as
to these statements.
3 In his memorandum of law, the defendant also argues that he has limited intelligence and
was susceptible to police suggestion. No admissible evidence was produced to support these assertions.
5
The sixth interview occurred at the Knox County Jail on October 29, 1999, after
the defendant had been arrested. It was, therefore, a custodial interrogation. .
Recognizing this, Det. Donnelly advised the defendant of his Miranda warnings
and, according to the transcript, the defendant waived his rights to remain silent
and to counsel and agreed to speak with the detective. However, at the hearing on
the motion, Det. Donnelly testified that the defendant told him he did not want to
speak with him and that the detective had “enough in the warrant.” “The defendant
wasn’t hostile, but he was very quiet. He didn’t want to talk.”
Because the defendant exercised his right to remain silent at the October 29,
1999 interview, any statements he made during that interview cannot be used as
evidence at trial because interrogation must cease after asserting this right. Miranda
v. Arizona, 384 U.S. 436, 473-474; State v. Lavoie, 562 A.2d 146, 147-148 (Me. 1989).
Three days later, however, Det. Donnelly returned to the County Jail to
conduct another interview with the defendant. Because the defendant was still in
custody, Det. Donnelly read the Miranda warnings to the defendant and elicited a
waiver of his rights to silence and to counsel. What transpired thereafter was a
lengthy exchange in which the defendant made further statements in which he
provided more details about how the fire was set, although still claiming it was an
accident, despite the officer’s new contention that he believed it was intentionally
set.
4 The court accepts as accurate Det. Donnelly’s testimony as to this exchange instead of the
transcript, State’s Exhibit 7, as the latter contains a number of “inaudible” entries.
6
The defendant relies on the proposition that once a suspect invokes the right
to remain silent and asks for an attorney, he may not thereafter be questioned unless .
he does so with the benefit of counsel or unless he initiates further communication.
Absent those contingencies, he argues, any statements as the result of interrogation
after asserting the right to silence are per se inadmissible. Defendant's
Memorandum, p. 5.
The case at bar, however, does not entail the assertion of the right to counsel
and the jurisprudence surrounding that circumstance. Instead, this case entails the
assertion of the right to silence and the procedures to be followed thereafter if
further interrogation is to be lawfully conducted.
The principles in assessing the propriety of a subsequent interrogation when
the right to silence has been asserted are found at the seminal case of Michigan v.
Mosley, 423 U.S. 96, 100-104, 96 S.Ct. 321, 324-327 (1975). In Mosley, the Supreme
Court held that law enforcement officials are bound to respect a suspect’s assertion
of the right to silence as that obligation serves to counteract “the coercive pressures
of custodial setting.” Id. at 104. However, further questioning may be undertaken if
the suspect's right to cut-off interrogation has been “scrupulously honored” as may
be evaluated by a three-part test: (1) whether the police immediately cease the
interrogation on the invocation of that right; (2) whether the police resume
questioning only after the passage of a significant period of time and provide fresh
Miranda warnings; and (3) whether the latter interrogation is restricted to matters
distinct from the former. Id. 105-107. See also State v. Rossignol, 627 A.2d 524, 527
(Me. 1993).
The first two parts of this test can be disposed of with the findings that Det.
Donnelly did cease interrogation on October 29 immediately after the defendant
refused to speak and that a significant period of time did elapse from then to the
interview on November 1 at which event “fresh” Miranda warnings were provided.
The third test, which addresses the subject matter of the interrogation, has
undergone an evolution since the Mosley decision in 1975. Now that test has been
reformulated in a number of our federal circuit courts to be one which “depends not
on its subject matter but rather on whether the police, in conducting the interview,
sought to undermine the suspect’s resolve to remain silent.” United States v.
Schwensow, 151 F.3d 650, 659 (7th Cir. 1998) (citing cases from the Ist, 2nd, 4th, 8th,
9th and 11th circuits which have developed similar alternatives to the third prong
of Mosley three-part test).” This new articulation of the third prong of the Mosley
test has been expressed slightly differently as a question of whether or not the police
repeated efforts “to wear down petitioner’s resistance or to induce him to abandon
his earlier assertion of his right to remain silent.” United States v. Brown, 186 F.3d
1011, 1015 (8th Cir. 1999).°
5 The First Circuit case is United States v. Andrade, 135 F.3d 104 (1st Cir. 1998). It does not
specifically articulate a new third part of the Mosley inquiry, but appears to substitute a new factor of
whether or not the suspect was pressured to give a statement instead of the traditional test of whether
or not the police inquiry was as to anew crime. Id. p. 107.
6 Obviously, if the original third prong of the Mosley test were applied to the facts in this
case, the statement would have to be suppressed as the November 1 interview was not concerned with
matters distinct from the October 29 interview.
Applying the third Mosley test as restated in either Schwensow, id., or Brown,
id., it must be concluded that, in the entire context of this interview, Det. Donnelly .
attempted to undermine the defendant’s decision to remain silent or to induce him
to abandon the exercise of this right. Support for this conclusion may be found
throughout the transcript of this interview, State’s Exhibit 8, in which Det. Donnelly
assured the defendant that further conversation could only help him, and that it
was the way to get help for a problem with fire-setting or alcohol abuse. Not only is
there reason to doubt these entreaties as genuine, most telling as to these exchanges
is the first several minutes of conversation between these two men.
The conversation starts with talk about the seriousness of the defendant’s
situation (several prior convictions for arson), his family’s concern for him, and his
mother’s poor health, after which Det. Donnelly tells the defendant he wants to talk
to him and read him his rights, that if he decides not to talk, that would be fine, but,
“You_won’t have another chance ... I'll read you your rights again.” At which
juncture the defendant asks, “This is to help me out, right?” To which the detective
replied, “It's only going to help you out. I mean, you, you, have to help yourself,
Mackie. It’s the right thing to do.” State’s Exhibit 8, p. 2. (emphasis supplied).
First, it should be noted that what the detective told the defendant wasn’t
true. If he wanted to make a subsequent statement, he could do so; this was not his
7
final chance.’ Next, after the defendant attempted to satisfy himself that talking to
the officer was for the purpose of helping himself, the officer assured him it was the
7 Obviously, a defendant can give a statement as to a crime whenever he chooses.
9
only purpose of their talking. However, the primary purpose of the officer was
plainly to further interrogate him about the fire, as the transcript shows repeated .
arguments made to the defendant that his earlier claims of accident were not
believable, that the evidence showed, and the detective believed, that the fire was
intentionally set, and that the defendant ought to acknowledge his responsibility for
this crime. Obviously, the officer’s “only” purpose was not to help the defendant
but to secure a confession -- a circumstance contrary to his interests, particularly
where he had prior arson convictions. There was also little the detective could, in
fact, do to help him, other than tell the prosecutor that the defendant cooperated, as
opposed to holding out hope for him that acknowledging responsibility for the fire
would result in counseling for fire-setting or alcohol abuse.
Thus, the defendant was misled as to the purpose of the detective’s visit, the
interest to be served by waiving his rights, and the need to give a statement only
then, as opposed to a later time when he could freely elect to do so, perhaps after
conferring with an attorney. From all this, it must be determined that the State has
not met its burden of proof by a preponderance, State v. Snow, 513 A.2d 274, 276 (Me.
1986), that Det. Donnelly “scrupulously honored” the defendant’s previously
exercised right to remain silent, but instead “sought to undermine [his] resolve to
remain silent” or “induce him to abandon his earlier assertion of his right to
remain silent.” Schwensow, id.; Brown; id., by securing an inculpatory statement
from him contrary to his constitutional rights.
10
Accordingly, the motion must be granted as to the interviews which occurred
on October 29 and November 1, 1999, and the entry will be:
Motion to Suppress DENIED IN PART and GRANTED IN
PART.
So ordered.
Dated: January_//__, 2001 Byes L a LE Foe
John R. Atwood
sdstice, Superior Court
STATE'S ATTORNEY: DEFENDANT'S ATTORNEY:
Eric Walker, Esq. William Maddox, Esq.
Knox County Courthouse P.O. Box 1202
62 Union Street Rockland, ME 04841
Rockland, ME 04841-2836
11
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STATE OF MAINE LATS 7 Ot ans Orice SUPERIOR COURT
OK aR COON! CRIMINAL ACTION
nee 26 Dw! DOCKET NO. CR-99-428
art . ¥
RA BNO 4/26/90)
KNOX, ss.
STATE OF MAINE 2
v. DECISION AND ORDER
MALCOLM H. EMERY,
Defendant
This matter is before the court on the defendant's "Motion for Late Filing
Motion to Suppress..." This motion was granted orally on April 9, 2001, and the
court then proceeded to hear testimony in support of a second motion to suppress
the defendant's statements, the first such motion having been disposed of on
January 11, 2001.
‘While no written motion was filed, it is the court’s understanding from the
defendant's post-hearing memorandum that he claims his statements were
involuntarily given. In response to such a claim, the State is required to establish
that a suspect's statements were voluntary beyond a reasonable doubt. State v.
Collins, 297 A.2d 620, 627 (Me. 1972).
The defendant, in an effort to support a finding that reasonable doubt exists as
to the voluntariness of the defendant's statements, presented the testimony of Dr.
Diane Schetky, a psychiatrist with expertise in forensic matters.
Dr. Schetky testified that because of the defendant's borderline I.Q. and his
experience of being intimidated as a child, he was susceptible to police suggestion
and, in a submissive or passive way, yielded to his interrogator's suggestive
questioning and confessed. That being so, it is posited, his statements were provided |
involuntarily.
Under Maine law, as noted, the State must establish beyond a reasonable
doubt that an accused's statement is"... the result of [his] own free will and rational
intellect." State v. Caouette, 446 A.2d 1120, 1123 (Me. 1982). Said differently, a
suspect's statement will be excluded unless he has chosen, "freely and knowingly, to
provide criminal self-condemnation by utterances from his own lips." Collins, id.
at 626.
In the court's view, the State has met this burden of proof when the totality of
the evidence in both motion hearings is considered, Dr. Schetky's postulations
notwithstanding.
In the five interviews that occurred before the defendant was arrested, the
circumstances were amicable and there is no indication that Det. Donnelly exploited
the defendant's reduced intellect. Importantly, as noted in the January 11 order, and
contrary to Dr. Schetky’s theory, the defendant was cautious in his dealings with
Det. Donnelly that he say nothing incriminating. Indeed, throughout these
interviews he never explicitly incriminated himself, despite Det. Donnelly’s various
entreaties which occurred over several weeks. Not only does this circumstance
effectively rebut the contention that he passively submitted to the officer's
suggestions, his protest of his treatment “on the street” by other officers
demonstrates that he did not and would not surrender to intimidation. Most
persuasive in this regard is the defendant's assertion of his rights once he was
arrested; were he the passive, suggestible subject characterized in the testimony at .
the second hearing, one would expect him to again yield to Det. Donnelly's earnest
petitions at the county jail. He did not and exercised his right to silence in the face
of this appeal.
That Det. Donnelly may have misled the defendant about his beliefs as to the
latter's role in the fire does not change this analysis. As noted, the defendant was on
guard against incriminating himself and only acknowledged those acts which, on
their face, would amount to accidental activity. Again, were he the defenseless
subject of police trickery who cannot hold his own in an argument, one would have
expected him not to argue with Det. Donnelly as he did, and to eventually capitulate
to his interrogations. This never happened; indeed, as.noted, Det. Donnelly never
was successful in eliciting a confession from the defendant.
From all of this, then, the court concludes that Dr. Schetky's testimony does
not alter the conclusion that the State has established that the defendant's
statements to Det. Donnelly before he was arrested were voluntarily made as a result
of the "exercise of his own free will and rational intellect.” Caouette, id. All this
being so, the motion must be denied and the conclusions which the defendant
suggests in his post-hearing memorandum must be rejected as without persuasive
support in the record.
Accordingly, the entry will be:
Second Motion to Suppress is DENIED.
So ordered.
Dated: April ZG _, 2001
LS Zz
John R. Atwood
ustice, Superior Court
State's Attorney:
Eric Walker, Esd.
Knox County Courthouse
6% Urien Stveat
Rocklerd, ME 04841-2836
Defendant's Attorney:
Wililtam Maddox, Esq.
PO Box 1202
Rockland, ME 04841-1202