The opinion
STATE MAINE SUPERIOR COURT |
PENOBSCOT,ss DOCKET NO: 02-482
EAR ~ Pen 4 /29/a00s
STATE OF MAINE
FILED & ENTERED
SUPERIOR COURT
SEP 29 2003 ORDER ON MOTION.
TO SUPPRESS
VS.
PENOBSCOT COUNTY
Nee eee eee eae ae ae ES’
WAYNE OSBORNE
Pending before the court is the Defendant’s Motion to Suppress Evidence. At hearing of
this matter, the State presented the testimony of one witness, Maine State Police
Detective Brian Strout (Strout). The Defendant, although present, did not testify and
called no witnesses. The court has heard and considered the evidence presented as well as
the arguments of counsel and for the reasons set forth herein, denies the motion in part
and grants the motion in part.
BACKGROUND
Based on the evidence presented, the court makes the following findings of fact. On or
about January 21, 2002 a large fire destroyed a substantial portion of the south end of
Main St. in Lincoln, Maine. Investigator Edward Archer (Archer) of the State Fire
Marshal’s office and Strout of the Maine State Police investigated the fire. In connection
with that investigation, Strout began interviewing people in the community. He first
interviewed Stephanie Hassenback who indicated that another individual named Roxane
Rochon (Rochon) might have information. He then interviewed Rochon who indicated
that the Defendant Wayne Osborne (Defendant) might have information about the fire.
On or about January 21, 2002 Strout contacted the Defendant at the home of his
grandparents, Clayton and Claire Raymond in Webster Plantation, Maine. Strout did not
know the grandparents and also had no prior contact with the Defendant.’ After traveling
to the grandparents’ home with State Fire Marshall Ed Archer in Archer’s truck, Strout
went to the house, knocked at the door and asked for the Defendant. Strout was dressed
in plain clothes but he identified himself as a police officer and asked the Defendant if he
would come outside and speak with him. The Defendant agreed and went outside and got
into the truck. The Defendant displayed no reluctance to do this. The parties had a
cordial conversation of between 30 to 45 minutes in the truck while it was parked in the
dooryard.” During the conversation, Strout commented to the Defendant, “‘ You also
would admit that if you had knowledge and didn’t tell us, you realize the seriousness of
that correct?” (1/21/02 Transcript, page 5) The Defendant responded “yes” and Strout
then continued, “So by not telling us anything you’re also realizing there’s a possibility
that could come back reflect on you, correct?” Again, the Defendant responded “Yes”.
Strout then invited the Defendant to take a polygraph exam pertaining to the fire and the
Defendant agreed. The officers indicated that they would follow up on that later and they
left. At no time did the officers advise the Defendant of his Miranda ri ghts; advise him
' The court notes from file materials that the Defendant (dob 06/04/02) was 19 years old during most of the
relevant time frame. Little evidence was presented regarding his educational background, but based upon
impressions gleaned from listening to the audiotape and other evidence that indicated that the Defendant
held employment, the court concludes that the Defendant was at least of average intelligence and average
adolescent education and experience.
* This conversation was recorded and the trancript was admitted at the hearing as State’ Exhibit #1. This
exhibit also included other taped conversations with the Defendant. The court also admitted the audio tape
of the April 10, 2002 interview as Defense Exh. #2. The court has read the entire transcript and listened to
the audiotape and considered both in makings the findings set forth herein.
that he did not have to answer questions or that he was not under arrest and was free to
leave. The Defendant did not make any incriminating statements during this meeting.
On January 22, 2002 the officers went back to the Defendant’s residence and had a brief
conversation with the Defendant who confirmed that he was willing to take a polygraph
exam. The parties agreed that this would be done the next day. The Defendant did not
make any incriminating statements during this encounter.
On January 23, 2002, the officers went to the Defendant’s residence again. The
Defendant, who did not have a motor vehicle, accepted the officers’ invitation for a ride
to the Maine State Police Criminal Investigation Division (CID) office in Bangor. At
7:00 am the officers picked the Defendant up at his home and transported him to the CID
office in Strout’s unmarked State Police cruiser. The trip took a little over an hour.
During the trip, the parties only engaged in small talk and there was no discussion about
the fire. The Defendant was comfortable and demonstrated no apprehension or .
reluctance about the exam. The Defendant made no incriminating statements.
After arriving at CID, Maine State Police Officer Troy Gardner (Gardner) administered
the polygraph exam. Before commencing the exam however, he read the Defendant’s
Miranda rights to him. The Defendant acknowledged understanding these rights and he
again gave his consent to go forward with the exam. Although, Gardner appeared an
hour late for the exam, once underway, the exam took approximately three hours. Strout
and Archer observed the exam via video camera in another location.
Gardner also did the post exam interview and advised the Defendant that he had
concluded that the Defendant was being deceptive about his knowledge of the fire and
about his involvement in the fire. The Defendant responded by stating that he did not
want to talk with Gardner anymore and the interview promptly terminated. The
Defendant made no incriminating statements during the exam or post-exam interview.
The Defendant didn’t express any reluctance to going with the other two officers and they
left with the Defendant to travel back to the Defendant’s home in Webster Plantation.
Although the parties spoke generally about the nature of the polygraph exam, the officers
did not initially engage the Defendant in discussion about the fire.
The officers did not take the Defendant directly home to Webster Plantation,however.
Instead, they asked the Defendant to show them the home of Trish Trump, a young
woman whose name had come up earlier in the investigation. The Defendant agreed and
the officers took him to the nearby community of Chester to see where Trump lived.
During this part of the trip, the officers confronted the Defendant and told him that they
believed that he had knowledge about the fire. The Defendant did not respond. As the
officers turned onto Rt. 168 in Winn, the Defendant said that he wanted a cigarette. The
officers stopped the vehicle and the Defendant got out and had a cigarette. When he had
finished his cigarette, he got back in the car and said that he was willing to tell them what
he knew about the fire.
The Defendant proceeded to tell them that Jason Marcensi (Marcensi) was responsible for
the fire. The officers chose not to question the Defendant further in the vehicle. Instead,
they drove another 10 to 15 minutes to the Lincoln Police Department where the police
continued their interview of the Defendant.*? No Miranda warnings were given at the
police station and the officers made it clear that the Defendant was free to leave at any
time. During this interview, which lasted between 40 minutes to an hour, the Defendant
implicated Marcaseni in the fire. The Defendant gave some additional details about
Marcensi’s involvement that included an admission allegedly made by Marcensi to the
Defendant acknowledging that Marcensi had set the fire.
During this interview, the Defendant indicated that he had failed the polygraph because
did have knowledge about the fire but that he was afraid of revealing it because
Marcaseni had threatened to harm him and his friend Casey Munson (Munson) if he told
anyone. The Defendant acknowledged at the end of the interview that he had not been
promised anything and that he had come forward with the information in order to relieve
his conscience. During this interview, the Defendant did not make any incriminating
statements. The officers concluded the interview and took the Defendant back to his
home in Webster Plantation.
The next police contact with the Defendant occurred on J anuary 24". The police did not
interview the Defendant on this occasion, but they did monitor and tape record a
* This interview was also tape-recorded and a transcript of the interview is included within State’s Exh. #1.
telephone conversation that the Defendant had with Rochon‘. The Defendant made no
incriminating statements during this telephone conversation.
On January 25", the officers arranged to meet with the Defendant in Winn. At the
officer’s request, the Defendant agreed to call Marcaseni on the telephone to see if he
might say something about the fire. The Defendant expressed no reluctance in
undertaking this effort for the police and he appeared to be genuinely engaged in the ruse.
The Defendant was cooperative throughout. To make this call, they used the telephone at
the home of the Defendant’s other grandparents in Madawamkeag. They were not able to
reach Marcaseni by telephone. He expressed no reluctance to continuing the effort to
reach Marcaseni so the Defendant and the officers made another effort the next day. This
was also unsuccessful. At this point, the Defendant said that he no longer wanted to do
this. The Defendant did not incriminate himself in any way during this effort.
On January 28, 2002, the officers went to the Defendant’s place of employment to talk
with him. This greatly upset the Defendant and the officers stayed only briefly. While
there, the officers told the Defendant that they believed that he was involved in the fire
and that the best thing for him to do was to cooperate in order to clear himself. The
Defendant did not make any incriminating statements during this encounter.
On January 31, 2002, the officers had left a message for the Defendant at his work
indicating that they would like to meet with him at the Lincoln Police Department. The
* This tape-recorded conversation is included within State’s Exh. #1.
Defendant responded to this message by going to the police station and telling the
officers that he would only speak with the officers at his grandparents’ home in Webster.
The Defendant then left and went home. The Defendant did not make any incriminating
statements during this meeting.
The next police contact with the Defendant occurred on April 10, 2002. Strout and
Archer went to the Defendant’s place of employment and waited for him there. The
Defendant arrived for work and he was upset again that the officer’s had gone to his place
of employment. He said that he did not want to speak with the officers and they turned to
leave. However, as they turned to leave, the Defendant then told them that he would be
willing to speak later, but just with Strout alone, and only at his grandparents’ home in
Webster Plantation.
Strout went to Webster Plantation. The Defendant was not there when the officer first
arrived, but he appeared a short time later. The officer asked to speak with the Defendant
out in his cruiser. The Defendant replied “sure” and went outside with Strout. He
demonstrated no reluctance in doing this.
Although earlier conversations with the Defendant had been openly tape recorded with
his knowledge and consent, this conversation was tape recorded without the Defendant’s
knowledge or consent. Strout testified that he did this because he felt that the Defendant
would be more comfortable in talking with him if the tape recorder were not openly
displayed. The officer did not give the Defendant any Miranda warnings on this
occasion.
Up to this point, the Defendant had denied any participation in the fire and only purported
to have knowledge of involvement by others. During this interview however, the officer
advised the Defendant that Marcensi had an alibi for the night of the fire. In response to
this information, the Defendant changed his story and for the first time directly —
implicated himself directly in the fire. The Defendant ultimately reported to the officer
that Rochon had asked him to take her into Lincoln because she had some unidentified
friends that wanted her to set fire to a building in Lincoln. According to the Defendant,
she was to be paid $600 for setting the fire. Following Rochon’s disclosure to the
Defendant, Munson arrived and the three of them traveled into Lincoln. The Defendant
said that he dropped Rochon off near the mall and then he and Munson went into the Rite
Aide store to wait. The Defendant reported that 15 to 20 minutes later, Rochon appeared
and told him that she had lit fire to the mall.
The transcript of this interview contains the following significant excerpts:
Strout: “...So now is the time for you to do what’s right for Wayne. Okay? And
that is to tell us exactly what is going on. I can’t protect you and I can’t help you
if I don’t know the truth. I need the Good’s honest truth from ya, okay?..I think
you got pulled along [by others]. So that’s why it’s important for you to do the
right thing for yourself and that’s to tell us what’s going on...This is your chance
to step up to the plate, okay? You’ ve got to tell the truth. Okay? Because that’s
the only thing, the truth will set you free.” (4/10/02) Transcript, page 1)
Strout: “ You’re involved but it’s to the degree that you’re involved that’s really
important now. So the next few minutes are going to be the most important
minutes of your whole life. Okay? So now its time to tell me exactly what’s
going on so I understand so we can do the right thing here” (4/10/02) Transcript,
page 1)
The Defendant then asked a question: “What happens to me” (4/10/02)
Transcript, page 2)
Strout answers:
“T’m not taking you anywhere tonight. You’re not going to jail at this
point, okay? I can’t make any promises what’s going to happen or where
everything might go. Okay? That’s down the road. Tonight you’re not going
anywhere. You’re not going anywhere. You and I are just going to talk and then
you’re going to go back in. Okay? But it all depends on how it goes as to when it
goes or how it goes. That’s why I say the next few minutes are the most .
important part of your life. Okay? Because however that goes is going to be huge
for you. Okay? People understand this. People that make these kinds of
decisions they understand how easily somebody can be led or used.” (4/10/02)
Transcript, page 2)
Prior to April 10, 2002, the Defendant had implicated only Rochon in the fire and he
expressed fear of reprisal from her unidentified “friends”. Strout pressed the Defendant
to divulge what he knew about the fire and asserted that it was the only way that law
enforcement could protect him. Strout also told the Defendant that when they
approached Rochon, she was going to “sing” and that after that,
“...it’ a race to who can get to the finish line first. Okay? She’s going to come
out and say it was you, you, you, you. That’s why its’ important for you right
now. This is your date in time right now to tell us the truth. Okay? And the only
way we can do the right thing is for you to tell us the truth.”(4/10/02) Transcript,
page 3)
The Defendant then proceeded to describe how Rochon and Munson had asked him for a
tide downtown. He stated that he didn’t know that they were going to burn down the
building. The Defendant then described his activities earlier in the evening; he still did
not implicate himself in the fire. He simply indicated that he “knew” that she had set the
fire without fully explaining the nature or source of his information or why this was so.
Strout responded to the Defendant’s story by reminding the Defendant that the polygraph
didn’t lie and that while they were “getting there”, he didn’t feel the Defendant was yet
telling him everything. Strout stated:
“...you’re not telling me everything. You’ve got to tell me everything. You can’t
hold anything back. You’ve got to tell me every, everything, Help me
understand here. Because I’m not understanding. If I don’t understand the people
that make the decisions aren’t going to understand either. Okay? You’ve got to
tell me the truth. Come on. You’re holding back. Don’t hold back. Did
Roxanne tell ya why she started that fire? You need to tell me now. Did she do it
for somebody else? You need to tell me Wayne. Don’t hold back. I’m telling ya,
it’s not going to help you out. It’s not going to help ya. Why did Roxanne start
that fire? (4/10/02 Transcript page 9)
The Defendant supplied a few additional details and then Strout replied,
“These women are going to screw you over if you don’t come clean with this.
They are going to do it. So you’ ve got to tell me the truth. Now is the time.
Okay?” (4/10/02 Transcript page 10)
It is significant to the court that the Defendant then responds, “ If I tell you the truth what
do I get?”(4/10/02) Transcript page 10)
Strout answers,
10
“I can’t make you any deals but I can tell you this-that I’m going to tell them he
told me the truth, he finally told me the truth. He’s not the one but he’s the one
that did the right thing. And that goes a long way with people that make the
decision.” (4/10/02 Transcript page 10)
Strout continued to tell the Defendant that [law enforcement] wanted to get the person
who was really responsible. He then states,
“You might have had a little part in it. Okay? But you did the right thing when
the time was right. And the people that make those decisions, that’s what makes
the difference from people just being an accessory or whatever. Okay? To being
the person that lit the matches, the person that did it. And that’s huge. That’s
everything. Especially from where you’re sitting right in that seat right there.
That’s everything. Everything there is. The most important thing. So let’s cut
the bullshit now. Okay?...” (4/10/02 Transcript page 10)
To this the Defendant gave only an “Uh hm” affirmative response and Strout continued
talking and telling the Defendant that he would feel much better once he had told the
truth. He also told him,
“I can’t make you a deal because that’s not my position. But I can do all I can to
tell the people that do make the decision because you did tell me the truth. But
they go a lot on my instinct and they go a lot on my experience as a detective.
And that goes a long ways towards making decisions that way Wayne. Okay but I
can’t help ya. I can’t help ya if I don’t know the truth. And I want to help ya.
And I’m your best friend right now. Because I’m the guy, I’m the guy that’s
going to put the person that caused all this heartburn away...”(4/10/02 Transcript
page 11)
Strout continued the interview and had the Defendant go back over his story. This time,
however, the Defendant included an additional detail. He said,
“ Then before Casey (Munson) showed up me and Roxanne (Rochon) got in the
truck. She asked me for a ride because she was going to go burn a building.”
(4/10/02 Transcript page 12)
Prior to making this statement, the Defendant had not implicated himself in the fire either
as a principal or as an accomplice. This statement clearly implicates the Defendant as an
1]
accomplice as the result of his knowingly driving Rochon to downtown Lincoln to
commit arson. Strout continued the interview by pressing the Defendant for additional
details pertaining to Rochon’s actions before during and after the fire was started and the
Defendant supplied them.
It is apparent from the audiotape that the Defendant’s grandfather attempted to stop the
_Interview by going to the cruiser and telling Strout that he had talked to the Defendant
long enough. (4/10/02 Transcript page 16). Strout responds to the Defendant’s
grandfather in part as follows:
“Let me tell you something sir. This gentleman has just done the smartest thing
that’s he’s done yet. And that’s tell the truth. We’re almost done here. Don’t
jeopardize his, his future by getting into this. We’re almost done here. He’s not
going anywhere. He’s coming back in with you. He’ going to stay here. And the
reason is because he’s told the truth tonight. Okay? He’s taken a step towards
freedom. Because he’s told the truth. So let him finish here, and he’s almost
done and then I’m going to leave....” The Defendant’s grandfather objected to
Strout’s bothering the Defendant and Strout after stating that the Defendant had
some involvement in the fire, responded in part, “... [the Defendant isn’t going
with the officer] Because he’s finally done the right thing and told the truth.
Okay? So don’t screw it up for him here. Okay?” (4/10/02 Transcript page 16)
Strout also told the Defendant,
“But you know the only thing that hurt is when we have to keep trying to pry it
out of ya. Okay? Now’s your chance to tell me anything else that you think I
should know. Don’t hold it back. Okay?’(4/10/02 Transcript page 18)
Strout drew the interview to a close by telling the Defendant, “I’m going to be able to tell
them you did the right thing tonight. Okay?”(4/10/02 Transcript page 20) He also
assured the Defendant that he wouldn’t tell anyone what the Defendant had told him and
that he would protect him from harm from Rochon’s friends. He also indicated that he
12
would be following up on the information provided and that he would get back in touch
with the Defendant .
Strout next contacted the Defendant at his place of employment on April 18, 2002. On
this occasion, the officer offered to have Dan Ireland (Ireland) his employer present
during the interview. The Defendant consented but expressed a desire to go somewhere
else. The parties traveled to a location near the Lincoln Airport where they talked. It
appears that Strout had an initial “rehearsal” interview with the Defendant and Ireland
and then had the Defendant repeat his statements for the tape-recorder. These later
statements were tape recorded. ° During this interview, the Defendant implicated another
of his friends, Matthew Miller (Miller) by indicating that Rochon and Miller were
involved in the fire together. The Defendant described Miller’s involvement and he also
described his fear of retaliation from Miller. The transcript reveals that the Defendant
acknowledged that he was not under arrest and that he was free to leave at any time. The
transcript also concludes with the Defendant’s acknowledgement that Strout can’t make
any deals for him. The entire interview lasted approximately 30 to 40 minutes. The tape-
recorded portion lasted about 11 minutes. The Defendant was not advised of his rights at
any time.
Police arrested the Defendant on April 23, 2002 and charged him with arson. The court’s
file reflects that the Defendant requested the appointment of counsel at his initial court
appearance. The court gave him the required forms and the Defendant filled them out.
° This transcript is also part of State’s Exhibit #1.
13
The court did not act on the Defendant’s request for counsel at that time. At the
Defendant’s next court appearance on May 21, 2002 the court found that the Defendant
had employment and was not indigent and the court declined to appoint counsel.°
On May 31, 2002 the Defendant had a chance encounter with Strout at a neighbor’s home
near to his own residence. The officer was there conducting another aspect of the
investigation and the Defendant approached him and said that he wanted to speak with
the officer. They went outside and talked. During this encounter, the Defendant reported
to Strout that it was Miller that he had dropped off at the scene of the fire.
Strout’s final encounter with the Defendant was on July 5". Miller had reported to
police that the Defendant and a person named A.J.Jones had set the fire. The police went
to the Defendant and asked him whom A.J. Jones was. The Defendant responded that
A.J. Jones was not involved.
DISCUSSION
The Defendant seeks suppression of all statements emanating from his encounters with
the police on April 10, April 18, May 31.and July 5. The State agrees that any statement
obtained from the Defendant on July 5" violated the Defendant’s 6" Amendment right to
counsel and the court ORDERS that any statement obtained from the Defendant on J uly
5" be suppressed.
I. April 10, 2002 interview.
° The Defendant also requested court appointed counsel on June 18, 2002. The Court denied this request.
The court’s file does not reflect the entry of appearance by any retained counsel.
14
The Defendant contends that the State elicited his Statements made on April 10, 2002 by
inducement and they are therefore involuntary and inadmissible. The court agrees. This
court must consider the totality of the circumstances in determining whether a confession
is voluntary. State v. Lockhart, 2003 ME 108, { 30. In making its decision, the court
considers the following factors: the details of the interrogation; duration of the
interrogation; location of the interrogation; whether the interrogation was custodial; the
recitation of Miranda warnings; the number of officers involved; the persistence of the
officers; police trickery, threats, promises or inducements made to the defendant: the
defendant’s age, physical, mental health, emotional stability, and conduct. Id citing State
vy. Sawyer, 2001 ME 88 99, 772 A.2d at 1176.
The evidence indicates that Strout conducted the interview of April 10 alone in his police
cruiser in the dooryard of the Defendant’s home. The Defendant had previously
indicated a preference for this locale for earlier interviews and never demonstrated any
discomfort with this setting. The Defendant was aware that he could terminate a police
interview as he had done earlier with Gardner and as he had also previously done when
the police contacted him at his place of employment. The interview was not particularly
long in duration. The court is satisfied that the Defendant was not in a custodial setting
during the initial portion of the April 10" interview. No Miranda warnings were given
and none were required.
Arguably however, Strout’s persistent and insistent questioning of the Defendant; his
rebuff of the Defendant’s grandfather who sought to terminate Strout’s interview of the
15
Defendant; and his statements that “now was the time” were gradually and purposefully
creating a strong sense of urgency for the Defendant. More importantly, the court finds
they also cultivated a sense of expectation in the Defendant. After listening to the audio
tape and reviewing the transcript of this interview, the court finds that durin g the April
10, 2002 interview, Strout was saying one thing but meaning another regarding potential
benefits to the Defendant if he agreed to talk. Taking his words at face value, Strout was
Saying that he couldn’t make any deals with the Defendant in exchange for his
statements. The total content of his message, considered in the light of the circumstances
in which it was communicated to the Defendant, was to the contrary. Notwithstanding
his attempt to qualify his words, the court concludes that Strout sought to make the
Defendant believe that he would derive a si gnificant benefit from cooperating with the
officer on April 10,2002.
Only a voluntary confession is admissible into evidence, and the State must prove
voluntariness beyond a reasonable doubt. Confessions made in return for assurances or
promises of leniency are inadmissible. State v. McCarthy, 2003 ME 40, $12, 819 A.2d
335, 340. Even if Miranda warnings had been required and had been given, a confession
may be involuntary not only when it is extorted from the accused by threat but also when
it is elicited by a promise of leniency. The promise must amount to more than a mere
admonition or exhortation to tell the truth. State v. Theriault, 425 A.2d 986,990.:
However, an inducement that contains an implied promise of leniency, however slight,
(emphasis supplied) will render an admission involuntary State v. Tardiff, 374 A.2d
16
598,600. It must also appear however, that the mm was the motivating cause of the
confession. Id at 601.
The court finds that Strout made repeated implied promises of leniency to the Defendant
and that these promises produced the Defendant’s incriminating statements.
Although they were accompanied by the officer’s cteleimer that he could not make
deals, the disclaimer was followed by an assertion of the officer’s ability to influence the
decision makers. On the whole, the court finds that Strout’s statements made to the
Defendant were intended to leave the Defendant with the understanding that if he
answered Strout’s questions and if he provided information to Strout it would benefit him
and if he didn’t cooperate, it would hurt him. The following excerpts lead the court to his
conclusion.
At the outset of the interview, Strout emphasizes the need to tell the police what he
knows during that interview, he says,
“...So now is the time for you to do what’s right for Wayne. Okay? And that is
to tell us exactly what is going on. I can’t protect you and I can’t help you if I
don’t know the truth. I need the God’s honest truth from ya, okay?..I think you
got pulled along [by others]. So that’s why it’s important for you to do the right
thing for yourself and that’s to tell us what’s going on...This is your chance to
step up to the plate, okay? You’ ve got to tell the truth. Okay? Because that’s the
only thing, the truth will set you free. (4/10/02 Transcript page 1)
The court interprets this latter comment to mean that telling the truth will ease the
Defendant’s conscience, but the rest of the statement is intended to impress upon the
17
Defendant a sense of “now or never” urgency. Strout adds to this sense of urgency with
his next comments to the Defendant,
“You're involved but it’s to the degree that! you’re involved that’s really
important now. So the next few minutes are] going to be the most important
minutes of your whole life. Okay? So now its time to tell me exactly what’s
going on so I understand so we can do the risht thing here (4/10/02 Transcript
page 1).
The Defendant then asked a question: “What happens to me”. (4/10/02 Transcript page
2) This is an indication to the court that the Defendant is considering making a statement
but he wants to know from the police what the consequences will be for him if he
answers their questions. Strout clearly recognized that the Defendant was close to giving
him what he wanted.
Strout answers:
“I’m not taking you anywhere toni ght. You’re not going to jail at this point,
okay? I can’t make any promises what’s going to happen or where everything
might go. Okay? That’s down the road. To ight you’re not going anywhere.
You’re not going anywhere. You and I are just going to talk and then you're
going to go back in. Okay? But it all depends on how it goes as to when it goes or |
how it goes. That’s why I say the next few minutes are the most important part of
your life. Okay? Because however that g0€s is going to be huge for you. Okay?
People understand this. People that make these kinds of decisions they
understand how easily somebody can be led or used. (4/10/02 Transcript page 2)
Clearly these words are intended to pressure the Defendant to decide to speak with the
police. To be told that one only has a few minutes to|make a “huge” decision and that
“the people who make the decisions” are watching creates a sense of urgency that borders
on coercion. Strout’s statement that “it all depends” on “how it goes in the next few
minutes” directly links the Defendant’s fate to his decision to answer questions or not.
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It is important to remember that up to this point in the interview, the Defendant had
maintained that it was Rochon who had set the fire and that he had no involvement.
Strout continued to press the Defendant to divulge what he knew about the fire and
asserted that it was the only way that law enforcement could protect him. Strout also told
the Defendant that when they approached Rochon, she was going to “sing” and that after
that:
“it’s a race to who can get to the finish line first. Okay? She’s come going to
come out and say it was you, you, you, you. /That’s why its’ important for you
tight now. This is your date in time right now to tell us the truth. Okay? And the
only way we can do the right thing is for you to tell us the truth.” (4/10/02
Transcript page 3)
The Defendant then proceeded to describe how Rochon and Munson had asked him for a
ride downtown. He still doesn’t incriminate himself, however, because he also States that
he didn’t know that they were going to burn down the building (Transcript page 4). The
Defendant then described his activities earlier in the evening; he still did not implicate
himself in the fire and he didn’t initially even indicate that Rochon had admitted starting
the fire. He simply indicated that he “knew” that she had without fully explaining the
extent or source of his information.
Strout responded to this by reminding the Defendant that the polygraph didn’t lie and that
while they were “getting there”, he didn’t feel the Defendant was yet telling him
everything. Strout stated:
“...you’re not telling me everything. You’ve got to tell me everything. You can’t
hold anything back. You’ve got to tell me every, everything, Help me
understand here. Because I’m not understanding. If I don’t understand the people
that make the decisions aren’t going to understand either. Okay? You’ve got to
19
tell me the truth. Come on. You’re holding back. Don’t hold back. Did
Roxanne tell ya why she started that fire? You need to tell me now. Did she do
it for somebody else? You need to tell me Wayne. Don’t hold back. I’m telling
ya, it’s not going to help you out. It’s not going to help ya. Why did Roxanne
Start that fire? (4/10/02 Transcript page 9)
These statements continue to link “help” for the Defendant with his making a statement.
The Defendant supplied a few additional details and then Strout replied,
“These women are going to screw you over if you don’t come clean with this.
They are going to do it. So you’ve got to tell/me the truth. Now is the time.
Okay?”(4/10/02 Transcript page 10)
It is significant that the Defendant then responds, “ If J tell you the truth what do I get?”
(4/10/02 Transcript page 10) It’s clear that the Defendant wants to know what the benefit
to him is going to be. If he makes a statement and tells what he knows, what does he get
in return?
Strout recognizes that the Defendant is looking for a|deal and he answers,
“... Tcan’t make you any deals but I can tell you this-that I’m going to tell them
he told me the truth, he finally told me the truth. He’s not the one but he’s the one
that did the right thing. And that goes a long way with people that make the
decision.” (Transcript page 10)
Although Strout has used words that indicate he can’t make any “deals”, taking Strout’s
statements in their entirety, he has answered the Defendant’ s inquiry by telling him that
although he can’t make any “deals”, he can give the Defendant something else. If the
Defendant talks, Strout is going to give the Defendant his help by using his influence
with the decision makers to the Defendant’s advantage.
20
Strout continued to tell the Defendant that [law enforcement] wanted to get the person
who was really responsible. He then States,
“You might have had a little part in it. Okay? But you did the right thing when
the time was right. And the people that make those decisions, that’s what makes
the difference from people just being an accessory or whatever. Okay? To being
the person that lit the matches, the person that did it. And that’s huge. That’s
everything. Especially from where you're sitting right in that seat right there.
That’s everything. Everything there is. The most important thing. So let’s cut
the bullshit now. Okay?” (4/10/02 Transcript page 10)
Strout’s statements, taken in conjunction with the eatlier statements, in effect tell the
Defendant that if he talks, Strout will use his influence and as a consequence, the
Defendant will only be charged as an accessory and this would make a huge difference
for the Defendant.
To this the Defendant gave only an “Uh hm” affirmative response and Strout continued
talking and telling the Defendant that he would feel pe better once he had told the
truth. He also told him,
“I can’t make you a deal because that’s not m position. But I can do all I can to
tell the people that do make the decision because you did tell me the truth. But
they go a lot on my instinct and they go a lot on my experience as a detective.
And that goes a long ways towards making decisions that way Wayne. Okay but I
can’t help ya. I can’t help ya if I don’t know the truth. And I want to help ya.
And I’m your best friend right now. Because I’m the guy, I’m the guy that’s
going to put the person that caused all this heartburn away...” (4/10/02 Transcript
page 11)
With this statement Strout disclaims his authority to make deals but at the same time, he
confirms his ability to influence the decision makers who presumably will determine the
Defendant’s fate. He effectively conditions the rende ing of assistance to the Defendant
21
upon the Defendant’s cooperation with him. The court finds an implied promise of
leniency in the totality of Strout’s statements, notwithstanding that they also contain
disclaimers of deal making authority. Under Tardiff, even a slight implied promise of
leniency is enough to create doubt regarding the voluntariness of a confession. Tardiff at.
P. 600 citing Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897).
After answering the Defendant’s inquiry about what he would get for his cooperation,
Strout continued the interview and had the Defendant go back over his story. This time,
however, the Defendant included an additional detail. He said,
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“ Then before Casey (Munson) showed up mf and Roxanne (Rochon) got in the
truck. She asked me for a ride because she was going to go burn a building.”
(4/110/02 Transcript, page12)
Up to this point, the Defendant had not implicated himself in the fire either as a principal
Or as an accomplice. This statement clearly implicates the Defendant as an accomplice as
| .
the result of his knowingly driving Rochon to downtown Lincoln to commit Arson.
In addition to finding that the Defendant’s statement was induced by an implied promise
of leniency, the court must also consider whether that implied promise was the
motivation that led to the Defendant’s confession Tardiff at p. 601. Under the
circumstances described above, the court can come to no other conclusion than that. Until
Strout answered the Defendant’s question about what/benefit he would get, the Defendant
hadn’t implicated himself at all in the crime. Once he got the answer, he quickly
implicated himself. The court finds the requisite link between the improper promise and
the confession existed on April 10, 2002.
22
The court also finds that Strout had portrayed himself, as someone the Defendant could
reasonably believe could make good on the promise, Tar
diff, p. 601. Strout had clearly
stated that his instincts and his experience as a dectective, would “go a long way” with
the decision maker. (4/10/02 Transcript p. 11). There is no point to this statement unless
it is to let the Defendant know that he can deliver the help that he has promised. The
court finds that it would be reasonable for the Defendant to conclude that Strout could
influence the ultimate decision makers.
Strout continued the interview by pressing the Defendant for additional details pertaining
to Rochon’s actions before during and after the fire was started and the Defendant
supplied them.
As indicated above, the audiotape demonstrates that the Defendant’s grandfather
attempted to stop the interview by going to the cruiser and telling Strout that he had
talked to the Defendant long enough. (4/10/02 Transcript page 16). Strout responds to the
Defendant’s grandfather in part as follows:
“Let me tell you something sir. This gentleman has just done the smartest thing
that’s he’s done yet. And that’s tell the truth. We’re almost done here. Don’t
jeopardize his, his future by getting into this. We’re almost done here. He’s not
going anywhere. He’s coming back in with you. He’ going to stay here. And the
reason is because he’s told the truth tonight. Okay? He’s taken a step towards
freedom. Because he’s told the truth. So let him finish here, and he’s almost
done and then I’m going to leave...” ( 4/10/02 Transcript page 16)
23
The audio tape is an important part of the evidence in this case. Listening to this recorded
statement, which was also obviously heard by the Defendant, confirms for the court that
an exchange has just taken place. The Defendant has just secured an important benefit
for himself by talking with the officer. This is consistent with the court’s interpretations
of the officer’s pre-confession transcribed statement .
Confirming this interpretation is Strout’s further sta: ment,
“But you know the only thing that hurt is when we have to keep trying to pry it
out of ya. Okay? Now’s your chance to tell tne anything else that you think J
should know. Don’t hold it back. Okay?’(Transcript page 18)
The clear meaning of this post admission statement is that not only is there reward for
cooperation but there is potential punishment for lack of cooperation. These latter
comments did not elicit further incriminating statements from the Defendant but in the
court’s view, they support the overall conclusion, that the officer created an expectation
in the Defendant that if he confessed his involvement in the Lincoln fire it would make a
hugely advantageous difference to the Defendant be ause he would then only be charged
as an accessory to arson.
The State must prove voluntariness beyond a reasonable doubt. Because the State
elicited the incriminating statements from the Defendant though the use of implied
promises, the court has a reasonable doubt regarding the voluntariness of the Defendant’s
statements made on April 10, 2002 and it concludes that the State has failed to sustain its
burden.
24
The court orders that the Defendant’s statements made to Strout on April 10, 2002 be
suppressed as evidence against him in any subsequent trial.’ Included within this
suppression order are statements originally made on April 10, 2002 and repeated in
subsequent interviews.
Il. April 18 Interview.
The Defendant challenges the admissibility of the statements that he made on April 18,
2002 on the grounds that the statements were involuntary and were obtained in violation
of the Defendant’s right to remain silent. Although one could speculate that only one
week after a promise of favorable treatment, the Defendant would have a continuing
expectation of leniency based on Strout’s interview with him on April 10, 2002, the
record does not contain evidence of such an expectation. This interview was also tape
recorded, in part, and there is nothing on the tape that the court could construe as rising to
the level of an express or implied promise of leniency or favorable treatment. The
transcript of this interview reflects that the police honored the Defendant’s request to
move away from his place of employment to talk, his employer, a familiar supporter was
included and present, and unlike the earlier interviews, this interview was preceded by
the Defendant’s acknowledgement that he was speaking with the officer out of his own.
free will; that he was not under arrest; and that he was free to go at any time.
Accordingly, the court finds beyond a reasonable doubt that on April 18, 2002 the
Defendant’s statements were voluntarily made.
TIn light of this ruling, the court does not address directly the Defendant’s other challenges to the
admissibility of the Defendant’s statements.
25
The court also finds that the Defendant was not in custody and accordingly, no Miranda
warnings were required.
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During the course of this April 18, 2002 interview, Strout asked the Defendant to recount
his activities starting with the day before the fire. D ring this interview, the Defendant
recanted his earlier statement of April 10, 2002 that Rochon had told him that she needed
a ride to Lincoln so that she could start a fire. The e sence of the Defendant’s new
account was that he had simply given Rochon a ride to the Lincoln downtown mall and
had dropped her off. He denied being told that she was going to start a fire. He added
new additional information that he had seen Miller give $600 to Rochon and that Rochon
had simply said that she was going to go do a favor for an unidentified friend.
Insofar as the Defendant’s statements on April 18" are repetitions of statements made on
April 10", they are suppressed as provided above. The Defendant’s motion to suppress
other statements made on April 18" is denied.
Ill. May 31’s Interview
The Defendant challenges the admission of statements made on May 31 to Strout on the
basis of claimed violations of his Fifth Amendment right to remain silent and upon his
Sixth Amendment right to the assistance of counsel. The evidence at hearing and the
contents of the court’s file indicate that the police arrested the Defendant on April 23,
2002 for arson. He appeared in court on that same day and requested the appointment of
26
counsel. Although the court denied this request it is\clear that the Defendant’s ri ght to
counsel had attached as of April 23, 2002.
Citing Edwards v. Arizona, 451 U.S. 477, 484, 101 8.Ct. 1880, 68 L. Ed. 2d 378 (1981),
the Law Court has said,
“In the context of the Fifth Amendment and the privilege against self-in
crimination, the Supreme Court has ruled th t‘[W] hen an accused has invoked
his right to have counsel present during custodial interrogation, a valid waiver of
that right cannot be established by showing only that he responded to further
police-initiated custodial interrogation even if the has been advised of his rights.
We further hold that an accused, such as Ed ards, having expressed his desire to
deal with police only throu gh counsel, is not subject to further interro gation by the
authorities until counsel has been made available to him, unless the accused
himself initiates further communication, exc anges, or conversations with the
police.’” State v. Rose 604 A.2d 24,27 (Me. 1992)
In Rose, the Law Court clearly indicated that the Defendant’s right to counsel under the
Sixth Amendment is no different; “‘...after the initiation of formal charges, the Sixth
Amendment guarantees the accused the ri ght to rely on counsel as a medium between
him and the State.” Rose at p. 26. In Rose, the Law Court also cited with approval the
following language from Michigan v. Jackson, 4475 U.S. 625, 636, 106 S.Ct.1404, 141 1,
89 L.Ed. 2d 631 (1986):
“We thus hold that, if police initiate interrogation after a defendant’s assertion, at
an arraignment or similar proceeding, of his right to counsel, any waiver of the
defendant’s right to counsel for that police-initiated interrogation is invalid.”
Rose at p. 27
It’s clear to the court that the Defendant’s ri ght to counsel had attached lon g before May
31, 2002. But for one critical fact, his statements to Strout on May 31,2002 would be
27
inadmissible. That critical fact is that it was the Defendant who initiated the contact that
occurred on May 31, 2002 between the Defendant and Strout. From the evidence
presented, the court finds that the officer was at another residence in the Vicinity of the
Defendant’s home and the Defendant went to the officer to ask to speak with him. The
officer obliged. The Defendant was not in custody and the police did not initiate any
interrogation. The court concludes that the police did not improperly exploit an
opportunity or otherwise seek to circumvent the Defendant’s rights on May 31, 2002.
The Defendant further argues that the State’s conduct on May 31, 2002 violated his due
process rights to the extent that it offended the commu
fair play. The court finds this argument to be without merit.
Accordingly, the Defendant’s motion to suppress statements made on May 31, 2002 is
denied.
IV. July 5" Interview.
nity’s sense of justice, decency and
The State concedes that police interrogation of the Defendant on July 5, 2002 violated the
Defendant’s Sixth Amendment right to counsel and accordingly, the court grants the
Defendant’s motion with regard to statements made on July 5, 2002 and Orders that they
shall not be admitted in any subsequent trial of this matter.
The entry shall be: The Defendant’s Motion to Suppress is granted in part and denied in
part.
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Dated September 25, 2002 Cele, LL a
JUSTICE, SUPERIOR COURT
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