The opinion
EN I ERED DEC 1 1 2014
STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. CRIMINAL ACTION
Docket No. CR-14-501
DHM- KE:N-1~-o~-ILt
STATE OF MAINE
v. ORDER
JASON K. BROWN,
Defendant
Before the court is Defendant's motion for written findings of fact and
conclusions of law pursuant to M.R. Crim. P. 41A(d). The court made findings of
fact on the record in open court. In granting the motion, the court provides these
conclusions.
On August 24, 2013, the Defendant had been found in a ditch in obvious
chemieal or alcohol distress and was taken to the Maine General Medical Center.
Sometime earlier that day there had been a structure fire. The police officer went
to see the Defendant in the hospital on August 27, three days later.
The stated purpose of the visit was to check on the welfare of the defendant
given his condition when found in the ditch. The officer went to the ICU and spoke
with the nurse who gave him permission to talk to the patient. The nurse
accompanied the officer into the room where the Defendant was sleeping. The
nurse woke the Defendant and left the room. The officer asked the Defendant if he
was OK and if he would talk to him. The Defendant responded that he was OK.
That started a conversational interchange eighteen minutes in length which was
recorded on a DVD. The court listened to the DVD in its entirety.
The officer was in casual clothing, not in uniform; he had a firearm, not
displayed, a badge, and a cell phone. He did not have handcuffs, which he made
know to the defendant. The Defendant asked the officer why he was there. The
officer indicated that it was a welfare check and he wanted to talk about "Saturday
night." After again inquiring about the condition of the Defendant, the officer told
him he was not under arrest. The Defendant agreed to talk to the officer.
The Defendant was very cooperative. He was not in distress. Once the
officer determined the patient was feeling OK, the officer said, "No matter what,
I'm leaving," meaning there would be no arrest. The officer then indicated to Mr.
Brown that he thought that Mr. Brown knew what he was going to be talking about
and he asked about "early Saturday morning." The Defendant said he was sleeping
in the eemetery having consumed 20 150 mg. welbutren pills and beer. He was
angry because someone had been causing him trouble and spreading rumors,
identifying "Pinky", aka James McKenna. The officer advised the Defendant to be
honest with him and the Defendant indicated that he was "pretty mad" and "pretty
well gone." He said he "got all f---ed up" and "lit the fire." The officer asked if he
used a lighter, if he was angry and what were the circumstances. The Defendant
2
indicated that he did not remember. He was asked if used gas, the Defendant
answered "no.'' The Defendant advised that he had been drinking with another
individual and while in the cemetery was taking pills and drinking beer. Defendant
indicated his last memory was at the cemetery. The officer then made the
statement, "You started the fire, agreed?" The officer then said, "You know as
well as I do that you started the fire." Mr. Brown did not respond to either
comment.
The officer indicated he was going to leave and he asked the Defendant for
his cell number and where he would be after leaving the hospital. The officer gave
the Defendant his card and suggested he should be honest about the circumstances.
The officer then stated, "Give me a call, we can work it out. Get yourself some
help." He added, "Hope you get better soon." The officer testified on cross-
examination that the Defendant did, in fact, call him later.
The defendant first argues that the solicitous attitude by the officer was
improper and made reference to the "Reed Technique" although he did not provide
any dte for such a reference.
It is defendant's assertion that he was, in fact, in custody by virtue of his
presence in the ICU of the hospital. The Defendant made reference to previous
decisions regarding interviews of Defendants in a hospital setting. He argued there
was not a familiarity by the Defendant of his location, he had just been waken from
3
sleep by the nurse and he was "incapacitated." The officer explained the nature of
the interview and the assurance he received from the nurse that Brown was not
under an influence or in distress.
The mere fact that a suspect cannot leave the hospital as a result of injury or
illness does not place that person in law enforcement custody for purposes of
Miranda. State v. Grant, 2008 ME 14, 939 A.2d 93. However, in Grant, the
defendant was interrogated at the hospital following surgery for injuries sustained
at the scene of a truck accident, was forcibly restrained, handcuffed and in the
presence of multiple officers.
A statement to a law enforcement officer may be voluntarily made even if
the Defendant is injured, medicated, or in distress. State v. Lowe, 2013 ME 92, 81
A.3d 360. However, in that instance, the officer was aggressive and insistent, had
excluded the 18 year old defendant's mother from the hospital room and told the
defendant his friends had died in the accident.
The conditions in the instant case are dissimilar. While the Defendant was in
a hospital setting unfamiliar to him, engaged in a contact initiated by a police
officer and certainly was the focus of an investigation, there was no degree of
restraint placed upon him by the officer. Where the defendant was somewhat
immobilized by medical treatment, rather than police action, he agreed to be
interviewed. See Lowe, at 17. The duration and character of the interrogation was
4
entirely business-like. A single law enforcement officer was present who made it
clear that he was not making an arrest and had no handcuffs.
'
There was nothing under any of the circumstances presented to suggest that
the Defendant believed he was in custody. Furthermore, the nature of the interplay
between the officer and the Defendant made it obvious that his statements to the
officer were completely voluntary. Even though the Defendant was injured and
medicated, his statements were, beyond a reasonable doubt, made in the exercise of
his own free will and rational intellect. Lowe, 2013 ME 92, 81 A.3d 360. The
attending nurse in the ICU gave permission to the officer to speak to the
Defendant, and, indeed, woke him from a sleeping condition for that purpose.
It is the court's conclusion that there is no evidence that the Defendant was
in custody and is satisfied by a preponderance of the evidence that his statements
were voluntary.
The entry will be:
Defendant's motion for findings of fact and conclusions of law
is GRANTED, the defendants' motion to suppress is DENIED.
DATED: t ?r-- '1- I 't
Donald H. Marden
Superior Court Justice
5
STATE OF MAINE SUPERIOR COURT
vs KENNEBEC, ss.
JASON K BROWN Docket No AUGSC-CR-2014-00501
1 ~LELLAN STREET
S"' _.• HEGAN ME 04 976 DOCKET RECORD
DOB: 07/12/1984
Attorney: THOMAS CAREY State's Attorney: MAEGHAN MALONEY
THOMAS J CAREY ESQ
PO BOX 125
VIENNA ME 04360-0125
WITHDRAWN 07/10/2014
Attorney: ADAM SHERMAN
PARADIE SHERMAN WALKER & WORDEN
11 LISBON ST SUITE 202
LEWISTON ME 04240
APPOINTED 07/10/2014
Filing Document: INDICTMENT Major Case Type: FELONY (CLASS A,B,C)
Filing Date: 05/16/2014
Charge(s)
1 CRIMINAL ATTEMPT 0812412013 AUGUSTA
Seq 8374 17-A 152(1) (A) Class A
TAYLOR I AUG
2 ARSON 0812412013 AUGUSTA
Seq 776 17-A 802 ( 1) (A) Class A
.,AYLOR I AUG
3 ARSON 0812412013 AUGUSTA
Seq 4539 17-A 802 (1) (B) (2) Class A
TAYLOR I AUG
4 AGGRAVATED CRIMINAL MISCHIEF 0812412013 AUGUSTA
Seq 779 17-A 805(1)(A) Class C
TAYLOR I AUG
Docket Events:
05/16/2014 FILING DOCUMENT - INDICTMENT FILED ON 05/16/2014
TRANSFER - BAIL AND PLEADING GRANTED ON 05/16/2014
TRANSFER - BAIL AND PLEADING REQUESTED ON 05/16/2014
05/16/2014 BAIL BOND - $50,000.00 CASH BAIL BOND SET BY COURT ON 05/16/2014
DANIEL BILLINGS , JUDGE
CASH BAIL, NO USE OR POSSESSION OF INTOXICANTS, SUBMIT TO SEARCH AND TESTING AT ANY TIME
WITHOUT PROBABLE CAUSE, NO USE OR POSSESSION OF INCINIERY DEVICES, SUBMIT TO SEARCH AT ANY
TIME
05/16/2014 Charge(s): 1,2,3,4
WARRANT- $50,000.00 ON COMP/INDICTMENT ORDERED ON 05/16/2014
DANIEL BILLINGS , JUDGE
CR 200 Page 1 of 5 Printed on: 12/07/2014
JASON K BROWN
AUGSC-CR-2014-00501
DOCKET RECORD
CASH BAIL, NO USE OR POSSESSION OF INTOXICANTS, SUBMIT TO SEARCH AND TESTING AT ANY TIME
WITHOUT PROBABLE CAUSE, NO USE OR POSSESSION OF INCINDIERY DEVICES, SUBMIT TO SEARCH AT
ANY TIME
05/16/2014 Charge(s): 1,2,3,4
WARRANT- $50,000.00 ON COMP/INDICTMENT ISSUED ON 05/16/2014
CASH BAIL, NO USE OR POSSESSION OF INTOXICANTS, SUBMIT TO SEARCH AND TESTING AT ANY TIME
WITHOUT PROBABLE CAUSE, NO USE OR POSSESSION OF INCINDIERY DEVICES, SUBMIT TO SEARCH AT
ANY TIME
05/16/2014 Charge(s): 1,2,3,4
WARRANT - ON COMP/INDICTMENT MODIFY ACKNOWLEDGED ON 05/16/2014 at 04:13p.m.
05/17/2014 Charge(s): 1,2,3,4
WARRANT - ON COMP/INDICTMENT EXECUTED BY AGENCY ON 05/17/2014 at 06:06 p.m.
05/20/2014 Charge(s): 1,2,3,4
PLEA - NO ANSWER ENTERED BY DEFENDANT ON 05/19/2014
05/20/2014 BAIL BOND - $50,000.00 CASH BAIL BOND SET BY COURT ON 05/19/2014
ROBERT E MULLEN , JUDGE
NO USE/POSS OF ALCHILIC BEV OR ILLEGAL DRUGS OR DANGEROUS WEAPONS. TO BE SEARCHED AND
TESTED AT ANY TIME. NO CONTACT W/JAMES MCKENNA, TERRY MARTON, STEPHEN GASS, CARMELA
BECHARD AND NORMAN BECHARD ... UN USE/POSS OF INCENDIRY DEVIES .. MAY BE REVIEWED.
05/20/2014 Charge(s): 1,2,3,4
HEARING- STATUS CONFERENCE SCHEDULED FOR 07/29/2014 at 10:00 a.m.
( 1/2014 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 05/20/2014
06/05/2014 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 05/21/2014
M MICHAELA MURPHY , JUSTICE
COPY TO PARTIES/COUNSEL
06/05/2014 Party(s) : JASON K BROWN
ATTORNEY - APPOINTED ORDERED ON 05/21/2014
Attorney: STEPHEN BOURGET
06/05/2014 Charge(s): 1,2,3,4
HEARING - STATUS CONFERENCE NOTICE SENT ON 07/10/2014
06/12/2014 LETTER - FROM PARTY FILED ON 06/12/2014
LETTER FROM DEFENDANT REQUESTING TO FIRE ATTORNEY COPY SENT TO
DEFENSE ATTORNEY
06/17/2014 MOTION - MOTION FOR WITHDRAWAL OF CNSL FILED BY COUNSEL ON 06/17/2014
06/17/2014 MOTION - MOTION FOR WITHDRAWAL OF CNSL GRANTED ON 06/17/2014
DANIEL BILLINGS , JUDGE
COPY TO PARTIES/COUNSEL
06/17/2014 Party(s): JASON K BROWN
ATTORNEY - WITHDRAWN ORDERED ON 06/17/2014
Attorney: STEPHEN BOURGET
0~117/2014 Party(s): JASON K BROWN
ATTORNEY - APPOINTED ORDERED ON 06/17/2014
CR 200 Page 2 of 5 Printed on: 12/07/2014
JASON K BROWN
AUGSC-CR-2014-00501
DOCKET RECORD
Attorney: THOMAS CAREY
07/03/2014 Charge(s): 1,2,3,4
MOTION - MOTION FOR WITHDRAWAL OF CNSL FILED BY DEFENDANT ON 07/03/2014
07/10/2014 Charge(s): 1,2,3,4
MOTION - MOTION FOR WITHDRAWAL OF CNSL GRANTED ON 07/10/2014
M MICHAELA MURPHY , JUSTICE
COPY TO PARTIES/COUNSEL
07/10/2014 Party(s): JASON K BROWN
ATTORNEY - WITHDRAWN ORDERED ON 07/10/2014
Attorney: THOMAS CAREY
07/10/2014 Party(s): JASON K BROWN
ATTORNEY - APPOINTED ORDERED ON 07/10/2014
Attorney: ADAM SHERMAN
07/29/2014 Charge(s): 1,2,3,4
HEARING - STATUS CONFERENCE HELD ON 07/29/2014
DONALD H MARDEN , JUSTICE
07/29/2014 TRIAL - DOCKET CALL SCHEDULED FOR 09/03/2014 at 02:15p.m.
07/29/2014 MOTION - MOTION FOR DISCOVERY FILED BY DEFENDANT ON 07/29/2014
08/11/2014 HEARING- MOTION FOR DISCOVERY SCHEDULED FOR 09/03/2014 at 02:15p.m.
NOTICE TO PARTIES/COUNSEL
Ov,L9/2014 MOTION- MOTION TO DISMISS FILED BY DEFENDANT ON 08/19/2014
COUNTS 2 & 3
08/19/2014 MOTION - MOTION TO SUPPRESS FILED BY DEFENDANT ON 08/19/2014
08/21/2014 LETTER - REQUEST FOR PROTECTION FILED ON 08/21/2014
09/16/2014 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 09/29/2014 at 09:30 a.m.
NOTICE TO PARTIES/COUNSEL
09/16/2014 HEARING - MOTION TO SUPPRESS NOTICE SENT ON 09/16/2014
09/26/2014 Charge(s): 1,2,3,4
MOTION - MOTION TO CONTINUE FILED BY STATE ON 09/26/2014
09/29/2014 Charge(s): 1,2,3,4
MOTION - MOTION TO CONTINUE GRANTED ON 09/16/2014
ROBERT E MULLEN , JUSTICE
COPY TO PARTIES/COUNSEL
09/29/2014 HEARING - MOTION TO SUPPRESS CONTINUED ON 09/29/2014
ROBERT E MULLEN , JUSTICE
09/29/2014 HEARING - MOTION TO SUPPRESS SCHEDULED FOR 11/04/2014 at 08:30 a.m.
NOTICE TO PARTIES/COUNSEL
09129/2014 HEARING - MOTION TO SUPPRESS NOTICE SENT ON 09/29/2014
CR 200 Page 3 of 5 Printed on: 12/07/2014
JASON K BROWN
AUGSC-CR-2014-00501
DOCKET RECORD
1/2014 HEARING - MOTION TO SUPPRESS HELD ON 11/04/2014 at 10:00 a.m.
DONALD H MARDEN , JUSTICE
Attorney: ADAM SHERMAN
DA: KRISTIN MURRAY JAMES
Defendant Present in Court
TAPE 1964 INDEX 3277-7050 AND TAPE 1965 INDEX 50-876
11/04/2014 MOTION - MOTION TO SUPPRESS DENIED ON 11/04/2014
DONALD H MARDEN , JUSTICE
COPY TO PARTIES/COUNSEL
11/04/2014 HEARING - MOTION FOR DISCOVERY CONTINUED ON 09/29/2014
11/04/2014 HEARING - MOTION FOR DISCOVERY SCHEDULED FOR 11/04/2014
NOTICE TO PARTIES/COUNSEL
11/04/2014 HEARING - MOTION FOR DISCOVERY HELD ON 11/04/2014
DONALD H MARDEN , JUSTICE
Attorney: ADAM SHERMAN
DA: KRISTIN MURRAY JAMES
Defendant Present in Court
TAPE 1964 INDEX 3277-7050 AND TAPE 1965 INDEX 50-876
11/04/2014 MOTION - MOTION FOR DISCOVERY GRANTED ON 11/04/2014
DONALD H MARDEN , JUSTICE
COPY TO PARTIES/COUNSEL WITHOUT
OBJECTION
4/2014 TRIAL DOCKET CALL SCHEDULED FOR 12/02/2014 at 02:30 p.m.
11/06/2014 TRIAL - DOCKET CALL HELD ON 09/03/2014
11/13/2014 LETTER - FROM PARTY FILED ON 11/12/2014
LETTER FILED BY DEF ASKING FOR ATTY SHERMAN TO WITHDRAW. COPY OF LETTER MAILED TO ATTY
SHERMAN ON 11/13/14.
11/14/2014 MOTION - OTHER MOTION FILED BY DEFENDANT ON 11/14/2014
MOTION FOR WRITTEN FINDINGS AND CONCLUSION PURSUANT TO M.R.CRIM.P 41A (D)
11/24/2014 LETTER - REQUEST FOR PROTECTION FILED ON 11/24/2014
12/01/2014 MOTION - MOTION TO CONTINUE FILED BY DEFENDANT ON 12/01/2014
12/07/2014 MOTION - MOTION TO CONTINUE GRANTED ON 12/01/2014
DANIEL I BILLINGS , JUSTICE
COPY TO PARTIES/COUNSEL
12/07/2014 TRIAL - DOCKET CALL CONTINUED ON 12/02/2014
12/07/2014 Charge(s): 1,2,3,4
TRIAL - DOCKET CALL SCHEDULED FOR 01/06/2015
12/07/2014 MOTION - OTHER MOTION GRANTED ON 12/04/2014
DONALD H MARDEN , JUSTICE
MOTION FOR WRITTEN FINDINGS AND CONCLUSION PURSUANT TO M.R.CRIM.P 41A (D)
7/2014 ORDER - COURT ORDER FILED ON 12/04/2014
CR_200 Page 4 of 5 Printed on: 12/07/2014
JASON K BROWN
AUGSC-CR-2014-00501
DOCKET RECORD
DONALD H MARDEN , ,JUSTICE
ORDER ON MOTION TO SUPPRESS: IT IS THE COURT'S CONCLUSION THAT THERE IS NO EVIDENCE THAT
THE DEFE~IDANT WAS IN CUSTODY AND IS SATISFIED BY A PREPONDERANCE OF THE EVIDENCE THAT HIS
~EMENTS WERE VOLUNTARY.
A TRUE COPY tlf"it~
/ /{ . . , l>.
{
/
ATTEST:
Clerk
CR 200 Page 5 of 5 Printed on: 12/07/2014