Opinion
CR-17-469
07-11-2018
STATE OF MAINE, v. RICHARD RICHARDS
ORDER ON DEFENDANT'S MOTION TO SUPRESS
David J. Mitchell Judge
This matter came before the court on June 13, 2018 on Defendant's Motion to Suppress, filed September 29, 2017. The State was represented by Assistant District Attorney Alexander Smeaton, Esq. Defendant was represented by Walter McKee, Esq, After careful consideration of the arguments of counsel, review of the applicable law, and for the foregoing reasons, the court finds and orders as follows;
FINDINGS OF FACT
On September 29, 2017, Defendant Richard Richards, born 12/27/1946, was arrested on a warrant on charges of Gross Sexual Assault pursuant to 17-A M.R.S. § 253(1)(C), Class A; Unlawful Sexual Contact, pursuant to 17-A M.R.S. § 255-A(1)(E-1), Class B; Visual Aggression Against Child, pursuant to 17-A M.R.S. § 256(1)(B), Class C; and Unlawful Sexual Touching, pursuant to 17-A M, R.S. § 260(1)(A), Class D. All charges are alleged to have occurred on or about August 4, 2017. Counts I, II and III pertain to one alleged victim. Count IV pertains to another alleged victim. Within a few minutes after arriving at the Washington County Jail, the Defendant was interviewed by Deputy Tim Mace of the Washington County Sheriffs Department.
Defendant was in custody at the time of the interview, having been arrested on the warrant and booked into the jail. Before commencing the interview, Deputy Mace advised the Defendant of his Miranda rights, reading them from a standardized card and making no deviations. Defendant responded to each by indicating that he understood. Deputy Mace did not, however, read that portion of the warning card which seeks to obtain a waiver of an accused's rights. Specifically, he did not ask the Defendant, "now, having those rights which I just explained to you in mind, do you wish to answer questions at this time?" Accordingly, Deputy Mace did not obtain an express waiver of Defendant's rights before interviewing the Defendant. At the same time, Defendant did not indicate that he did not wish to answer questions, and at no time did he invoke his right to remain silent or his right to counsel. Rather, he answered the questions posed to him by Deputy Mace, and at times asked questions himself seeking to clarify those asked by the deputy, The interview was conducted at the jail by a single officer The tone of both the deputy and the defendant was conversational.
Early on in the interview, after having explained the nature of the charges to Defendant and characterizing them as "serious," Deputy Mace told Defendant that he believed the victim's allegations to be true and that he "believed the forensic evidence." (Def.'s Ex. # 1, p. 4, lines 17-20), Deputy Mace informed Defendant that the victim had been to a doctor, who determined her vagina had been penetrated and that there was tearing within the vagina. Id., at p. 4, lines 18-20. Deputy Mace testified at the suppression hearing that he relayed this information because he had been told the same by a relative of the complainant. He testified that at the time of the interrogation, he assumed the statements regarding a doctor's visit, and the finding of penetration and tearing were true, although he had not taken any steps to verify those statements. Those statements eventually were discovered to be false. Deputy Mace also told Defendant there was "scarring and stuff like that.. .and they can tell about how long, and it's been a couple of months. So it happened this summer." (Def.s Ex. #1 p. 4, line 25- p. 5, lines-3-5.) Deputy Mace testified at the suppression hearing that he made these statements knowing they were false at the time. Defendant argues that this deception is one factor the court must consider in suppressing Defendant's statements and conclude they were involuntary.
Shortly after that, when Defendant continued to deny his involvement, the deputy informed Defendant that it is best for people in this type of "situation to help us, because people who want to fight it or deny everything, we push harder." (Def.'s Ex. #1, p. 6, lines 1-3.) At no time did Deputy Mace explain what "push harder" meant. Defendant continued to deny involvement and Deputy Mace advised him of the process of getting a warrant, suggesting that there was at least probable cause for that to issue.
Defendant argues all statements made during the interrogation with Deputy Mace should be suppressed because; (1) Deputy Mace did not follow proper Miranda protocol and therefore Defendant's statements were not made voluntarily; (2) there was no implied waiver of Miranda; and, (3) Deputy Mace was deceptive in his questioning by malting knowingly false statements to Defendant.
STANDARD OF REVIEW
A statement "made by a person subjected to custodial interrogation who is not first given Miranda warnings is inadmissible against that person at trial." State v. Kittredge, 2014 ME 90, ¶ 16, 97 A.3d 106. "In the face of a Miranda-based challenge, the State must prove the admissibility of a defendant's statements by a preponderance of the evidence." State v. King, 2016 ME 54, ¶ 16, 136 A.3d 366; See also, State v. Coombs, 1998 ME 1, ¶ 13, 704 A.2d 387, (State bears burden of establishing knowing, intelligent, and voluntary waiver by a preponderance of the evidence). "While an individual need not explicitly waive his or her Miranda rights, his or her conduct must demonstrate an intentional relinquishment or abandonment of known rights." Id. at ¶¶ 6, 15-16.
There is no dispute that Defendant was in custody when Deputy Mace interrogated him. The issue is whether Deputy Mace provided full and effective Miranda warning, despite omitting the inquiry, "knowing these rights are you willing to answer questions or make a statement without a lawyer present?," and if Defendant impliedly waived Miranda by answering questions without an attorney present and actively participating in the interrogation by asking some of his own questions, In addition, the issue is whether in the totality of circumstances Defendant's statements were made voluntarily such that they were the result of his own free will and rational intellect.
DISCUSSION
"A voluntary statement is one that is the result of the defendant's exercise of his or her own free will and rational intellect," as opposed to one that results from threats, promises, or inducements." State v. Lockhart, 2003 ME 108, ¶ 29, 830 A.2d 433 (quotations omitted). The court must consider the totality of the circumstances in determining whether a statement is voluntary, "including recitation of the Miranda warnings. . . . the persistence of the officers; police trickery; threats, promises or inducements made to the defendant." Id. at ¶ 30.
"The prophylactic Miranda warnings are not themselves rights protected by the Constitution but are instead measures to insure the right against compulsory self-incrimination is protected." State v. Figueroa, 2016 ME 133, ¶ 15, 146 A.3d 427, (quoting Duckworth v. Eagan, 492 U.S. 195, 203, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989). Miranda warnings do not require a "precise formulation of the warnings or otherwise require a talismanic incantation." Id. (quotations marks omitted). Miranda "may be satisfied by a 'fully effective equivalent.'" Id., (quoting Miranda, 384 U.S. at 476). In determining whether police officers satisfactorily conveyed Miranda warnings, courts are not "required to examine the words employed as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably convey to a suspect his rights as required by Miranda." Id., (quoting Florida v. Powell, 559 U.S. 50, 60 (2010), In this case, Deputy Mace recited Miranda warnings to the Defendant and received oral affirmation that the Defendant understood his rights. Defendant was warned, in unqualified language, that he had a right to an attorney, and if he could not afford one, the court would appoint one for him. He was warned that he had the absolute right to remain silent. He was told he was free to go at any time if he did not want to answer questions. "When viewed in the context of the surrounding circumstances, the warnings communicated an unqualified right to counsel" which could have been invoked by Defendant at any time." Figueroa, 2016 ME 133 at ¶I8. The court finds that based on Defendant's affirmation that he understood he had the right to remain silent, the right to counsel, the right to stop answering questions at any time, the possible use of his statements, and by his conduct, Defendant waived those rights when he began answering Deputy Mace's questions, despite the omission of the question, "knowing these rights, are you willing to answer questions or make a statement without a lawyer present?"
Therefore, the court's inquiry must necessarily turn to whether Officer Mace's deceptive statements during the course of the interrogation render Defendant's statements involuntary. "Deception as to purpose is viewed among all of the circumstances surrounding the individual's consent in the voluntariness analysis." State v. Sounier, No. CV-04-151, 2010 Me, Super. LEXIS 90, *8 (Aug. 31, 2010). Maine courts have recognized the "practical necessity for the use of deception in criminal investigations. State v. Bailey, 2010 ME 15, ¶ 23, 989 A.2d 716. Police trickery may, however, rise to a level where it calls into question the voluntariness" of statements. State v. Nightingale, 2012 ME 132, ¶ 33, 58 A.3d 1057. To be voluntary, a confession or statement must be the "free choice of a rational mind, fundamentally fair, and not a product of coercive police conduct." Id.
The court has examined the entire suppression record for evidence of whether Deputy Mace affirmatively misrepresented whether, in fact, the victim had tearing in her vaginal area from penetration and whether a doctor had confirmed its existence. The only evidence in this regard is Deputy Mace's assertion that he had heard from the alleged victim's mother that a doctor had examined the alleged victim, which Deputy Mace learned after the interrogation, was not true. While Deputy Mace did not take any action to confirm the truth of the mother's statements prior to the interrogation, the court finds that Deputy Mace's conduct in possibly misleading the Defendant or reinforcing his misunderstandings is not the type or degree that renders the defendant's statements involuntary. State v. Sounier, at * 8. (statements made in response to detective's assertion that doctor examined a rash on vaginal area were not outright falsehoods and therefore did not render defendant's statements in response involuntary).
The same cannot be said for the second instance, in which the Court discusses independently below.
Immediately after Deputy Mace told Defendant that a doctor had examined the alleged victim and there was evidence of penetration and tearing of the vagina, the following exchange took place:
Officer:-- And they can tell like-
Mr. Richards: Holy shit.
Officer: -scarring and stuff like that. I'm sure you watch CSI, you know, they see the wounds-
Mr. Richards: I do.
Officer: -the scars, so they can tell about what happened about how long, and it's been a couple of months. So it happened this summer.(Def.'s Ex. I, page 4, line25-page 5, lines 1-6.)
Deputy Mace testified at the suppression hearing that it was "just something he said," and he knew at the time that those statements were false. There was no evidence, nor an allegation from any third party that there was scarring nor that the alleged abuse "happened this summer," allegedly while the Defendant was with the alleged victim. Deputy Mace simply made up the statement with no basis for doing so. The court agrees with the Defendant that this particular, purposeful misrepresentation goes well beyond the "bounds of 'trickery' police are permitted to employ during interrogations. By deceitfully introducing nonexistent "evidence" into the conversation, the defendant became more cooperative with Deputy Mace's tactics. The suppression record shows that any incriminating statements made by the defendant took place after the knowingly false statement that there was scarring that allegedly linked the defendant to the victim sometime in the summer. For those reasons, the court finds that any statements made by the defendant after the mention of the wounds and scarring were not the product of the defendant's free will and rational intellect, but instead the product of police coercion that renders them inadmissible at trial.
Therefore, the Order shall be:
All statements made after Page 4, line 25 of the transcript of the interrogation, and all references thereto, are hereby suppressed as involuntary.