State of Maine v. Frank

Maine Superior

State of Maine v. Frank

DecidedMay 4, 2010

DocketCUMcr-09-4369

StatusUnpublished

This text of State of Maine v. Frank (State of Maine v. Frank) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State of Maine v. Frank, (Me. Super. Ct. 2010).

Pincite

Opinion

STATE OF MAINE :"',' UNIFIED CRIMINAL DOCKET CUMBERLAND, ss. CR-09-4369 - ! I) - • f I I

STATE OF MAINE,

v. ORDER

JOHN FRANK,

Defendant.

Before the court is a motion to suppress the statements made by defendant John

Frank at an interview conducted by the Westbrook Police Department on June 5, 2009.

Frank is charged with two counts of gross sexual assault based on an alleged incident

earlier on June 5.

A hearing was held on Frank's motion on April 27, 2010. The only evidence

offered by both the State and the defense at that hearing consisted of a videotape of the

June 5, 2009 interview, a Miranda form signed by Frank on June 5, 2009, and a consent

to collect biological evidence also signed by Frank on June 5, 2009.

Frank makes four arguments: (1) he contends that the entire interview was

custodial and that no Miranda warning was given until approximately the seven-

minute mark, requiring a suppression of any statements made prior to the Miranda

warning; (2) he contends that the Miranda warning given was inadequate, requiring

suppression of the remainder of the interview; (3) he contends that the statements he

made at the interview were involuntary because they were made based on an implied

promise of leniency; and (4) he contends that consent was not validly obtained for the

biological evidence (a cheek swab for DNA) obtained from him at the interview. 1. Statements Prior to Miranda Warning

If the interview was custodial from the outset, Frank's statements prior to the

Miranda warning should be suppressed. This is an issue on which the State has the

burden of proof by a preponderance.

On the face of the videotape, the portion of the interview prior to the Miranda

warning does not appear custodial. Frank was in a police interview room but his

statements indicate that he had come there on his own initiative. However, just before

giving the Miranda warnings, shortly after the six-minute mark, Detective Bosse

described the setting as "somewhat custodial." Moreover, there was discussion at a

later point (at approximately the 65 minute mark) when a detective advised Frank that

he is going to be arrested. In that discussion there was a statement to the effect that

Frank had been told that he would be arrested even before the interview began by an

officer who did not take part in the questioning.

Under those circumstances the court concludes that not only was the interview

custodial from the 65 minute mark but that a reasonable person in Frank's position

would have believed that he was effectively in custody at the very outset. Frank's

statements prior to the Miranda warning are therefore suppressed.

2. Miranda warning

Frank was given a Miranda warning at approximately the seven-minute mark.

That warning advised him of his right to a lawyer, advised him that anything he said

could and would be used against him in court, advised him that he had a right to

consult a lawyer before answering any questions, advised him that a lawyer would be

provided free if he could not afford a lawyer, and advised him that if he decided to

2 answer questions he had the right to stop answering at any time until he could talk to a

lawyer. In each case Frank stated that he understood.

Frank's challenge to the Miranda warning is that Detective Bosse, at the

conclusion of the Miranda warning, asked whether, having all those rights in mind,

Frank wanted "to go ahead and get this cleared up." Frank answered yes. He was not

asked the more traditional question- whether with all those rights in mind, he wished

to answer questions at this time.

Based on its review of the videotape and the totality of the circumstances, the

court finds that Frank's waiver of his Miranda rights was not vitiated by Detective

Bosse's last question. First, as noted above, Frank was advised that his statements "can

and will" be used against him in court. Second, as noted above and as argued by Frank

at the suppression hearing, he had already been told that he would be placed under

arrest before the interview began. The State has met its burden of proving by a

preponderance that Frank was informed of his rights, knew that he was likely to be

arrested, and therefore was not lulled into waiving his rights under the

misunderstanding that the only purpose of the questioning was to clear things up.

3. Voluntariness

Frank argues that his statements were involuntary because they were given in

the context of an implied promise of leniency. In this respect, he relies essentially on

one comment by Detective Bosse at approximately the 56-minute mark of the taped

interview.

At the 56-minute mark Bosse stated that he thought that in the statements Frank

had made thus far, he was "painting himself into a corner" because his story did not

make sense. He told Frank that if the evidence showed Frank's story did not make

3 sense, then "you're in some fucking hot water, you know that?" Frank said "yeah".

Detective Bosse then told Frank, in substance, that this was why he had to tell the quth,

stating, "Come clean with what happened, we'll work the whole thing out."

Considered in isolation, Bosse's statement that "we'll work the whole thing out"

could be construed as an ambiguous but implied promise of leniency. Statements

elicited by a promise of leniency are not voluntary. E.g., State v. Tardiff, 374 A.2d 598,

600 (Me. 1977). However, the court nevertheless concludes that the videotaped

interview as a whole demonstrates beyond a reasonable doubt that Frank's statements

were voluntary.

First, Detective Bosse never elaborated on what he meant by "working the whole

thing out", and Frank never asked what he meant by that. Compared to cases where

promises of leniency have been found, see, e.g., State v. Tardiff, 374 A.2d at 600 (express

promise that if defendant talked about a series of burglaries, he would only be charged

with one break in), Bosse's statement was no more than one ambiguous hint of leniency

in a two hour and 40 minute interview. All of the many other statements of the

detectives in that interview consisted of urging Frank to tell the truth, telling him that

his story did not make sense, and asking him whether what really happened was that

he had thought the victim would be receptive to his advances. None of those

statements constituted any implied promise of leniency. See State v. Therriault, 425 A.2d

986, 990 (Me. 1981).

Second, the court finds beyond a reasonable doubt that Bosse's hint of leniency

was not the motivating cause of Frank's later admissions that there had been some

sexual contact between himself and the victim. State v. Tardiff, 374 A.2d at 601

(confession otherwise voluntary is not vitiated by promise of leniency "unless such

promise was the motivating cause of the confession"). See State v. Wood, 662 A.2d 908,

4 911 (Me. 1995), citing State v. Hutchinson, 597 A.2d 1344, 1346 (Me. 1991) (officer's

statement that the truth would "clear things up" did not controvert court's finding of

vol untariness).

Free access — add to your briefcase to read the full text and ask questions with AI