State of Maine v. Kimball

Maine Superior

State of Maine v. Kimball

Superior Court of Maine·Decided February 17, 2009·No. KENcr-08-211·Unpublished

Opinion

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v. ORDER ON MOTION TO SUPPRESS

GREGORY KIMBALL,

Defendant

Before the court is defendant's motion to suppress statements on the grounds that such statements were involuntarily.

Upon complaint that unlawful sexual conduct had taken place between the defendant and two stepdaughters, the Maine State Police conducted an investigation. As part of that investigation, the defendant was offered an opportunity to be the subject of a polygraph examination. The examination, as well as the conduct of the interrogation before and after the examination, were recorded, which recording this court has viewed. All evidence submitted assures the court that the defendant undertook the polygraph examination voluntarily and with full understanding of its implications.

The first attempt at a polygraph examination was undertaken on December 17, 2007, but the examiner declined to proceed with the examination because of the emotional state of the defendant. However, a signed Miranda warning and polygraph waiver was executed on that date, which document is in evidence.

On December 27, 2007, the defendant again appeared for a polygraph examination and again signed the Miranda statement as well as the polygraph waiver. There is no evidence that the defendant was in a high emotional state at the time of the execution of the waiver nor that he was unable to read or understand its terms. The signed document appears as a State's exhibit. In addition, the defendant signed a document indicating that the examination was concluded at 2:48 p.m. and confirmed that no promises or threats were made either in connection with the examination or the signing of the consent.

The court examined the content of three DVD videos, the recordings of the proceeding. The videos are very lengthy but also contain periods in which the defendant was not present, having taken breaks, and no evidence was submitted suggesting that promises, threats or involuntary statements were made to any of the investigating officers during the break periods. Throughout the early stages of the interrogation, it appeared clear that the defendant understood his rights and that he could terminate the examination at any time and leave the premises. It was clear that he was not subject to arrest and, therefore, the court finds no evidence that the interrogation was custodial nor any suggestion by the defendant that it was the case. The defendant freely discussed relationships with the alleged victims and the very unhappy relationship with his wife. It was clear that whatever circumstances caused the defendant to be investigated, the defendant believes it is an effort on the part of his former wife to exact some form of retribution for one reason or another. The polygraph examiner discussed the use of the polygraph, its functioning, and he related the precise

questions that were to be asked during the examination. Before the examination, the examiner clearly gave the defendant the impression that it would be very difficult to fool the machine. It did not appear that the examiner asserted the polygraph machine to be perfect nor was there any discussion with respect to its admissibility but that the results would guide the interrogator in the investigation.

After the examination, it does not appear that the examiner accused the defendant of failing to tell the truth but he certainly hinted to the defendant that there was more to discuss. The court does not find evidence in the record as to what the results of the polygraph examination were. At any rate, it appears clear that the nature of the interrogation became more focused after the completion of the polygraph examination.

As the officer focused in on the relationship between the defendant, his wife and the stepchildren, it became clear by the response of the defendant that something had happened which he was not happy about and which was completely contrary to his personal standards of behavior. As a result, the defendant made succeeding inculpatory statement suggesting that at the behest of his depraved spouse, some conduct had taken place resulting in a confession by the defendant which he reduced to writing. His written statement concluded that he had done something wrong and he

was ready to accept the consequences even though he asserted he was pressured into

II

them." The investigator then asked the defendant to put in his statement in his words what it is he did that was wrong, more specifically. At that point, the defendant added

to his writing that, "The evil bitch that I am married 2 ... " made him engage in the unlawful conduct with the children.

The polygraph examiner then explained to the defendant that he would like him to confirm his statement by answering the questions of another detective. The second detective then entered the room and the confession was made. This is the only time that the defendant was in the examination room with any other person except the polygraph examiner. While the defendant was clearly emotionally upset at the time the final confession was made, it appears to this observer that the cause of his emotional state was the conduct under the investigation and of which the defendant was really upset as a matter of personal principle. During the discussion, the defendant offered details to the examiners which are not contained in his written statement.

The court finds no evidence of improper inducement by promises of leniency regarding either the charge or the sentence. State 7). Tardiff, 374 A.2d 598 (Me. 1977).

A confession is admissible in evidence only if voluntary, and the State bears the burden of establishing voluntariness beyond a reasonable doubt. In order to find a statement voluntary, it must first be established that it was as a result of defendant's exercise of his own free will and rational intellect. The court must consider the totality of the circumstances in determining whether a confession is voluntary. State II. Sawyer, 2001 ME 88,772 A.2d 1173 at 1175.

In applying a totality of the circumstances analysis to determine voluntariness, the court must consider both external and internal factors, such as: 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; and the defendant's age, physical and mental health, emotional stability, and conduct. 772 A.2d at 1176.

The interrogation took place in the polygraph examination room of the Maine State Police over a period of five or six hours, including break time. The circumstances were clearly not custodial. The defendant was in the room alone with a single polygraph examination/interrogator, was free to leave, at times did leave to take a break, and was told that he was not going to be arrested. The details of the polygraph examination were explained to him and he expressed and executed a document displaying his willingness to undertake the examination. There was a summary explanation of the evidence available in the case and a discussion of the defendant's relationship with his wife. The Miranda warning was given, explained to the defendant who executed a document, in evidence, confirming the same. During the process, the defendant was with a single investigating officer. A second officer did not participate in the process until the defendant had already made the inculpatory statements and was there to confirm the confession.

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