State of Maine v. McDonald

Maine Superior

State of Maine v. McDonald

Superior Court of Maine·Decided July 14, 2010·No. KENcr-09-685·Unpublished

Opinion

STATE OF MAINE CRIMINAL ACTION KENNEBEC, ss DOCKET NO. CR-09-685 vtI ftl,11- KeN - 7/'-I//0ID //

STATE OF MAINE

v. ORDER ON MOTIONS TO SUPPRESS

KENNETH MCDONALD

Before the Court are two Motions to Suppress filed by the Defendant on

November 9, 2009 and January 22, 2010. Hearing on the motions was held on May 21,

2010. The Defendant is charged with the intentional and knowing and/or depraved

indifference murder of his mother, Janice McDonald on August 24,2009. He is

represented by Attorney James Billings, and the State is represented by Assistant

Attorney General Leane Zainea.

At the beginning of the hearing the State conceded that the Defendant was in

custody for Miranda purposes from the outset of the interview conducted by Maine State

Police on August 25, 2009. In addition, the Defendant conceded that proper Miranda

warnings were given to him on that date. The Defendant clarified that the only issues

remaining in his two motions to suppress statements were the voluntariness of the

statements made to police on August 25, 2009 and to his sister, Ellen Horton, on

September 3, 2010, and whether the statements he made to her were obtained in violation

of his Sixth Amendment right to counsel.

1 The Court has reviewed the testimony and exhibits entered into evidence at

hearing on May 21, 2010 and has considered the arguments of counsel. For reasons

explained below, both motions to suppress statements of the Defendant are denied.

Findings

On August 25, 2009 Janice McDonald was found dead in her home in Monmouth,

Maine. Her son, the Defendant, soon became the focus of the investigation. Mr.

McDonald was scheduled to work that day at the Monmouth Transfer Station, but was

located on Bailey's Island in Harpswell by Dep. Clayton Stromsky who was responding

to a "loitering" complaint. Dep. Stromsky testified at the hearing on May 21, 2010. He

indicated that he found the Defendant sitting on a boulder near the Land's End Gift Shop

on Bailey's Island. Dep. Stromsky stated that he asked the Defendant to go with him to

Topsham to meet with "someone" who wanted to talk to him. He stated that while

enroute to the McDonald's in Topsham, he and the Defendant exchanged pleasantries.

He said that the Defendant did not seem to be under the influence of alcohol, that he was

not agitated, and he described the Defendant's demeanor as "very quiet." No

incriminating statements were made by the Defendant to Dep. Stromsky.

Det. Adam Kelley testified that he picked up the Defendant at the Topsham

McDonald's and transported him to the Monmouth Police Department for questioning.

He said that the Defendant rode with him in the front seat, without handcuffs. Again, the

Defendant made no inculpatory statements about his mother's death. According to Det.

Kelley, the transport of the Defendant from Topsham to Monmouth took approximately

2 44 minutes. During the transport, they discussed his employment at the transport station,

but there was no discussion about what had happened at the Defendant's home.

At the Monmouth Police Department, Det. Kelley testified that he and Det. Abbe

Chabot interviewed the Defendant. Before any questioning, the Defendant was read a

Miranda waiver form (State's Exh. 4) which the Defendant signed, indicating he was

waiving his rights. The interview was recorded on a digital recorder and by audio

recording. The audio recording was admitted as State's Exh. 1, and the digital recording

as admitted as State's Exh. 2. During the interview the Defendant consented to a search

for certain items of physical evidence, including DNA, photographs of scratches on his

hands and shoes, and major case impressions.

The interview at the Monmouth Police Department began, according to State's

Exh. 3, at 2:52 pm and concluded at 9:19 pm. Four different participants from the Maine

State Police interviewed the Defendant during this time frame: Det. Abbe Chabot, Det.

Adam Kelley, Det. Bryant Jacques, and Sgt. Anna Love. The interview could fairly be

characterized as confrontational at times, particularly during portions of the interviews

conducted by Detectives Chabot and Kelley. The approach taken by both detectives was

to convince the Defendant that they knew he had killed his mother, and that the physical

evidence against him was significant and mounting. As Attorney Billings pointed out on

cross-examination, the detectives, in fact, either exaggerated or fabricated the existence

of some of the evidence they had as of the time of interview.

The detectives also exhorted the Defendant to tell the truth, stressing that he owed

it to his family who were grieving over the loss of his mother, and also that he owed it to

himself and to the reputation he enjoyed in the community as a good and honest person.

3 There is no indication in the interview that the Defendant was made any promises

of leniency, or that he was ever threatened in any way. There is no evidence that he was

under the influence of drugs or alcohol, or that he was mentally ill. The parties agree that

the Defendant is described by people in his family and community as "slow" and socially

awkward. However, the audio and video evidence submitted show the Defendant to be

articulate, to be aware of his surroundings, to understand the nature of the interrogation,

and to bear up under and resist considerable pressure to admit that he killed his mother.

While he arguably makes statements that could be viewed as indirectly incriminating, he

never admits to the detectives during this more than six-hour interview that he was

responsible for his mother's death.

The State has the burden of proving, beyond a reasonable doubt, that the

Defendant's statements to the four detectives were voluntary. State v. Rees, 2000 ME 55.

Whether a confession is voluntary is primarily a question of fact, determined by the

totality of the circumstances. The Maine Supreme Court has held that in making this

determination, "both external and internal factors" have to be considered. These include

"the details of the interrogation; the duration of the interrogation; the 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." State v. Sawyer, 2001 ME

88.

In this case, the interview lasted over six hours, and four officers were involved.

In addition, the State has conceded that he was in custody such that Miranda warnings

4 were required. In addition, it is clear that the officers at times lied to the defendant about

having DNA evidence, about having his fingerprints at the scene, and about the time of

death. However, a review of the evidence, most particularly the video and audio

evidence, convinces the Court that whatever arguably incriminating statements made

were voluntary beyond a reasonable doubt. The Court finds that the statements resulted

from the free choice of a rational mind, and the statements, such as they are, cannot be

said to be the product of coercive police conduct. They also cannot be said to be based

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