State of Maine v. Nelson

• Court: Superior Court of Maine
• Decided: January 29, 2013
• Docket: CUMcr-12-4570
• Status: Unpublished

Opinion

STATE OF MAINE UNIFIED CRIMINAL DOCKET CUMBERLAND, ss. No. CR-12-45;~ , ~'-"'-cuf'r1- 1-~'ljc~c), ~ STATE OF MAINE

v. ORDER

JOSHUA NELSON,

Defendant

Defendant Joshua Nelson is charged with two misdemeanors: a second offense

OUI and a failure to stop when requested by a police officer. Before the court is his

motion to suppress statements he made at the Gorham Police Station while he was

waiting for an intoxilyzer test and while that test was being administered.

A hearing was scheduled for December 20, 2012. By agreement at the hearing,

the parties did not present testimony but instead submitted an audio and video

recording of the events in the intoxilyzer room during the early morning hours on July

7, 2012. The State and the defense subsequently each submitted legal memoranda

arguing ·their respective positions.

There is no dispute that Nelson was in custody, having already been arrested at

that time, and there is no dispute that he had not been advised of his Miranda rights.

The major issue, on which the State bears the burden of proof by a preponderance of the

evidence, is whether Nelson's statements were spontaneous or whether they were the

product of police questioning.

From its review of the recording, the court finds as follows: During the time that Nelson was in the intoxilyzer room, he was very talkative.

He was in the intoxilyzer room for approximately 51 minutes. Officer Hinkley (the

arresting officer) was present the entire time, and another officer was in the room

almost the entire time. The interchange between Nelson and the officers consisted of

booking questions/ discussions of ATVs, discussions of the intoxilyzer procedure,

discussions of unrelated subjects, and some discussion of the incident for which Nelson

had been arrested. Many of the exchanges were initiated by Nelson and a few were

initiated by the officers.

The court finds that, although certain questions beyond booking questions were

asked by the officers, the officers were not engaged in an effort to interrogate Nelson or

elicit admissions from him. Instead they were engaging in an unguarded conversation

with a man who was talking to them in a friendly manner, variously engaging the

officers in innocent conversation, apologizing to them, bemoaning his fate (e.g., "I'm

screwed"), and asking the officers if there was any way he could avoid being charged

withanOUI.

Specifically, the court finds that Nelson's statement to the effect that the

breathalyzer test "was going to come out dirty" was a spontaneous statement not made

in response to any questioning or the functional equivalent of questioning by either

officer. 2 That statement is not subject to suppression. State v. Dominique, 2008 ME 180

13, 960 A.2d 1160. See State v. Price, 406 A.2d 883, 885 (Me. 1979) (officer has no duty to

stop defendant from making spontaneous statement).

1 No Miranda warning need be given when police are asking questions related to a defendant's identity or otherwise necessary for booking or for the administration of a breath test. See State v. Reese, 2010 ME 3018,991 A.2d 806. 2 This statement was made at approximately 3:08am, seven minutes after Nelson had entered the intoxilyzer room.

2 Hinkley then asked Nelson what he meant, which eventually elicited the

statement that the test would be "more than .08 for sure." This latter statement is also

not subject to suppression because clarifying questions made in response to ambiguous

statements volunteered by a suspect do not constitute interrogation. State v.

Dominique, 2008 ME 180 c:_rr 14.

Nelson volunteered other statements that were not elicited by police questioning

or its functional equivalent. At a later point he said, "Too bad I had some beers and

tried to drive." After the breath test was administered, he asked, "Now can you tell me

how much I failed by?" 3 Near the end of the session Nelson also joked that he could say

he wasn't drinking, only that he had had some alcohol gum.

Nelson also volunteered statements on two other subjects that were not elicited

by police questioning or the functional equivalent of such questioning. At several points

he admitted that he had initially attempted to evade arrest, and he complimented

Hinkley for chasing him down. He also initiated several attempts to persuade the

officers not to charge him with OUI, specifically asking the officers whether they could

charge him with something else instead and whether there was any way they could "no

complaint'' the charges. All of these statements were not the product of police

questioning and are not subject to suppression.

The interchange between Nelson and the officers was not continuous but was

punctuated by pauses. Some of the intermittent exchanges included questions by the

officers that elicited responses that, although not highly incriminating compared to

Nelson's volunteered statements, are nevertheless problematic. As noted above, the

officers were not engaged in a systematic or calculated attempt to elicit admissions from

3 After that volunteered statement, one of the officers asked Nelson what he thought his test result would be and he answered 0.12. In that instance, the officer's question was not a clarifying question, and Nelson's .12 answer shall be suppressed. Nelson, but their isolated questions nevertheless violated Miranda, and Nelson's

statements in response to those questions shall be suppressed. See State v. Griffin, 2003 . ·t.;;:

ME 13 <[1 8, 12, 814 A.2d 1003 (as opposed to defendant's volunteered statements, her

statement in response to a police question should have been suppressed).

The statements that shall be suppressed are the following:

• Nelson's response to the question whether he had "done an intox before."

• Nelson's responses to whether he had been driving a "Sportsman" model ATV

and to other questions relating to the model and use of his ATV.

• Nelson's response, to the extent that it was intelligible (the court could not

make out what he said), to the question "who was that with you?"

• Nelson's responses to the questions of whether he was coming from Winslow

Road (which he had already volunteered) and why he needed fuel.

• Nelson's response to the question of whether he had any other alcohol-related

offenses.4

• Nelson's response to the question of whether he had been drinking beer or

liquor. 5

At one point one of the officers told Nelson that they appreciated his

cooperation. In context, that statement was directed at the fact that (after initially

attempting to evade arrest) Nelson was not giving the officers a hard time and his

4 The answer to that question would also be potentially inadmissible, particularly if Nelson stipulates to his prior offense or requests a separate trial on that issue, see M.R.Crim.P. 26(e), in which case information about the prior offense would potentially be subject to exclusion under Rule 403 during any trial on the basic question of whether Nelson had engaged in OUI. The court notes that in some cases questions about a suspect's prior record may only be for identification purposes, see State v. Reese, 2010 ME 30 <[ 8, but in this case the prior offense is an element of the charge against Nelson, so his statements as to his prior OUI conviction will be suppressed. 5 This question was asked between attempts by Nelson to blow into the intoxilyzer and occurred a considerable time after Nelson had volunteered that it was "too bad I had some beers and tried to drive."

4 (

demeanor was very affable. Nelson's friendly demeanor and his various admissions as

to the offenses charged may simply reflect his character or may have been intended to

further his hope for some leniency by persuading the officers that he was a good guy. In

either event, his admissions did not result in any way from coercion or trickery on the

part of the officers.

Moreover, no promise or suggestion of leniency was ever communicated.

Indeed, the officers good-naturedly but firmly rebuffed Nelson when he initiated

discussions on whether he could avoid an OUI charge. In context, as noted above, the

officer's statement about cooperation was not intended to and did not elicit admissions

from Nelson. Nelson thereafter made a statement that was in the same vein as his other

spontaneous statements ("I was hoping to get away. I'm screwed"), but this statement-

like his prior admissions -was a volunteered statement that was not the product of

questioning or its functional equivalent.

Nelson has also raised the contention that his statements in the intoxilyzer room

were involuntary. On this issue, the State must prove voluntariness beyond a

reasonable doubt. A defendant's statements are voluntary if they result from the free

choice of a rational mind, are not the product of coercive police conduct, and if under

the circumstances the admission of those statements at tri'al would be fundamentally

fair. State v. Coombs, 1998 ME 1 «f[ 10, 704 A.2d 387. In this case the audio and

videotape of the interaction in the intoxilyzer room proves beyond a reasonable doubt

that no coercion or trickery was used; that Nelson was not emotionally, physically, or

psychologically impaired; that Nelson was joking around with the officers throughout;

and that all of his statements were freely made and were the product of a rational mind.

Under all the circumstances, the court, having excluded Nelson's statements made in

5 response to police questions, finds that the admission of Nelson's volunteered

statements would be fundamentally fair.

For the foregoing reasons, defendant's motion to suppress is granted as to the

specific statements set forth above that were made in response to police questions.

Defendant's motion to suppress the statements set forth above that were volunteered is

denied.

Dated: January t i 2013

Thomas D. Warren Justice, Superior Court