State of Maine v. Swift

• Court: Superior Court of Maine
• Decided: December 28, 2007
• Docket: KENcr-07-371
• Status: Unpublished

Opinion

STATE OF MAINE . _ RE~EIV:D llli!] FILf"SUPERIOR COURT rLlii'1!:.iJU.; ~!;;[,::r: =,

v. ORDER ON MOTION TO SUPPRESS . :-.' -("," ') O "v ~(>..\.O '.. COREY SWIFT, tr Defendant . ',' ')\\\}~ ft\~' \ '.) L

This matter is before the court on defendant's motion to suppress "any and all

statements made by her (sic) to any and all law enforcement officers on the grounds

that said statements were made without the benefit of a Miranda at a time when a

Miranda warning should have given and was thus in violation of defendant's

constitutional rights pursuant to the Fifth and Sixth Amendments of the United States

Constitution as well as the relevant provisions of the Maine Constitution." Defendant

further moves to suppress "any and all statements made by her (sic) on the grounds

that said statements were involuntary."

On April 24, 2007, one Jean Paul Poulain was killed by a firearm. During the

initial stages of the investigation, the law enforcement officers became aware of the

possible involvement of a person named "Cody" or "Corey." Further investigation led

a detective of the Augusta Police Department and a detective of the Maine State Police

to an apartment at which were located three persons, Amanda Bechard, Corey Swift

and his brother Mathiew. The Augusta Police detective asked Corey Swift to come out

on a porch to talk but subsequently asked Swift to join him in his cruiser, ostensibly for

privacy and because the defendant was slightly dressed and the temperature was cool.

The interview was conducted at approximately 10:00 p.m. 2

After discussing a lot of personal information, the interview came to the point

where the defendant denied leaving the apartment that evening except to go to the

store. On being challenged, the defendant agreed that he was present at the location

where the homicide took place and was, therefore, to the officer, an eyewitness. After

further questions, the officer left his cruiser and went to a nearby cruiser where

Amanda Bechard was being questioned by the Maine State Police detective. He advised

the trooper detective that Mr. Swift had admitted to being an eyewitness and a joint

interview continued in the Augusta Police cruiser by both detectives.

The entire episode was recorded and subsequently transcribed. According to the

recording, both interviews lasted one hour, 11 minutes and 16 seconds. During this

interview, the defendant discussed in significant detail the events leading up to the

incident, the details of the incident and the defendant's role in the entire matter. At

some point, deep in the joint interview, the defendant asked, "Am I going to have to go

court for this?" The response by the officer was, "Well, I, there's a good chance.

Urn ...," Subsequently, the detective suggested a need to retrieve the clothing worn by

the parties that was up in the apartment nearby. At that point, the defendant asked,

"Do you want my clothing?" The Maine State Police responded, "Just, just the stuff that

you were wearing then." Mr. Swift then responded, "Well, I can go up and get that for

you." In fact, at the end of the interview, the defendant did accompany the officers into

the apartment and provided articles of clothing that were placed in evidence bags.

The defendant was then asked if he knew where the gun was and the defendant

made a general description of the location. At that time, arrangements were made for

Swift to accompany the officer to retrieve the gun. The officers were concerned that

there was an unattended loaded pistol somewhere which represented a public safety

issue. While leaving the apartment, Amanda Bechard stated to Corey Swift, "Do you 3

know that you're not coming back?" The Maine State Police detective responded, "Well

he's coming back. He's gonna go show me where the gun (unclear)." In fact, Mr. Swift

did accompany the officers to show them the location of the gun and it was retrieved.

Up to this point, all of the discussion with Corey Swift related to the

circumstances before the incident, the homicide itself and the activities subsequent to

the shooting primarily of Mathiew Loisel, the alleged shooter. The defendant was fully

cooperative and had every expectation that the officers had not made any conclusion to

initiate charges against him. However, after retrieving the gun, the defendant found

himself in the parking lot of Dunkin Donuts in the officer's cruiser. At 11:45 p.m., the

Maine State Police detective conferred with his sergeant supervisor who instructed him

to interview the defendant"on just what he did during the shooting not including what

Mathiew Loisel did." The officer testified that he was further instructed to arrest the

defendant at the conclusion of the interview. This interview, also, was recorded and

transcribed and lasted seven minutes and 46 seconds. At an early point in the

interview, the State Police detective said:

Okay. All right. Well, this is the deal. You saw me talking to ... to my supervisors up there. Urn... What's gonna have to happen tonight is we're gonna have to take ... take you down to the jail. Okay?

Mr. Swift: Me?

Detective: Yep.

Defendant: For what?

Detective: Yep, you're gonna be booked for a felony murder and I'll explain it to you.

Defendant: Audible sigh. How am I getting charged with it?

Detective: Because you were part of it. You ... I know you weren't ... 4

This reaction by the defendant was a spontaneous expression of surprise and a clear

indication that he did not believe he was in custody but was an eyewitness to the entire

transaction. However, the officers had the intention of arresting the defendant after the

interview, the interview was focused on the activities of the defendant, not the shooter,

he was clearly in custody regardless of the defendant's subjective belief and the

interview by all indications was a violation of the Fifth Amendment rights of the

defendant and a violation of the Miranda doctrine.

A subsequent interview took place at the Kennebec County Correctional Facility

on April 25 th . This, too, was recorded and lasted 27 minutes and 2 seconds. At this

interview, a clear Miranda warning and acknowledgement was exercised and not

subject to suppression.

The standard by which this court determines whether the three interviews by the

law enforcement officers should be suppressed for purposes of a trial are fully

expressed in State v. Michaud, 1998 ME 251, 724 A.2d 1222. According to Miranda v.

Arizona, 384 U.S. 436, the Court says:

In order to safeguard an uncounseled criminal defendant's Fifth Amendment privilege against self-incrimination, law enforcement officers may not begin a custodial interrogation before warning the suspect "that he has a right to remain silent, that any statement he does make may be used against him, and that he has a right to the presence of an attorney, either retained or appointed.

Quoting further Thompson v. Keohane, 516 U.S. 99 (1995). The Court says:

The United States Supreme Court has defined "custodial interrogation" as "questioning initiated by law enforcements after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."

Therefore, a Miranda warning is necessary only if a defendant is: "(I) in custody; and (2)

subject to interrogation." State v. Swett, 1998 NIB 76, 709 A.2d 729. 5

The Michaud court goes on to explain that a defendant is "in custody" if subject

to either: "(a) a formal arrest; or (b) a restraint on freedom of movement [to] the degree

associated with a formal arrest." Michaud, 1998 ME 251,

Stansbury v. California, 511 U.s. 318, 322 (1994)). "To determine whether the defendant

was restrained to the degree associated with a formal arrest, a court must ascertain

"whether a reasonable person in the defendant's position would have believed he was

in police custody and constrained .to a degree associated with formal arrest." In the

"reasonable person" analysis of whether a defendant is "in custody", a court may

examine a number of objective factors, including:

(1) the locale where the defendant made the statements;

(2) the party who initiated the contact;

(3) the existence or non-existence of probable cause to arrest (to the extent

communicated to the defendant);

(4) subjective views, beliefs, or intent that the police manifested to the

defendant, to the extent they would affect how a reasonable person in the defendant's

position would perceive his or her freedom to leave;

(5) subjective views or beliefs that the defendant manifested to the police, to

the extent the officer's response would affect how a reasonable person in the

defendant's position would perceive his or her freedom to leave;

(6) the focus of the investigation (as a reasonable person in the defendant's

position would perceive it);

(7) whether the suspect was questioned in familiar surroundings;

(8) the number of law enforcement officers present;

(9) the degree of physical restraint placed upon the suspect; and

(10) the duration and character of the interrogation. 6

Michaud, 1998 NIB 251, en: 4, 724 A.2d 1222, 1226 (quoted in State v. Dian, 2007 ME 87,

en: 23,1928 A.2d 746, 750-51).

Having concluded that the second interview in the Dunkin Donuts parking lot

was a violation of the defendant's Fifth Amendment rights and must be excluded and

having concluded that the interview at the Kennebec County Correctional Facility was

preceded by a proper Miranda warning, the court must now conduct an analysis of the

interview in the police cruiser outside of Amanda Bechard's apartment in light of the

standards of State v. Dian.

The interview took place in a cruiser immediately outside the apartment where

the defendant had spent the previous evening and where his girlfriend lived. He sat in

the front seat and the officer left him alone in the cruiser when he went to confer with

the other detective. The officers initiated the contact with Mr. Swift. The officers did

not have probable cause to arrest him nor did they communicate such probable cause at

any time during the interview. On more than one occasion, the officers manifested to

the defendant a freedom of movement including leaving the cruiser, voluntarily going

to the apartment to gather clothes, going to find the loaded weapon with instructions to

the girlfriend that they would return. From views expressed to the defendant it is clear

that a person in his position would not believe he was in custody. Further, as the court

will express from the Dunkin Donuts parking lot interview, it is abundantly clear that

the defendant did not believe he was in custody. The defendant inquired of the officers

as to whether he would be involved and his surprise manifested in his reaction at being

arrested clearly reveals that the defendant, as a reasonable person in his position,

perceived as a fact that he was not in custody up until that point. The focus of the

investigation outside the apartment as a reasonable person in the defendant's position

would perceive it was clearly the activities of Mathiew Loisel. There is no reason to 7

believe that the defendant was not familiar with the surroundings where the interview

took place as he spent considerable time in that location. There were a number of law

enforcement officers present, possibly four or five, but Mr. Swift was only involved

with the two detectives. There was no physical restraint placed upon Mr. Swift at any

time during these activities and the court does not find the duration and character of the

interrogation to be consistent with a custodial interrogation until he was examined in

the Dunkin Donuts parking lot.

The defendant argues the standards as found in a case subsequent in time to

Michaud, State v. Hassan, 2007 NIB 77, 925 A.2d 625. In that case, the Court states:

In order for statements made prior to a Miranda warning to be admissible, the State must prove, by a preponderance of the evidence, that the statements were made while the person was not in custody, or was not subject to interrogation.

Id. at err 13, 925 A.2d at 628 (quoting State v. Bridges, 2003 ME 103, err 23, 829 A.2d 247,

254).

The test of whether an individual was in custody is an objective, expressed as 'whether a reasonable person, standing in the defendant's shoes, would 'have felt he or she was not at liberty to terminate the interrogation and leave'.

Bridges, 2003 NIB 103, err 26, 829 A.2d at 254. Stated differently, the determination is

"whether there was a 'restraint on freedom of movement' to the degree associated with

formal arrest." Id. The court then goes on to list the criteria for consideration citing

Bridges, the same standards as found in Michaud.

This is somewhat unusual because the court is not required to delve deeply into

all of the circumstances to determine whether the defendant was in custody, although

in doing so it concludes that during the first interviews he clearly was not in custody.

The court does not have to follow that analysis because the very actions by the

defendant himself when advised that he was under arrest so clearly manifested a 8

surprise that he was even being charged with a crime notwithstanding his earlier

questions as to whether he would be charged and the detective stating that to be a

possibility. Note, it was a possibility, not a conclusion.

Accordingly, the entry will be:

Defendant's motion to suppress statements made by the defendant in the interviews with Detective Jason Cote and Detective Dean Jackson in the driveway at 3 Gannett Street, Augusta, Maine, at approximately 10:00 p.m. on April 24, 2007, recording identification no. Oc07.2835005, is DENIED; defendant's motion to suppress statements of defendant of the interview in the Dunkin Donuts parking lot at approximately 11:45 p.m., on April 24, 2007, recording identification no. 0607.283502 is GRANTED; statements of the defendant in the interview of April 25, 2007, in the Kennebec County Correctional Facility, recording identification no. 0207.283501 is DENIED.

Dated: December z,1", 12007 ~en-- Justice, Superior Court STATE OF MAINE SUPERIOR COURT vs KENNEBEC, 5S. COREY R SWIFT Docket No AUGSC-CR-2007-00371 3 GANNETT STREET APT 4 AUGUSTA ME 04330 DOCKET RECORD

DOB: 08/10/1988 Attorney: JAMES BILLINGS State's Attorney: FERNAND LAROCHELLE LIPMAN & KATZ & MCKEE, PA 227 WATER STREET PO BOX 1051 AUGUSTA ME 04332-1051 APPOINTED 07/13/2007

Filing Document: CRIMINAL COMPLAINT Major Case Type: HOMICIDE Filing Date: 04/25/2007

Charge{s)

1 FELONY MURDER 04/24/2007 AUGUSTA Seq 622 17-A 202(1) Class A

2 ROBBERY 04/24/2007 KENNEBEC Seq 747 17-A 651(1) (D) Class A Charged with INDICTMENT on Supplem

Docket Events:

04/25/2007 FILING DOCUMENT - CRIMINAL COMPLAINT FILED ON 04/25/2007

04/25/2007 Charge(s): 1 HEARING - INITIAL APPEARANCE SCHEDULED FOR 04/25/2007 @ 3:00

NOTICE TO PARTIES/COUNSEL 04/26/2007 Charge(s): 1 HEARING - INITIAL APPEARANCE HELD ON 04/25/2007 DONALD H MARDEN , JUSTICE Attorney: SHERRY TASH DA: FERNAND LAROCHELLE Reporter: CASE ENOCH Defendant Present in Court 04/26/2007 Charge(s): 1 HEARING - STATUS CONFERENCE SCHEDULED FOR 06/26/2007 @ 10:00

04/26/2007 Charge(s): 1 PLEA - NO ANSWER ENTERED BY DEFENDANT ON 04/25/2007

04/26/2007 BAIL BOND - NO BAIL ALLOWED SET BY COURT ON 04/25/2007

04/26/2007 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 04/25/2007

04/26/2007 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 04/25/2007

COPY TO PARTIES/COUNSEL 04/26/2007 Party(s): COREY R SWIFT Page 1 of 5 Printed on: 12/28/2007 COREY R SWIFT AUGSC-CR-2007-00371 DOCKET RECORD ATTORNEY - APPOINTED ORDERED ON 04/25/2007

Attorney: SHERRY TASH 04/26/2007 Charge(s): 1 HEARING - STATUS CONFERENCE NOTICE SENT ON 04/26/2007

04/30/2007 Charge(s): 1 MOTION - MOTION FOR WITHDRAWAL OF CNSL FILED BY COUNSEL ON 04/30/2007

Attorney: SHERRY TASH 05/03/2007 ORDER - SPECIAL ASSIGNMENT ENTERED ON 05/01/2007 DONALD H MARDEN , JUSTICE 05/03/2007 ORDER - COURT ORDER FILED ON 05/03/2007

SCHEDULING ORDER 05/04/2007 Charge(s): 1 MOTION - MOTION FOR WITHDRAWAL OF CNSL GRANTED ON 05/03/2007 DONALD H MARDEN , JUSTICE COpy TO PARTIES/COUNSEL 05/04/2007 Party(s): COREY R SWIFT ATTORNEY - WITHDRAWN ORDERED ON 05/03/2007

Attorney: SHERRY TASH 05/04/2007 Party(s) : COREY R SWIFT ATTORNEY - APPOINTED ORDERED ON 05/03/2007

Attorney: STEPHEN BOURGET 05/04/2007 MOTION - MOTION FOR FUNDS FILED BY DEFENDANT ON 05/03/2007

05/07/2007 Charge(s): 1,2 SUPPLEMENTAL FILING - INDICTMENT FILED ON 05/04/2007

05/07/2007 Charge(s): 1,2 HEARING - ARRAIGNMENT SCHEDULED FOR 05/11/2007 @ 3:30

05/08/2007 OTHER FILING - NOTICE OF JOINDER FILED BY STATE ON 05/08/2007

WITH CR07-372 05/14/2007 Charge(s): 1,2 HEARING - ARRAIGNMENT HELD ON 05/11/2007 @ 3:30 DONALD H MARDEN , JUSTICE Attorney: STEPHEN BOURGET DA: FERNAND LAROCHELLE Reporter: PEGGY STOCKFORD Defendant Present in Court

READING WAIVED. DEFENDANT INFORMED OF CHARGES. COpy OF INDICTMENT/INFORMATION GIVEN TO DEFENDANT. 21 DAYS TO FILE MOTIONS 05/14/2007 Charge(s): 1 PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 05/11/2007

05/14/2007 BAIL BOND - $50,000.00 CASH BAIL BOND SET BY COURT ON 05/11/2007

05/14/2007 BAIL BOND - $250,000.00 SURETY BAIL BOND SET BY COURT ON 05/11/2007 Page 2 of 5 Printed on: 12/28/2007 COREY R SWIFT AUGSC-CR-2007-00371 DOCKET RECORD

OS/22/2007 Charge(s): 1,2 PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 05/17/2007

OS/22/2007 MOTION - MOTION FOR FUNDS GRANTED ON 05/14/2007 DONALD H MARDEN , JUSTICE COpy TO PARTIES/COUNSEL OS/22/2007 Charge(s): 1 HEARING - STATUS CONFERENCE NOT HELD ON 05/17/2007

07/12/2007 MOTION - MOTION FOR WITHDRAWAL OF CNSL FILED BY COUNSEL ON 07/10/2007

07/12/2007 MOTION - MOTION FOR WITHDRAWAL OF CNSL GRANTED ON 07/12/2007

COpy TO PARTIES/COUNSEL 07/12/2007 MOTION - MOTION FOR APPOINTMENT OF CNSL FILED BY DEFENDANT ON 07/12/2007

07/16/2007 MOTION - MOTION FOR APPOINTMENT OF CNSL GRANTED ON 07/13/2007

COpy TO PARTIES/COUNSEL 07/16/2007 Party(s): COREY R SWIFT ATTORNEY - WITHDRAWN ORDERED ON 07/13/2007

Attorney: STEPHEN BOURGET 07/16/2007 party(s): COREY R SWIFT ATTORNEY - APPOINTED ORDERED ON 07/13/2007

Attorney: JAMES BILLINGS 07/25/2007 OTHER FILING - COUNSEL VOUCHER FILED ON 07/24/2007

Attorney: SHERRY TASH 07/25/2007 OTHER FILING - COUNSEL VOUCHER APPROVED ON 07/25/2007

$295.00 COUNSEL FEES $5.65 EXPENSES 08/01/2007 MOTION - OTHER MOTION FILED BY DEFENDANT ON 07/27/2007

MOTION TO AMEND SCHEDULING ORDER 08/01/2007 MOTION - MOTION FOR DISCOVERY FILED BY STATE ON 07/27/2007

08/07/2007 MOTION - MOTION FOR DISCOVERY GRANTED ON 08/07/2007

COpy TO PARTIES/COUNSEL 08/07/2007 ORDER - COURT ORDER FILED ON 08/07/2007

DISCOVERY ORDER 08/31/2007 MOTION - OTHER MOTION FILED BY DEFENDANT ON 08/31/2007

MOTION TO AMEND SCHEDULING ORDER 09/06/2007 MOTION - OTHER MOTION GRANTED ON 09/04/2007

MOTION TO AMEND SCHEDULING ORDER 09/18/2007 MOTION - OTHER MOTION GRANTED ON 09/17/2007

Page 3 of 5 printed on: 12/28/2007 COREY R SWIFT AUGSC-CR-2007-00371 DOCKET RECORD MOTION TO AMEND SCHEDULING ORDER 09/25/2007 HEARING - BAIL HEARING SCHEDULED FOR 09/27/2007 @ 8:30

NOTICE TO PARTIES/COUNSEL 09/27/2007 HEARING - BAIL HEARING CONTINUED ON 09/27/2007

09/27/2007 OTHER FILING - WITNESS & EXHIBIT LIST FILED BY STATE ON 09/26/2007

09/27/2007 MOTION - MOTION TO AMEND BAIL FILED BY DEFENDANT ON 09/27/2007

09/27/2007 HEARING - MOTION TO AMEND BAIL SCHEDULED FOR 09/28/2007 @ 8:29

NOTICE TO PARTIES/COUNSEL 10/01/2007 HEARING - MOTION TO AMEND BAIL HELD ON 09/28/2007 DONALD H MARDEN , JUSTICE Attorney: JAMES BILLINGS DA: FERNAND LAROCHELLE 10/01/2007 MOTION - MOTION TO AMEND BAIL GRANTED ON 09/28/2007 DONALD H MARDEN , JUSTICE COPY TO PARTIES/COUNSEL 10/01/2007 BAIL BOND - $250,000.00 SURETY BAIL BOND SET BY COURT ON 09/28/2007 DONALD H MARDEN , JUSTICE OR $50,000 CASH 10/01/2007 BAIL BOND - $250,000.00 SURETY BAIL BOND FILED ON 10/01/2007

Bail Amt: $250,000 Surety Type: REAL ESTATE Surety Value: $0 County: KENNEBEC County Book ID: 9514 Book Page: 193 Date Bailed: 09/28/2007 Prvdr Name: MARLENE SWIFT BERNITA BOGWORTH Lien Issued: 09/28/2007 Rtrn Name: Lien Discharged: BERNITA BOGWORTH'S LIEN WAS ISSUED OUT OF LINCOLN COUNTY, BOOK 3914, PAGE 222. 10/02/2007 OTHER FILING - WITNESS LIST FILED BY DEFENDANT ON 10/01/2007

10/30/2007 Charge(s): 1,2 MOTION - MOTION TO SUPPRESS STATEMENT FILED BY DEFENDANT ON 10/30/2007

11/05/2007 MOTION - MOTION TO TERMINATE BAIL FILED BY THIRD PRTY ON 11/05/2007

11/05/2007 MOTION - MOTION TO TERMINATE BAIL GRANTED ON 11/05/2007

COPY TO PARTIES/COUNSEL 11/05/2007 Charge(s): 1,2 WARRANT - ON CaMP/INDICTMENT ORDERED ON 11/05/2007

11/05/2007 Charge(s): 1,2 WARRANT - ON CaMP/INDICTMENT ISSUED ON 11/05/2007

CERTIFIED COPY TO WARRANT REPOSITORY 11/06/2007 Charge(s): 1,2 WARRANT - ON CaMP/INDICTMENT EXECUTED ON 11/05/2007

11/06/2007 Charge(s) : 1,2 WARRANT - ON CaMP/INDICTMENT RETURNED ON 11/06/2007 Page 4 of 5 Printed on: 12/28/2007 COREY R SWIFT AUGSC-CR-2007-00371 DOCKET RECORD

12/04/2007 HEARING - MOTION TO SUPPRESS STATEMENT SCHEDULED FOR 12/20/2007 @ 1:00 DONALD H MARDEN , JUSTICE NOTICE TO PARTIES/COUNSEL 12/28/2007 HEARING - MOTION TO SUPPRESS STATEMENT HELD ON 12/20/2007 DONALD H MARDEN , JUSTICE Attorney: JAMES BILLINGS DA: FERNAND LAROCHELLE Reporter: CASE ENOCH Defendant Present in Court 12/28/2007 Charge(s): 1,2 MOTION - MOTION TO SUPPRESS STATEMENT DENIED ON 12/28/2007 DONALD H MARDEN , JUSTICE COpy TO PARTIES/COUNSEL DENIED AS TO THE INTERVIEW ON APRIL 24, 2007 AT 10:00 IN THE DRIVEWAY AT 3 GANNETT STREET IN AUGUSTA AND THE INTERVIEW OF APRIL 25TH IN THE KCCF 12/28/2007 Charge(s): 1,2 MOTION - MOTION TO SUPPRESS STATEMENT GRANTED ON 12/28/2007 DONALD H MARDEN , JUSTICE COPY TO PARTIES/COUNSEL GRANTED AS TO THE INTERVIEW ON APRIL 24TH AT 11:45 IN THE DUNKIN DONUTS PARKING LOT

A TRUE COpy ATTEST: Clerk

Page 5 of 5 Printed on: 12/28/2007