STATE OF MAINE SUPERIOR COURT
SOMERSET, ss CRIMINAL ACTION DOCKET NO. CR-.03-4/77 STATE OF MAINE ) os ) Plaintiff )
Wendy M. Robinss¥UPPRESS EVIDENCE wOV 03 2004
ni Defendant ) Sometcat ety
SCOTT M. VIOLETTE,
he NOV 8 90nd
This matter is before the Court on the Defendant’s, Mr. Scott M. Violette, Motion to Suppress statements made on September 19, 2003. The motion is denied.
Background
On August 30, 2003 a fire occurred in Norridgewock, Maine. The Defendant was questioned concerning the incident and was interviewed on three separate occasions by State Fire Marshall’s Investigators Kenneth Grimes and Scott Richardson and once by Maine State Police polygraph operator Detective Troy Gardner. The first interview was at the Defendant’s residence on August 30, 2003 with the investigators and lasted for ten to fifteen minutes. The Defendant was not read his Miranda rights. The second interview was at the Norridgewock Fire Station with the investigators and lasted for approximately one hour. The Defendant voluntarily agreed to attend this interview. The Defendant’s girlfriend, Jamie Richardson, accompanied him. The Defendant was not read his Miranda rights at this interview. It is the events that occurred during the third interview on September 19, 2003 that resulted in the Defendant making the statements at
issue. The Defendant agreed to meet the investigators and Detective Gardner at the
Bangor Mental Health facility in order to take a polygraph test. The first part of this interview lasted for two hours. The investigators did not conduct the polygraph exam. It was at this interview that the Defendant was given his Miranda rights in writing, which he immediately waived. The Defendant, eventually, clearly expressed his desire to speak to an attorney and the investigators stopped asking questions. They sent the Defendant to a lounge to wait for Richardson to return to pick him up. The investigators spoke with Richardson upon her arrival. According to their testimony, they wanted to find out if the Defendant had told her anything and informed her that the Defendant was a suspect. They also informed her of some inconsistencies that had developed in the Defendant’s story. Richardson then met with the Defendant and confronted him with the inconsistencies. An emotional conversation ensued and the Defendant agreed to confess. The Defendant then returned and made statement to the investigators admitting that he had started the fire and reiterated that he was acting voluntarily. The Defendant was charged with Class A arson and is now moving to suppress the inculpatory statements made during the final, September 19", interview. Discussion
A. Miranda
The Defendant argues that after he asked for an attorney at the end of the third interview on September 19, 2003, it was improper for the officers to continue to question him when he returned with Robinson to make the incriminating statements. The United
Supreme Court in Miranda v. Arizona, 384 U.S. 436, 474 (1966), stated that if a suspect
“states that he wants an attorney, the interrogation must cease until an attorney is present.
At that time, the individual must have an opportunity to confer with the attorney and have
him present during any subsequent questioning.” The Court has also stated that after a suspect expresses his desire to speak with an attorney, he is not subject to interrogation, “unless the accused himself initiates further communication, exchanges, or conversation
with the police.” Edwards v. Arizona, 451 U.S. 477, 485 (1981). The State argues that
after the Defendant was read his Miranda rights at the beginning of the final interview, he voluntarily waived those rights and that his later request for an attorney was honored. The State further argues that the officer was merely clarifying the Defendant's desire for an attorney before ending the interview:
Scott Violette (SV): By the sounds of that I think I should probably see a lawyer first. Sounds like they’re going to try to say I started it and I did not start it on purpose. Detective Gardner (DG): Well, it sounds to me that they want to know if you started it. Obviously from the changes in your story, they have reason to be concerned. I need to know whether you want to continue — up to you — you do have a right to talk to an attorney.
SV: I think I am going to talk to an attorney.
DG: So are you telling me now that you want to talk to an attorney?
SV: | think I’m gonna still go with this but I am still going to get an attorney too.
DG: Okay, what I need to know, Scott, before we go any further...
DG: Do you want to talk to an attorney?
SV: Yes, I think so.
DG: It sounds to me that you’re not sure if you want to talk to an attorney. My place is
to make sure that you know that you have a right to, if you want to.
SV: Yes
DG: So, before we do anything else, are you saying that you want to talk to an attorney? SV: Yes
DG: I will be with you in a second. Okay?
SV: Yes.
The interview ended and did not commence until after the Defendant returned with Robinson to make his final incriminating statement. The Defendant did not make a clear statement that he wanted to speak with an attorney until after Detective Gardner questioned him about it. Once it became clear that the Defendant, in fact, did want to speak with an attorney before proceeding, Detective Gardner ended the interview. This Court finds that Detective Gardner acted properly.
The Defendant further argues that the investigators used Robinson as an agent to continue the interview and persuade the Defendant to confess. If this were true, then the Defendant’s incriminating statements would not be admissible, because his right to remain silent and his right to an attorney under the Fifth Amendment would not have been honored. However, the evidence before the Court does not support this argument. Upon returning with the Defendant, Robinson assured the officers that the officers merely “explained to her what was going on and the evidence and how the investigation was going ....” The officers testified that they wanted to know if the Defendant had told her anything, which further indicates the officer’s respect for the Defendant’s right to an attorney. Robinson stated that she told the Defendant to be honest with her and confronted him with the evidence given to her by the officers.’ The evidence also reveals
that the officers considered the interview to be over and were surprised when the
1 : In fact, Robinson even assured the officers that the Defendant was the one that physically led her back to the officers and that she was confident that he was not admitting it “to get it done and over with.” Defendant returned to make his statement.’ Robinson was not acting as an agent of the police and, thus, it was not improper for her to voluntarily talk to the Defendant and persuade him to reinitiate the interview with the officers and confess.
This Court concludes that the Defendant’s request for an attorney was properly
honored and that Robinson was not acting as an agent of the police when she spoke with
him and persuaded him to confess. B. Confessions and Voluntariness
Confessions must be voluntary in order to be admissible. State v. Curtis, 552 A2d 530, 532 (Me. 1988). Whether a confession is voluntarily is primarily a question of
fact for the court to decide outside the presence of the jury. State vy. Lockhart, 2003 ME
108, § 29, 830 A.2d 433, 444. A voluntary statement is one that is “is the result of defendant’s exercise of his own free will and rational intellect” and not a statement that results from “threats, promises or inducements made to the defendant.” State v.
McCarthy, 2003 ME 40,9 12, 819 A.2d 335, 340; see also, State v. Rees, 2000 ME 55,9
3,748 A.2d 976, 977. A confession must not be a product of coercive police conduct and, under all circumstances; its admission must be fundamentally fair. State v. Smith, 615 A.2d 1162, 1164 (Me. 1992). The State bears the burden of proving beyond a reasonable doubt that the confession and statements were voluntary. Lockhart, 2003 ME 108, § 30, 830 A.2d at 444. The trial court must consider the “totality of the circumstances” in making its decision of whether the statements were voluntary. State v. Coombs, 1998 ME 1,9 7, 704 A.2d 387, 389. Internal and external factors such as the
“details of the interrogation; duration of the interrogation, location of the interrogation;
2 . cas The officers even called the district attorney to ask for advice in order to make sure it was proper for them to continue questioning the defendant. 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” are all factors to be considered when determining the
“totality of the circumstances.” State v. Sawyer, 2001 ME 88,99,819 A.2d 1173, 1176;
Rees, 2000 ME 55,9 3, 748 A.2d at 977.
Cc. Voluntariness of Violette’s Statements
The Defendant argues that the Statements made on September 19, 2003 were not voluntary. In particular, he argues that his girlfriend, Richardson, was used as an agent of the police and interrogated him. He also argues that his mental state, i.e. “severe impairments or combination of impairments, namely a personality disorder, a learning disorder and an auditory processing disorder; and that he was in special education in school because of his borderline intellectual functioning” lead him to make an involuntary statement.
1. Persuasion by Richardson
This Court has concluded that Richardson was not acting as an agent of the police. This is a determinative conclusion, because it is the police that must cause the
coercion. See Colorado v. Connell ,479 U.S. 157, 170 (1986); Smith, 615 A.2d at 1164.
Numerous other cases have held that it is permissible for a Suspect to be questioned or encouraged to confess by a father, mother, wife or girlfriend. See €.g., Arizona vy. Mauro, 481 U.S. 520, (1931) (no interrogation under Miranda when suspect's wife spoke with suspect about murder with a police officer present and recording the conversation, after
the suspect had invoked his right to counsel); Lowe v. State, 650 So.2d 969, 972-74 (Fla.
1994) (suspect not interrogated under Miranda when suspect's girlfriend sought and was
granted access to suspect after he had invoked his right to counsel, and she persuaded him
to confess); United States v. Gaddy, 894 F.2d 1307, 1309-11 (11th Cir. 1990) (no
Miranda violation when suspect’s aunt, who was a police officer, called Suspect in jail after he invoked his right to counsel and persuaded him to confess); Snethen v. Nix, 885 F.2d 456, 457-60 (8th Cir. 1989) (accused not interrogated under Miranda when his mother, who gained access to him in prison by telling officers “if [my son] did this, he will tell me,” exhorted accused to confess so her other son would not be unjustly
punished); Buttersworth v. State, 400 S.E.2d 908 (1991) (no Miranda violation when
suspect's father elicited location of body from in-custody suspect and told sheriff); State
vy. Massey, 342 S.E.2d 811, 822 (N.C. 1986) (suspect not subjected to custodial
interrogation under Miranda when suspect's father asked him at Jail in the presence of a police officer if he shot the victim and suspect admitted it). Richardson was not acting as an agent of the officers, therefore, persuading the Defendant to confess cannot be considered illegally coercive and involuntary under the law.
However, even if Richardson did act as an agent of the police, her actions would still not amount to coercion. The Law Court has drawn the line between confessions gained “by some threat or solicited by some promise (such would be involuntary and inadmissible) [and confessions gained through] a willingness on the part of the accused to tell the truth and relieve his conscience (such would be regarded as voluntary and admissible.)” State v. Smith, 277 A.2d 481, 490 (Me. 1971). Thus, a mere admonition or exhortation to tell the truth, as opposed to a promise of leniency, does not render a
confession involuntary. State v. Theriault, 425 A.2d 986, 990 (Me. 1981). The evidence
reveals that while Richardson did play a major role in persuading the Defendant to confess, it does not seem that she used any tactics that the police would have been forbidden to use. Richardson confronted the Defendant as to why he had lied to her and encouraged him to tell the investigators the truth. While she, due to the intimate relationship, may have had more inherent power over the Defendant, this does not rise to the level of involuntariness, especially as the Defendant repeatedly indicated that he was voluntarily confessing.
Under these circumstances, this Court finds that there was no improper police conduct when Richardson persuaded the Defendant to confess and the Defendant was
“acting of his own free will and rational intellect,” see State v. McCarthy, 2003 ME 40, 9
12, 819 A.2d at 340, even if Richardson was acting as an agent for the police.
2. The Defendant’s Mental State.
Dr. James Jacobs conducted two examinations of the Defendant. He questioned the voluntariness of the statements and relied heavily on statements that he erroneously believed were told to the Defendant by the investigators in order to conclude that the Defendant had been confused by the investi gators. In fact, Richardson made the statements to the Defendant during the second interview. While the report is discredited because of this faulty assumption, it still underscores the fact that the Defendant was given numerous opportunities to leave the examinations and was repeatedly reminded that he was free to leave and was acting voluntarily,
The first interview was at the Defendant’s home and lasted for only a short time. The second interview was at the Norridgewock Fire Station and Richardson accompanied
the Defendant. This interview only lasted for approximately one hour. The Defendant voluntarily attended this interview. While the investigators closed the door, they told the Defendant that they were doing it only for privacy reasons and that he was free to leave. The final interview, on September 19, 2004, was at the Bangor Mental Health Facility and the Defendant voluntarily met with the investigators and Detective Gardner to perform a polygraph test. The Defendant was read his ri ghts, signed a waiver and was repeatedly assured that he could leave at any time. The investi gators interviewed the Defendant for approximately two hours, before the Defendant clearly asked for an attorney. The interview ended and the Defendant signed the same waiver again, indicating that he was appearing voluntarily. After he returned to make his confession, he repeatedly assured the investigators that he was actin g voluntarily.
Applying the factors under the “totality of the circumstances” test: the details of the interrogation reveal that the Defendant was treated politely, was not harshly interrogated and was repeatedly reminded that he was free to leave and was actin g voluntarily. The interviews did not last very long, approximately three hours over three days. Only one of the interviews was held at the fire station and none were held ata police station. It cannot be alleged that the Defendant’s home and the health facility were factors that lead the Defendant to act involuntarily, especially when he voluntarily appeared at the final two interviews. The Defendant was read his Miranda rights during the third interview before beginning the final interview and he indicated to the investigators, in writing, that he understood his tights.” At most, only three officers were involved in the interviews at any one time, but the Defendant had his sirlfriend present in
the second interview and the final part of the final interview. While the investigators
> Dr. Jacobs’ report also reveals that the Defendant understood his rights. Were persistent, the evidence reveals that their persistence was not so oppressive that it would rise to a level necessary to take away the Defendant’s free and rational will. No promises or threats were made. While the Defendant had a low education level and does seem to suffer from some mental defects, none of them are so severe that the Defendant did not understand his rights or that he did not have to give the confession during the third interview.
The Defendant points to the fact that the Defendant was emotionally upset and sobbing during the confession to argue that he was not acting voluntarily. However, the Law Court has clearly stated that the fact that a suspect may be crying or upset durin gan interrogation does not mean that the Statements were procured involuntarily. See State v. Durepo, 472 A.2d 919, 921 (Me. 1984),
Under the totality of the circumstances test, the Court finds that the Defendant’s
Statements were voluntary. D. Defendant’s Right to Counsel
The Defendant argues that he was deprived of his right to counsel. As indicated above, the Defendant’s Fifth Amendment ri ght to counsel was not violated, because he voluntarily returned to speak with the officers and that Robinson was not acting as an agent of the police. However, the Sixth Amendment of the U.S Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right .. . to have the Assistance of Counsel for his defence.” Nonetheless, the U.S. Supreme Court has stated that the Sixth Amendment is offense specific “and that it does not attach until a prosecution has commenced” or after “the initiation of adversary judicial criminal
proceedings . . . whether by way of formal charge, preliminary hearing, indictment,
10 information, or alraignment.” McNeil v. Wisconsin, 501 U.S. 171, 175 (1991). Here,
charges were filed after the September 19th interview, therefore, the Defendant’s Sixth
Amendment right to counsel had not yet attached. Conclusion
Accordingly, the Defendant’s Motion to Suppress is DENIED.
Accordingly, the entry is:
Defendant’s Motion to Suppress is DENIED.
The Clerk may incorporate this Decision and Order into the
OP. reference.
iS LE, ge DATED: /-/- 2% LL ; ne-Stperior Court
LOPE
1] STATE OF MAINE VS SCOTT M VIOLETTE 19 DEPOT STREET NORRIDGEWOCK ME 04957
DOB: 12/26/1974 Attorney: JANET MILLS WRIGHT & MILLS PA 263 WATER STREET PO BOX 9 SKOWHEGAN ME 04976-0009 APPOINTED 12/18/2003
Filing Document: INDICTMENT
SUPERIOR COURT SOMERSET, ss. Docket No
DOCKET RECORD
State's Attorney: JAMES MITCHELL
Major Case Type: FELONY (CLASS A,B,C)
SKOSC-CR~2003-00477
Filing Date: 12/18/2003 Charge (s) 1 ARSON 08/30/2003 NORRIDGEWOCK Seq 776 17-A 802(1) (A) Class A GRIMES / MFM
Docket Events;
12/18/2003 FILING DOCUMENT - INDICTMENT FILED ON 12/18/2003 TRANSFER ~- BAIL AND PLEADING GRANTED ON 12/18/2003 TRANSFER - BAIL AND PLEADING REQUESTED ON 12/18/2003 12/18/2003 Party(s): SCOTT M VIOLETTE ATTORNEY - APPOINTED ORDERED ON 12/18/2003 Attorney: JANET MILLS 12/18/2003 Charge(s): 1 HEARING - ARRAIGNMENT SCHEDULED FOR 12/29/2003 @ 8:30 NOTICE TO PARTIES/COUNSEL 12/18/2003 WARRANT - ON COMP/INDICTMENT ORDERED ON 12/18/2003 JOSEPH M JABAR , JUSTICE 12/18/2003 WARRANT - ON COMP/INDICTMENT ISSUED ON 12/18/2003 CERTIFIED COPY TO WARRANT REPOSITORY 12/18/2003 BAIL BOND - $20,000.00 CASH BAIL BOND SET BY COURT ON 12/18/2003 JOSEPH M JABAR , JUSTICE OR $100,000.00 SURETY WITH CONDITONS: NO USE OR POSSESSIONOF INCINDIARY DEVISES. OF ALCOHOL OR DRUGS AND TO SUBMIT TO SEARCH & TESTING FOR THE SAME. 12/18/2003 Charge(s): 1 HEARING - ARRAIGNMENT NOTICE SENT ON 12/18/2003 12/29/2003 WARRANT - ON COMP/INDICTMENT RECALLED ON 12/29/2003 CERTIFIED COPY TO WARRANT REPOSITORY 01/09/2004 Charge(s): 1
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02/25/2004
03/01/2004
09/14/2004 09/15/2004
10/04/2004
10/26/2004 11/03/2004
11/03/2004
SCOTT M VIOLETTE SKOSC-CR~ 2003-00477
DOCKET RECORD HEARING - ARRAIGNMENT HELD ON 12/29/2003
JOSEPH M JABAR , JUSTICE Attorney: PAUL SUMBERG DA: BRENT DAVIS
Defendant Present in Court
Reporter: TAMMY DROUIN
READING WAIVED. DEFENDANT INFORMED OF CHARGES.
COPY OF INDICTMENT / INFORMATION GIVEN TO
DEFENDANT. 21 DAYS TO FILE MOTIONS
Charge(s): 1
PLEA - NOT GUILTY ENTERED BY DEFENDANT ON 12/29/2003 BAIL BOND -
SURETY BAIL BOND COMMITMENT ISSUED ON 12/29/2003 JOSEPH M JABAR , JUSTICE
$100,000 SURETY
WARRANT - ON COMP/INDICTMENT EXECUTED ON 12/18/2003 WARRANT - ON COMP/INDICTMENT RETURNED ON 12/29/2003 BAIL BOND -
$20,000.00 CASH BAIL BOND COMMITMENT ISSUED ON 01/09/2004
CHARLES C LAVERDIERE , JUDGE Attorney: JANET MILLS DA: BRENT DAVIS Reporter: TAMMY DROUIN
BAIL SHOULD HAVE BEEN SET AT $20,000 CASH OR $100,000 SURETY W/ CONDs: INCINDIARY DEVICES AND NO USE/POSS OF ALCOHOL OR FOR SAME
BAIL BOND -
NO USE/POSS OF SCH. DRUGS AND SUBMIT TO SEARCH/TESTING
SURETY BAIL BOND OTHER ACTION NOTE ON 01/09/2004
AMENDED COMM. ORDER ISSUED DUE TO ERROR.
BAIL BOND - SURETY BAIL BOND BAIL RELEASED ON 01/09/2004 TRIAL - DOCKET CALL SCHEDULED FOR 02/02/2004 @ 9:00 TRIAL - DOCKET CALL CONTINUED ON 02/02/2004
TRIAL -
JURY TRIAL SCHEDULED FOR 04/20/2004 @ 8:30
NOTICE TO PARTIES/COUNSEL TRIAL - JURY TRIAL NOT HELD ON 08/25/2004
TRIAL - DOCKET CALL SCHEDULED FOR 10/04/2004 @ 8:30
OTHER FILING - MEMORANDUM OF LAW FILED ON 09/29/2004 FILED BY DEFENDADNT REGARDING SUPPRESSION OF STATEMENTS
OTHER FILING - MEMORANDUM OF LAW FILED ON 09/29/2004
FILED BY ADA MITCHELL - RE STATE'S OPPOSITION TO MOTION TO SUPPRESS TRIAL - DOCKET CALL NOT REACHED ON 10/26/2004
MOTION - MOTION TO SUPPRESS STATEMENT FILED BY DEFENDANT ON 11/24/2003 HEARING -
MOTION TO SUPPRESS STATEMENT HELD ON 09/02/2004 JOSEPH M JABAR , JUSTICE
Page 2 of 3 Printed on: 11/03/2004 SCOTT M VIOLETTE SKOSC-CR-2003-00477 DOCKET RECORD Attorney: JANET MILLS DA: JAMES MITCHELL Defendant Present in Court
11/03/2004 MOTION - MOTION TO SUPPRESS STATEMENT DENIED ON 11/03/2004 JOSEPH M JABAR , JUSTICE
COPY TO PARTIES/COUNSEL
Reporter: PEGGY STOCKFORD
A TRUE COPY ATTEST:
Clerk
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