State of Maine v. Timothy M. Hunt

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2016 ME 172
Docket: Cum-15-493
Argued: June 8, 2016
Decided: November 29, 2016

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

STATE OF MAINE

v.

TIMOTHY M. HUNT

GORMAN, J.

[¶1] Timothy M. Hunt appeals from a judgment of conviction entered in

the trial court (Cumberland County, Moskowitz, J.) after a jury found him guilty

of six counts of gross sexual assault (Class A), 17-A M.R.S. § 253(1)(C) (2015),

and six counts of unlawful sexual contact (Class B), 17-A M.R.S.

§ 255-A(1)(E-1) (2015). Hunt argues that the court (Wheeler, J.) erred by

denying his motion to suppress evidence of inculpatory statements he made

during a police interview. Although he also raises a number of issues from the

trial, we need consider only the admissibility of the evidence of his confession.

Because we conclude that the confession should have been suppressed, we

vacate the judgment of conviction and remand the case for a new trial.
2

I. BACKGROUND

[¶2] On December 4, 2013, the Cumberland County Grand Jury issued

an indictment charging Hunt with six counts of gross sexual assault (Class A),

17-A M.R.S. § 253(1)(C), and six counts of unlawful sexual contact (Class B),

17-A M.R.S. § 255-A(1)(E-1), involving an eight-year-old victim. After

pleading not guilty to the charges, Hunt moved to suppress evidence of

incriminating statements he made during an interview with two Scarborough

Police Department detectives.

[¶3] At the hearing on his motion, Hunt argued that his incriminating

statements during the interview were motivated by improper promises of

leniency and were therefore involuntary. The court (Wheeler, J.) heard

testimony from a psychologist who had evaluated Hunt, from the detectives,

and from Hunt. The parties stipulated to the admission of four psychological

assessment reports and a recording of the police interview that included both

video and audio.

[¶4] The recording shows that the following interactions took place.

During the first part of the interview, Hunt repeatedly denied touching the

victim inappropriately. Throughout the interview, the detectives challenged

Hunt’s denials with, inter alia, minimization of the moral blame associated
 3

with the alleged conduct, pleas to “do the right thing,” and urges to avoid

having the victim “go through” a trial. Before he had confessed to any

wrongdoing, but in response to questioning, Hunt expressed concern that

admitting to “something like this could put [him] on that list,” apparently

referring to the Maine Sex Offender Registry. In response, one of the

detectives told him, “don’t worry about that,” “don’t worry about going on the

list,” and “we’re not gonna worry about anything else outside of this room,

Tim, because it will work out, it will be fine.”

[¶5] Later, during a portion of the interview led by a second detective,

the second detective told Hunt:

[y]ou were worried about being on some kind of a list—not
everybody ends up on the list. I’ll tell you the guys that end up on
the list. Those are the guys that I’m talking about on the other end
of the scale. The guys that hang out by schools, and they take
pictures of little kids in places in public, and they put themselves
in positions that they can be around kids for the sole purpose of
perpetrating on a child. Those are the guys that end up on lists.
Guys like you . . . they don’t end up [in] situations like that dramatic.
They get help and they get opportunities like you’re being given
here today . . . .

(Emphases added.)

[¶6] The second detective also told Hunt that if Hunt was not being

“one hundred percent truthful,” he was “harming [him]self,” and that
4

You need to think about it, because you don’t get this opportunity
twice. After today, it’s over. You’re not gonna have another
opportunity to come in here and explain yourself to [the first
detective], and he’s not gonna have another opportunity to help
you. Because if he thinks you’re lying, after today, all hands are
off. . . . If he knows . . . you’re telling . . . the truth, we can work with
this. You could still go home today. Okay? Nobody’s said you’re
going to get arrested. Right? Nobody’s told you that today, right?
This list thing you’re worried about? That’s for the other end of the
spectrum. That’s for the people that are problematic.

(Emphases added.) The first detective returned to the interview room.

Resuming the interview, he said, “I know you mentioned earlier, you know,

‘I’m worried about being on a list,’ but I want you not to worry about that.

You know, it—it—ah, not everyone goes on a list. Okay? Not everyone does.”

(Emphasis added.)

[¶7] After Hunt made some incriminating statements, the first detective

asked him why he hadn’t confessed earlier in the interview. Hunt explained

that he “didn’t know how to word it,” that “maybe the right questions wasn’t

coming up for the right answer,” and that his “mind’s slow” and “isn’t like all

the other minds that catch on.” Hunt also said, “I don’t want, you know,

people to look at me in like, you know in a certain way. . . . Like your um, your

friend, well, your partner slash friend . . . like he said, that I’m not even close to

being on that list, you know? That it should be fine.” (Emphasis added.) Only
 5

after Hunt had incriminated himself did the first detective tell Hunt that he

and his colleague were “not in control of that list.”

[¶8] In a written order denying Hunt’s motion, the court found that

Hunt had gone willingly to the Scarborough Police Department with the

detectives to be interviewed, knowing that they wanted to talk to him about

information they had received from the Department of Health and Human

Services about “sexual allegations.” The court also found the following facts

about the interview. The detectives told Hunt that he was not under arrest,

that he did not have to go with them, and that they would drive him back

home at any time. After bringing Hunt into an interview room, the first

detective started an audio and video recording and told Hunt that the

interview was being recorded. He told Hunt that he was free to leave and

advised him of his Miranda rights. After stating each “right,” the first detective

asked whether Hunt understood, and Hunt responded affirmatively.

[¶9] The court further found that after the second detective left the

room, the first detective “reentered and used police interrogation techniques,

including minimization of the crime.”1 The court found that Hunt eventually

“confessed to sexual contact” with the victim.

1 The court did not specifically describe the “interrogation techniques” used by either detective.

6

[¶10] Although noting that Hunt’s “cognitive skills are less than

average,” the court stated “there was no indication of any impairment of

Hunt’s physical or mental condition.” The suppression court had two reports

from psychologists who measured Hunt’s cognitive capacity. One measured

Hunt’s composite IQ as 81, with a nonverbal skills score of 92 and a verbal

skills score of 75; another measured Hunt’s composite IQ as 75, with a

nonverbal skills score of 90 and a verbal skills score of 67.

[¶11] Although Hunt testified at the suppression hearing that he had

snorted Vicodin on the day of the interview, and was taking other medications

prescribed for him, namely Wellbutrin (an antidepressant) and Risperdal (an

antipsychotic), the court also found that “the video does not disclose any

bizarre, psychotic or . . . drug-induced behavior”; “Hunt appeared to be alert

and rational, and he could respond to questions with appropriate answers.”

[¶12] In a footnote apparently directed at Hunt’s argument that his

statements were involuntary in light of the detectives’ references to “the list,”

the court stated that “[t]here is nothing illegal with . . . trying to narrow and

shift the focus of the investigation on the critical issues, rather than possible

outcomes in the case.” The court concluded, “The detectives[’] interviewing
 7

techniques were fundamentally fair and Hunt’s confession was not a product

of coercive police conduct.”2

[¶13] As a result of the court’s ruling, the recording of Hunt’s

confession was admitted in evidence at trial, over his continuing objection.

[¶14] The court (Moskowitz, J.) held a four-day jury trial in late July of

2015. Just before trial, the State filed a motion in limine seeking to exclude

Hunt’s proposed expert testimony regarding police interrogation techniques

and risk factors associated with false confessions. After the parties conducted

a voir dire of the expert, the court granted the State’s motion, concluding that

the testimony was inadmissible pursuant to M.R. Evid. 702 based on its

findings that “it ha[d]n’t been demonstrated in the voir dire that there is a

reliable scientific basis for determining some causal relationship” between

certain interrogation techniques and unreliable confessions, and “the subject

matter of the proposed testimony is really not beyond the common

knowledge of a lay juror.”

[¶15] The jury found Hunt guilty of all twelve charges. The court

entered a judgment on the verdict and sentenced Hunt to twenty-five years of

2 Although the court did not state expressly that the State had proved voluntariness beyond a

reasonable doubt, in the absence of any indication to the contrary, we assume that the court applied
the correct standard of proof. See State v. Ashe, 425 A.2d 191, 194 n.4 (Me. 1981); State v. Collins,
297 A.2d 620, 627 (Me. 1972).
8

unsuspended imprisonment for each of the gross sexual assault charges and

five years of unsuspended imprisonment for each of the unlawful sexual

contact charges, all to be served concurrently, followed by a lifetime term of

supervised release. Hunt appealed from the judgment of conviction.3

II. DISCUSSION

[¶16] Hunt contends that the court (Wheeler, J.) erred by denying his

motion to suppress because his incriminating statements were motivated by

improper promises of leniency by police and were therefore involuntary.

“The determination of whether a statement is voluntary is a mixed question of

fact and law . . . .” State v. Bryant, 2014 ME 94, ¶ 15, 97 A.3d 595. We review

“the court’s factual findings . . . for clear error and its . . . ultimate

determination regarding voluntariness” de novo. Id. (citations omitted).

Here, as we noted, the interrogation was recorded, and the recording was

admitted at the suppression hearing. Hunt does not challenge the accuracy of

the recording or the suppression court’s factual findings; he argues that the

court misapplied legal principles. Thus, the facts are not in dispute.

Accordingly, “we review the motion court’s application of the law to those

facts de novo,” State v. Dodge, 2011 ME 47, ¶ 10, 17 A.3d 128.

3 The Sentence Review Panel denied Hunt’s application for leave to appeal his sentence. State v.

Hunt, No. SRP-15-494 (Me. Sent. Rev. Panel Dec. 21, 2015); see 15 M.R.S. § 2151 (2015); M.R. App. P.
20.
 9

A. Legal Standards

[¶17] In Maine, when a defendant in a criminal case moves to suppress

statements on the ground that they were made involuntarily, the State has the

burden to prove voluntariness beyond a reasonable doubt.4 State v. Kittredge,

2014 ME 90, ¶ 24, 97 A.3d 106; State v. Collins, 297 A.2d 620, 627 (Me. 1972).

To determine whether the suppression court erred when it concluded that

Hunt’s confession was “voluntary,” we must first understand the concept of

“voluntariness” as it has been employed in this area of law. Our jurisprudence

on this issue has not always been entirely clear. With this opinion, we hope to

clarify the law and process to be applied when determining the voluntariness

of a confession in the face of a challenge to police action.

[¶18] The exclusionary rule for “involuntary” confessions is grounded

in both the privilege against self-incrimination, guaranteed by the Fifth

Amendment to the United States Constitution5 and article I, section 6 of the

4 In Lego v. Twomey, the United States Supreme Court held that in federal cases the government

must prove voluntariness by a preponderance of the evidence. 404 U.S. 477, 482-89 (1972). “Of
course,” the Court noted, “the States are free, pursuant to their own law, to adopt a higher standard.
They may indeed differ as to the appropriate resolution of the values they find at stake.” Id. at 489.
In Collins, which we decided eleven months after Lego, we concluded that public policy and “the
values we find at stake”—namely, safeguarding “the right of an individual, entirely apart from his
guilt or innocence, not to be compelled to condemn himself by his own utterances”—demand that,
in Maine, the State must prove voluntariness beyond a reasonable doubt. 297 A.2d at 626-27
(alteration omitted) (quotation marks omitted).

5 “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .”

U.S. Const. amend. V.
10

Maine Constitution;6 and the due process clause of the Fourteenth

Amendment to the United States Constitution7 and article I, section 6-A of the

Maine Constitution.8

[¶19] There is a distinction between those statements that must be

excluded pursuant to the Fifth Amendment because they are the product of

compulsion, and those statements that must be excluded because their

admission would otherwise create an injustice. “Where the Fifth Amendment

analysis seeks to determine whether the defendant’s confession was

compelled, a due process analysis asks ‘whether the State has obtained the

confession in a manner that comports with due process.’” State v. Rees,

2000 ME 55, ¶ 36, 748 A.2d 976 (Saufley, J., dissenting) (quoting Miller v.

Fenton, 474 U.S. 104, 110 (1985)). Here, because no one has claimed that a

confession was “forced” out of Hunt, we examine whether admission of his

confession violated his right to due process. That is, we examine whether his

statements were free and voluntary or whether, considering the totality of the

circumstances under which the statements were made, their admission would

6 “In all criminal prosecutions, the accused . . . shall not be compelled to furnish or give evidence

against himself . . . .” Me. Const. art. I, § 6.

7 “No State shall . . . deprive any person of life, liberty, or property, without due process of

law . . . .” U.S. Const. amend XIV.

8 “No person shall be deprived of life, liberty or property without due process of law . . . .”

Me. Const. art. I, § 6-A.
 11

be fundamentally unfair. “The Due Process Clause . . . prohibits deprivations

of life, liberty, or property without fundamental fairness through

governmental conduct that offends the community’s sense of justice, decency

and fair play.” State v. McConkie, 2000 ME 158, ¶ 9, 755 A.2d 1075 (quotation

marks omitted).

[¶20] More than thirty years ago, we discussed due process and the

requirement of voluntariness in State v. Mikulewicz, 462 A.2d 497, 500-01

(Me. 1983), a case in which the police had allowed a defendant to “consume

substantial quantities of alcohol” during a custodial interrogation, id. at 498.

We stated:

[T]he voluntariness requirement gives effect to three overlapping
but conceptually distinct values: (1) it discourages objectionable
police practices; (2) it protects the mental freedom of the
individual; and (3) it preserves a quality of fundamental fairness
in the criminal justice system.

Id. at 500. We reiterate today that a confession is involuntary when it is made

under circumstances that offend one of these fundamental values of social

policy and constitutional law. See Lego v. Twomey, 404 U.S. 477, 485 (1972)

(“The use of coerced confessions, whether true or false, is forbidden because

the method used to extract them offends constitutional principles.”).9

9 The United States Supreme Court has “used the terms ‘coerced confession’ and ‘involuntary

confession’ interchangeably by way of convenient shorthand.” Arizona v. Fulminante, 499 U.S. 279,
12

[¶21] In Mikulewicz, after noting that “articulating a uniform test of

voluntariness ha[d] proven a difficult task,” we held that “[a] confession is

voluntary if it results from the free choice of a rational mind, if it is not a

product of coercive police conduct, and if under all of the circumstances its

admission would be fundamentally fair.” 462 A.2d at 500-01. Nearly twenty

years later, in a case involving a police officer who affirmatively misled a

defendant by telling him that a confession would be kept in confidence, we

quoted that rule from Mikulewicz and noted that “[t]he focus in a due process

analysis . . . is not limited to the presence or absence of compulsion, but rather

addresses the totality of the State’s actions in obtaining the confession.”

McConkie, 2000 ME 158, ¶¶ 4, 9 & n.3, 10, 755 A.2d 1075 (quotation marks

omitted).

287 n.3 (1991) (quotation marks omitted). In 1959, seven years before it decided Miranda v.
Arizona, 384 U.S. 436 (1966), in “another in the long line of cases presenting the question whether a
confession was properly admitted into evidence under the Fourteenth Amendment,” Spano v. New
York, 360 U.S. 315, 315 (1959), the United States Supreme Court explained why no conviction based
on an involuntary confession could be tolerated:

The abhorrence of society to the use of involuntary confessions does not turn alone
on their inherent untrustworthiness. It also turns on the deep-rooted feeling that
the police must obey the law while enforcing the law; that in the end life and liberty
can be as much endangered from illegal methods used to convict those thought to be
criminals as from the actual criminals themselves.

Id. at 320-21.
 13

[¶22] We have long held that when applying this totality of the

circumstances approach to make a voluntariness determination, the trial

court may consider various relevant circumstances, including

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.

State v. George, 2012 ME 64, ¶ 21, 52 A.3d 903 (emphases added) (quotation

marks omitted); see Michaud v. State, 161 Me. 517, 530-31, 215 A.2d 87

(1965).

1. Improper “Promises or Inducements”

[¶23] We have discussed the effect “promises or inducements” may

have on the voluntariness of a confession in a variety of cases, recognizing that

not all statements made by law enforcement officers are improper. For

example, we have noted that neither “generalized and vague” suggestions that

telling the truth will be helpful to a defendant in the long run, Kittredge,

2014 ME 90, ¶ 28, 97 A.3d 106, nor “[m]ere admonitions or exhortations to

tell the truth,” State v. Tardiff, 374 A.2d 598, 601 (Me. 1977), will factor
14

significantly into the totality of the circumstances analysis. See Kittredge,

2014 ME 90, ¶¶ 27-28, 97 A.3d 106; Tardiff, 374 A.2d at 601.

[¶24] Thus, in a host of cases, we have held that certain representations

by law enforcement officers did not constitute improper promises of leniency.

See, e.g., State v. Gould, 2012 ME 60, ¶¶ 11-13, 43 A.2d 952 (officer

“suggest[ed] that the State would get [the defendant] help” if he confessed);

State v. Lavoie, 2010 ME 76, ¶ 21, 1 A.3d 408 (officer suggested that the

defendant would get alcohol counseling if he confessed); State v. Nadeau,

2010 ME 71, ¶ 57, 1 A.3d 445 (officer told the defendant that “the more

cooperative you are, the better things are for you” (alteration omitted)); State

v. Dion, 2007 ME 87, ¶ 34, 928 A.2d 746 (officer stated “that it would ‘look

better’ for [the defendant] to confess”); State v. Theriault, 425 A.2d 986, 990

(Me. 1981) (officer stated that “‘it would be better to tell us [the truth],’ that ‘it

would make [the defendant] feel better,’ and that ‘people would think more of

him if he got it off his chest’” (first alteration in original)).

[¶25] We have found officers’ statements to defendants to be

problematic when those statements involve false promises of leniency or

misrepresentations about legal rights, however. In Tardiff, the defendant

went to the police station and discussed three burglaries but did not admit to
 15

any involvement in the crimes. 374 A.2d at 600. An officer drove him home.

Id. During the car ride, the officer told the defendant that the police “were

willing to help him if, in any way, [they] could,” and that the officer “felt sure

that the Captain would agree . . . that [the State] would charge him with one

break, if he were willing to clear up all the matters that he had pending.” Id.

The defendant agreed to go back to the police station and talk with the

captain. Id. After officers informed him of his Miranda rights, the defendant

confessed to all three burglaries and, despite the officer’s promise, he was

charged with all three. Id. at 599-600. We concluded that because the

officer’s statement to the defendant was a false promise of leniency, it

constituted an improper inducement to confess. Id. at 601.

[¶26] In McConkie, the defendant agreed to meet with police to discuss

allegations of sexual contact with a teenager. 2000 ME 158, ¶ 2, 755 A.2d

1075. After an officer told the defendant, inter alia, that “any information he

provided during the interview would ‘stay confidential,’” the defendant made

several incriminating statements.10 Id. ¶ 4 (alteration omitted). We

concluded that the trial court erred by denying the defendant’s motion to

suppress the statements, stating that “it is evident that [the defendant’s]

10
It was undisputed that the interview did not constitute a custodial interrogation, and
therefore that police were not required to give the defendant Miranda warnings. State v. McConkie,
2000 ME 158, ¶ 7, 755 A.2d 1075; see Miranda, 384 U.S. at 478-79.
16

statements to [the officer] were obtained through the use of an interrogation

tactic that does not fall within the bounds of fair play and that the admission

of those statements at trial therefore violated [the defendant’s] right to due

process of law.” Id. ¶ 10. The officer, we held, “was . . . not at liberty to

affirmatively mislead [the defendant] as to his constitutionally protected right

against self-incrimination.” Id.

[¶27] In Dodge, again focusing on the nature and timing of the police

statements, 2011 ME 47, ¶¶ 13-20, 17 A.3d 128, we distinguished the

statements the defendant made after an officer’s assurance of confidentiality

from those he made after the officer’s “prompt correction of his assurance that

the conversation would remain private,” id. ¶ 13. We held that the statements

made before the officer’s correction were properly suppressed. Id. ¶ 16.

[¶28] Most recently, in State v. Wiley, we vacated a conviction after the

trial court denied the defendant’s motion to suppress. 2013 ME 30, ¶¶ 11, 31,

61 A.3d 750. We determined that an improper offer of leniency was made, id.

¶ 25, where the interviewing law enforcement officer implied that if the

defendant confessed, he would face a shorter sentence involving county jail

and probation instead of “a lot of time in a state prison,” id. ¶ 21 (quotation

marks omitted). Our split decision in Wiley demonstrates the difficulty in
 17

drawing the line between permissible police interrogation tactics and tactics

that involve false promises and improper inducements by law enforcement.

Nonetheless, we ultimately ruled that “[a] confession is not voluntary where

an interrogating officer, with no more than apparent authority, leads a suspect

to believe that a confession will secure a favorable, concrete sentence, and

that belief motivates the suspect to confess.” Id. ¶ 31.

[29] The lesson to be learned from these cases is that false promises of

leniency that induce a confession are improper and thus will weigh

significantly into our consideration of the totality of the circumstances in

determining whether a confession must be suppressed.11 A promise is false

when it involves a benefit that could not be delivered—or is not in fact

delivered—by the governmental agent making the promise, or when the agent

has no authority to give the defendant what was offered. See, e.g., Kittredge,

2014 ME 90, ¶ 27, 97 A.3d 106; Wiley, 2013 ME 30, ¶ 31, 61 A.3d 750; State v.

Coombs, 1998 ME 1, ¶ 11, 704 A.2d 387; Tardiff, 374 A.2d at 601. A promise

involves leniency when it suggests that the process of prosecution or

sentencing will somehow be “better” for the defendant if the defendant

11 The same is true for officers’ misleading statements about the defendant’s legal rights. See

State v. Dodge, 2011 ME 47, ¶¶ 13-21, 17 A.3d 128; McConkie, 2000 ME 158, ¶¶ 8-11, 755 A.2d
1075.

18

confesses.12 See, e.g., Wiley, 2013 ME 30, ¶ 31, 61 A.3d 750; Theriault,

425 A.2d at 990; Tardiff, 374 A.2d at 600-01; cf. Lavoie, 2010 ME 76, ¶ 21,

1 A.3d 408;

[¶30] The determination of the extent to which a false promise of

leniency has induced a defendant’s confession is an issue where some

clarification is needed. Although we have stated that only those false

promises of leniency that played a role in the defendant’s decision to confess

can render a confession involuntary, see Tardiff, 374 A.2d at 601, we have

been less than entirely clear about how and where that determination of the

effect of improper state action is to be made.

[¶31] In Tardiff, McConkie, and Dodge, after concluding that some law

enforcement actions had been improper, we ruled, as a matter of law, that the

defendants’ statements were involuntary and should therefore have been

suppressed.13 We did so without any discussion about whether the

12 We agree with the California Supreme Court’s statement that

[t]he line to be drawn between permissible police conduct and conduct deemed to
induce or to tend to induce an involuntary statement does not depend upon the bare
language of inducement but rather upon the nature of the benefit to be derived by a
defendant if he speaks the truth, as represented by the police.

People v. Hill, 426 P.2d 908, 916 (Cal. 1967).

13 For example, in State v. Tardiff, we stated:

 19

defendant’s confession had occurred as a result of that improper action. In

Wiley, based on our “experience and common sense,” we determined that the

defendant’s confession was involuntary. 2013 ME 30, ¶ 30, 61 A.3d 750.

[¶32] As we noted earlier, in the 1977 decision where we seemed to

distinguish the question of whether a confession had been motivated by

improper police tactics from the tactics themselves—as though they were

separate determinations—we also stated that the determination of

voluntariness was entirely a question of fact. Tardiff, 374 A.2d at 600-01.

Twenty years later, in Coombs, we explained our adoption of a bifurcated

approach to the standard of review in a voluntariness determination.

1998 ME 1, ¶¶ 7-9, 704 A.2d 387. We referred to Miller v. Fenton, 474 U.S. 104

(1985), with its explanation of the need for “plenary federal review” of state

court determinations of voluntariness:

[T]he nature of [the] inquiry itself lends support to the conclusion
that “voluntariness” is a legal question meriting independent
consideration in a federal habeas corpus proceeding. Although
sometimes framed as an issue of “psychological fact,” the

[W]e conclude that the defendant’s confession was involuntary as a matter of
law. . . . Although there was testimony indicating that the defendant may have been
contemplating confessing, the fact remains that he did not do so until after he had
been led to believe by the police that he would be charged with only one offense of
his own choice, rather than three. The evidence thus establishes a legally
impermissible promise of leniency by the police which preceded the defendant’s
confession.

374 A.2d 598, 601 (Me. 1977) (emphasis added).
20

dispositive question of the voluntariness of a confession has
always had a uniquely legal dimension.

Coombs, 1998 ME 1, ¶ 9, 704 A.2d 387 (quoting Miller, 474 U.S. at 115-16).

Relying on that reasoning, we reiterated that “the dispositive issue of the

voluntariness of a confession, although based on all the facts and

circumstances surrounding the confession, is a legal issue warranting

independent appellate review.” Id.

[¶33] Despite the clear adoption of the bifurcated standard, we have

not precisely defined the contours of the analysis of the causal nexus between

the conduct of law enforcement officers and the defendant’s decision to make

incriminating statements. Our lack of clarity may be grounded in confusion

about the precise location of the line between the facts to be determined—

exclusively the task of a trial court—and the legal question of the “ultimate

determination regarding voluntariness,” Bryant, 2014 ME 94, ¶ 15, 97 A.3d

595.

[¶34] We clarify today that although the determination of the historical

facts underlying a question of voluntariness must be made by the trial court,

and will be reviewed deferentially, the “psychological fact” of the

voluntariness of a confession is a determination of law and is subject to de

novo review. See, e.g., Miller, 474 U.S. at 115-17; Bryant, 2014 ME 94, ¶ 15,
 21

97 A.3d 595; Dodge, 2011 ME 47, ¶ 10, 17 A.3d 128; Coombs, 1998 ME 1, ¶ 9,

704 A.2d 387.

[¶35] We also clarify that the degree to which police conduct appears to

have motivated the defendant’s decision to confess is one of the factors to be

considered by a court in determining the legal question of whether that

conduct constituted an improper inducement and, thus, the extent to which

the officer’s statements will play a role in the ultimate voluntariness

determination.

2. Characteristics of the Defendant

[¶36] When a criminal defendant moves to suppress a confession,

alleging that it was involuntary because of a due process violation, the trial

court addresses “the totality of the State’s actions in obtaining the confession.”

McConkie, 2000 ME 158, ¶ 9 n.3, 755 A.2d 1075 (quotation marks omitted).

As we have already discussed, the voluntariness determination pursuant to

this approach may include consideration of

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.

22

George, 2012 ME 64, ¶ 21, 52 A.3d 903 (emphasis added) (quotation marks

omitted).

[¶37] Like courts in other jurisdictions, we consider a defendant’s

cognitive ability as part of the voluntariness determination. In United States v.

Preston, the United States Court of Appeals for the Ninth Circuit vacated a

conviction that was based on the confession of a defendant who had an IQ of

65, was easily manipulated, and was subjected to confusing and high-pressure

interrogation techniques. 751 F.3d 1008, 1010-28 (9th Cir. 2014) (en banc).

“Even if we would reach a different conclusion regarding someone of normal

intelligence,” the court stated, “we hold that the officers’ use of the methods

employed here to confuse and compel a confession from the intellectually

disabled eighteen-year-old before us produced an involuntary confession.” Id.

at 1028.

[¶38] Similarly, the Kansas Supreme Court reversed a conviction based

on a confession where the defendant had an IQ of 76 and was subjected to

some degree of police coercion—even though the officers’ “threats and

promises [alone] may not [have been] sufficient to show coercion.” State v.

Swanigan, 106 P.3d 39, 42, 45-54 (Kan. 2005). Likewise, the Wisconsin

Supreme Court uses a totality of the circumstances test in which the
 23

defendant’s characteristics are balanced against the pressure exerted by law

enforcement. State v. Hoppe, 661 N.W.2d 407, 414 (Wis. 2003). The court

explained:

The balancing of the personal characteristics against the police
pressures reflects a recognition that the amount of police
pressure that is constitutional is not the same for each defendant.
When the allegedly coercive police conduct includes subtle forms
of psychological persuasion, the mental condition of the defendant
becomes a more significant factor in the “voluntariness” calculus.

Id. at 415. Relevant personal characteristics “include the defendant’s age,

education and intelligence, physical and emotional condition, and prior

experience with law enforcement.” Id. at 414.

[¶39] With the clarifications explained above, and recognizing the need

to consider law enforcement’s actions vis-à-vis each defendant’s

characteristics, we apply the law to the undisputed facts.

B. The Voluntariness of Hunt’s Incriminating Statements

[¶40] Hunt contends that his incriminating statements were

involuntary because the detectives improperly induced his confession by their

assurances that if he confessed to sexual contact with the victim, he would not

have to register as a sex offender. He also argues that the statement he made

after the first detective asked why he did not confess earlier in the

interview—“Like [the second detective] said, that I’m not even close to being
24

on that list”—demonstrates that those false promises of leniency motivated

his decision to confess. We agree and, considering the totality of the relevant

circumstances, we conclude that the court erred when it determined that

Hunt’s confession was made voluntarily.

[¶41] Here, based on the facts found by the suppression court, the

circumstances are as follows. Hunt voluntarily went to the police station for

questioning that lasted around two hours. He was not in custody, and was

told that he could terminate questioning and leave at any time. At the

beginning of the interrogation, the officer recited Miranda warnings to Hunt

and Hunt indicated that he understood them. Two officers were involved in

the questioning, although Hunt was questioned one-on-one. The officers

persisted in their questioning despite Hunt’s initial denials of the allegations

of sexual assault. Hunt has “less than average” cognitive skills—one report

admitted at the motion hearing indicated he had a composite IQ score of 81

and another reported a score of 75.

[¶42] Although the officers made no direct promises to Hunt, in

response to his concerns about being placed on “the list,” the officers made

statements assuring him that if he confessed to sexual contact with the victim,

thereby taking the officers up on the one-time “opportunity” they were
 25

offering him, Hunt would not be subject to the sex offender registration

requirements. Based on what they told him, Hunt could “reasonably believe

[that the officers] had the authority or power to” relieve him from the

registration requirements if he confessed to the allegations, see Tardiff,

374 A.2d at 601, and also that “the list” was a component of a possible

criminal sentence.14 The first detective did not tell Hunt that “we’re not in

control of that list” until after Hunt confessed.15 Moreover, when asked why

he had decided to confess, Hunt explained to the first officer that he

understood that the second detective had told him that he was “not even close

to being on that list.” The officers’ statements regarding “the list,” if not

sufficiently definite to constitute false promises of leniency, were perilously

close. And, given Hunt’s stated reliance on his understanding of their

14 Hunt’s sex offender registration is governed by the Sex Offender Registration and Notification

Act of 2013 (SORNA), 34-A M.R.S. §§ 11271-11304 (2015). See 34-A M.R.S. § 11272(1). In ways not
relevant to this appeal, portions of SORNA have been amended since Hunt’s conviction and
sentencing. See, e.g., P.L. 2015, ch. 280, § 16 (effective Oct. 15, 2015). According to the statute,
“[t]he court shall notify the offender at the time of sentence of the duty to register.” 34-A M.R.S.
§ 11282(1). Hunt’s “notice of duty to register” identified him as a “Tier III registrant,” requiring him
to register for the rest of his life and to verify his registration every ninety days. See 34-A M.R.S.
§§ 11273(16)(A), 11282(7)(A), 11285(5). Sex offender registration is a consequence that applies
to a convicted sex offender because of his conviction, and it is a consequence that may affect an
offender far longer than his prison sentence.

15 See Dodge, 2011 ME 47, ¶¶ 14-16, 17 A.3d 128 (holding that statements the defendant made

after an officer misled him to believe the conversation was confidential, but before the officer
“correct[ed]” himself, were properly suppressed); cf. State v. Wood, 662 A.2d 908, 911 (Me. 1995)
(concluding that a confession was voluntary where officers told the defendant that he was “not in
trouble” for possessing a handgun used in a murder but also “repeatedly told [him] that they had no
control over charging decisions or sentencing” (quotation marks omitted)).
26

assurances, we cannot disregard those statements in considering the totality

of the circumstances.

[¶43] Although the officers’ statements might not have rendered a

different defendant’s confession involuntary, the issue of Hunt’s cognitive

limitations also plays a significant role in our analysis. As the Supreme Court

of Wisconsin stated, “[w]hen the allegedly coercive police conduct includes

subtle forms of psychological persuasion, the mental condition of the

defendant becomes a more significant factor in the ‘voluntariness’ calculus.”

Hoppe, 661 N.W.2d at 415. Although no single factor renders Hunt’s

confession involuntary, the totality of the circumstances—in particular, the

officers’ misleading statements in light of Hunt’s cognitive disability and his

apparent reliance on their representations—rendered Hunt’s incriminating

statements involuntary as a matter of law.

[¶44] Given the values that the exclusionary rule for involuntary

confessions serves to protect, see McConkie, 2000 ME 158, ¶ 9 & n.3, 755 A.2d

1075; Mikulewicz, 462 A.2d at 500; Collins, 297 A.2d at 634 n.13, we must

conclude that the suppression court erred when it denied Hunt’s motion to

suppress the evidence of his incriminating statements. We therefore vacate
 27

the judgment of conviction and remand the case to the trial court for a new

trial.16

The entry is:

Judgment of conviction vacated. Remanded for
further proceedings consistent with this
opinion.

On the briefs:

Verne E. Paradie, Jr., Esq., Paradie, Sherman, Walker & Worden,
Lewiston, for appellant Timothy Hunt

Stephanie Anderson, District Attorney, and William J. Barry, Asst. Dist.
Atty., Prosecutorial District No. Two, Portland, for appellee State of
Maine

At oral argument:

Verne E. Paradie, Jr., Esq., for appellant Timothy Hunt

William J. Barry, Asst. Dist. Atty., Prosecutorial District No. Two,
Portland, for appellee State of Maine

Cumberland County Unified Criminal Docket docket number CR-2013-6687
FOR CLERK REFERENCE ONLY

16
The State does not argue that, if erroneous, admission of Hunt’s confession constituted
harmless error. See Fulminante, 499 U.S. at 306-13; State v. Ayers, 433 A.2d 356, 362 (Me. 1981).
And, because we vacate Hunt’s convictions based on the denial of his motion to suppress evidence
of his confession, we do not discuss his arguments regarding either the trial court’s exclusion of his
expert’s testimony or the sufficiency of the evidence presented at trial.