State v. Thibodeau

NICHOLS, Justice.

The Defendant, Jay G. Thibodeau, appeals from his conviction of murder, 17-A M.R.S.A. § 201(1)(A) (1983), following a jury trial in Superior Court, Penobscot County. He argues that the Superior Court erred in denying his motions: (1) to suppress certain statements that he made to investigating officers on three different occasions; and (2) to strike evidence concerning the test firing of the murder weapon. He further challenges the sufficiency of the evidence to support his conviction.

Because we conclude it was reversible error to deny the Defendant’s motion to suppress the statements he made in the afternoon of October 28, 1983, we must vacate the judgment of conviction.

On October 30, 1983, a hunter found the body of John Tower, Jr., of Patten, near Shin Pond in that town; the body was partially covered by a piece of carpeting. Death was attributed to a bullet wound to the head and brain. A small caliber bullet, probably fired from at least a foot and a half, had entered behind the victim’s right ear. A pool of blood and Tower’s broken glasses were found next to each other approximately 17 feet from his body. A new spent casing, later confirmed to be one fired from a .22 caliber rifle that the Defendant had purchased on October 18 and traded on October 29 for another rifle, was found at the scene approximately 51 feet from the glasses in a direction towards the water. Subsequent test firings of the weapon had revealed that the maximum *637distance a casing would be ejected was 18 feet and 9 inches.

Tower had been reported missing by his brother in the afternoon of October 27, 1983. That evening Trooper Ronald Graves, of the State Police, found Tower’s automobile, a green 1973 Ford Galaxy, parked near Route 1-95 in Sherman. A “for sale” sign rested on the seat of the vehicle. An investigation into the circumstances surrounding the abandoned vehicle and Tower’s disappearance commenced the next morning, October 28. The victim’s mother had informed Trooper Malcolm Dow, of the State Police, that the last time she saw her son was the day before when he had told her that he was taking a prospective buyer for his car on a test drive. She remembered seeing the prospective buyer and offered a description that proved to match that of the Defendant. She also that day noticed a gun lying on the concrete near the passenger’s door of Tower’s car as it was parked near her home. A neighbor of Tower’s identified the Defendant as the person who was talking to Tower and holding a rifle.

Sergeant Schofield, Trooper Graves and Trooper Dow, of the State Police, went to the Thibodeau apartment at approximately 8:00 A.M. on October 28 to speak with the Defendant, then barely eighteen years old, concerning the information that had been collected. The officer’s conversation with the Defendant, took place in a kitchen area, with the Defendant’s parents both present, and lasted for five to ten minutes. During that time the Defendant declared that he had left his house to go hunting and had walked past the Tower residence when he noticed a “for sale” sign in Tower’s automobile. He told the officers that he and Tower went for a test drive down the road, bought ten dollars worth of gasoline, and proceeded around the block where Thibo-deau was dropped off at his home. He told them that Tower then drove away as the Defendant walked along Route 11 with his rifle, eventually going hunting on Happy Corner Road.

At approximately 3:15 P.M. of the same day came the critical confrontation. At that time Troopers Graves and Porter, of the State Police, returned to the Thibodeau residence. They asked the young Defendant to accompany them and show them the route he had taken the day before. Because by afternoon the officers had come to regard the Defendant as a prime suspect of foul play in Tower’s disappearance, their ploy was to separate him from his parents. He had not been so regarded at the time of their brief conversation with him that morning. Nevertheless, no Miranda warnings were given.

When the youth complied with the officers’ request and the three got into a two-door cruiser, they seated the young Defendant alone in the back of the vehicle. Instead of thereupon retracing the route taken on October 27, the asserted purpose of this second confrontation, once in the cruiser, he was driven to a side street where the two troopers talked with him for up to 40 minutes. In response to the officers’ questions, the Defendant disclosed to them that: (1) he did not take his rifle with him during the test drive, but rather hid it across the street under a boat; (2) he and Tower drove down back roads; (3) he was dropped off at his parents’ apartment at around noon; and (4) he went hunting until 4:00 P.M. or later and then had returned home. Only after this extensive questioning did the Defendant show the officers the route he claimed he had travelled. At one point during the drive he asked if he was a suspect; Trooper Porter responded that the Defendant was the last person to be seen with Tower. Thereupon the Defendant declared, “Well, I guess I am.”

Four days later, Troopers Porter and Graves went to the Thibodeau residence at 9:30 A.M. to arrest the Defendant for the murder of John Tower, Jr. The officers did not possess an arrest warrant, but upon representing to the Defendant’s mother and the Defendant that they were there to “talk to Jay and fingerprint him for elimination,” the Defendant left with the offi*638cers and was placed in a cruiser; this time the officers read to him his Miranda rights. Upon arriving at the Houlton Police Department, the Defendant was taken to an interrogation room and asked if he wished to have a lawyer present. The Defendant responded that he was willing to proceed without a lawyer and gave a statement which was tantamount to a confession; this statement was recorded and subsequently played for the jury at his trial. In the recorded statement the Defendant stated that he left his house on October 27 at 9:30 or 9:45 A.M. to go hunting. His rifle was not loaded at the time. He had walked by Tower’s car that was for sale and had stopped to talk with Tower for 15 to 20 minutes, prior to going on a test drive with him. The Defendant put his rifle on the back seat. They stopped for gas and eventually drove to Shin Pond. The Defendant pointed out his grandfather’s camp and, when the Defendant thought they were leaving to go back to town, Tower drove toward the shore of the pond. The Defendant loaded his gun and went into the woods to look for birds. He returned to the car, put his loaded gun on the back seat, and walked to the water with Tower. They talked for a while about Tower’s father who had been ill and, as they walked back to the car, Tower grabbed the Defendant’s arm. The Defendant broke away and Tower ran after him. The Defendant rushed to the car, grabbed his gun, and shot Tower. The Defendant moved the body and drove away in Tower’s car. After completing his oral confession, the Defendant provided a written confession, which encompassed essentially the same information as his oral statements, except that in writing the Defendant claimed that Tower walked after him rather than ran in pursuit.

A few days later the Defendant was indicted for murder, 17-A M.R.S.A. § 201(1)(A) (1983), and trial commenced on May 21, 1984. The taped and written confessions vary slightly from the Defendant’s testimony at trial. The Defendant testified that he was scared when Tower grabbed him. His recollection was that Tower had started to follow him after the Defendant had retrieved his gun, but that Tower had stopped at the. car door. It was at that point, the Defendant turned around and fired a shot. He testified, “I didn’t even spot my gun, I just shot — I didn’t sit there and aim at him. I just brought up the gun and shot.” When he pulled the trigger, the butt of the rifle allegedly rested on his hip. The Defendant reiterated that he did not know why he shot Tower.

Upon appeal the Defendant asserts that his motions to suppress statements that he made to investigating officers in the morning and afternoon of October 28, 1983 should have been granted because, in both instances, he had been subjected by the State Police to a custodial interrogation without being given the Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A trial court’s ruling on whether Miranda warnings were required because there had been a custodial interrogation “will be upheld if the record ‘provides rational support for [the] determination.’ ” State v. Longley, 483 A.2d 725, 730 (Me.1984) quoting State v. Bleyl, 435 A.2d 1349, 1358 (Me.1981). We have found that “[a] person is in custody for the purpose of Miranda only when he is deprived of his freedom in some significant way, or would be led, as a reasonable person, to believe he was not free to leave the presence of the police.” Bleyl, 435 A.2d at 1358 (citations omitted); see also United States v. Rule, 594 F.Supp. 1223, 1234 (D.Me.1984) (whether a reasonable person in defendant’s position would likewise have thought he was not free to go). The latter portion of our definition of “custody” is consistent with the United States Supreme Court’s analysis of when a person has been “seized” within the meaning of the Fourth Amendment. See United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). An interrogation refers “not only to express questioning, but also to any words or actions on the part of the police ... that *639the police should know are reasonably likely to elicit an incriminating response from the suspect.” State v. Estes, 418 A.2d 1108,1111 (Me.1980) quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980).

In State v. Cochran, 425 A.2d 999, 1002 (Me.1981), we further provided the following criteria in determining whether there has been a custodial interrogation: (1) the locale where the statements were made; (2) the party initiating the contact; (3) the existence or non-existence of probable cause to arrest; (4) the subjective intent of the police; (5) the subjective belief of the defendant; and (6) the focus of the investigation.

Turning to the circumstances surrounding the morning conversation between the Defendant and the officers on October 28, we conclude that, even though the officers had received information that the Defendant had been speaking with the victim the day before and had a rifle in his possession, the officers were at that point conducting a general investigation of a missing person report. See State v. Philbrick, 436 A.2d 844, 849 (Me.1981). Accepting that it was indeed unusual, and perhaps a suspicious circumstance, that the victim had not returned home and that his car had been found abandoned, the police had no evidence at the time that he had been murdered.

Furthermore, the setting of this initial police contact with the Defendant was not one indicative of a custodial atmosphere. The Defendant was questioned in the kitchen of his own home with both of his parents present. The questions, lasting only five to ten minutes, focussed on the Defendant’s contact with the victim and did not delve into the details of the Defendant’s knowledge. Even in light of Trooper Graves’ testimony at the motion hearing that the Defendant was “more than marginally a suspect,” there was no evidence requiring a conclusion that the officers had probable cause to arrest the Defendant on the morning of October 28. Therefore, clearly there was rational support for the motion justice’s conclusion that the Defendant had not been subjected to a custodial interrogation in violation of Miranda.

The particulars of the afternoon confrontation between the Defendant and the officers differ significantly from those of the morning. At the motion hearing Trooper Graves testified that by the time the officers returned to the Thibodeau apartment he believed the Defendant had not been truthful in his morning account. Thus, the officer’s suspicions had increased dramatically since the morning. He sensed that the victim was either dead or incapacitated in some way and that the Defendant was connected with the situation. His recollection was that the Defendant that morning had appeared nervous, holding his head down and avoiding eye contact with the officers. Graves felt that the Defendant was hiding something. The trooper conceded that by that afternoon the Defendant was the only suspect.

Accordingly, the officers’ plans for questioning had been altered substantially. Their exploitation commenced when they implemented their decision to remove the Defendant from his home surroundings, including contact with his parents, for further interrogation. See State v. Bleyl, 435 A.2d 1349, 1358 (Me.1981). At the motion hearing the Defendant testified that he did not wish to go, but felt he had no choice. We conclude that under the circumstances at hand such a perception was one that would he held by a reasonable person. When the Defendant left with the officers he had no idea, or, for that matter, cause to suspect, that he would be driven down a side street and interrogated in a parked cruiser; he was asked only to show the officers the route he had taken the day before. Once he accompanied the officers the Defendant was never told that he was free to leave and, in order for him to have left the cruiser, an officer in the front would have had to open one of the doors and pull his seat forward. Similarly, in the hour and a half that the Defendant was *640with the officers in this police-dominated atmosphere,1 he was never asked if he wished to take a break or return home. The combination of these factors amounted to a custodial setting. He was then and there deprived of his freedom in a significant way. Moreover, armed with what they then knew, the officers had ample grounds to anticipate that the Defendant’s responses in the afternoon interrogation would prove incriminating. Even in light of the appropriate deference we accord to motion justices’ determinations, Miranda warnings clearly should have been given to this young man.

To describe the afternoon questioning as merely an elaboration of the morning’s account would be wholly inaccurate. Significantly, as the State conceded at oral argument, the Defendant’s statements were strategically used by the State to impeach the Defendant’s credibility at trial by providing examples of the number of ways in which the Defendant had changed his story. The distances of the routes that the Defendant claimed to have taken, both with the victim and when alone hunting, prompted the officers to ask again what time he had returned home on October 27. The officers commented to the Defendant that he had walked farther than the ordinary person could in such a time span. In response, the Defendant changed the time he originally purported from 4:00 or 4:30 to 6:30 P.M. Although admittedly intended by the Defendant to be exculpatory, those statements, later proving to be blatantly incriminating, were made during a custodial interrogation without the giving of Miranda warnings.

In sum, such evidence at the hearing on the motions compels a conclusion that evidence of the afternoon confrontation should have been suppressed.

Moving on to the next issue, the Defendant argues that his written and oral confessions, along with other evidence obtained on the day of his arrest, were not given voluntarily and were the products of an illegal arrest. A finding of an illegal arrest will not necessarily preclude subsequent statements from admission into evidence. See State v. Bleyl, 435 A.2d 1349, 1360 (Me.1981); Brown v. Illinois, 422 U.S. 590, 601-602, 95 S.Ct. 2254, 2260-2261, 45 L.Ed.2d 416, 426 (1975). In the case before us we need not scrutinize the alleged illegality of the arrest, because we identify no causal connection between the circumstances directly surrounding the arrest and the Defendant’s subsequent statements.2 In Bleyl, we set forth the following factors in determining whether statements made after an illegal arrest are admissible: (1) the voluntariness of the statements; (2) whether Miranda warnings were given; (3) the time span between the arrest and the statements; (4) the existence of intervening circumstances; and (5) the nature of the police misconduct. 435 A.2d at 1360 (citations omitted).

“Voluntariness” concerns not only the specific actions of the police, but also the mental and physical condition of the defendant. State v. Caouette, 446 A.2d 1120, 1123 (Me.1982). Article I, Section 6, of the Maine Constitution, places upon the State the burden of proving voluntariness beyond a reasonable doubt. Id. at 1122; see also State v. Collins, 297 A.2d 620, 626 n. 5 (Me.1972). Although it is indeed evident from listening to the recorded confession that the Defendant was upset, we find *641adequate support for concluding that the Defendant spoke from the free choice of a rational mind. See State v. Mikulewicz, 462 A.2d 497 (Me.1983). The Defendant testified at the motion hearing that he understood his rights, knew what he was saying and writing, and did not feel threatened or coerced by the officers.

The situation in the ease at bar stands in sharp contrast to the defendant’s failure in Caouette to remember even the events following his arrest. This Defendant appears to have had a vivid recollection of everything that transpired. In addition, the officers gave the Defendant the Miranda warnings several times and inquired whether he understood his rights to remain silent and to have an attorney present. The Defendant explicitly acknowledged his understanding and even repeated his rights to the officers. Over an hour passed from when the Defendant was taken from his home and when he confessed. He testified that he knew that the officers would be back for him and that they were there for that purpose on November 1. Seemingly, the Defendant was not taken by surprise when he was arrested; the fact that there was a misrepresentation used in effectuating the arrest, a ruse which we do not condone, did not appear to influence the Defendant’s state of mind. We find no error in denying his motion to suppress the statements he made on the day of his arrest.

The Defendant next contends that the Superior Court erred in denying his motion, to strike evidence concerning the test firing of the murder weapon. He claims unfair surprise as a result of a discovery violation that was disclosed in testimony regarding the distances that shell casings were ejected. When it is determined that the State has failed to comply with the discovery requirements of M.R. Crim.P. 16(b)(2)(B),3 the presiding justice has broad discretion under M.R.Crim.P. 16(d)4 in deciding what, if any, sanctions are necessary to protect the defendant from unfair prejudice. State v. Mylon, 462 A.2d 1184, 1186 (Me.1983) (citations omitted). In the instant case, the Defendant was informed during discovery that the murder weapon, when tested, ejected a shell casing a distance of 13 feet and 9 inches. At trial, Trooper Gallant testified that he had fired the weapon 20 or 25 times with the maximum ejection distance being 13 feet and 9 inches. While we agree with the Defendant that the State’s statement during discovery was somewhat misleading in that it implied only one test firing, we discern no real prejudice resulting from the evidence that was admitted, but not divulged during discovery. The Defendant at no time made a motion for a continuance or otherwise expressed a desire for additional time to procure his own tests. Finding no abuse of discretion in the Superior Court’s denial of the motion to strike, we do not now provide a remedy for the Defendant’s failure to test the weapon.

Finally, upon a careful review of the record, we find no merit in the Defendant’s argument that there was insufficient evidence to support his conviction.

The entry is:

Judgment vacated.

*642Remanded for further proceedings consistent with the opinion herein.

VIOLETTE, GLASSMAN and SCOL-NIK, JJ., concurring.

. See State v. Preston, 411 A.2d 402, 405 (Me.1980) (coercive nature of the interrogation found to be enhanced when it was conducted in a police car).

. In the record we find conflicting accounts on whether the officers’ misrepresentation that they were at the Defendant’s residence to take him "to be fingerprinted for elimination" was made before or after gaining physical entry. See Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 1382, 63 L.Ed.2d 639, 653 (1980) (a warrantless, nonconsensual entry into a person’s home in order to effect an arrest, in the absence of exigent circumstances, violates the Fourth Amendment). The State did not contend that the exigent circumstances exception was applicable; both parties focussed on whether proper consent was given.

. Rule 16(b)(2)(B) provides:

(b) Discovery Upon Request.
(2) Scope of Discovery. The following matters are discoverable:
(B) Any reports or statements of experts, made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons.

. Rule 16(d) provides:

If the attorney for the State fails to comply with this rule, the court on motion of the defendant or on its own motion may take appropriate action, which may include, but is not limited to, one or more of the following: requiring the attorney for the State to comply, granting the defendant additional time or a continuance, relieving the defendant from making a disclosure required by Rule 16A, prohibiting the attorney for the State from introducing specified evidence and dismissing charges with prejudice.