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.