State v. Thibodeau

¶1with whom McKU-SICK, Chief Justice, and ROBERTS, Justice, join dissenting.

¶2I must respectfully dissent. I disagree with the holding of the Court that the statement obtained from defendant during the afternoon of October 28, resulted from a custodial interrogation. The Superior Court found no custodial interrogation. This Court now adopts a contrary view of the facts and departs totally from the usual standard of review requiring clear error to reverse a finding of the trial court.

¶3The Superior Court was required to find as fact whether defendant was “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.” State v. Bleyl, 435 A.2d 1349, 1358 (Me.1981). The Court found as follows:

Further, the circumstances did not constitute custodial interrogation. Thibo-deau cooperated with the detectives in generally non-eoercive settings. Neither his situation in the cruiser nor the suspicions of the police reached a level requiring a statement of Thibodeau’s ‘rights.’

¶4The ruling of the trial court should be upheld if the record provides rational support for its determination. State v. Longley, 483 A.2d 725, 730 (Me.1984).

¶5This Court concludes that although the interview conducted on the morning of October 28 amounted only to a general investigation of a missing person report, as a matter of law, the afternoon interview rose to the level of a custodial interrogation. An examination of the record reveals that the information known to the police before the morning interview was as follows: On October 27, Tower’s relatives reported him as missing. During the evening of the 27th, officers located his unattended vehicle. Numerous witnesses confirmed that defendant was the last person to be seen with Tower. When the officers conducted the afternoon interview they had no information in addition to that which they had in the morning. One of the investigating officers described the state of the investigation as it existed at the conclusion of the afternoon interview, in the following terms:

There was no crime. There was an individual who out of his normal routine of life had changed, and at that point we did not know whether perhaps Mr. Tower had a medical problem or just what. We did not know.

¶6Neither in the morning, nor in the afternoon, did the officers have any information concerning the whereabouts of Mr. Tower or the state of his health.

¶7Throughout the entire investigation the police were understandably concerned about the possibility that Tower might be dead or incapacitated. The majority characterizes the afternoon interview as a ploy and an exploitation. The evidence, however, contains only the following account of the officer’s purpose in returning to the Thibodeau residence:

Purpose was to go and to determine what Mr. Tower might have done after he left Mr. Thibodeau, perhaps there was conversation that would have suggested what his intentions were to do the rest of the day, general information in regards to Mr. Tower, and the route of travel they took and anything that might have happened to interrupt Mr. Tower’s intention of what he planned to do the rest of the day.

¶8On both occasions when defendant was interviewed on October 28, the police were investigating a report of a missing person and had no evidence that Mr. Tower had been murdered.

¶9In spite of the absence of any change in the information known to the police, this Court constructs an elaborate transformation of the attendant circumstances and finds that a legally significant change occurred between the morning and afternoon *643of October 28. From the record the Court gleans four circumstances and concludes that the cumulative effect of these circumstances is to produce a “custodial setting.” The circumstances noted are as follows: (1) the officers suspicions had increased by the afternoon and the plans for questioning had been altered; (2) defendant testified he did not wish to go with the officers but felt he had no choice; (3) defendant remained in the car for an hour and a half and was never told that he was free to leave nor was he asked if he wished to take a break; and (4) defendant was seated in the back seat of a two-door unmarked cruiser. The Court’s analysis fails to demonstrate that the evidence compels a result contrary to that reached by the Superior Court. Indeed, the analysis includes conclusions that are contradicted, rather than compelled, by the evidence. In my judgment the Court has usurped the function of the factfinder and has failed to state a basis for reversal. In order to reverse the Superior Court, we must find that the evidence compels a contrary result.

¶10The first two circumstances noted, should not be considered on appeal. The Superior Court did not find that the officers suspicions had increased by the afternoon. In fact the principal investigating officer acknowledged on cross-examination that before the morning interview, defendant was the “only possible suspect” in the sense that “he was the last person we knew of at that time that would have been with Tower.” The record contains no evidence of any subsequent change in the nature of the officer’s suspicion or the basis for his suspicion.1 Beyond the factual accuracy of the Court’s assumption, the United States Supreme Court has explicitly rejected the notion that Miranda warnings are required simply “because the questioned person is one whom the police suspect”, even when the questioning takes place in the station house. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977). Similarly, an interrogation is not custodial merely because the police interviewed a person who was the “focus” of a criminal investigation. See California v. Beheler, 463 U.S. 1121, 1124, 103 S.Ct. 3517, 3519 n. 2, 77 L.Ed.2d 1275 (1983); Beckwith v. United States, 425 U.S. 341, 347, 96 S.Ct. 1612, 1616, 48 L.Ed.2d 1 (1976). With regard to the second circumstance, the hearing justice was not required to accept, and did not accept, defendant’s conclusory testimony that he felt he had no choice but to go with the officers. It is beyond dispute that the fact-finder is free to reject evidence. Further strength is added to the hearing justice’s conclusion by the fact that defendant testified at the suppression hearing and acknowledged that his purpose in accompanying the officers was “to keep them off [his] track.”

¶11In assessing the effect of defendant’s presence in the police cruiser, this Court appears to be troubled by the duration of the interrogation- and the fact that defendant was never expressly advised that he was free to leave. The Court assumes that a lengthy interrogation was conducted and that defendant was not even offered a break. The record does not support this version of the events. When the officers’ approached defendant in the afternoon they “asked Jay if he would go with us and show us where he had gone with Mr. Tower and what he himself had done for the previous day.” After getting into the car they stopped to permit one officer to take notes while defendant repeated what he had told the officers during the morning conversation. The estimated time of that *644stop varies from 15 to 30 minutes. The officer’s testimonial summary of defendant’s statement consumes five solid pages of typed transcript. After listening to defendant repeat his earlier statement concerning the route he followed on the prior day, the three retraced the complicated route he outlined. The subsequent events were described by one of the officers as follows:

A. We drove out from where we were parked, which was within sight of Route 159, also called the Houlton Road. We drove out to that intersection and took a left toward Island Falls, and we drove past the Tower residence, which is situated on that highway, on by the Department of Transportation garage, continued on to the intersection of the Hat Farm Road. We drove to the end of that road. There were some boulders across the roadway there. At this point, Mr. Thibodeau indicated that they were there the day that he walked in there hunting. We turned around there, and we drove back to the intersection of 159. He then directed us back towards Patten indicating he walked on the left going back towards Patten, on the right coming toward Island Falls, so it was the same side of the highway. We drove back to the Tower residence. Here he said he was where they started driving the vehicle. He took us up to the stop sign, which is adjacent to the Chevron station, Carver’s Chevron station. We then took a right up Main Street. He indicated at this point that they drove just up as far as the cemetery, that Mr. Tower turned into the cemetery, backed out, and then drove back downtown, and he was dropped off in front of the apartment. There was no indication at that time by Mr. Thibodeau that they drove on any of the back streets of Patten.

Q. Okay, did he then — did you trace his hunting route with him, where he went after he was dropped off by Mr. Tower?

A. We did. He indicated after getting out of the vehicle, walked up back to Pat’s Pizza and then back down over the hill, which we drove down Mill Street to the housing development where his grandfather lives. We drove into the housing development that time, and he showed us which house it was that his grandfather lived in. He showed us the fence that he jumped over when he deposited the gun behind the house. We turned around and went back the same route, down Mill Street to the junction of Route 11. We turned left, went south on Route 11 a number of miles to the junction of Route 11 and the Happy Corner Road. We turned right onto the Happy Corner Road and drove up that road to the junction of the Frenchville Road, turned right onto the Frenchville Road, went in there a couple of miles or so to this house he pointed out. It was burnt. I think it had a grayish trim. I’m not sure of the color. We were going to drive out back a little bit, but it was pretty rough going. He said he hunted out behind that house for about 20 minutes. Then we turned around and drove back the same route until we came to the Charles Kinney residence. As we had passed it previously, he had indicated, as he walked along this road, which by the way was the only time he’d ever walked this route, that there were some men working on an old pickup there. So we pulled into the driveway, and Trooper Graves went inside and conducted an interview of the people there.

Q. That’s with Mr. Kinney?

A. I believe so, yes.

Q. So approximately how long had you stopped at the Kinney residence?

A. I don’t believe we was there over ten minutes.

Q. And where was Mr. Thibodeau during this time?

A. Mr. Thibodeau was still seated in the back of Mr. Graves’ vehicle.

Q. And when Mr. Graves came back into the vehicle, was anything said that you can recall of what his interview had been about or uncovered or anything?

*645A. No, there was nothing said at that time.

Q. So when Mr. Graves got back in the car and all of you were in the car, what occurred next?

A. We backed out onto the highway and drove into Patten where he was dropped off at his apartment — Mr. Thibodeau.

¶12In my opinion the evidence satisfactorily accounts for the duration of the meeting between defendant and the officers.2 It does not support the conclusion that there was a one and one half hour interrogation. It is true that the officers never expressly told defendant that he was free to leave, however, there is no authority, and the Court cites none, for the proposition that a Miranda warning is mandated by the failure of the police to expressly advise a person that he is free to leave.

¶13In the final analysis we are left with the unchallenged fact that defendant seated himself in the rear seat of a two-door, unmarked car while in the company of two plain-clothes officers. In two cases that present far more compelling circumstances than the present case, the United States Supreme Court has summarily held that Miranda warnings are not required “simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.” Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977); see also California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983). The Supreme Court has clearly held .that the ultimate inquiry in a case such as this is “simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. at 1125, 103 S.Ct. at 3520. Further, in remarks which apply directly to this Court’s opinion, the Supreme Court has stated, “[s]uch a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a ‘coercive environment.’ ” Oregon v. Mathiason, 429 U.S. at 495, 97 S.Ct. at 714. In a manner consistent with the Supreme Court decisions, we have previously held that the Miranda rule is not necessarily implicated by the fact that a defendant’s conversation takes place in a police cruiser. State v. Lewis, 373 A.2d 603, 607 (Me.1977). I -decline to adopt a different rule solely because the defendant happens to sit in the rear of the car rather than the front. The impairment in defendant’s freedom of movement resulting from his location in the back seat, does not rise to the “degree associated with a formal arrest.”

¶14The record rationally supports the ruling of the hearing justice. The afternoon interview was merely a continuation of the interview conducted at defendant’s home in the morning. Defendant did not ask to leave the car at any point. In fact, in an effort to lead the officers astray, he eagerly participated in showing the officers the route he claimed he followed on the day in question. The afternoon interrogation was neither prolonged nor accusatory in nature. Surely, the presiding Justice committed no error in concluding that defendant was not restrained in his freedom of movement to the degree associated with a formal arrest.

¶15I would affirm the conviction.