Opinion
UNIFIED CRIMINAL DOCKET PORTLAND Docket No. CR-13- 6939
03-10-2015
STATE OF MAINE v. JUSTIN BUSQUE
STATE OF MAINE
CUMBERLAND, ss.
ORDER ON DEFENDANT'S MOTION TO SUPPRESS
Defendant seeks to suppress inculpatory statements made during his non-custodial questioning at the Portland Police Department on or about May 2, 2013. The court conducted a hearing on Defendant's Motion to Suppress on March 3, 2015, at which Detective Scott Durham testified. The court heard oral argument from Mr. Busque's counsel, Attorney David Bobrow, and from the State, represented by Deputy District Attorney Meg Elam. Counsel jointly moved for the admission of two disks, a video recording and a separate audio recording of the interview in question. Upon consideration of the recording played in chambers after the hearing's conclusion (by agreement of counsel), and considering the evidence adduced at hearing and oral argument in light of Maine law, the court finds as follows:
The video recording had sound also but it was hard to decipher what was being said especially by the Defendant. The audio recording had enhanced sounds so that both Detective Durham's voice and Defendant's voices were more easily decipherable.
As grounds for his suppression motion, Defendant contends that his statements "were the result of trickery and thus were not voluntary." Defendant points to comments by Detective Durham in which during his questioning of Defendant he erroneously referred to the charge of "sexual exploitation of a minor" as "sexual abuse of a minor", which he referred to as being a misdemeanor, a "class D", and less serious than a felony. Defendant points as well to statements made by Detective Durham regarding his belief that Defendant's conduct was "consensual", that the issue was "the age [of the other party], not the photographs", and his belief that Defendant was "not a pedophile." Defendant contends that Detective Durham's misstatements regarding the sexual exploitation charge "significantly downplayed the seriousness of the crime under investigation", which "not only implied false promises of leniency, but was deceptive as to the actual punishment for making an admission." See Defendant's Motion to Suppress at 7.
Detective Durham testified that he failed to properly reference the sexual exploitation charge accidentally, as a mistake, and that in any event he had no reason to trick Defendant because Defendant had already admitted the conduct giving rise to the charge when the mistake was made. The court finds the State's suggestion that the crux of this case consists of a simple mislabeling, a "brain cramp" in which Detective Durham mistakenly and momentarily substituted the phrase "sexual abuse" for the phrase "sexual exploitation" to be somewhat disingenuous, as the audio recording reveals that Detective Durham repeatedly underplayed the seriousness of the charges during the interview. The court finds, however, that even though Detective Durham's approach strikes the court as being calculated to reassure Defendant so that his statements might be more forthcoming, such an interviewing strategy does not render Defendant's statements involuntary under the governing standard.
As noted below, Defendant openly admitted to the conduct at issue early in the interview, prior to Detective Durham's discussion of the charges and their "misdemeanor" status.
It is well-established that a statement is voluntary when "it is the result of defendant's exercise of his own free will and rational intellect." State v. Sawyer, 2001 ME 88, 772 A.2d 1173, 1176. See also State v. Dodge, 2011 ME 47, ¶ 12, 17 A.3d 128, 132 ("If a criminal defendant challenges the voluntariness of a confession, a court must determine if the confession resulted from the 'free exercise of a rational mind,' was 'not the product of coercive police conduct' and 'if under all the circumstances its admission would be fundamentally fair'") (citations omitted). For instance, statements made in response to threats, or in response to police promises of leniency, may be determined to be involuntary. Id. The court is to apply a totality of circumstances analysis to determine voluntariness, based on consideration of factors such as: 1) the details of the interrogation; 2) the duration of the interrogation; 3) the location of the interrogation; 4) whether the interrogation was custodial; 5) the recitation of Miranda warnings; 5) the number of officers involved; 6) the persistence of the officers; 7) police trickery; 8) threats, promises or inducements made to the defendant; and 9) the defendant's age, physical and mental health, emotional stability, and conduct. Sawyer, 2001 ME 88, ¶ 9, 722 A.2d at 1176. See also State v. Lockhart, 2003 ME 108, ¶ 30, 830 A.2d 433, 444 (setting forth and applying Sawyer factors).
The questioning at issue lasted for approximately 38 minutes and took place at the Portland Police Department. Defendant does not dispute that the interrogation was non-custodial, and that accordingly Miranda warnings were not required. Defendant reported to the police station pursuant to a previous arrangement made with Detective Durham. He was told at the outset of the meeting that he was free to leave at any time and was reminded about that at least one more time during the course of the interview. A single detective was involved. Defendant was 21 years old, and there is no suggestion that he suffered from any physical or mental disability. While Defendant contends that Detective Durham engaged in trickery and implicitly made promises and inducements, even assuming arguendo that his tactic of downplaying the seriousness of the charges may properly be characterized as trickery, Defendant freely admitted to the conduct on which the charges are based, and did so in any event prior to the detective's recital of the charges and references to their status as misdemeanors. Accordingly the audio recording does not support Defendant's assertion that he was wrongly induced to incriminate himself as a result of police misconduct. Based on the evidence, the court finds that Defendant's confession resulted from the "free exercise of a rational mind," that it was "not the product of coercive police conduct", and that "under all the circumstances its admission [is] fundamentally fair." State v. Dodge, 2011 ME 47, ¶ 12, 17 A.3d at 132.
The audio recording has a duration of approximately one hour and forty minutes, but the interview concluded after about thirty-eight minutes. Defendant was then apparently left alone in the room until, with twelve minutes left in the recording, Detective Durham returned with the police department's computer specialist for a brief discussion with Defendant regarding his phone.
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Accordingly, it is hereby ORDERED that Defendant's Motion to Suppress is hereby DENIED. DATED: 3/10/15
/s/_________
E. Mary Kelly
Unified Criminal Court Judge