State Of Me. v. Lavoie.

Decision Date10 August 2010
Docket NumberDocket No. Sag-09-510.
Citation1 A.3d 408
PartiesSTATE of Maine v. Mark C. LAVOIE.
CourtMaine Supreme Court


Clifford Strike, Esq. (orally), Strike, Goodwin & O'Brien, Portland, ME, for Mark Lavoie.

Geoffrey A. Rushlau, District Attorney, Patricia A. Mador, Asst. Dist. Atty. (orally), Bath, ME, for the State of Maine.



Concurrence: ALEXANDER, and LEVY, JJ.


[¶ 1] Mark C. Lavoie appeals from a judgment of conviction of one count of unlawful sexual contact (Class B), 17-A M.R.S. § 255-A(1)(E-1) (2009), 1 entered in the Superior Court (Sagadahoc County, Brodrick, J.) following a jury trial. Lavoie argues that the court ( Mills, J.) erred in denying his motion to suppress statements made during a polygraph examination because various statements and actions by detectives during the examination constituted coercive police conduct and rendered his statements involuntary. We affirm the judgment.


[¶ 2] Viewing the evidence in the light most favorable to the court's order on the motion to suppress, see State v. Bailey, 2010 ME 15, ¶ 3, 989 A.2d 716, 718, and to the jury's verdict, see State v. Rancourt, 435 A.2d 1095, 1097 (Me.1981), the record supports the following facts.

[¶ 3] On October 13, 2007, around 7:00 p.m., Lavoie and his family, the nine-year-old victim and her family, and several other children and adults were at the Lavoies' campsite in Phippsburg. While the adults talked around the campfire, the children played a game of hide-and-seek nearby. Between fifteen and thirty minutes later, Lavoie, aged thirty-seven, joined the game of hide-and-seek. As Lavoie and the victim were hiding behind a car, Lavoie put his hand inside her sweatpants and directly touched her genitals. After Lavoie and the victim moved to another hiding spot for a brief period, the victim left and told her mother what had happened.

[¶ 4] The police were summoned and Detective Chad Charleton spoke with Lavoie after advising Lavoie of his Miranda rights and obtaining a waiver. After some additional investigation, Charleton reminded Lavoie of his Miranda rights and interviewed him again. During this interview, Lavoie volunteered to take a lie detector test. Over the course of the next month, Lavoie and Charleton corresponded several times about scheduling a polygraph test.

[¶ 5] On November 13, 2007, Lavoie drove with his wife to the State Police Crime Laboratory in Augusta to take the polygraph test. The entire examination, which began at 10:18 a.m. and lasted for four hours, was recorded continuously on video. The pre-test interview, the polygraph test itself, and a portion of the post-test interview were conducted solely by Detective Michael Mitchell. Detective Charleton watched these portions of the examination via a monitor in another room. During the examination, neither detective was in uniform or carrying a visible weapon. Lavoie and Mitchell sat five to six feet apart in a room measuring ten by fourteen feet with an eight-foot ceiling.

[¶ 6] Detective Mitchell conducted the test according to his standard procedure. He explained Lavoie's Miranda rights, had Lavoie repeat them, and reviewed the Miranda waiver form. After Mitchell told Lavoie that the test was voluntary and that Lavoie could stop it at any time and it would not be held against him, Lavoie signed the Miranda waiver form. Mitchell told Lavoie that the door was closed for privacy, but that it was not locked and that Lavoie could leave if he wanted to stop the test. During the pre-test interview, Lavoie told Mitchell that he was in “pretty good” health, had slept “good” the previous night, and was not under the influence of any substances.

[¶ 7] Detective Mitchell then told Lavoie how the polygraph machine worked. During this explanation, he stated, “And all the results are recorded right here in the computer screen. All right? It's foolproof.” Following a fifteen-minute break, during which Lavoie left the room, Mitchell formulated some control questions. Mitchell left the room for five minutes. Next, Mitchell asked Lavoie the set of control questions once, attached the polygraph machine's implements to Lavoie, and conducted the test by asking him the entire set of control and crime-related questions four times. At the conclusion of the test, Mitchell told Lavoie that he had failed it. Mitchell then began the post-test interview, trying to elicit a confession. Fourteen minutes later, Detective Charleton joined him and both questioned Lavoie.

[¶ 8] The detectives asked Lavoie whether his alcohol consumption had affected his behavior on the night of the incident. They told him that they could get him help for his alcohol problem and that he needed to “step up to the plate” and admit that he made a mistake. Lavoie then stated,

I screwed up.... I put my hands on her. That was it. I don't remember what I was doing, why I was doing it.... That was it. We were squatting down behind the car and I just put my hands on her.... In her pants.... I'm telling you, I don't really remember. That's all I remember.

[¶ 9] Detective Charleton suggested that Lavoie write an apology letter and Lavoie asked to speak with his wife. All three stood up, and Detective Mitchell told Lavoie that he wanted Lavoie to come back to write the apology letter. They then took a fifteen-minute break, during which Lavoie and his wife spoke outside the building.

[¶ 10] After the break, Detective Charleton reminded Lavoie that he was free to leave at any time; Detective Mitchell did not rejoin them in the examination room. Lavoie asked to whom the letter should be addressed and Charleton suggested the victim. Lavoie wrote out a general apology, saying he was “so sorry about what happened.” Charleton suggested he be more descriptive to show he had owned up to specific actions and then said, “but it's up to you.” Lavoie added to his previous apology:

Putting my hand down your pa[nt]s was wrong and being an adult I should know these things[.] [A]gain I am sorry I cannot apol[o]gize enough to make this go away but just know that deep down in my heart I am.

[Lavoie's Signature]


The session concluded four minutes later.

[¶ 11] After Lavoie was indicted, he moved to suppress his verbal and written confessions on the ground that they were involuntary. Lavoie contended that Detective Charleton had promised to get him help with his alcohol problem if he confessed and that he instructed Lavoie what to write in the apology letter. The court denied the motion, concluding that the State had proven beyond a reasonable doubt that Lavoie's confession was voluntary. The court found that Lavoie knowingly waived his Miranda rights, understood that he did not have to take the test, and knew that he could end the test at any time. The court also found that the detectives did not tell Lavoie what to write or coerce him with threats or promises. Finally, the court found that his confession was not motivated by the suggestion that he would get alcohol treatment and that he “was not under arrest and appeared calm and appropriately responsive throughout the process.”

[¶ 12] On September 16, 2009, the jury found Lavoie guilty of unlawful sexual contact. He was sentenced to eight years' imprisonment, all but five years suspended, with six years of probation, and ordered to pay $8840 in restitution for the victim's counseling expenses. In December 2009, we denied Lavoie's application to appeal his sentence. This appeal followed.

A. Standard of Review

[¶ 13] We review a trial court's denial of a motion to suppress and its determination of whether a confession was voluntarily made using a two-part test. State v. Donatelli, 2010 ME 43, ¶ 10, 995 A.2d 238, 241; State v. Dion, 2007 ME 87, ¶ 32, 928 A.2d 746, 752. We review the court's factual findings “to determine whether those findings are supported by the record, and [we] will only set aside those findings if they are clearly erroneous.” Bailey, 2010 ME 15, ¶ 16, 989 A.2d at 721 (quotation marks omitted). If the court's factual findings are undisputed, then “a challenge to the application of those facts to constitutional protections is a matter of law that we review de novo.” Id. (quotation marks omitted). “Whether a confession is voluntary is primarily a question of fact.” State v. McCarthy, 2003 ME 40, ¶ 11, 819 A.2d 335, 339.

B. Admissibility of Evidence Connected to Polygraph Examinations

[¶ 14] We have a long-standing, fundamental concern regarding polygraph machines due to their “non-existent value when it comes to determining credibility,” 2 State v. Harnish, 560 A.2d 5, 8 (Me.1989) (quotation marks omitted), and “the dangerous possibility that credibility will be evaluated by the device rather than by the trier of fact,” State v. Rameau, 685 A.2d 761, 764 & n. 8 (Me.1996) (alteration omitted) (quotation marks omitted). Consequently, polygraph test results and a defendant's willingness, or unwillingness, to take a polygraph test are inadmissible. Harnish, 560 A.2d at 8; State v. Trafton, 425 A.2d 1320, 1322 (Me.1981); State v. Casale, 150 Me. 310, 320, 110 A.2d 588, 592-93 (1954).

[¶ 15] The scientific evidence simply does not support the reliability or validity of polygraph examinations. 3 Accordingly, nearly every state either “bar[s] the admission of polygraph evidence outright ... [or] limit[s] the admission of polygraph evidence to cases where both parties stipulate to its use.” State v. A.O., 198 N.J. 69, 965 A.2d 152, 161-62 (2009) (collecting cases); see also United States v. Scheffer, 523 U.S. 303, 309-12 & nn. 6-8, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (discussing the contention within the scientific community regarding polygraph examinations and the evolution of their use within state and federal...

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