State v. Ayers

• Decision Date: 05 August 1981
• Citation: 433 A.2d 356
• Parties: STATE of Maine v. Barbara Thibodeau AYERS and Donald Ayers.
• Court: Maine Supreme Court

Page 356

433 A.2d 356

STATE of Maine v. Barbara Thibodeau AYERS and Donald Ayers.

Supreme Judicial Court of Maine.

Argued May 14, 1981.

Decided Aug. 5, 1981.

Charles K. Leadbetter, Herbert Bunker, Jr., Asst. Attys. Gen. (orally), Augusta, for plaintiff.

Bither & Goodwin, Thomas L. Goodwin (orally), Houlton, for Barbara Ayers.

Stevens, Engels & Bishop, Jonathan W. Sprague (orally), Richard C. Engels, Presque Isle, for Donald Ayers.

Before McKUSICK, C. J., and WERNICK, NICHOLS, ROBERTS and CARTER, JJ.

WERNICK, Justice.

Defendants Donald Ayers and Barbara Thibodeau Ayers ¹ have appealed from judgments of conviction against them entered in the Superior Court (Aroostook County) on the verdict of a jury, returned in a joint trial, finding each of them guilty of Murder, 17-A M.R.S.A. § 201(1)(A), and of Conspiracy, 17-A M.R.S.A. § 151.

We sustain each defendant's appeal from the judgment of conviction of murder and set aside each said judgment. We deny each defendant's appeal from the judgment of conviction of conspiracy and affirm each said judgment.

On April 6 or 7, 1979, at Presque Isle, John Cheponis was shot and beaten to death in the back room of the J-P Cash Market, where he worked as night manager.

In the course of investigating the death of Cheponis, Presque Isle and Maine State Police questioned defendant Barbara, who was Cheponis' former wife, and defendant Donald, who was then Barbara's lover. This questioning occurred on April 14, after Barbara and Donald chose to go to the Presque Isle Police Station for the purpose of obtaining from the police certain papers belonging to Cheponis. As soon as Barbara and Donald arrived at the station, officers separated them and proceeded to question each in the absence of the other.

Barbara was escorted by a detective Ferland of the Presque Isle Police to a small room used for interrogations, located on the second floor of the police station. Ferland first informed Barbara of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Acknowledging that she understood these rights, Barbara agreed to submit to questioning.

Detective Ferland quickly directed the interrogation to Barbara's relationship with Cheponis as well as with Donald Ayers. When Barbara's answer yielded some information that was apparently not consistent with information Donald had already given the police, Ferland left Barbara temporarily and went to confer in another room with the officer questioning Donald. On his return to resume questioning Barbara, Ferland told her about information regarding the crime that Donald had already given the police. Hearing this, Barbara became extremely agitated. She left the small interrogation room and went into a large, adjoining outer office, saying over and over that she wanted to see Donald. After Ferland told Barbara that Donald was no longer in the police station, which was the truth, Barbara started to walk toward the door leading downstairs. An officer not in uniform was standing either near, or in, this doorway. Neither Ferland nor the officer at the doorway tried to prevent Barbara from leaving, but each of them told her several times that Donald was no longer at the station.

In the outer office Barbara sat down in a chair and stared out a window for a few minutes, unresponsive to Ferland's calling of her name. Visibly distraught, she kept sobbing, apparently without tears. Soon, Ferland said to her

"Barbara, it's (referring to her display of emotion) not going to work this time. We are just going to wait until you are ready to talk."

Ferland continued to question Barbara while she was repeating her disbelief that Donald had made the statements Ferland attributed to him. In the course of Ferland's continued questioning Barbara admitted that she had killed John Cheponis.

During that same day, April 14th, Barbara spoke to police on several other occasions. Some of the conversations she initiated. As a result of Barbara's statements, police retrieved from the Aroostook River the gun used to kill John Cheponis.

During much of the time Barbara was being questioned by Detective Ferland, Donald Ayers was being interrogated in another area of the Presque Isle Police Station. Before questioning Donald, Maine State Police Sergeant Dale Ames advised him as follows:

"You have the absolute right to remain silent, you have the right to have an attorney here with you before any questioning, if you cannot afford an attorney, one will be provided for you and ... anything you say can and will be used against you in a court of law."

Sergeant Ames asked Donald if he understood what was thus explained to him and whether he would be willing to answer questions "without an attorney present." Donald answered "Yes" to both inquiries.

Sergeant Ames suggested to Donald, a Florida resident, that an earlier statement he had given to police, to the effect that he had never been in Maine before John Cheponis was killed, was not true. Donald thereupon admitted that he had met Barbara in Bangor some two weeks before the death of John Cheponis. He also admitted to Sergeant Ames that he had given Barbara a .22 caliber semi-automatic pistol, adding that he supposed that made him an accessory and that he would be arrested. Ames replied that at some point Donald would be arrested. Soon thereafter, Donald answered questions put to him with statements that incriminated him in conspiring with Barbara to kill Cheponis.

Sometime later, Donald agreed to accompany the police to Caribou for further questioning. After he was again given Miranda warnings, Donald fully described his involvement with Barbara in events preceding the killing of Cheponis.

Indicted for conspiracy, as well as for the murder of John Cheponis, Barbara and Donald were tried together for both crimes. At their joint trial the out-of-court confession of each defendant was admitted in evidence. Barbara and Donald each took the witness stand.

1.

At a hearing before trial, Barbara sought to suppress the confession she made to Detective Ferland. One ground of suppression she claimed was violation of her constitutional rights as implemented and safeguarded by Miranda v. Arizona, supra.

The "right to cut off questioning", as necessarily arising from the underlying right to remain silent in the first instance, is described by the Supreme Court in Miranda as follows:

"Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked." 384 U.S. at 473-74, 86 S.Ct. at 1627-28. ² (emphasis added)

The hearing justice ruled that when Barbara was told by Detective Ferland about the information Donald had given the police, her subsequent actions did not "indicate" that she wanted questioning to cease. The justice found her actions ambiguous, "capable of" being taken to signify either that she was reasserting her right to remain silent or that she was in a state of "extreme and understandable nervousness" consistent with a desire to take a "moment of contemplation before the decision to confess." Deeming it his prerogative as fact-finder to decide what Barbara's actual intent was, the hearing justice stated that he was

"convinced beyond a reasonable doubt that the second interpretation ... (was) the correct one."

Accordingly, the justice purported to find as fact that Barbara did not revoke her initial waiver and reassert her right to remain silent.

On this basis, the justice further concluded that the requirement of Michigan v. Mosley, 423 U.S. 96, 100-104, 96 S.Ct. 321, 324-327, 46 L.Ed.2d 313 (1975), as a further clarification and implementation of Miranda, namely, that, once claimed, the right of a person in custodial confinement to stay silent, must be "scrupulously honored" before any further interrogation can take place never came into play.

We agree with the hearing justice that Mosley is not applicable to the sequence of events in this case. Mosley held that interrogation of a person in custody who has "indicate(d) that 'he wishes to remain silent' " can be resumed in certain circumstances. ³ Mosley, however, does not purport to delineate the appropriate procedures for police to use when a person in custody who has previously waived constitutional rights thereafter confronts the police with statements, or actions, that are ambiguous as a manifestation of the person's intent regarding further questioning and that arguably could be manifesting a revocation of the prior waiver and a reassertion of the constitutional rights that are the subject-matter of the Miranda warnings.

Some courts have dealt with this problem in situations roughly analogous to the one before us by imposing on interrogating officers a duty to clarify, through appropriate inquiries, whether the person in custody is in fact intending to invoke any of the constitutional protections that are the subject-matter of the Miranda warnings. See, e. g., United States v. Riggs, 537 F.2d 1219, 1222 (4th Cir. 1976); United States v. Nielsen, 392 F.2d 849, 853 (7th Cir. 1968); United States v. Chansriharaj, 446 F.Supp. 107, 109 (S.D.N.Y.1978); Taylor v. Riddle, 409 F.Supp. 631, 635-636 (W.D.Va.1976), aff'd 563 F.2d 133 (4th Cir. 1977), cert. denied, 434 U.S. 1020, 98 S.Ct. 744, 54 L.Ed.2d 768 (1978); Cf. Thompson v. Wainwright, 601 F.2d 768, 771-772 (5th Cir. 1979); but see Reeves v. State, 241 Ga. 44, 243 S.E.2d 24, cert. denied, 439 U.S. 854, 99 S.Ct. 165, 58...