State v. Bailey

• Decision Date: 12 April 2012
• Docket Number: Docket No. Pen–11–16.
• Citation: 2012 ME 55,41 A.3d 535
• Parties: STATE of Maine v. Jack D. BAILEY II.
• Court: Maine Supreme Court

2012 ME 55

41 A.3d 535

STATE of Maine

v.Jack D. BAILEY II.

Docket No. Pen–11–16.

Supreme Judicial Court of Maine.

Argued: Nov. 8, 2011.Decided: April 12, 2012.

F. David Walker, IV, Esq.(orally), Rudman & Winchell, Bangor, for appellantJack D. Bailey, II.

R. Christopher Almy, District Attorney, and Susan J. Pope, Asst. Dist. Atty., Prosecutorial District V, Bangor, Donald W. Macomber, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appelleeState of Maine.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

Majority: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, and JABAR, JJ.

Dissent/Concurrence: LEVY and SILVER, JJ.

JABAR, J.

[¶ 1]Jack D. Bailey II appeals from a judgment of conviction of ten counts of gross sexual assault (Class A), 17–A M.R.S. § 253(1)(B)(2011); 17–A M.R.S.A. § 253(1)(B)(Supp.2003),¹ and two counts of unlawful sexual contact (Class C), 17–A M.R.S. § 255–A(1)(E)(2011); 17–A M.R.S.A. § 255(1)(C)(Supp.2002),² entered in the Superior Court(Penobscot County, Anderson, J.).Bailey argues that the court erred in denying his motion to suppress live-witness testimony because the testimony should have been suppressed as “fruit of the poisonous tree” in violation of the Fourth Amendment of the United States Constitutionandarticle I, section 5 of the Maine Constitution.The State contends that the court erred in granting Bailey's motion to suppress evidence discovered during a police search of Bailey's residence.Finding no error, we affirm the judgment.

I.BACKGROUND

[¶ 2] On November 26, 2008, the Superior Court denied Bailey's motion to suppress with respect to Detective Brent Beaulieu's search of Bailey's home computer.In State v. Bailey,2010 ME 15, ¶ 30, 989 A.2d 716( Bailey I ), we vacated the court's judgment and remanded the case back to the court for a hearing to determine whether the physical evidence gathered from Bailey's home immediately after the computer search and the testimony of the witnesses identified from that evidence should be suppressed.On remand, the court granted Bailey's motion to suppress with respect to the physical evidence seized from Bailey's home after the illegal computer search, but denied his motion to suppress with respect to the testimony of the witnesses identified as a result of the search.Bailey then entered into a conditional guilty plea on all twelve counts and was sentenced to twenty years imprisonment, with all but eight years suspended, and six years of probation.Bailey is also required to comply with the Sex Offender Registration and Notification Act, 34–A M.R.S. §§ 11201–11256(2011), as a lifetime registrant.

[¶ 3]We view the record in a light most favorable to support the court's order on the motion to suppress, and find that the record supports the following facts.SeeBailey I,2010 ME 15, ¶ 3, 989 A.2d 716.The initial illegal computer search was conducted after Detective Beaulieu investigated a residence in Bangor for child pornography shared on the Internet.After determining that the residence's computer did not access or share any child pornography, Detective Beaulieu began to canvass the neighborhood in an attempt to determine whether a neighbor was accessing the residence's unsecured wireless router.During the canvass, Detective Beaulieu obtained permission to enter Bailey's apartment, conducted a search of Bailey's computer, and discovered thumbnails depicting videos of child pornography.In Bailey Iwe concluded that this search of Bailey's home computer exceeded the scope of Bailey's consent.2010 ME 15, ¶¶ 27–28, 989 A.2d 716.

[¶ 4] After discovering the videos on Bailey's computer, Detective Beaulieu spoke with Bailey for a few minutes about the situation,³ and then called another detective and requested that she deliver a written consent form to Bailey's apartment.Before receiving the written consent form, but after obtaining Bailey's verbal consent, Detective Beaulieu began to search the apartment.When the officer arrived with the written consent form Detective Beaulieu reviewed its contents with Bailey.Bailey then signed the written consent form, which informed him that he could refuse to give consent and require the police officers to obtain a warrant, that he could consult with someone else before giving consent, and that anything found during the search was subject to seizure.

[¶ 5] Bailey was unrestrained and free to move around the apartment during the entirety of the search.In conducting the search, and after Bailey signed the written consent form, Detective Beaulieu discovered seven eight-millimeter videotapes in Bailey's bureau.Detective Beaulieu asked Bailey if he could take the videotapes, and Bailey responded affirmatively.

[¶ 6] Detective Beaulieu reviewed the videotapes several days after obtaining them.Most of the videotapes displayed a scene indicating that what was previously recorded on the videotapes had been taped over.However, one videotape “depicted sexual displays and inappropriate activity involving two young girls.”Detective Beaulieu cropped headshots of the two girls in the videotape and showed the headshots to Bailey's daughter.His daughter immediately recognized and identified the two victims.

[¶ 7] Detective Beaulieu obtained permission from the first victim's mother to speak with her about possible abuse and proceeded to speak with her for about forty minutes.Detective Beaulieu asked her if she knew Bailey's daughter, and she answered that she had spent the night at Bailey's house in the past.Detective Beaulieu asked her if there was anything that happened at the Bailey residence that she would consider inappropriate; she answered the question affirmatively, and told Detective Beaulieu about some “acts” that the second victim had disclosed to her.Detective Beaulieu “did not indicate anything about the videotape,” but showed the first victim the headshot, and she confirmed that the picture was of her.

[¶ 8] Detective Beaulieu next contacted the second victim and interviewed her for about forty minutes as well.She confirmed that she also frequently spent the night at the Bailey household.When told that Detective Beaulieu was investigating “improper conduct” at Bailey's house, she was visibly shaken and began to cry.She told Detective Beaulieu “that Mr. Bailey had engaged in various forms of sexual activity with her and had done similar things to [the first victim].”Detective Beaulieu interviewed the first victim again based on the information he received from the second victim, and the first victim confirmed that Bailey had also engaged in sexual activity with her.

[¶ 9] The videotape is date-stamped July 27, 2004.Both victims were under the age of fourteen at the time of the alleged acts.

[¶ 10] At the second suppression hearing, both girls testified that no one forced them to testify, and that they were not coerced into answering Detective Beaulieu's questions when he interviewed them.Neither girl reported the incidents before Detective Beaulieu spoke with them, and the second victim testified that she might not have come forward if Detective Beaulieu had not contacted her, but stated that he helped give her the courage to come forward and talk about the incidents.The only pressure Detective Beaulieu applied was telling the girls that it was important to cooperate, but he also told both girls that they did not have to testify if they did not want to.

[¶ 11] After holding the hearing on the motion, the court issued an order granting the motion to suppress the videotape and denying the motion to suppress the testimony of the two victims.Specifically, the court applied the factors identified in Brown v. Illinois,422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416(1975), and concluded that “Bailey's consent to search his apartment was not voluntary,” and that “his consent manifested a submission to authority created by the prior illegality.”However, after applying the factors relevant to live-witness testimony identified in United States v. Ceccolini,435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268(1978), the court concluded that the two girls should be allowed to testify because live-witness testimony is different from physical evidence.Bailey appeals the court's judgment pursuant to 15 M.R.S. § 2115(2011)andM.R.App. P. 2.

II.DISCUSSION

[¶ 12] In reviewing a court's order on a motion to suppress, we“review the factual findings of the motion court to determine whether those findings are supported by the record, and will only set aside those findings if they are clearly erroneous.”Bailey I,2010 ME 15, ¶ 16, 989 A.2d 716(quotation marks omitted).However, “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).If the ruling on the motion to suppress is based primarily on undisputed facts, it “is viewed as a legal conclusion that is reviewed de novo.”Id.

[¶ 13] Bailey argues that the court properly evaluated the Brown factors to hold that his consent to the search of his apartment was not voluntary.Bailey further argues that the witnesses' testimony should be suppressed because the witnesses would not have been identified if it were not for the illegal search of his apartment and seizure of the videotape.The State argues that the court erred in suppressing the videotape because Bailey voluntarily consented to the search of his apartment.The State also argues that even if the videotape was properly suppressed, the court correctly ruled that the witnesses' testimony was admissible because the Ceccolini factors weigh in favor of its admission.

[¶ 14] Because the Supreme Court has created different tests to determine the admissibility of physical evidence and the admissibility of live-witness testimony, compareBrown,422 U.S. at 603–04, 95 S.Ct. 2254(establishing the test for the admissibility of statements...