State v. Clark

CourtSupreme Judicial Court of Maine (US)
Writing for the CourtBefore McKUSICK; SCOLNIK
Citation483 A.2d 1221
PartiesSTATE of Maine v. Daniel G. CLARK.
Decision Date05 November 1984

Page 1221

483 A.2d 1221
STATE of Maine
Daniel G. CLARK.
Supreme Judicial Court of Maine.
Argued Sept. 11, 1984.
Decided Nov. 5, 1984.

Page 1223

Michael E. Povich, Dist. Atty., Wayne S. Moss (orally), Asst. Atty. Gen., Augusta, Jane M. Eaton, Asst. Dist. Atty., Calais, for plaintiff.

Brown, Tibbetts, Churchill & Romei, Robert E. Tibbetts, Earl Brown (orally), Calais, for defendant.


SCOLNIK, Justice.

The defendant, Daniel G. Clark, appeals from his conviction of attempted rape, 17-A M.R.S.A. §§ 252(1)(A), 152 (1983), after a jury trial in Superior Court (Washington County). He argues that the court erred in admitting statements he made to a state trooper following a polygraph test because the trooper deprived him of his right to the effective assistance of counsel. He also asserts that he should have been re-warned of his "Miranda rights" following the polygraph test and that the Superior Court improperly instructed the jury on the crime of attempted rape. Finding no error that warrants reversal, we deny the appeal.

The defendant was indicted on May 5, 1983, for the crime of rape, allegedly committed in the morning of March 19, 1983. He obtained counsel before arraignment who continued to represent him through trial in January, 1984. From the time of his first contact with the state troopers the defendant was "eager" to take a polygraph test. His counsel discussed the possibility with the officers at some point during 1983. On December 7, 1983, a trooper picked up the defendant at his home in Eastport and drove him to the State police barracks in East Machias for the test. The defendant went voluntarily. The police made no effort to inform his attorney that this was to happen, either before hand or when the defendant was in the barracks.

Once there, a trooper read the Miranda warnings to the defendant and obtained his signature on a card which indicated that he understood them. The trooper ascertained from the defendant that he was represented, the name of his attorney, and that the defendant did not know whether his attorney was aware of his presence in the barracks at that time. The defendant, however, indicated that he understood his right to have counsel present during questioning, and that he was willing, nonetheless, to answer questions without his being there.

After those preliminaries, the polygraph test was administered to the defendant. The trooper questioned the defendant about the events of March 18 and 19, asking the same set of questions at least three times. The defendant maintained throughout that he had not engaged in intercourse with the victim. Following the test the officer interviewed the defendant, asserting at the outset his opinion that the defendant had lied during the test, then

Page 1224

speaking of his own supposed experiences in an attempt to elicit information from the defendant.

The defendant continued to deny any intercourse with the victim, but he admitted that he had engaged in other, preliminary sexual acts with her. He also stated that he had been unable to accomplish intercourse because of his inebriation at the time. He subsequently recanted these statements, but the court refused to suppress them. The jury found the defendant not guilty of rape, but did find him guilty of attempted rape.


The defendant argues first that his inculpatory statements were inadmissible because the police deprived him of his right to the effective assistance of counsel, guaranteed by the sixth amendment to the United States Constitution and article I, section 6 of the Maine Constitution. 1 After considering all of the circumstances of this case, we conclude that the Superior Court could rationally have found by a preponderance of the evidence that the defendant waived his right to the assistance of counsel at the polygraph test and the following interview. Thus the court did not err in denying the motion to suppress.

In the absence of waiver, statements must be suppressed if made by one who is denied the sixth amendment right to the effective assistance of counsel. This right is violated if the State, in the absence of counsel, intentionally creates a situation that is likely to induce a defendant to incriminate himself. United States v. Henry, 447 U.S. 264, 274, 100 S.Ct. 2183, 2189, 65 L.Ed.2d 115 (1980); 2 State v. Moulton, 481 A.2d 155, 160 (Me.1984); State v. White, 460 A.2d 1017, 1020-21 (Me.1983). The right "embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel." Johnson v. Zerbst, 304 U.S. 458, 462-63, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1938). It attaches not only during proceedings in court, but to all contacts between an accused and government agents at all "critical stages" of the prosecution, that is, from arraignment on. See United States v. Henry, 447 U.S. at 269, 100 S.Ct. at 2186; State v. Moulton, at 159.

In this case, although Clark sought the initial encounter with the police, his eagerness to take the polygraph test to exonerate himself cannot be presumed to encompass the post-polygraph interrogation as well. That occurred on the initiative of the state troopers....

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