State v. Durepo

• Citation: 472 A.2d 919
• Parties: STATE of Maine v. Thomas DUREPO.
• Decision Date: 28 February 1984
• Court: Supreme Judicial Court of Maine (US)

Page 919

472 A.2d 919

STATE of Maine v. Thomas DUREPO.

Supreme Judicial Court of Maine.

Argued Sept. 22, 1983.

Decided Feb. 28, 1984.

Gene Libby, Dist. Atty., Michael E. Saucier, Asst. Dist. Atty. (orally), Alfred, Brett Dwight Baber, Law Student, for plaintiff.

Mark A. Kearns (orally), East Lebanon, Roger P. Flaherty, Sanford, for defendant.

Before McKUSICK, C.J., and NICHOLS, ROBERTS, VIOLETTE, WATHEN and GLASSMAN, JJ.

WATHEN, Justice.

The defendant, Thomas Durepo, appeals from a judgment of the Superior Court (York County) entered in accordance with a jury verdict finding him guilty of attempted murder, 17-A M.R.S.A. §§ 152-201 (1983), and aggravated assault, 17-A M.R.S.A. § 208 (1983). Durepo contends first, that the Superior Court erred in failing to suppress as involuntary all portions of a statement he made to a Sanford police officer implicating him in the above offenses, and second, in allowing the prosecution to use the suppressed portions of the statement to impeach his credibility at trial. We deny the appeal.

The jury would have been justified in finding the following facts. On August 1, 1981, David Nalibow, a security guard at Brooks Woolen Mill in Sanford received severe and permanent injuries as a result of a beating with a "picker rod." During the course of an intense investigation to identify the perpetrator, police questioned the defendant, Thomas Durepo, who denied knowledge of the beating.

On April 26, 1982, Durepo contacted the Sanford police in regard to an unrelated crime. Having come to the station voluntarily, Durepo implicated himself in receiving stolen goods. While at the police station, Durepo came in contact with Officer Gordon Paul, who was investigating the Nalibow beating. ¹ Paul advised Durepo of his Miranda rights, and following a valid waiver, the two began discussing the Nalibow incident. ² Although Durepo appeared sober and in good health, he began to cry after Officer Paul showed him a picture of Nalibow which had been taken before the beating.

For most of the interrogation, Paul provided the details of the crime and Durepo provided short, often inaudible answers. Durepo admitted to being in the mill yard, drunk, the day Nalibow was beaten, to entering the guard shack through an unlocked door, to encountering someone therein and asking for some beer, and then to having hit that person after having been refused. Although Durepo initially stated that he punched the guard, when asked if he hit him with a pipe, he admitted to having struck him "with something" found in the guard shack. At this point, Durepo stated he did not wish to talk. Officer Paul, however, persisted in questioning the defendant who made several more incriminating remarks.

After indictment on charges of attempted murder and Class A theft, ³ Durepo filed a motion to suppress as involuntary and violative of Miranda the statement he made to Officer Paul. The motion justice, finding a violation of Durepo's Miranda rights, suppressed the portion of Durepo's statement Officer Paul solicited after the defendant declared he no longer wished to talk. The court, however, found Durepo's entire statement to be voluntary. The motion justice reasoned that Durepo had come to the station on his own while sober and not under arrest. Further, the court observed that Durepo had not been physically coerced and had been apprised of his Miranda rights. The court found Durepo's statement to be voluntary.

Prior to the defendant's trial, but after the suppression hearing, a York County Grand Jury indicted the defendant on a third count stemming from the Nalibow beating--aggravated assault in violation of 17-A M.R.S.A. § 208. All three counts were tried together beginning February 14, 1983. During the course of the trial, Durepo took the stand in his own defense and denied involvement in the Nalibow beating. Durepo testified that he admitted involvement to Officer Paul because he was depressed, needed a place to stay, and wanted his girlfriend to feel sorry for him. Durepo asserted he would not have been able to relate the events of the offense had Officer Paul not provided the details of the crime during the interrogation.

A. The Voluntariness of Durepo's Statement

In order for a confession to be admitted at trial, the state must prove beyond a reasonable doubt that it was made voluntarily. ⁴ State v. Ledger, 444 A.2d 404, 413 (Me.1982); State v. Ashe, 425 A.2d 191, 194 (Me.1981); State v. Collins, 297 A.2d 620, 636 (Me.1972). A trial court's ruling on the admissibility of a confession will not be disturbed on appeal if the record rationally supports the conclusions reached. State v. White, 460 A.2d 1017, 1021 (Me.1983); Ledger, 444 A.2d at 413. The determination of voluntariness will be upheld unless the evidence shows that a contrary inference was the only reasonable conclusion that could have been drawn. Ledger, 444 A.2d at 413; State v. Catlin, 392 A.2d 27, 30 (Me.1978).

In the instant case, the record lends rational support to the determination below that the statement Durepo made to Officer Paul was voluntary. Although Durepo was crying, crying alone is "insufficient to negate the conclusion that statements were voluntary." White, 460 A.2d at 1021. Moreover, Durepo came to the Sanford police station voluntarily, while sober and in apparent good health, and was apprised of, understood, and effectively waived his Miranda rights prior to questioning. See Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1424, 22 L.Ed.2d 684 (1969) (fact that suspect is given, understands, and waives Miranda rights prior to making incriminating statement is indicative of voluntariness); see also State v. Theriault, 425 A.2d 986, 990 (Me.1981) (where defendant approached police voluntarily and was given Miranda warnings three times, his confession was voluntary despite officer's statements "you'll feel better if you get it off your chest"). Finally, Durepo was questioned by only one officer, readily accompanied that officer to the interviewing room, and was allowed to walk around and smoke cigarettes during the course of the interview. Having examined the totality of the circumstances, we hold the record rationally supports the determination of the suppression justice that Durepo's confession was voluntary.

B. The Use of the Suppressed Portion of Durepo's Statement to Impeach Credibility

On appeal, the defendant contends for the first time he was deprived of a fair trial by the prosecution's use of the suppressed portions of his statement for purposes of impeachment. Defendant did not object in any way to the use of the suppressed statements at trial and our review is confined to "obvious error." In his brief and argument before this Court he does not raise any issue under the Maine Constitution but, rather, he argues solely that the state's cross-examination was not "reasonably suggested" by the direct examination of defendant. The only function to perform on this appeal is an application of the settled law of Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), and United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980), to the facts presented. ⁵

In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the Supreme Court declared that Miranda did not stand for the proposition that statements obtained in violation of the Miranda rule were inadmissible at trial for all purposes. Id. at 224, 91 S.Ct. at 645. Rather, the Harris Court held, Miranda mandated only that the prosecution be barred from the use of illegally obtained statements in its case-in-chief. As long as the statements elicited in violation of Miranda satisfied traditional legal standards of trustworthiness, the prosecution was free to use such statements to impeach a criminal defendant's direct testimony. ⁶ Id. at 224-26, 91 S.Ct. at 645-646. The Court explained that the right of a criminal defendant to take the stand in his own defense cannot be construed to include the right to commit perjury. Id. at 225, 91 S.Ct. at 645. The Court observed: "[T]he shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from risk of confrontation with prior inconsistent utterances." Id. at 226, 91 S.Ct. at 646. Finally, the Court postulated that sufficient deterrence of unlawful police activity flowed from the exclusion of Miranda violative statements from the prosecution's case-in-chief. The benefits of the impeachment process should not be lost, proclaimed the court, "because of the speculative possibility that impermissible police conduct will be encouraged thereby." ⁷ Id. at 225, 91 S.Ct. at 645.

In United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980), airport customs officials illegally seized from the defendant's luggage a T-shirt which implicated the defendant in smuggling cocaine into the United States. During direct examination, the defendant denied any involvement in the smuggling operation. Id. at 622, 100 S.Ct. at 1914. Although the defendant did not refer to the T-shirt during direct examination, the prosecutor inquired during cross-examination whether the defendant possessed the T-shirt at the time he went through customs. Id. at 623, 100 S.Ct. at 1914. After Havens denied possession, the prosecution called in rebuttal the customs official who had seized the T-shirt. Therefore, the Supreme Court was confronted with a question left unanswered in Harris--the permissibility of the use of evidence obtained in an unlawful search and seizure to impeach statements made by a defendant for the first time during cross-examination.

Stressing the importance of arriving at the truth in criminal proceedings and the need to discourage perjury, the Havens Court observed, "[w]e see no difference of constitutional magnitude between the defendant's statement on direct examination and his answers to questions put to him on cross-examination that are...