State v. Hewes

• Decision Date: 27 April 1989
• Citation: 558 A.2d 696
• Parties: STATE of Maine v. Allen W. HEWES.
• Court: Maine Supreme Court

Page 696

558 A.2d 696

STATE of Maine v. Allen W. HEWES.

Supreme Judicial Court of Maine.

Argued March 20, 1989.

Decided April 27, 1989.

James E. Tierney, Atty. Gen., Wayne S. Moss (orally), Jeffrey L. Hjelm, Asst. Attys. Gen., Augusta, for State.

Edward E. Russell (orally), Russell, Lingley & Silver, Bangor, for defendant.

Before McKUSICK, C.J., and ROBERTS, GLASSMAN, CLIFFORD and COLLINS, JJ.

CLIFFORD, Justice.

The State of Maine, pursuant to 15 M.R.S.A. § 2115-A (1980 & Supp.1988) and M.R.Crim.P. 37B, appeals from an order of the Superior Court (Penobscot County; Chandler, J.) suppressing certain statements made by the defendant, Allen W. Hewes, to a Bangor Police Department detective on October 24, 25 and 27, 1986. Because we uphold the court's determination that Hewes was in custody while at the Bangor Police Station on October 24 and 25, we affirm that portion of the order suppressing the statements made on October 24 and 25 before the Miranda ¹ warnings were read to him. We vacate the suppression of the post-Miranda statements of October 25 and 27, however, and remand for the court to determine their admissibility pursuant to the principles set out in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).

On October 24, 1986, Merrill Cross was killed by a single blast from a shotgun at a boarding house on Hammond Street in Bangor. Hewes was a resident of the boarding house and a close friend of the victim. A Penobscot County grand jury later indicted Hewes for manslaughter, 17-A M.R.S.A. § 203(1)(A) (1983), and possession of a firearm by a felon, 15 M.R.S.A. § 393 (1980). Hewes filed a pretrial motion to suppress various statements that he made to the police on October 24, 25 and 27, 1986. The following evidence, viewed in the light most favorable to the defendant, was presented at the suppression hearing.

On the morning of October 24, 1986, police officers of the Bangor Police Department arrived at the boarding house in response to a report that an individual, later identified as Merrill Cross, had been killed. The first officer at the scene asked Hewes, "What happened?" Hewes responded, "I didn't know the gun was loaded," and that his friend was dead. Later, in the presence of a police lieutenant, Hewes spontaneously remarked that the shooting was an accident, caused by the way the gun was "rigged." ²

Hewes and two female companions were instructed to accompany Detective Roy McKinney to the Bangor Police Station in the rear of an unmarked police cruiser. Detective McKinney interrogated Hewes at the police station for fifty minutes in a small interrogation room. The recorded interview was not preceded by Miranda warnings. During the interview, the detective repeatedly asked Hewes to describe the circumstances surrounding the death of Mr. Cross. Hewes said he believed the shotgun was not loaded and that the gun inexplicably discharged when he reached for it as it slipped from underneath his arm. Following a thirty-minute interlude, Detective McKinney questioned Hewes again for a few minutes and arranged to have a police officer drive him home.

On October 25, 1986, Detective McKinney called Hewes and arranged to pick him up at a trailer park in Bangor. The detective later drove Hewes to the police station, and, once again, questioned him in the interrogation room. The detective, based on his investigation, had reason to believe that the shotgun could not have discharged in the manner described by Hewes. Although Detective McKinney testified that he advised Hewes that he could terminate the interview and leave at any time, the interview was not preceded by Miranda warnings. The detective was concerned that Hewes would be less likely to make an inculpatory statement if advised of his rights.

Detective McKinney asked Hewes to describe how the shotgun had discharged. Hewes said that the "action" (the mechanism by which the weapon is loaded and fired) of the shotgun was open and adhered to his prior claim that the gun discharged after slipping from underneath his arm. The detective expressed disbelief and explained that he had "thoroughly" examined the gun and that it could discharge only when the "action" was closed. After Hewes insisted that the shooting was an accident and began crying, Detective McKinney said that he believed the shooting was not "intentional," but wanted Hewes to tell the "truth." When Hewes remained with his initial story, the detective accused him of "fooling around" when Cross was killed:

I think it is very conceivable that you ... jokingly ... pointed the gun at [Cross], not knowing there was a round in there ... and you touched the trigger, and it surprised ... you that it went off. Isn't that the way it happened[?] You'll feel a lot better, Allen.

Hewes responded, "That's just the way it happened. It was an accident. I didn't know it was in there." For the first time, Detective McKinney gave Hewes the Miranda warnings. Hewes thereafter provided a detailed description of the shooting and, once again, admitted pulling the trigger of the shotgun. When Hewes asked if he could return home, the detective said that he would check with his superior. Hewes was later advised that, in lieu of a formal arrest, he was to "check in" with the detective on a daily basis. Forty-five minutes after the interview began, the detective drove Hewes back to the trailer park.

On October 27, 1986, Hewes, apparently believing he was required to do so, appeared at the police station. Detective McKinney questioned him in the interrogation room about the shooting. Hewes indicated that he had used his right hand to pull the trigger of the shotgun. No Miranda warnings were given during the ten-minute interview. When the interview was over, Hewes walked out of the police station.

The court found that Hewes reasonably believed he was not free to leave the police station and that he was subjected to custodial interrogation during the interviews on October 24 and 25. ³ The court concluded that his statements on the 24th and the pre-Miranda statements on the 25th were inadmissible in the State's case-in-chief because they were not preceded by Miranda warnings.

The court also suppressed the post-Miranda statements that Hewes made on October 25, 1986 because the Miranda warnings "came much too late" and were issued after Hewes had already let the "cat ... out of the bag." The court concluded that once Hewes made an incriminating pre-Miranda admission, he "could find no legitimate reason not to continue the conversation" with the detective. The court also suppressed the statements made by Hewes on October 27 for the same reasons that Hewes' October 25 post-Miranda statements were suppressed. The court, having concluded that the Miranda warnings given on October 25 were "too late," expressly declined addressing whether Hewes had waived his Miranda rights during the October 25 interview.

I.

The State argues that Miranda warnings were not required on October 24, or on October 25 prior to the time they were given, because up to that time Hewes was not in custody. ⁴

Whether Miranda is applicable and requires the suppression of statements is a matter of federal constitutional law. State v. Gardner, 509 A.2d 1160, 1163 (Me.1986). The Fifth Amendment to the United States Constitution requires that a person in custody and subject to interrogation must be advised of the rights referred to in Miranda in order for his statements to be admissible against him at trial. State v. Jalbert, 537 A.2d 593, 594 (Me.1988). On a motion to suppress, the State has the burden of proof to demonstrate by a preponderance of the evidence that a suspect was either not in custody, id., or not under interrogation. ⁵ The court's conclusion that a suspect was in custody will be sustained if the evidence in the record provides rational support for the conclusion reached. State v. Bridges, 530 A.2d 718, 720 (Me.1987). Because the State has the burden of proof, in order to prevail on appeal, the State must demonstrate that the court was compelled to find that the suspect was not in custody. See Parkinson v. State, 558 A.2d 361, 363, (Me.1989); State v. Kneeland, 552 A.2d 4, 6 (Me.1988).

A suspect is, as a general rule, in custody when he is taken into police custody or otherwise deprived of his freedom in any significant way. Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. In Gardner, 509 A.2d at 1163, and Bridges, 530 A.2d at 720, we adopted the criteria set forth in United States v. Streifel, 781 F.2d 953, 960-61 (1st Cir.1986), used to determine whether a suspect was in custody and subject to interrogation. The court in Streifel concluded that the suppression court "should inquire whether and when a person in [the suspect's] position would have believed that he was actually in police custody and being constrained to a degree associated with formal arrest." 781 F.2d at 962. See Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). The court thus must ascertain whether a "reasonable person in [the suspect's] position" would have believed that he was in police custody. Gardner, 509 A.2d at 1163 (emphasis added).

Contrary to the State's contention, the court considered all of the circumstances of the interrogation in finding that Hewes was in custody, and did not rely solely on the fact that the questioning occurred at the Bangor Police Station. On both the 24th and 25th, Hewes was driven to the police station in a police cruiser, was questioned by police officers for a considerable period of time and was asked for detailed and specific information about the death of Mr. Cross. See Streifel, 781 F.2d at 961 n. 13. See also Gardner, 509 A.2d at 1163 n. 3 (listing factors to be considered when deciding if person is in custody).

Nor was it improper, as the State contends, for the court to consider Hewes' state of mind in determining whether he reasonably believed he was constrained to a degree...