State v. Roscoe
| Decision Date | 23 July 2021 |
| Docket Number | CR-2019-1296 |
| Parties | STATE OF MAINE v. WILLIAM ROSCOE, JR. |
| Court | Maine Superior Court |
ORDER ON MOTION TO SUPPRESS
Before the court for resolution is the Defendant's Motion to Suppress Statements dated March 25, 2019. Specifically William Roscoe, Jr. (Roscoe) seeks to exclude from evidence inculpatory statements he made to his federal probation officer on June 25, 2018 and in a subsequent interview with a Portland Police detective on January 5, 2019, on the ground that they were not voluntary.
An evidentiary hearing on the motion was started on January 28 2020 with the presentation of testimony from U.S. Probation Officer Michael Barker. That hearing did not conclude on that day, however, and was scheduled to resume on March 13, 2020. That hearing was cancelled due to the COVID-19 pandemic. The hearing was rescheduled for July 6, 2020, but was continued at the request of counsel for the Defendant, and without objection from the State, because the Defendant could not be transported to the courthouse from the Cumberland County jail, again due to COVID-19 public health concerns. The court held a status conference with counsel on January 7, 2021. See Procedural Order dated January 7, 2021.
Ultimately the evidentiary hearing resumed on April 1, 2021, at which time the court received additional testimony from Officer Barker and the testimony of Detective Kelly Gorham. The court also admitted into evidence, without objection., State's Exhibits 1-3, being respectively: (1) Judgment in the matter of United States v. William Alfred Roscoe, Case No. 2-15-CR-00100-001 dated February 5, 2016; (2) Miranda Warning and Waiver dated January 5, 2019, and; (3) Video disc of interview with Mr. Roscoe by Det. Gorham on January 5, 2019 at the Cumberland County Jail. Briefing in this matter was completed on June 11, 2021.
Based on the evidence presented at the hearing, the court makes the following findings of fact.
On February 5, 2016, sentence was imposed upon Mr. Roscoe in the United States District Court for the District of Maine on a single count of Possession of Child Pornography. Upon his guilty plea, Mr. Roscoe received a sentence of 40 months to be followed by a period of supervised release of 5 years. Among the conditions of Mr. Roscoe's supervision was standard condition # 3, which states: "the defendant shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer." In addition, Mr. Roscoe was subject to certain special conditions of supervised release, including special condition # 2, which states:
Defendant shall submit to periodic random polygraph examinations as directed by the probation officer to assist in treatment and/or case planning related to behaviors potentially associated with sex offense conduct. No violation proceedings will arise solely on the defendant[] failure to pass a polygraph examination, or on the defendant[] refusal to answer polygraph questions based on 5thamendment grounds. Such an event could however, generate a separate investigation. Defendant shall pay/co-pay for such services to the supervising officer[] satisfaction.
This condition works in conjunction with special condition # 1 that required Mr. Roscoe to "fully participate in sex offender treatment as directed by the supervising officer."
Roscoe served approximately 34 months of his initial 40-month sentence and was released from the custody of the Bureau of Prisons in May of 2018. Officer Barker, a sex offender specialist, was assigned as Roscoe's supervising officer, and held an "intake" meeting with him on May 23, 2018 at Roscoe's apartment in Portland. At that "intake" meeting, Officer Barker discussed with Roscoe both the standard and special conditions of his supervised release, and specifically discussed with him his 5th amendment right not to answer questions put to him, either by Barker or by a polygraph examiner, that would incriminate him. He also emphasized to Roscoe that if there were any "hands-on" victims of his, Roscoe should not identify them by name, but should use some other way to describe them, such as by letter, initial or number. Officer Barker testified that (April 1, 2021 Transcript at 12). (Id. at 54-55).
Following the intake meeting on May 23, 2018, Roscoe was scheduled for a psycho-sexual evaluation and then his first polygraph examination on June 18, 2018. According to Officer Barker, it is standard practice that the polygraph examiner would review with the subject (in this case Mr. Roscoe), his 5th amendment rights not to incriminate himself and not identify victims by name.
Within several days after the polygraph examination of Mr. Roscoe, Officer Barker received a copy of the polygraph report, from which he learned that Roscoe had "passed" the exam but had made admissions that he had some type of sexual contact with minors, identified as victim "L" and victim "M." Although Officer Barker did not know the names of these victims, the court finds that he suspected that victim "M" was McKenzie. At the outset of Roscoe's supervised release, he had requested permission to have contact with the children of his former girlfriend, one of whom was named McKenzie. That request was denied. Moreover, Officer Barker was monitoring Roscoe's cell phone and was aware that Roscoe had been in contact with McKenzie's mother and that the phone contained photos of McKenzie herself.
After receiving the polygraph report, Officer Barker held a so-called "containment" meeting with Roscoe on June 25, 2018. This meeting also took place at Roscoe's apartment and was quite brief, lasting less than 30 minutes. Officer Barker testified that he thought the meeting may have lasted as little as 15 minutes. It was not recorded. Officer Barker described Roscoe as being anxious and sad at the meeting, and concerned that he would be going to jail because of what he had admitted during the polygraph examination. While not hyper-ventilating, Roscoe was breathing heavily and Barker had some concern for his well-being because sex offenders have a high risk of suicide. Officer Barker asked Roscoe directly if victim "M" was McKenzie and Roscoe confirmed that she was and, upon further questioning, acknowledged and described that he had had sexual contact with her for a period of about 2 16 years while she was between the ages of 9 and 11. Officer Barker did not say anything to Roscoe about his 5th amendment right not to answer incriminating questions that he had discussed previously with him during the May 23, 2018 intake meeting.
Officer Barker is not a mandated reporter and did not immediately make a referral to the Maine Department of Health and Human Services. Moreover, conduct that pre-dated Roscoe's period of supervised release could not form the basis for a petition to revoke his release. For that reason, Officer Barker's focus in his "containment" meeting with Roscoe of June 25, 2018 was on whether Roscoe was having prohibited contact with a minor, particularly a "hands-on" victim.
Officer Barker did not arrest or threaten to arrest Roscoe at that time, and although Roscoe was concerned about going to jail, Barker told him that they would "take things one step at a time," but he made it clear to Roscoe that he was to have no further contact with McKenzie or any other minor, except his son. By the end of the meeting, Officer Barker felt that Mr. Roscoe was somewhat less anxious.
As a federal probation officer, Barker had considerable discretion in deciding whether to seek a petition to revoke Roscoe's supervised release and whether to seek permission to make a referral to DHHS. A decision to do either of those things also required the approval of the federal court. Ultimately, in the late Fall of 2018, or perhaps the early Winter of that year, Officer Barker was authorized to file a petition to revoke Roscoe's supervised release and to make a referral to DHHS of the disclosures Roscoe had made to him.
On January 2, 2019, Det. Kelly Gorham received the referral from the Biddeford office of DHHS and contacted Officer Barker the next day. A Child Advocacy Center (CAC) interview of McKenzie was also set up, which Det. Gorham attended. McKenzie made no disclosures or allegations against Roscoe during that first CAC interview. Det. Gorham learned from Officer Barker that Roscoe had been arrested on January 3, 2019. The petition to revoke was based on allegations that he continued to have prohibited contact with minors, [1] possession of an unapproved device and substance use. On January 4, 2019, Officer Barker gave a written statement to Det. Gorham in which he detailed the admissions Roscoe had made to him on June 25, 2018. On the following day, January 5, 2019, Det. Gorham went to the Cumberland County Jail to attempt to interview Roscoe. By this time, Roscoe had already made his initial appearance in federal court on the petition to revoke his supervised release and he was represented by counsel at that court...
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