Opinion
CR-21-1947
02-16-2023
STATE OF MAINE v. TREVOR AVERILL
Counsel for State - AAG Lisa Bogue and AAG Suzanne Russell Counsel for Def - Jeffrey Wilson
Counsel for State - AAG Lisa Bogue and AAG Suzanne Russell
Counsel for Def - Jeffrey Wilson
ORDER REGARDING MOTION TO SUPPRESS
By an indictment dated September 8, 2021, Defendant Trevor Averill (hereafter "Averill") is charged with Depraved Indifference Murder (17-A, M.R.S. §201 (1)(B), §1603(2)(A) &(C)) and Manslaughter (17-A, M.R.S. §203(1)(A), §1604(7)(A) &§1804(3)(A)) for allegedly causing the death of his infant daughter Harper Averill. Trial is scheduled to commence on March 13, 2023. Presently before the court is Averill's Motion to Suppress Statements. Hearing on the motion was held January 27, 2023. At hearing testimony was received from Russell Correia, a social worker with MaineHealth, Det. Troy Young with Androscoggin Sheriffs Office, Det. Larry Rose with Maine State Police, and Det. Desiree Wuthenow, now know as Desiree Hurd, also with Maine State Police. The following exhibits were also admitted:
Ex. I- Audio recording of 7/22/20 interview Averill by DEMS and Det. Young;
Ex. 1A- Transcript of interview by DHHS and Det. Young;
Ex. 2" Audio recording of 7/22/20 interview of Averill by Det. Rose (Part 1);
Ex. 2A- Transcript of 7/22/20 interview (Part 1);
Ex. 3- Audio recording of 7/22/20 interview of Averill by Det. Rose (Part 2);
Ex. 3 A- Transcript of 7/22/20 interview (Part 2);
Ex. 4- Video of walkthrough at Averill's home (Part 1);
Ex. 5- Video of walkthrough at Averill's home (Part 2);
Ex. 6- Signed Polygraph Consent;
Ex. 7- Video of 7/28/20 polygraph interview of Averill;
Ex. 7A- Transcript of 7/28/20 polygraph interview;
Ex. 8- MaineHealth Medical Records (notes of Russell Correia); and
Def. Ex. 1- District Attorney Referral.
Averill asserts he was subjected to four interviews: July 22, 2020 at 2:00 P.M. at Maine Medical Center; July 22, 2020 at 4:54 P.M. at Maine Medical Center (recordings in two parts); July 22, 2020 in the evening at Averill's home (video recordings in two parts); and July 28, 2020 at the Maine State Police Barracks in Gray. He further asserts all four interviews were custodial, but that he was not advised of his Miranda rights at the first three interviews conducted on July 22, 2020, and that the rights given at the July 28, 2020 interview did not comply with Miranda or were otherwise tainted. He also asserts the Miranda violations tainted subsequent interviews. Finally, he also argues he asserted his right to counsel at the video recorded walkthroughs conducted at his home, tainting that and subsequent interviews. At hearing, Averill indicated he was not challenging the voluntariness of his statements, but to conduct the analysis required herein voluntariness will also be addressed.
I. Standard of Review.
A. Custody.
The law is clear that a Miranda warning is necessary only if a defendant is: (1) in custody; and (2) subject to interrogation. State v. Nadeau, 2010 ME 71. A defendant is in custody if subject to either: (a) formal arrest; or (2) a restraint on freedom of movement to the degree associated with a formal arrest. Stansbury v. California, 511 U.S. 318, 322 (1994). Statements made by a person subjected to custodial interrogation who is not first given Miranda warnings are inadmissible against that person at trial. State v. Nadeau, 2010 ME 71, ¶53,1 A.3d 445, 464 (internal citations and punctuation omitted) A person, who is not subject for formal arrest, may be in custody if a reasonable person standing in the shoes of the defendant would have felt that he was not at liberty to terminate the interrogation and leave or if there was a formal arrest or restraint on freedom of movement. Id. The State must prove that police conduct was constitutionally valid by a preponderance of the evidence. State v. Kittredge, 2014 ME 90, ¶ 17, 97 A, 3d 106. Courts consider the totality of a number of factors in making the objective determination if a person is in custody. Those factors include:
1. the locale where the defendant made the statements;
2. the party who initiated the contact;
3. the existence or non-existence of probable cause to arrest (to the extent communicated to the defendant);
4. subjective views, beliefs, or intent that the police manifested to the defendant, to the extent they would affect how a reasonable person in the defendant's position would perceive his or her freedom to leave;
5. subjective views or beliefs that the defendant manifested to the police, to the extent the officer's response would affect how a reasonable person in the defendant's position would perceive his or her freedom to leave;
6. the focus of the investigation (as a reasonable person in the defendant's position would perceive it.)
7. whether the suspect was questioned in familiar surroundings;
8. the number of law enforcement officers present;
9. the degree of physical restraint placed upon the suspect; and
10. the duration and character of the interrogation. Nadeau at ¶54.
Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. State v. Dominique, 2008 ME 180, ¶ 12; citing Rhode Island v. Innis, 446 U.S. 291(1980). For Miranda purposes, an interrogation encompasses not only direct questions but also any words or actions on the part of the police (other than those normally attendant to arrest and custody) that police should know are reasonably likely to elicit an incriminating response from the suspect. Id. See also State v. Bragg, 2012 ME 102, ¶ 15. The State bears the burden of establishing by a preponderance of the evidence that a Miranda warning was not required. Bragg,¶ 15.
B. Voluntariness.
Only a voluntary confession is admissible into evidence, and the State must prove voluntariness beyond a reasonable doubt. State v. Kittredge, 2014 ME 90 ¶2A\State v. McCarthy, 2003 ME 40, ¶l2, 819 A.2d 335, 340. The voluntariness requirement gives effect to three overlapping but conceptually distinct values:
(1) it discourages objectionable police practices;
(2) it protects the mental freedom of the individual; and
(3) it preserves a quality of fundamental fairness in the criminal justice system.State v. Hunt, 2016 ME 172, ¶ 20, citing State v. Mikulewicz, 462 A.2d 497, 500 (Me. 1983).
To determine whether a confession is voluntary, the court must consider the totality of the circumstances. State v. Lockhart, 2003 ME 108, ¶ 30, 830 A.2d 433,444. A confession is voluntary if it results from the free choice of a rational mind, if it is not a product of coercive police conduct, and if under all the circumstances its admission would be fundamentally fair. State v. Coombs, 1998 ME 1,¶10. See also State v. Mikulewicz, 462 A.2d 497, 501(Me. 1983). In making its decision of voluntariness, the court may consider the following factors: the details of the interrogation; duration of the interrogation; location of the interrogation; whether the interrogation was custodial; the recitation of Miranda warnings; the number of officers involved; the persistence of the officers; police trickery, threats, promises or inducements made to the defendant; the defendant's age, physical, mental health, emotional stability, and conduct. Id citing State v. Sawyer, 2001 ME 88 ¶9, 772 A.2d at 1176. State v. Hunt, 2016 ME 172, ¶ 22.
II. Findings of Facts.
Averill and Michelle Morin are the parents of Harper Averill who was born on April 30, 2020. Averill was 26 years old at the time. (See Def. Ex. 1). During a feeding by Averill in the early morning hours of July 22, 2020, Harper became unresponsive. 9-1-1 was called and Harper was transported to Central Maine Medical Center and then transported to Maine Medical Center. (Def. Ex. 1). She was ultimately admitted to the pediatrics intensive care unit. Findings from initial diagnostic tests included subdural hemorrhage, and other physical observations were noted by medical personnel. As a result of those findings medical personnel were concerned that Harper's injuries were the result of non-accidental trauma. (Id.). A referral was made to DHHS and the District Attorney's Office. Melanie Arnold, a child protective services caseworker, and Det. Troy Young of the Androscoggin Sheriffs Office were assigned by their respective departments to investigate. They arrived at Maine Medical Center sometime mid to late morning of July 22, 2020 to initiate their investigation and interview Harper's parents.
A. First Interview on July 22, 2020 at 2:00 PM by Ms. Arnold and Det. Young.
At the time of the first interview done by Caseworker Arnold and Det. Young, it was known from information relayed by medical personnel that Harper's injuries included brain hemorrhage and bruising, and there was a suspicion of nonaccidental trauma. But Arnold and Young had not yet spoken directly with the treating physicians. To initiate an interview of Averill and Michelle Morin, Arnold made contact with Russell Correia, who was a social worker with the hospital. Correia's responsibilities included acting as a liason to facilitate coordinating such interviews, securing an appropriate location for the interview, and guiding the participants through the hospital to the interview room. Upon Arnold asking that an interview be coordinated, at approximately 11:06 AM Correia made contact with staff in the intensive care unit and was informed it was not an appropriate time due to the patient's status, but would advise when it was. (See Ex. 8). Around 12:39 PM it was determined it would be an appropriate time for an interview. (Id.) It was decided Michelle would be interviewed first. (Id.) Correia arranged for an interview room, designated as "CFT#2", which was described by the witnesses as being a classroom containing chairs and tables, with dimensions of 25 feet by 25 feet, and the far wall containing windows that overlooked a patio. CFT#2 was located in a distinct location away from the intensive care unit, about a five minute walk through hospital hallways, and which the participants would not likely be able to locate without Correia's guidance.
Correia first escorted Michelle to the interview room, and her interview lasted about 28 minutes. Averill remained with Harper while Michelle was interviewed. After her interview was completed, Correia escorted her back to the ICU and Correia then escorted Averill to the same interview room. Other than advising Michelle and Averill that he was taking them to the interview, he did not discuss their options or explain they had a right to refuse. He would not have forced them to attend the interview had they declined to attend. Due to the size of the hospital and maze like hallways required to get from the intensive care unit where Harper was being treated to the interview room, it is highly unlikely that Averill would have been able to find his way by himself to the interview room, or find his way back to the ICU when the interview was completed.
Averill's interview began at approximately 2:00 PM. Upon being led to the room by Correia, Averill entered and closed the door behind himself. He sat down at the table across from Det. Young. Ms. Arnold was seated adjacent to Det. Young. The door into the room was located towards the end of the table and Det. Young was not obstructing Averill's access to the door. The door was closed for privacy. There were no other exit doors, but the far wall of the room contained several windows. Det. Young was wearing dress pants and a polo shirt.
Ms. Arnold initiated the interview, and she asked all of the questions with the exception of a few brief questions by Det. Young near the conclusion of the interview. Ms. Arnold began the interview by explaining that because Harper had sustained injuries, they had to ".. .help figure out what happened" and that they had some questions (Ex. 1A, p.1-2). She also gave Averill some Child Protective Services pamphlets and contact information if he had questions, (Ex. 1A, p.2) Neither Ms. Arnold nor Det. Young told Averill that his attendance at the interview was voluntary or that he was free to leave at any time, and he was not advised of Miranda rights.
Ms. Arnold asked Averill to tell them what had happened through the course of the day prior to Harper becoming non-responsive. Averill proceeded to tell them about the entire day, from their family outing at the lake, returning home, going to bed, awakening shortly after midnight to feed Harper, and through what had happened when Harper became unresponsive and he called out to Michelle for help. (See Ex. 1 and 1 A). Averill was very cooperative while explaining the events. Ms, Arnold did not ever need to press Averill for details, and rather her questions about the day's events were merely follow up or clarification type questions. Ms. Arnold also asked Averill several historical type questions, including other injuries, his relationship with Michelle, and inquired of prior criminal history. Averill freely and cooperatively answered all questions. In addition to being fully cooperative through the interview, Averill was lucid and coherent, and his statements were articulate and appropriately responsive to the questions asked. At no time during the interview with Ms. Young and Det. Young did Averill become emotional, upset or angry. And he did not appear overly tired, groggy or under the influence. And throughout the interview, both Ms. Arnold's and Averill's tone was even, non-confrontational and conversational, as was Det. Young's in the few times he participated in the exchange.
At a later point in the interview, the door to the interview had apparently opened, and an unknown individual who was not part of the interview closed it. (See Ex. 1 A, p. 20, 24), Also towards the end of the interview, Ms. Arnold directly asked Averill if he had become "..frustrated enough to do that." (ExlA, p.19). Averill calmly responded "Not at all.". A few moments later Ms. Arnold told Averill that "..when babies have bruises, it's suspicious..", and that their next step was to speak with the doctor and try to figure out what happened. (Ex. 1 A, p. 2326). The tone of the interview however remained calm, non-confrontational and cordial through these exchanges The interview lasted 28 minutes, and when completed Averill left and was guided by Correia back to the ICU.
At the time of the first interview, Det, Young knew that Harper's injuries were suspicious of being non-accidental, and he was investigating a possible crime. But he had not yet developed a theory. Both Averill and Michelle were people of interest as they would likely possess information related to Harper's injuries, but they were not suspects at the time the interviews were initiated. And there was not yet probable cause. Because however Harper's prognosis was not good and there was a possibility of her demise, Det. Young initiated contact with Maine State Police who would assume jurisdiction if Harper passed. Officers from Maine State Police arrived around the time the first interview with Averill was completed.
B. Second Interview on July 22, 2020 beginning at 4:53 PM.
Det. Rose arrived at Maine Medical Center around 3 PM. Det. Heimback and Det. Leighton, both with Maine State Police, had also arrived on scene to participate in the investigation. The detectives met with Det. Young and learned that Averill, Michelle and Harper had been home and Averill was feeding Harper when she went into distress. Det. Rose was also briefed by Dr. Brownell. Det. Rose learned from Dr. Brownell the nature of Harper's injuries, that they were believed to be non-accidental, that symptoms would likely have developed immediately after the injuries were inflicted, and Harper was unlikely to survive.
After being briefed, Det. Rose and Det. Heimbach went into Harper's room in the ICU where they met Averill and Michelle. Det. Rose told them he had some questions and asked if they would speak with the officers. Both parents were cooperative and agreed to speaking with the officers. (Ex. 2) Det. Rose explained at hearing that at the time this set of interviews were initiated Averill was a person of interest who might have information but was not a suspect.
Upon agreeing to be interviewed, Det. Rose asked Michelle and Averill "Are you willing to follow us and talk with us?" (Ex. 2A, p. 2), Averill responded "Yeah, absolutely, yeah" (Id.). Michelle and Averill began walking with Det. Rose and Det. Heimbach back to the same interview room used earlier. (Id.) While walking, introductions were exchanged and Michelle and Averill were offered the opportunity for breaks to use the bathroom, or obtain water or a snack. While making the five minute walk to the interview rooms, they were joined by Det. Leighton and Det. Young. To reduce time, it was offered to conduct both interviews at the same time. (Id.)
Once back to the location of the interview room, Michelle went into a separate room where she was interviewed by Det. Heimbach. Averill was shown into the same interview room he had been in earlier with Det. Young. Det. Rose and Det. Leighton conducted the second interview.
Det. Rose similarly described the room to be a fairly large classroom, containing 20 to 30 seats with windows on the outside wall that overlooked a patio. Averill sat at the table across from the detectives, and they did not obstruct his access to the door. Det. Rose was wearing a short sleeve shirt and a tie, with his badge, and also had with him his firearm. The interview by Det. Rose and Det, Leighton started at approximately 4:53 PM and concluded at 7:05 PM, with a three minute break after 27 minutes, for a total duration of just over two hours.
The interview started with the detectives advising Averill "..you certainly don't have to be here,", "..you don't have to talk with us at all.. .we can stop..", "..if you don't want to, you don't have to..". (Ex. 2A, p. 5). Averill agreed to be interviewed. (Id.) Averill was also offered breaks. Averill was not provided Miranda rights warnings.
After asking some preliminary background questions, Averill was asked to describe his first observations of Harper's injuries. Averill described some of the initial problems and prior injuries he and Michelle had observed since Harper's birth, and then began to describe the events of July 22, 2020. Averill was cooperative, alert, and articulate. Det.Leighton followed up with clarification type questions, which Averill easily answered. (See Ex. 2 generally). After about 27 minutes, Averill asked for water. (Ex. 2A, p. 22). The detectives immediately stopped the interview to allow Averill to leave the room and get water. After three minutes he returned.
Upon Averill's return, the interview continued in the same manner, and Averill continued to describe the events of July 22, 2020. The detectives asked additional questions about the event, and also asked questions about Harper's health prior to July 22, and about Averill and Michelle's family and home life. (Ex. 3A, pp.1-10). The interview continued in a non-confrontational, conversational tone, and Averill remained cooperative, alert, articulate and appropriately responsive. (See generally Ex. 2, 2A, 3, and 3 A)
The detectives then switched tack, and began to introduce some of the medical information they had received, and repeatedly asserted that what they had been told by Averill did not explain Harper's injuries, and stressed the severity of Harper's injuries. (Ex. 3A, pp, 12-18, 26-29, 40-48), The detectives also introduced alternative themes, including unintended events, and the frustrations of parenting, (Ex. 3A, pp. 34-44). And the detectives told Averill they believed he knew more than he was telling them, and implored him to be truthful. (Ex. 3A, pp. 53-54). However, the detectives always remained calm, non-confrontational and even toned, and did not yell at or threaten Averill in any way. And Averill also remained calm, cooperative, alert and appropriately responsive to the detective's questions.
As the detectives were wrapping up the interview at approximately 78 minutes into the second part of the interview, the detectives initiated a break, to which Averill agreed. (See Ex. 3, 1:18:32; Ex, 3A, p. 54). After a 20 minute break, the detectives returned. Upon returning, Det. Rose asked Averill if he would be willing to return to his home with them to conduct a demonstration. (Ex. 3A, pp. 54-55). Averill responded without hesitating "Absolutely", and moments later stated "I'm fully down with doing an explanation". (Ex. 3A, p. 55-56) They discussed how they would travel to Averill's home, and offered Averill his choice to drive himself or ride with the detectives. Averill stated he would drive himself and it was agreed they would meet at Averill's home in Turner at 8:30 PM, about 90 minutes after the second interview was concluded. (Ex. 3A, pp. 55-57).
C. Third Interview on July 22, 2020 at Averill's Home (Video walkthroughs)
Det. Rose was the first to arrive at Averill's home. Averill arrived shortly thereafter, with his mother and step-father. Det Heimbach and Det. Leighton also arrived within a short time. Each of the detectives arrived in their separate unmarked cruisers. The video walkthroughs were done in two parts.
Both video walkthroughs were recorded by Det. Heimbach, and Det. Leighton and Det. Rose asked questions of Averill as he did the walkthrough reenactments. Averill was provided a doll baby for the reenactments.
The first video reenactment started in the upstairs bedroom with Averill demonstrating his retrieving Harper from her bassinette, taking her downstairs and placing her on the couch. He then prepared a bottle to feed her, and began feeding her. And he demonstrated Harper becoming in distress and non-responsive. In the first video Averill also demonstrated a prior incident when he had accidentally dropped Harper during a feeding. The first video lasted four minutes, 52 seconds.
In the second video reenactment Averill further demonstrated the incident of July 22, and he also demonstrated an incident that occurred a month or so earlier when he had become agitated with Harper's crying and aggressively picked her up. The second video lasted 9 minutes, 33 seconds and was entirely in the down stairs kitchen/living area.
In both videos, Averill is observed walking freely through his home to demonstrate the events in question, and walked several times past the unobstructed entrance door. Averill's mother and father-in-law were in the kitchen area of the home throughout both reenactments, and were often observed in the video. At one point during the video reenactment Averill's mother provided information regarding the date of a prior incident.
Throughout both reenactments, Averill walked about his home, and gave a narrative of his actions. He is seen to be cooperative, alert, articulate, and responsive to any questions. Throughout the video reenactments, the questions posed by the detectives generally sought clarification. The detectives were at all times calm, cordial, and non-confrontational and communicative. All parties appeared calm and cooperative, and there was never any expressions of anger, threats or frustration. There were no coercive questions.
At hearing it was indicated that at some point during the later stages of the reenactments Averill inquired whether he needed an attorney. This is not observed in either of the videos. Det. Rose testified that this comment was not a request for an attorney, and he did not respond to the question whether an attorney was needed. Other than what can be observed in the two video reenactments, and the reference by Averill asking about an attorney, no other evidence was offered at hearing regarding what was spoken between the parties after they arrived at Averill's home before the recording was initiated, or after the recorder was turned off. The total time the detectives were at Averill's home was estimated to be 20 minutes.
D. Fourth Interview on July 28, 2020 (Polygraph).
After interviewing other family members, Det. Rose contacted both Averill and Michelle to ask if they would agree to a polygraph exam. Both agreed and their polygraph exams were set for the morning of July 28, 2020, at the same time but in different locations. Averill's exam was set to be conducted at the Maine State Police barracks in Gray.
Det. Wuthenow explained that the polygraph exam is comprised of three sections. The first section is the pre interview at which time the exam is explained, the defendant is advised of his rights, and the defendant is asked several baseline questions about the event and questions to determine whether he is suitable to sit for the exam. The second section is the polygraph exam itself, where the equipment is attached to the defendant and the defendant is asked specific control questions and specific questions regarding the event. When the exam is completed, the test administrator determines the results, has them peer reviewed, and discusses the case with the lead investigator to determine next steps. The last stage is the post-exam interview at which time the results are revealed to the defendant and additional follow-up questions are asked.
Averill arrived for the interview with his father. Upon arrival, Averill was met in the lobby of the barracks by Det. Wuthenow, and taken to the interview room. Det. Wuthenow was wearing a suit but did not have displayed her badge or a firearm.
Once in the interview room, Det. Wuthenow gave a brief preliminary introduction to the exam, and then explained to Averill his rights. Det. Wuthenow read and reviewed with Averill the Polygraph Examination Waiver and Consent Form. (See Ex. 6 and Ex. 7, pp. 7-9). Averill acknowledged orally, and also by completing and signing the form, that he was voluntarily taking a polygraph exam, and waiving all of the usual Miranda rights including the right to remain silent, that anything stated could be used against him in a court of law, the right to counsel and for counsel to be present during the interview, the right for appointed counsel if he could not afford a lawyer, and the right to stop answering questions at any time. (Id.). He also acknowledged that his participation in the polygraph exam was voluntary and he could refuse to complete it any time.
After explaining to Averill his rights, Det. Wuthenow described further how the test worked, and then asked Averill to describe the events of July 20, 2020. Averill freely described the events as Det. Wuthenow asked follow up questions. (Ex. 7, pp, 20-69), Although Averill was a bit emotional at certain times when explaining what had happened with Harper, he was always calm, cooperative, alert, articulate and responsive. All of Det. Wuthenow's questions were calm, non-confrontational, conversational, and non-threatening.
Det. Wuthenow then asked several suitability questions, which included Averill's personal history regarding education, work, medical, health, medications, injuries, arrests, and sleep. The detective's questions and Averill's responses were entirely cordial and conversational, and Averill freely provided answers to all of the questions. (Ex.7, pp. 70-96). Towards the end of the pre-interview, Det. Wuthenow asked Averill how he felt about taking the test, and he indicated he was ready. (Ex. 7, p. 96). The pre-interview lasted two hours.
Det. Wuthenow then allowed for a brief break, at which time Averill was free to go outside and visit with his father. After the break, Det. Wuthenow provided Averill a further description how the testing equipment worked, then initiated the set-up and attached the machine's implements to Averill. Once set-up and ready, Det. Wuthenow asked Averill a series of standardized control questions to establish a baseline for a lie. Once that baseline was established, Det. Wuthenow asked Averill a series of short questions specifically inquiring to whether he had hurt Harper. Per standard protocol, these questions were repeated three times. All of the questioning followed testing protocol, and done in a professional, conversational, non-conffontatinal tone. Averill remained cooperative, attentive, and articulate through the pre-exam interview and polygraph exam, and was always responsive. The polygraph interview portion lasted 30 minutes.
After the test was completed, Det. Wuthenow left the room to review the data and determine the test results, and also have the results peer reviewed. When that was completed, Det. Wuthenow returned to the exam room, and was accompanied by Det. Rose. During the exam and pre-exam interview, only Det. Wuthenow had been in the exam room with Averill.
Upon returning to the exam room, Det. Wuthenow again told Averill "..that door is still open., you're still free to go after any of this..." (Ex. 7, p. 125). Det. Wuthenow then immediately advised Averill his results were "showing significant reactions". (Ex. 7, p. 125). She then began to talk with Averill about stresses he was likely experiencing and suggested things were getting overwhelming for him. (Ex. 7, pp. 125-127). Det. Rose then became involved in the interview.
The interview became more intense from that point forward. For the next thirty minutes Det. Rose and Det. Wuthenow told Averill their understanding of the nature of the injuries and how they occurred, and that they didn't think Averill was a bad person, but that his explanation was not consistent with Harper's injuries, and that they believed he knew more than he was telling them (Ex. 7, pp. 130-136). They asked Averill several questions pressing for more details of the incident, and his family life with Michelle. (Ex. 7, pp. 130-146). Averill was presented with the polygraph results, and throughout the balance of the interview he was implored to be truthful. (Ex. 7, pp. 159-168). Although the interview had become more intense after the polygraph, both detectives remained professional and non-confrontational in their questioning, and never threatened or yelled at Averill or became angry. Nor did their questioning become coercive. And although Averill clearly began to shut down, he remained coherent and articulate, and remained steadfast to the statements he had previously given. After about thirty minutes of questioning, the detectives left the room for 15 minutes. Upon their return, the interview continued in the manner described.
Towards the conclusion of the interview, Det. Leighton entered the interview room to take a turn interviewing Averill, (See Ex.7 at 4:23, Ex. 7A, p. 169). Det. Leighton's approach included providing Averill more precise details regarding the nature and cause of the injuries, and the science behind determining the cause and timeline of those injuries. (Ex. 7, pp. 170-173). And he stressed the injuries were not accidental. And he similarly told Averill his explanations did not account for the injuries. Although Det. Leighton was pressing Averill with details of what they understood caused the injuries and attempting to persuade Averill to be more forthcoming, his questioning remained professional and non-threatening. And although Averill was continuing to shut down in the later stages of the interview, he also remained calm and articulate. The interview ended when Averill asked "Am I free to go?", to which Det. Wuthenow responded "Absolutely..". (Ex. 7, p. 186). Averill then stood up and left the room. The post-polygraph interview lasted two hours, including breaks when the detectives left the room.
III. Discussion.
A. First Interview on July 22, 2020 at 2:00 PM by Ms. Arnold and Det. Young.
1. Was the first interview custodial?
This interview was different from typical interviews in that the questioning was largely initiated and conducted by the DHHS caseworker, Ms. Arnold, a non-law enforcement agent. None the less, Det. Young was present and the court's analysis must treat it as a law enforcement interview. The court will first address whether the interview was custodial, applying the factors set forth in Section 1(A).
The interview was coordinated through Mr. Correia, also a non-law enforcement agent, and it was he who advised Harper's parents that DHHS and law enforcement wished to speak with them. The timing of the interview was further influenced by the medical treatment being provided to Harper, and the interviews of both Michelle and Averill were initially pushed off so the parents could remain with Harper.
Once an appropriate time had been established, Michelle was interviewed first. Averill remained with Harper while Michelle left with Correia for her interview. After Correia returned with Michelle, he led Averill to the interview. In other words, Averill went to his interview after observing Michelle leave, and return, after about 30 minutes.
The interview was conducted in a location in the hospital that Averill was not familiar with, and he likely could not have found his way without Correia's assistance. Although not necessarily relevant to the analysis, it seems the location was just as unfamiliar to Det. Young who also would have had difficulty finding it. The interview room was a large classroom, in the hospital, with a wall of windows overlooking an outside patio area. Although a setting unfamiliar to Averill, it was a comfortable setting that would not have caused a reasonable person to believe they were detained. Averill was not restrained. And although the door was closed for privacy, it was opened at one point during the interview, and closed by an unidentified person.
Of concern is that neither Det. Young nor Ms. Arnold told Averill he did not have to speak with them and could leave. This concern is tempered by a number of factors. As mentioned, Ms. Arnold led the initial discussion, and provided Averill with child protective services information and contact information. Although this would have raised concerns about a child protective type proceeding, it would not have necessarily caused a reasonable person to believe they were not free to leave. Neither Ms. Arnold nor Det. Young stated anything or otherwise manifested to Averill anything that would cause him to believe he could not leave. And he never stated anything that suggests he believed he could leave. And again, Averill witnessed Michelle returning after her brief interview.
During the interview, only one law enforcement officer was present, Det. Young. And his participation was very limited and towards the end of the interview. Averill was in no way restrained, and his access to leave was not obstructed. In fact, the door into the interview room apparently became open at some point during the first interview. And through the duration of the interview, Ms. Arnold was entirely non-confrontational and conversational. There was nothing stated nor inferred that would suggest to Averill he was not free to leave or could not end the interview. And Averill never stated anything to Ms. Arnold or Det. Young that suggested he believed he could not leave.
As already discussed, important to the analysis is whether at the time of the first interview the officers manifested to Averill anything that would cause a reasonable person in Averill's position to believe his freedom to leave was impacted. When the first interview was initiated, law enforcement had just begun its collection of information. Det. Young knew "generally", without yet speaking with any doctors, that Harper's injuries were suspicious for being non-accidental, and that Harper had been in her parent's care, and was being fed by Averill, when she became non-responsive. But law enforcement and DHHS had very limited information about what had happened. As Det. Young testified, Averill was a person of interest (as was Michelle) as they likely possessed information that would be relevant to the investigation. But neither of them was yet the suspect of a crime. And from an objective analysis, there was not yet probable cause. Ms. Arnold told Averill ".. when there is(sic) injuries to a baby that age, we have to come in and, and try to help figure out what happened." (Ex. 2A, p. 1). Being in the early phase of their investigation and "trying to figure out what happened", neither Ms. Arnold nor Det. Young stated anything or otherwise manifested to Averill anything that would cause him to believe there was a basis to arrest or detain him, or that his freedom to leave was impaired.
Finally, the interview was relatively brief, 28 minutes, about the same length as Michelle's interview. As already stated, the interview was calm and non-confrontational. And Averill was at all times alert, attentive, and articulate.
The court finds that the State has proven by a preponderance of the evidence that Averill's first interview with Ms. Arnold and Det. Young was not custodial, and there is no Miranda violation.
2. Was the first interview voluntary?
While arguing the first interview was custodial, Averill further argues that as to the subsequent interviews, even if they were non-custodial, they were tainted and therefore non-admissible due to the first interview being custodial and in violation of Miranda, In the event the first interview was found to be custodial and violating Miranda, the court disagrees that the subsequent interviews would necessarily be tainted. In State v. Cote, 2017 ME 73, ¶ 20 the Court held statements obtained after a Miranda violation may be suppressed where the violation is not merely technical, where there is a substantial nexus between the violation and the second statement, and where the second statement is not itself proceeded by an adequate Miranda Warning." (emphasis added) citing United States v. Byram, 145 F.3d 405, 409-10 (1st Cir. 1998). The facts from Cote are instructive.
In Cote, the trial court found that a Miranda violation had occurred regarding an interview conducted on July 28, but that that violation did not taint subsequent interviews conducted on July 23 and 24 which were found by the trial court to be non-custodial, even though Miranda warnings had not been given prior to those subsequent interviews either. The Law Court affirmed the trial court's ruling on the basis that although there was a Miranda violation with the July 18 interview, the statements were given voluntarily, and thus only a technical Miranda violation. Cote, at ¶¶ 21-22. And the court indicated there was not a substantial nexus between the July 18 interview and the subsequent interviews. Id., The Law Court further stated "When determining whether a Miranda violation was merely technical, the appropriate inquiry focuses on whether the unwarned statement at issue was given voluntarily". Cote, at ¶ 20; citing United States v. Carter, 884 F.2d 368, 372 (8th Cir. 1989). ("If the unwarned statement is voluntary, then a subsequent warned confession may be admissible if the prior statement is not the result of deliberately coercive or improper tactics"). In other words, notwithstanding the quoted language from Carter, the subsequent statements in Cote were still admissible despite there being no Miranda warnings before those interviews either.
The court will now assess whether Averill's statements at the first interview were given voluntarily, applying the factors set forth in Sawyer and Hunt discussed in Section 1(B).
As already addressed discussed, at the first interview Ms. Arnold and Det. Young were extremely calm and non-confrontational. Averill freely described the events of the day prior to Harper becoming non-responsive, and he was at all times alert, cooperative and articulate. Ms. Arnold and Det. Young asked follow-up and clarification type questions, but their questioning was in no way persistent or coercive; and there was no police trickery, threats, promises or inducements. At the time of the interview, Averill was 26 years old, appearing in good health, and was emotionally healthy and stable through the interview. Although the setting of the interview was unfamiliar, it was described as a comfortable setting, a classroom. There is absolutely no evidence of coercion or undue influence. And Averill's interview similarly lasted about 30 minutes. Averill's statements at the first interview were the result of his free choice made with a rational mind. Pursuant to these findings, the court finds the State has proven beyond a reasonable doubt that Averill's statements given at the first interview were made voluntarily.
Back to Cote, the statements at the first interview being found to have been given voluntarily and not the result of coercive tactics, the court finds that any Miranda violation (had the interview been custodial) was a technical violation. As for whether there was a substantial nexus, the second interview was initiated about two to three hours after the first interview was concluded. That suggests a nexus in time. But the second interview initiated by Det. Rose and Maine State Police was a result of Harper's condition being grave, and it was anticipated she would die. Maine State Police investigate all death cases. In other words, Det. Rose and the other Maine State Police detectives were called to the scene because Harper was expected to pass and the investigation would become a death case. Maine State Police did not initiate their investigation or interview because of anything Ms. Arnold or Det. Young learned from their interviews. So, there was not a substantive nexus between the investigation started by DHHS caseworker Ms. Arnold and Det. Young and that started by Det. Rose of Maine State Police. Following the guidance of Cote, the subsequent interviews of Averill are not tainted by the first interview, were a Miranda violation to exist in the first interview.
B. Second Interview on July 22, 2020 Beginning at 4:53 PM.
The second interview was both voluntary and non- custodial. Although the interview was initiated by Maine State Police detectives, at that time neither Averill nor Michelle were suspects; they were people of interest. And probable cause had not been established. The detectives initiated the interviews by telling Averill and Michelle they had some questions about Harper, and asked if they would speak with them. They both agreed. The detectives asked Michelle and Averill if they would follow them and talk with them. They agreed. While walking to the interview room, they were offered a break. Once at the interview room, Averill was again told he didn't have to be there or talk with. He again agreed to the interview. Although this was Averill's second interview, nothing was said or manifested to him that would cause him to believe he could not terminate the interview; and he never stated anything that hinted he believed he could not terminate the interview.
The interview room was as previously discussed, a large, comfortable classroom, with a wall of windows overlooking a patio. Although Averill would likely have had trouble finding the room, the detectives seemingly were at the same disadvantage as none of them particularly knew their way around the hospital. Averill was familiar with the room from his prior interview, Averill's access to the door to exit the interview room was not obstructed. During the interview he was allowed to leave for water. And returned on his own volition.
Although there were two detectives during the second interview, the detectives were always calm and non-confrontational in their questioning. After interviewing Averill for a short time, the detectives did present Averill with their belief his explanation did not explain Harper's injuries. But they remained calm, conversational and non-confrontational. They never yelled at, or threatened or coerced Averill. There was no police trickery in the questioning. And Averill was at all times alert, cooperative, and articulate. As previously discussed, he was healthy and emotionally stable. He did not present as overly tired or distraught. At the end of the interview, he agreed to drive himself to meet the detectives at his home. The interview lasted just over two hours. A reasonable person would not have believed he could not terminate the interview and leave. And the statements Averill made were as a result of his free choice with a rational mind. Based upon those the findings, the court finds the State has proven by a preponderance of the evidence that the interview was non- custodial, and proven beyond a reasonable doubt that his statements were given voluntarily.
C. Third Interview at Averill's Home (Video Walkthroughs)
The interview at Averill's home was also non-custodial. At the hospital, Averill quickly agreed to meet the detectives at this home to conduct a demonstration. It was agreed he would drive himself there and meet the officers. It was a 45 minute drive from the hospital to Averill's home in Turner. And the plan was to meet at Averill's home about 90 minutes after the interview at the hospital had ended. In other words, Averill had plenty of time to reconsider. And Averill was accompanied by his mother and father in law when he returned home.
The videos show that at his home Averill walked freely throughout his home while demonstrating the events involving Harper. At his home, there were now three detectives, one who operated the video camera, and Det. Rose and Leighton who had interviewed him at the hospital. But Averill's mother and father-in-law were now with him, and were always in the kitchen area, often seen in the videos. And Averill walked past the unobstructed entrance door to his home several times. He was clearly unrestrained and his freedom of movement unimpaired.
The questioning during the video reenactments was purely explanatory, asking Averill to clarify or further explain things as he provided the demonstrations using a toy baby. Everyone was calm and conversational. The detectives were never coercive. There was no police trickery, threats or promises. As seen in the videos, Averill was at all times emotionally stable, and healthy appearing; and he was alert, articulate and responsive. The interview as captured by the two video walkthroughs lasted about 15 minutes, and it was estimated the total time the detectives were there was 20 minutes.
Averill asserts that during the interview at his home he asserted his right to counsel. The record on this issue is sparse. There is nothing on the video recordings that record any statements about counsel. It is unclear from the record what was actually said. At best, what has been established is that towards the end of the detectives' visit at Averill's home, Averill raised a question whether he needed to have an attorney. There is no evidence the detectives responded or replied.
A suspect does not invoke the right to counsel every time he uses the word attorney. State v. Curtis, 552 A.2d530, 532 (Me. 1988). Tf a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning." Davis v. United States, 512 U.S. 452, 459 (1994), followed by State v. King, 1998 ME 60 ¶9.
The court finds that any statement made by Averill, made late during the visit at Averill's home, was at best an ambiguous reference to an attorney, to which the detectives did not respond. The statement was not a request for an attorney or a request to terminate the interview.
In addition, the court is left with the impression the ambiguous reference to an attorney was made toward the end of the visit.
The court finds that the State has proven by a preponderance of the evidence that the interviews during the video walkthroughs were non-custodial, and proven beyond a reasonable doubt that statements made during the videos were given voluntarily.
D. Fourth Interview on July 28, 2020 (Polygraph).
As discussed, both Averill and Michelle agreed to sit for polygraph interviews. Averill took himself to the Maine State Police barracks on his own volition, accompanied by his father.
Soon after being led to the interview room, Det. Wuthenow read and explained to Averill the Polygraph Examination Waiver and Consent Form. Averill acknowledged orally, and by signing the form, that he was voluntarily taking the exam and waiving all of the usual Miranda rights. The form contained all of the usual Miranda rights including the right to remain silent, that anything stated could be used against him in a court of law, the right to counsel during questioning, the right for appointed counsel if he could not afford a lawyer, and the right to stop answering questions at any time, Det. Wuthenow read each of those rights to Averill. And Averill acknowledged orally, and by checking the boxes and signing the form. Averill however argues the court should find the Waiver and Consent form confusing.
Miranda itself indicates no talismanic incantation is required. California v. Prysock, 453 U.S. 355,359, 101 S.Ct. 2806 (1981). But the safeguards do include the now familiar Miranda warnings- that the defendant be informed he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning. Rhode Island v. Innis, 446 U.S. 291, 297, 100 S.Ct. 1682 (1980), citing Miranda, p. 479. A defendant may waive effectuation of the rights conveyed in the warnings provided the waiver is made voluntarily, knowingly and intelligently. Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135 (1986).
In this case, the court finds that the warnings given by Det. Wuthenow and as contained in the Waiver and Consent Form comply with the requirements of Miranda. And the court finds Averill effectively waived his Miranda rights. As observed in the video recording, he articulated orally and in writing he understood his rights and the waiver. (See Ex. 6, 7, 7A). And otherwise, the statements given at the polygraph interview were made voluntarily. The suitability questions established Averill was healthy, in good physical health and emotionally stable. The video recording of Averill during the polygraph interview likewise shows Averill was healthy and emotionally stable. (See Ex, 7).
All of the questioning, at all three stages, was done professionally, and non-conffontationally. Indeed, in the third part, post exam portion of the interview, three detectives were involved in the questioning. And the detectives were clearly pressing Averill that his explanations were not consistent with the nature of Harper's injuries, and imploring him to be more forthcoming. But each of the detectives remained non-confrontational, and their tone remained conversational. And the detectives were never coercive, nor used trickery, threats or promises. In addition to finding Averill voluntarily waived his Miranda rights at the beginning of the interview, the court finds that the State has proven beyond a reasonable doubt that the statements made were given voluntarily. See State v. Lavoie, 2010 ME 76, ¶16 (". ..admissions made by an accused after the polygraph testing., .although made in response to questions prompted by the polygraph examiner's interpretation of reactions to questions asked during the testing are admissible if such admissions are found to be voluntary beyond a reasonable doubt.")
For all of the foregoing reasons, the Court DENIES Averill's Motion to Suppress Statements, provided however that admissibility of any statements remain subject to the Maine Rules of Evidence.