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State v. McConkie
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 158
Docket:	Wal-99-457	
Submitted
on Briefs:	March 29, 2000
Decided:	August 11, 2000

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.




STATE OF MAINE v. MICHAEL S. McCONKIE


DANA, J.

	[¶1]  Michael S. McConkie appeals from the judgment entered in the
Superior Court (Waldo County, Hjelm, J.) following a jury verdict finding him
guilty of engaging in unlawful sexual conduct in violation of 17-A M.R.S.A.
§ 255 (1997).{1}  McConkie contends that the admission at trial of statements
he made to a law enforcement officer constituted error.  We agree and
vacate the judgment.
	[¶2]  On June 23, 1998, McConkie went to the Fairfield Police
Department to meet with Detective Scott Nichols of the Maine State Police
to discuss allegations by a teenage boy that McConkie had had sexual contact
with him.  McConkie had voluntarily agreed to the meeting with Detective
Nichols because he wanted to "find out what was going on."
	[¶3]  The interview took place in the police chief's office and the door
was left ajar.  During the interview, Detective Nichols made several
statements that were aimed at convincing McConkie to reveal details about
his relationship with the boy.  At one point, Detective Nichols commented
that the allegations made by the boy were really not such a big deal, just
some mutual groping between the two.  Shortly thereafter, Detective Nichols
indicated that he was just trying to learn the truth about McConkie's
relationship with the victim and that regardless of what McConkie said
during the interview, "[McConkie was] going to go back home [that day] and
that [was] going to be it."
	[¶4]  Further along in the course of the interview, Detective Nichols
stated that he did not think McConkie was a bad person, but he had
definitely made some poor choices with respect to young boys in the past. 
After a brief discourse regarding the mistakes people make, Detective
Nichols told McConkie that any information he provided during the
interview would "stay[] confidential."  Following this statement, McConkie
did in fact become much more open with respect to recounting the
relationship he had had with the boy, making several incriminating
statements.
	[¶5]  Prior to trial, McConkie filed a motion to suppress the
statements he had made to Detective Nichols because Detective Nichols had
misrepresented to him that whatever he said during the meeting would
remain confidential and therefore not be used against him later.  After a
hearing, the Superior Court (Waldo County, Marsano, J.) denied the motion.
	[¶6]  Following a jury trial, McConkie was convicted of unlawful sexual
conduct.  On appeal, McConkie contends the statements he made to
Detective Nichols should have been suppressed because Detective Nichols
deceived him as to his Fifth Amendment privilege against self-
incrimination,{2} thereby making the admission at trial of the statements
fundamentally unfair.  Accordingly, he asks this Court to consider the
admissibility of the statements he made to Detective Nichols during their
meeting.
	[¶7]  McConkie concedes that his meeting with Detective Nichols did
not constitute a custodial interrogation and that Detective Nichols was
therefore not required to warn him of his Miranda rights before questioning
him as to his relationship with the boy.  See Miranda v. Arizona, 384 U.S.
436, 479 (1966); State v. Michaud, 1998 ME 251, ¶ 3, 724 A.2d 1222,
1226 (quoting State v. Swett, 1998 ME 76, ¶ 4, 709 A.2d 729, 730). 
Miranda requires that an individual subject to a custodial interrogation be
warned,
prior to any questioning that 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 if he so desires.
Miranda, 384 U.S. at 479 (emphasis added).
	[¶8]  What McConkie complains of is that, although Detective Nichols
was not obligated to warn him that anything he said could be used against
him in a court of law, Detective Nichols violated his due process rights when
he affirmatively misled him to believe that the exact opposite was true, i.e.,
that the information he provided would not be used against him because it
would remain confidential.
	[¶9]  "The Due Process Clause of the Constitution prohibits
deprivations of life, liberty, or property without 'fundamental fairness'
through governmental conduct that offends the community's sense of
justice, decency and fair play."  State v. Stade, 683 A.2d 164, 166 (Me.
1996) (quoting Roberts v. Maine, 48 F.3d 1287, 1291 (1st Cir. 1995)).{3}  A
fundamental concept of due process of law is that an accused's confession
must be voluntary if it is to be admitted at trial.  See State v. Mikulewicz,
462 A.2d, 497, 500 (Me. 1983).  "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 of the circumstances its admission would be
fundamentally fair."  Id. at 501.   
	[¶10]  Applying this standard in the present case,{4} it is evident that
McConkie's statements to Detective Nichols were obtained through the use
of an interrogation tactic that does not fall within the bounds of fair play and
that the admission of those statements at trial therefore violated McConkie's
right to due process of law pursuant to the Maine and the United States
Constitution.{5}  Detective Nichols, although not required to advise McConkie
of his Miranda rights in the circumstances of the present case, was
nonetheless not at liberty to affirmatively mislead McConkie as to his
constitutionally protected right against self-incrimination.  
	[¶11]  Although we view the totality of the circumstances in
determining the voluntariness of a confession, see Mikulewicz, 462 A.2d at
501, we cannot condone affirmative conduct by a state actor attempting to
mislead a suspect regarding his constitutionally protected right to remain
silent and the consequences of speaking.  Thus we conclude that the
admission at trial of the statements derived as a result of that conduct
caused McConkie's trial to be fundamentally unfair.
	The entry is:
Judgment of conviction vacated.  Remanded to
the Superior Court for further proceedings
consistent with this opinion.
  
Attorneys for the State: Geoffrey A. Rushlau, D.A. Leane M. Zainea, D.D.A. Waldo County Courthouse 137 Church St. Belfast, Maine 04915 Attorney for the defendant: Christopher K. MacLean, Esq. MacLean & MacLean P.O. Box 1256 Camden, Maine 04843
FOOTNOTES******************************** {1} . Section 255 provides in pertinent part as follows: 1.A person is guilty of unlawful sexual conduct if the person intentionally subjects another person to any sexual contact, and: . . . . C.The other person, not the actor's spouse, has not in fact attained the age of 14 years and the actor is at least 3 years older; . . . . 2.Unlawful sexual conduct is a Class D crime, except that . . . a violation of subsection 1, paragraph C . . . is a Class C crime. {2} . The Fifth Amendment provides that "no person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. Similarly, the Maine Constitution provides that "[i]n all criminal prosecutions, the accused . . . shall not be compelled to furnish or give evidence against himself." Me. Const. art. I, § 6. {3} . While statements may be suppressed based on violations of both the Fifth and Fourteenth Amendments, "[w]here the Fifth Amendment analysis seeks to determine whether the defendant's confession was compelled, a due process analysis asks 'whether the State has obtained the confession in a manner that comports with due process.'" State v. Rees, 2000 ME 55, ¶ 36, 748 A.2d 976, 987 (Saufley, J. dissenting) (quoting Miller v. Fenton, 474 U.S. 104, 110 (1985)). The focus in a due process analysis, "a focus that may provide broader protections than the Fifth Amendment, is not limited to the presence or absence of compulsion, but rather addresses the totality of the State's actions in obtaining the confession." Id. {4} . In similar circumstances, this Court has also applied the test set forth by the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 335 (1976), which applies the following three factors to the procedure in question to determine whether the procedure offends our concept of due process of law: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and administrative burdens that the additional or substitute procedural requirement would entail. Stade, 683 A.2d at 166 (citing Mathews, 424 U.S. at 335) (Mathews factors applied where evidence was obtained as a result of law enforcement officer misleading defendant as to the consequences of taking or failing to take a blood-alcohol test). {5} . "This Court has long adhered to the principle that the Maine Constitution and the Constitution of the United States are declarative of identical concepts of due process." Rees, 2000 ME 55, ¶ 38, 748 A.2d at 987 (quoting Penobscot Area Hous. Dev. Corp. v. City of Brewer, 434 A.2d 14, 24 n.9 (Me. 1981)).