State v. Nightingale

58 A.3d 1057

2012 ME 132

STATE of Maine

v.Nathaneal K. NIGHTINGALE.

Docket No. Pen–11–507.

Supreme Judicial Court of Maine.

Argued: Sept. 12, 2012.

Decided: Nov. 29, 2012.

Hunter J. Tzovarras, Esq. (orally), Bangor, for appellant Nathaneal Nightingale.

William J. Schneider, Attorney General, and Donald W. Macomber (orally), Asst. Atty. Gen., Augusta, for appellee State of Maine.

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

SILVER, J.

[¶ 1] Nathaneal K. Nightingale appeals from a judgment of conviction of one count of murder, 17–A M.R.S. § 201(1)(A) (2011), and one count of manslaughter (Class A), 17–A M.R.S. § 203(1)(A) (2011), entered in the trial court ( Anderson, J.) following a jury trial. Nightingale argues that the court erred in denying his motion to suppress a confession, other statements, and physical evidence found as a result of the statements. We affirm the judgment.

I. FACTS AND PROCEDURAL HISTORY

[¶ 2] Michael L. Miller and Valerie J. Miller were shot and killed in their home in Webster Plantation on November 28, 2009. At some point in the investigation, it was determined that Nightingale was either the last person or one of the last persons to be at the Millers' home. The police contacted Nightingale to see whether he would be willing to take a polygraph test after Nightingale told the police that a woman came to the Millers' house just as he was leaving. Nightingale agreed and drove himself to the Criminal Investigation Division located at the Dorothea Dix building on Hogan Road in Bangor, arriving at the scheduled time on December 11, 2009. The room in which the examination was conducted was about ten by twelve feet, with a polygraph chair, additional chairs for the two detectives who participated, and a table for the equipment. To exit the room, Nightingale would have needed to walk past one or both officers who participated.

[¶ 3] Maine State Police Supervisor Warren Ferland conducted the polygraph examination. The entire process lasted just over nine hours and was captured on video files that were admitted at the motion hearing.¹ At the beginning of the interview, Ferland informed Nightingale that he was not under arrest. Ferland, who gave Nightingale the Miranda warnings as part of a polygraph waiver form, testified that he was “very satisfied that [Nightingale] understood his rights,” based on Nightingale's responses, his education, which included some college-level work, and his military experience. Nightingale was thirty-one years of age at the time of the examination. Ferland told Nightingale that the examination could only be administered if it is undertaken voluntarily, and Nightingale had “the right to stop the test at any time and leave.” Ferland explained to Nightingale that “the door was closed just for privacy, he could leave any time, all he had to do was get up and go.” Ferland testified that he believed he told Nightingale specifically that Nightingale was not in custody.

[¶ 4] The process was divided into three sections. The first was the pre-test interview, which started at about 10:30 a.m. The first part is designed to determine whether the person being tested is suitable for testing based on his or her medical and psychological condition. The second part, consisting of polygraph data collection, started at 12:42 p.m. and lasted until 1:42 p.m. The third section was the post-test interview, which began at 2:20 p.m., after the first extended break. At about 3:40 p.m., Ferland was joined by Detective Dale Keegan. They took a second break at 4:30 p.m. When Nightingale returned, Ferland offered him a drink, which he declined. The third break was at about 6:15 p.m.

[¶ 5] During the third break, they gave Nightingale a sandwich and then resumed at about 7:10 p.m. Ferland testified that he “went over Miranda again” with Nightingale. Again, Nightingale told Ferland and Keegan that he understood his rights and wanted to continue to talk. Keegan testified that he and Ferland pointed out the inconsistencies in Nightingale's story. Ferland testified that just before 7:35 p.m., he told Nightingale that he knew that Nightingale “was the one who actually took the lives of Mr. and Mrs. Miller. And at that point is when he told me that he thought that, you know, he should have an attorney.” Ferland then terminated the interview. Ferland testified that Nightingale said that he wanted to talk with some family members and would be back in contact with Keegan the next day.

[¶ 6] Ferland testified that he told Nightingale “throughout the process several times” that he was “not under arrest, he was free to leave at any time, he could stop the process any time he wanted to and, you know, that he was going to be going home that night.” The two officers were not dressed in uniform and were not visibly armed. There was no confrontation or raised voices, and there were no threats or promises.

[¶ 7] During the post-test interview, Ferland and Keegan suggested to Nightingale that they potentially had satellite photography of his car at the Millers' home; had DNA test results showing that Nightingale's DNA was on a doorknob and a locking mechanism at the Millers' home, which was significant because it appeared that the last person out had locked the door; had found flakes of Nightingale's skin on the Millers' bodies; and had recovered fingerprint or DNA evidence on money that the detectives told Nightingale they had seized from his father. These were “realistic bluffs” and untrue.

[¶ 8] Approximately three hours after the nine-hour interrogation ended, law enforcement received information that Nightingale had confessed to his mother and a friend. Keegan testified that at about 10:30 p.m., his supervisor asked him to check on Nightingale's welfare because Nightingale's friend “was concerned that he may be suicidal.” Keegan called Nightingale on the telephone. According to Keegan, Nightingale seemed “very calm ... too calm, if you will,” and told Keegan that he would meet with him the next day. In spite of this, Keegan and Detective Darrin Crane went to and entered Nightingale's residence, which was his mother's home, in order to initiate contact with him again. A third officer remained outside. Although there was testimony at the hearing that Nightingale had ingested several crushed Percocet pills, a narcotic, after the nine-hour interrogation, Nightingale's ability to comprehend the subsequent interrogation at his residence is not at issue in this appeal. An audio recording and a transcript of the interrogation in Nightingale's home were admitted without objection at the suppression hearing.

[¶ 9] Keegan admitted that although concern for Nightingale's well-being, based on the report of suicide risk, was the primary reason for contacting Nightingale, a secondary purpose was to talk with Nightingale in light of his confessions to others. Keegan also admitted that he was the one to initiate the questioning on the topic of Nightingale's confession to his mother and his friend. After confirming that Nightingale had spoken to his mother and friend, Keegan asked whether Nightingale had told them “that one [killing] was an accident and one was on purpose.” Nightingale responded in the affirmative. The State concedes that Nightingale was in custody shortly after the two officers entered his residence and therefore the initial statements are inadmissible.

[¶ 10] Keegan then read Nightingale his Miranda rights, after which Nightingale made further and more detailed inculpatory statements. At the outset of the post-Miranda questioning, Keegan referred back to Nightingale's pre-Miranda statements, and got Nightingale to confirm that he had previously said he was “responsible for this” and that “one was an accident and one was on purpose.” It is evident in the transcript that Keegan was interrupted by the arrival of Nightingale's mother as he was going over the Miranda warnings. He did not obtain an express waiver before getting Nightingale's post-warning confession. He obtained the waiver at the end of the in-home interrogation.

[¶ 11] After Nightingale confessed, he told the police that he had taken the Millers' safe and some other things to a camp belonging to his mother and stepfather, and he agreed to take the officers there. At the camp, the officers found a safe and a bag with some items in it, all belonging to the Millers.

[¶ 12] Nightingale was indicted in December 2009 on two counts of murder. He moved to suppress all statements he made during the polygraph interview, all statements made during the interrogation at his residence, and the physical evidence seized at the camp. The court granted the motion only as to the pre-warning statements made during the interrogation at Nightingale's residence, and denied the motion as to (1) the statements Nightingale made during the interrogation at the Criminal Investigation Division, (2) the post-warning statements he made during the interrogation at his residence, and (3) the physical evidence seized after the post-warning statements.

[¶ 13] A six-day jury trial was held in May 2011. An audio file of the post-warning statement from the in-home interrogation was admitted in evidence at trial. The jury returned a verdict of guilty of the lesser-included offense of manslaughter on count one for the death of Michael Miller and guilty of murder on count two for the death of Valerie Miller. In September 2011, the court entered a judgment of conviction on both counts and sentenced Nightingale to concurrent terms of fifteen years on count one and forty years on count two, with no time suspended and no probation.

II. DISCUSSION

[¶ 14] Nightingale argues that he was in custody for purposes of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), during the interrogation at the Criminal Investigation Division and that Keegan's re-initiation of questioning at Nightingale's home several hours after the...