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State v. Steven Holloway, revised 11-7-00
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 172
Docket:	Fra-00-21
Argued:	May 3, 2000
Decided:	October 11, 2000

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

STATE OF MAINE

v.

STEVEN D. HOLLOWAY

DANA, J.

	[¶1]  Steven D. Holloway appeals from a judgment of conviction
entered by the Superior Court (Franklin County, Studstrup, J.) on his
conditional guilty plea to murder in violation of 17-A M.R.S.A. § 201(1)(A)
(1983).{1}  Holloway entered his conditional plea pursuant to M.R.
Civ. P. 11(a)(2) following the court's denial of his motion to suppress his
statements to the police on January 15, 1998, thereby preserving the issue
for appeal.  Holloway here argues that the court erred when it determined
that (1) the January 15, 1998 interrogation of him by the police was not
custodial for purposes of Miranda until he was formally arrested, (2) his Fifth
Amendment privilege against self-incrimination was not violated by his
continued interrogation despite an expressed desire not to continue talking
to police and to speak with an attorney, (3) the Miranda warning given by
police and his waiver of those rights following his arrest were effective
notwithstanding his previously expressed desire to see an attorney, and (4)
his statements to the police were voluntarily given.  Because we agree that
the police interrogation of Holloway was ultimately custodial, we vacate his
conviction and remand for a determination consistent with this opinion as
to when that point was reached.

I.  FACTS

	[¶2]  Although the State and Holloway differ about the details, the
significant facts in this case are not disputed.  On January 13, 1998, a man
was murdered in his home in Wilton.  As the result of information from two
young girls who lived in the area of the victim's home and information from
Holloway's ex-girlfriend, Holloway became a suspect in the murder.  The
police also learned from Holloway's ex-girlfriend that he was staying at a
motel in Farmington. They placed him and his motel room under
surveillance on January 14.  At the time in question, Holloway did not own
an automobile or have a permanent residence.
	[¶3]  On the morning of January 15, Detectives Richard Pickett and
Douglas Parlin approached Holloway as he returned to his room from a visit
to the motel office, identified themselves, and asked him if they could
discuss an incident in Wilton with him.  The discussion took place in
Holloway's motel room.  Holloway sat on his bed with his back against the
wall and the two detectives sat facing him in close proximity.{2}  The
detectives were both carrying weapons in their shoulder holsters, but were
also wearing coats and made no open threatening display of the weapons. 
Holloway testified at the suppression hearing, however, that he could
nevertheless see the detectives' weapons.{3}  The detectives' questioning
began at 9:54 a.m. and the exchange was recorded, the detectives having to
take several breaks to turn the tape over or replace it with a new, blank
tape.
	[¶4]  Prior to the initiation of the recorded questioning, however, the
detectives informed Holloway that the victim, who had been a friend of
Holloway's, had been murdered.  In the course of the detectives' subsequent
recorded questioning, Holloway's story about his activities on the day of the
murder changed, with him admitting facts that he had earlier denied. 
According to Detective Pickett, things got "very confrontational" during the
questioning.  Holloway testified at the suppression hearing that although he
was allowed to get up and walk around several times during the
interrogation, Detective Parlin would get up and follow him when he did so.{4}
	[¶5]  At the outset of the recorded questioning, the detectives
procured all relevant personal information from Holloway, including his
name, most recent address, his date of birth, his place of birth, the names of
his parents, his most recent employment, etc.  Then, early in the
detectives' questioning, Holloway asked who could have murdered the
victim, to which Detective Picket replied "Well, that's what we're tryin' tah
find out ah, Steve."  Shortly thereafter, the detectives informed Holloway
that an individual matching his description had been seen in front of the
victim's house on the day of the murder and that was one of the reasons they
had sought him out to ask him about the murder.  After he denied visiting
the victim within the previous several months, the detectives again asked
Holloway whether he was denying that he had been at the victim's house on
the day of the murder.  When he agreed that he was not there that day, the
detectives had him recount all of his movements on the day of the murder. 
The detectives then told Holloway that he had been identified with relative
certainty as the person standing in front of the victim's house and stated,
"And it's just kind of confusing how yah could be in two (2) places at the
same time."  After Holloway denied owning clothing matching the
description of that given to the police, the detectives asked if a search of his
room would reveal clothing matching the description.  He again denied
owning the clothing.
	[¶6]  Eventually, the detectives made it clear that they thought
Holloway had been at the scene of the crime:  "I think it was you that walked
right from the . . . right from the bottom of the hill, all the way up and, and
at some point was standin' right there at [the victim's] house."  (Detective
Pickett.)  "I'll tell yah what, Steve, there's, there's no doubt in my mind, I'll
tell yah that right up front."  (Detective Parlin.)  The detectives repeatedly
pointed out inconsistencies in Holloway's story and indicated that they did
not find his answers to their questions believable.  For example, in response
to Holloway's explanation that, despite being down on his luck and without
much money or a place to stay, he would not have visited the victim to ask if
he could stay with him, Detective Pickett stated, "[b]ut, no I just, it just
doesn't make sense, yah know."  The detectives again stated that they knew
Holloway had been in Wilton on the day of the murder, and eventually
Holloway admitted to being in the area.  By this time, the detectives had
been questioning Holloway for over half an hour without a break.
	[¶7]  Thereafter, Holloway admitted that he had also visited the
victim, but left after talking with the victim for roughly half an hour. 
Following further confrontation by the detectives and escalation in their
accusatory questioning, Holloway stated, "I told yah everything," and then
asked if he was under arrest.  Detective Pickett said he was not.  The
detectives then offered to send someone out for breakfast in response to
Holloway's request to get a drink of water.  When Holloway asked for a six-
pack of beer instead, the detectives refused, saying they could not do that.  
Holloway then stated that he had said everything he had to say to the
detectives several times in response to their unrelenting questioning.  The
detectives persisted and Holloway persisted in refusing to answer their
questions.  Holloway again asked if he was under arrest and when the
detectives said no, he asked to end the interrogation so he could contact an
attorney.  Detective Pickett's response was as follows:

Well, now that you, now that you bring up, now that you bring up
a lawyer, okay, you haven't, you know, you, I mean, you haven't,
you haven't said, you know . . . [Holloway tries to interrupt] but,
but let me, but, but, let me just, now that you brought up the, the
thing of a lawyer, let me, let me, let me, let me address that
okay?  You're not under arrest, as we set right here, you're not
under arrest, okay.  You're not in custody, I mean, you're not in
handcuffs, all right, you're free to get up out of that chair and
everything, no one's keeping you confined here and we're just
talking, we're talking and trying tah make some sense out of
what happened just before yah left [the victim's] house and why
he's dead.

Almost immediately thereafter, Detective Pickett told Holloway that the
police knew that he killed the victim.  Holloway continued to deny knowing
anything about the victim's death, denied being the killer and repeatedly
told the detectives he had nothing else to say.
	[¶8]  The detectives then took a break in their questioning during
which Holloway attempted to ask Detective Parlin to leave, to which Parlin
responded:  "Okay. I'm just gonna ask you to hold on just a minute . . . until I
hear from the bosses."  In the meantime, Detective Pickett had been
speaking with his superior officer who was parked in his cruiser outside of
Holloway's motel room.  When he returned, the questioning resumed. 
Shortly thereafter, Detective Pickett told Holloway to sit back down in his
seat twice and then told Holloway that the police knew that he killed the
victim and knew how he did it.  Following an accusatory exchange, Holloway
stated to Detective Pickett that he was "in [his] face" and Pickett responded
by ordering Holloway to sit back down.
	[¶9]  After more accusations, Holloway attempted to actually leave, at
which point Detective Pickett placed him under arrest and gave him a
Miranda warning.{5} This occurred at approximately 11:35 a.m., roughly an
hour and forty minutes after the detectives first started recording their
interrogation.  Eventually Holloway confessed to the murder, providing the
detectives with the details.  The interrogation was terminated at roughly
1:10 p.m. after which Holloway was taken to the police station and then to
the scene of the crime to assist the officers in finding a set of the victim's
keys that Holloway had indicated he had thrown into the snow following the
murder.  A blood alcohol test was administered at 4:28 p.m. revealing that
Holloway had a blood alcohol level of .05% roughly six and a half hours after
the detectives began their interrogation.
	[¶10]  Holloway moved to suppress evidence acquired on January 15
and statements made on January 16 in a subsequent questioning session
with Pickett.  The Superior Court granted his motion with respect to the
January 16 statements, determining that Pickett continued to question
Holloway despite an invocation of his right to an attorney and noting that
Pickett had omitted from his Miranda warning a defendant's right to an
appointed attorney when he reminded Holloway of his Miranda rights at the
beginning of the conversation.  The State does not challenge this ruling. 
The court, however, denied the motion with respect to the January 15
interrogation, relying in part on statements made by Holloway on cross-
examination that he did not think that he was under arrest because the
detectives had told him that he was not under arrest and, when he tried to
leave just prior to being arrested, that he did so because the detectives had
told him repeatedly that he was not "in custody."  The court determined
that, although the questioning did constitute an interrogation and not
merely an interview, Holloway was not in custody until he was placed under
formal arrest.  The State does not contest the Superior Court's
determination that the questioning constituted an interrogation.  Holloway
entered a conditional plea of guilty and now appeals the court's ruling on his
motion to suppress with respect to his January 15 statements.

II.  THE INTERROGATION

	[¶11]  Holloway argues that he was in custody during the detectives'
interrogation even prior to his formal arrest and as a result, his statements
to the police should be suppressed based on their failure to provide a
Miranda warning.{6}  He argues that all statements on January 15 following his
formal arrest should also be suppressed due to the failure of the detectives
to honor his invocation of the right to terminate the interview and consult
an attorney while he was in custody.  We agree.
	[¶12]  The State concedes that if we determine that Holloway was in
custody at the time he asked that the interview end so that he could consult
an attorney and we determine that he invoked his right to terminate the
questioning and consult an attorney unambiguously, then statements both
before and after Holloway's subsequent arrest and Miranda warning should
be suppressed.  The State cites cases involving attempts to invoke the right
to remain silent and the right to an attorney subsequent to a valid waiver of
those rights following a proper Miranda warning for the proposition that
police need not honor an ambiguous invocation even in the absence of a
prior valid waiver of the right.  See Davis v. United States, 512 U.S. 452,
459-62 (1994) (once a suspect has knowingly and voluntarily waived the
right to an attorney following a Miranda warning, police need only cease all
questioning if the suspect subsequently unambiguously invokes the right,
however, when invocation is ambiguous, police may inquire further to clarify
whether the suspect is in fact invoking the right to an attorney); State v.
King, 1998 ME 60, ¶ 9, 708 A.2d 1014, 1017 (retraction of a waiver and a
reassertion of the right to remain silent must be sufficiently clear to cut off
questioning).  We decline the State's implicit invitation to extend the
holdings in Davis and King, to require an unambiguous invocation of the
right to remain silent and the right to an attorney in the absence of a prior
waiver.  Holloway's statement in this case was a sufficiently clear invocation
of his rights.  Therefore, we need only determine whether Holloway was
actually in custody at the time he invoked his rights in order to determine
the admissibility of his post-arrest statements.
	[¶13]  A person subject to interrogation while in police custody must
first be given a Miranda warning, otherwise statements made in the course
of the interrogation will not be admissible against that person.  See
Dickerson v. United States, --- U.S. ---, 120 S. Ct. 2326, 2331 (2000);
Miranda v. Arizona, 384 U.S. 436, 479 (1966).  The determination of
whether a person is in custody involves questions of both fact and law.  See
Thompson v. Keohane, 516 U.S. 99, 112-13 (1995).  Although factual
determinations by the trial court merit deference and will be reviewed for
clear error, the legal determination merits de novo review, therefore the
"ultimate determination", i.e., whether an individual is in custody for
purposes of Miranda, "presents a 'mixed question of law and fact' qualifying
for independent review."  Id.
	[¶14]  As noted above, the salient facts of this case are relatively well-
settled.  We are therefore called on to decide the legal question of whether
the circumstances as they existed during the time of the interrogation
constituted custody.  In other words, would a reasonable person standing in
the shoes of Holloway, "have felt he or she was not at liberty to terminate
the interrogation and leave?"  Id. at 112.  Alternately, "[was] there a 'formal
arrest or restraint on freedom of movement' of the degree associated with
formal arrest?"  Id. (quoting California v. Beheler, 463 U.S. 1121, 1125
(1983)) (alteration in original); see also State v. Michaud, 1998 ME 251,
¶ 4, 724 A.2d 1222, 1226.
	[¶15]  The Supreme Court has stressed that this determination is a
purely objective one.  See Stansbury v. California, 511 U.S. 318, 323 (1994)
("the initial determination of custody depends on the objective
circumstances of the interrogation, not on the subjective views harbored by
either the interrogating officers or the person being questioned").  The
subjective intent or beliefs of either the police or the suspect play no role in
the legal determination except to the extent that they manifest themselves
outwardly and would affect whether a reasonable person would feel
constrained to a degree commensurate with police custody.  See id. at 325;
see also Michaud, 1998 ME 251, ¶ 4, 724 A.2d at 1226.
	[¶16]  Holloway argues as an initial matter that the trial court erred by
using his subjective beliefs directly in its custody determination.  After
noting the factors listed in Michaud, the court stated in its opinion: 
"Another factor, not listed in Michaud, which is important in understanding
the totality of the circumstances in the present case, is what the detectives
told the defendant and his subjective belief as the result of what he had been
told."  (Emphasis added.)  Such direct use of Holloway's subjective beliefs is
in direct contravention of Stansbury.  This case provides a particularly good
example of why.
	[¶17]  When, a good way into the interrogation, Holloway asked if he
was under arrest, the detectives responded that he was not.  Then later,
Holloway attempted to terminate the interrogation so that he could contact
an attorney, to which the detectives responded by telling him that he was
not in custody.  The trial court expressed doubt as to the sincerity of these
statements, but then went on to determine that Holloway appeared to take
the statements at "face value."  In other words, when viewed objectively, the
surrounding circumstances belied the detectives' statements, however,
Holloway did not appear to perceive the nature of his situation in contrast to
the detectives' representations.  Cf. Thompson, 516 U.S. at 103 (observing
that although the interrogating officers "constantly" assured the defendant
that he was free to leave, they also repeatedly told him that they knew he
had killed his former wife during a two-hour recorded interview occurring
after the defendant appeared at the station house at one of the officer's
invitations).  The trial court then stated, "[w]eighing all of the
circumstances, and adding the defendant's own testimony that he believed
that he was free to leave and was surprised when he was formally arrested,
the court finds that the interrogation in this case was not 'custodial.'"{7} 
(Emphasis added.)
	[¶18]  Whether an individual is entitled to constitutionally mandated
warnings of his or her rights should not depend on the degree of naivete of
that individual when taking police statements at their "face value."  Cf.
Dickerson, --- U.S. at ---, 120 S. Ct. at 2331 (quoting Miranda, 384 U.S. at
455) ("custodial interrogation exacts a heavy toll on individual liberty and
trades on the weakness of individuals") (internal quotation marks omitted). 
The court erred as a matter of law by using Holloway's subjective beliefs
directly to tip the scale in favor of a determination that he was not in
custody at the time of his interrogation.  When the facts in this case are
instead viewed objectively, the answer to the inquiry regarding "how a
reasonable [person] in the suspect's position would have understood [the]
situation," Stansbury, 511 U.S. at 324 (quoting Berkemer v. McCarty, 468
U.S. 420, 442 (1984)) (internal quotation marks omitted), is:  in custody.
	[¶19]  We have noted that a number of factors are relevant when
determining whether an interrogation is custodial.  See Michaud, 1998 ME
251, ¶ 4, 724 A.2d at 1226 (e.g., the locale, the familiarity of the
surroundings to the individual, whether the individual is the focus of police
investigation (as a reasonable person in the defendant's position would
perceive it), whether police initiated the contact).  These factors are not to
be viewed in isolation, but rather in their totality.  See Stansbury, 511 U.S. at
322 ("a court must examine all of the circumstances surrounding the
interrogation") (emphasis added); United States v. Jones, 187 F.3d 210,
218 (1st Cir. 1999) (viewing the totality of the circumstances when
determining whether the defendant was in custody while questioned).
	[¶20]  The circumstances in this case gave rise to a custodial setting,
if not from the outset of the detectives' questioning, certainly when
Holloway asked and was denied an opportunity to end the interrogation so
that he could contact a lawyer.  The detectives initiated the contact with
Holloway and it was the detectives who suggested that they conduct their
questioning in Holloway's motel room.  Cf. United States v. Beraun-Panez,
812 F.2d 578, 581-82 (9th Cir. 1987), as modified 830 F.2d 127 (9th Cir.
1987) (affirming trial court's determination of custody and noting that,
despite defendant's familiarity with the area, interrogation took place in an
isolated area and "well away from the public view, in a remote area where no
passersby would likely be present").  The interrogation was recorded and
began with the collection of detailed personal information from Holloway.
	[¶21]  Although much later in the course of the interrogation, the
detectives stated that Holloway was not under arrest and not "in custody" in
response to his inquiries, the detectives never stated to Holloway at any
time prior to his formal arrest that he was free to leave or free to not answer
their questions.  Cf. State v. Hewes, 558 A.2d 696, 698-99 (Me. 1989)
(affirming trial court's determination of custody despite officer telling the
suspect prior to his interrogation that he could terminate the interview and
leave at any time); see also Griffin, 922 F.2d at 1350 ("[T]he absence of
police advisement that the suspect is not under formal arrest, or that the
suspect is at liberty to decline to answer questions, has been identified as an
important indicium of the existence of a custodial setting."); Colorado v.
Trujillo, 784 P.2d 788, 789 (Colo. 1990) (affirming trial court's
determination of custody and noting, inter alia, "[a]t no time either before or
during the interview did the officer advise the defendant of his Miranda
rights or tell the defendant that he was free to leave at any time").  The
detectives immediately took control of the situation, dictated the terms of
the questioning, and later in the interview indicated that someone could be
sent to retrieve breakfast, while denying Holloway's request for beer.  See
Griffin, 922 F.2d at 1352 (noting "The Miranda court was deeply concerned
with the effect of an incommunicado, police dominated atmosphere on a
criminal suspect's will to resist self-incrimination during interrogation.");
see also United States v. Johnson, 64 F.3d 1120, 1126 (8th Cir. 1995)
(noting a useful factor when making a determination of custody was
"whether the atmosphere was police dominated").  Holloway was never left
alone and was always in the presence of at least one police officer.
	[¶22]  For most of the interrogation, Holloway sat with his back to the
wall facing the two detectives sitting in close proximity to him.{8}  Cf. Beraun-
Panez, 812 F.2d at 579 (noting "[t]he interrogation took place at the front of
the sheriff's pickup, with the defendant, having dismounted from
horseback, positioned between the Deputy and Agent Hughes"). The
detectives did not disguise the fact that Holloway was their prime suspect,{9}
indicating that an individual matching his description had been placed at
the victim's house shortly before the murder and stating that they were both
sure that it was him.  The detectives' questioning quickly assumed an
accusatory and rugged tone.{10}  Cf. Trujillo, 784 P.2d at 790-92 (affirming
trial court's decision that noted "accusatory nature of the questions" was
pivotal in its determination that the suspect was in custody at the time of
interrogation); State v. Dedrick, 564 A.2d 423, 427 (N.H. 1989) (noting that
police interrogation became custodial when police began to accuse the
suspect of the crime and stating "such a change would have signaled a
reasonable man in the same circumstances that the freedom officers had
accorded him earlier was no longer available and that, as often as he made
denials, they would renew their accusations until, in the end, he either
confessed or asked, as Dedrick in fact did, to speak with an attorney").  In
response to Holloway's answers to their questions, the detectives asked how
he could be in two places at once and stated that his explanations did not
make sense to them.  Cf. Tankleff v. Senkowski, 135 F.3d 235, 244 (2d Cir.
1998) (determining that the defendant had been in custody and noting "he
had been subjected to increasingly hostile questioning at the police station,
during which the detectives accused him of showing insufficient grief [about
the death of his parents], had said that his story was 'ridiculous' and
'absurd,' and had added that they simply 'could not accept' his
explanations").  Not only did the detectives indicate that Holloway was a
suspect, but they accused Holloway of committing the murder and then lying
to them about it.
	[¶23]  These circumstances, viewed in their totality, would lead a
reasonable person to feel constrained to a degree associated with formal
arrest, for it would be clear to a reasonable person not very far into the
detectives' questioning that he or she was not at liberty to terminate the
encounter notwithstanding the detectives' much later representations
regarding arrest and custody.{11}  As the Eighth Circuit Court of Appeals
observed:

The application of the rule of Miranda is not a process to be
avoided by law enforcement officers.  Custody should not be a
mystical concept to any law enforcement agency.  We see no
reason why doubts as to the presence or absence of custody
should not be resolved in favor of providing criminal suspects
with the simple expedient of Miranda warnings. . . . [T]he
effectiveness of law enforcement is not undermined by
informing suspects of their rights.

Griffin, 922 F.2d at 1356 (emphasis added).  Because Holloway also invoked
his right to terminate the questioning and consult an attorney after the
interrogation became custodial, even his statements following his formal
arrest should not have been admitted, as the State has acknowledged.  See
also United States v. Ortiz, 177 F.3d 108, 109 (1st Cir. 1999) ("when a
suspect asserts his right to counsel, interrogation must cease and the police
may not reinterrogate the suspect until counsel is present, unless the
suspect himself initiates further conversation"); State v. Rossignol, 627 A.2d
524, 526-27 (Me. 1993) (invocation of the right to remain silent must be
"scrupulously honored").  We therefore vacate the Superior Court's
judgment of conviction.

	The entry is:
Judgment vacated.  Remanded to the Superior
Court for further proceedings consistent with
this opinion.

___________________


WATHEN, C.J., with whom CLIFFORD, J., joins, dissenting.

	[¶24]  I must respectfully dissent.  In my judgment, the Court
misapplies the standard of review set forth in Thompson v. Keohane, 516
U.S. 99, 112-13 (1995), and engages in a de novo review of both the facts
and the law.
	[¶25]  The factual record is somewhat more complete than usual
because it includes a transcript of the taped interview.  This has led the
Court to draw conclusions that are subtly different from the factual findings
of the trial court.  For example, this Court states that the detectives "did not
disguise the fact that Holloway was their prime suspect."  The trial court
found "the defendant quickly became the focus of the investigation, a fact
that the detectives were quite clear in stating to the defendant."  In
addition, the Court relies on testimony of defendant that is at odds with the
trial court's factual findings.  This Court credits Holloway's testimony that he
could see the detectives' weapons.  The trial court found the detectives
"made no display of their weapons."
	[¶26]  I agree that it was error for the trial court to consider
defendant's subjective reaction to the statement that he was not under
arrest.  The  trial court, however, properly considered the fact that the
detectives told Holloway he was not under arrest and appropriately
considered the objective impact of that statement on the issue of whether
Holloway was free to come and go.  See Stansbury v. California, 511 U.S. 318,
325 (1994).  This Court elevates the trial court's expression of doubt as to
the sincerity of the detectives' statements into a finding that "the
surrounding circumstances belied the detectives' statements."  The trial
court made no such conclusion.  The trial court found as a matter of fact that
the questioning took place in defendant's motel room, probable cause to
arrest the defendant was not present at the beginning of the interview, the
plainclothes detectives made no display of their weapons, there was no
physical restraint on defendant, he moved around the room and, on one
occasion outside of the room without being physically detained, and the
questioning was not unduly long.  The trial court recognized that the
detectives initiated the contact, their questioning became more accusatory
as defendant placed himself at the scene of the crime, defendant quickly
became the focus of their investigation, and they were highly suspicious of
him.  The depth of their suspicion, however, is not controlling.  As the
United State Supreme Court has noted:  "Even a clear statement from an
officer that the person under interrogation is a prime suspect is not, in
itself, dispositive of the custody issue, for some suspects are free to come
and go until the police decide to make an arrest."  Id.
	[¶27]  Reviewing the facts found by the trial court independently, I
conclude that defendant's freedom of movement in his motel room was not
restrained to the degree associated with formal arrest until he was arrested. 
I would affirm the judgment.
                                            
Attorneys for State:

Andrew Ketterer, Attorney General
Donald W. Macomber, Asst. Attorney General (orally)
Lisa P. Marchese, Asst. Attorney General
6 State House Station
Augusta, ME 04333-0006

Attorney for defendant:

David M. Sanders, Esq., (orally)
P O Box 271
Livermore Falls, ME 04254-0271