State v. John Cole
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:	1997 ME 112
Docket:	Was-96-356
Argued:	January 6, 1997
Decided:	May 22, 1997

Panel:WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and
LIPEZ, JJ. 

STATE OF MAINE

v.

JOHN COLE

ROBERTS, J.

	[¶1]  John Cole appeals from the judgments of conviction entered in
the Superior Court (Washington County, Calkins, J.) on jury verdicts finding
him guilty on one count of gross sexual assault (Class A) in violation of 17-A
M.R.S.A. § 253 (Supp. 1996), one count of burglary (Class B) in violation of
17-A M.R.S.A. § 401 (1983 & Supp. 1996), and one count of aggravated
assault (Class B) in violation of 17-A M.R.S.A. § 208 (1983).  At the trial, the
court denied Cole's attempt to offer evidence of an alternative perpetrator
and admitted identification evidence consisting of a scent track performed
by a trained police dog.  Prior to the trial, the court (Mead, J.) denied Cole's
motion to suppress evidence of a confession he gave to police.  Cole argues
the court erred in denying his motion to suppress and with respect to its
evidentiary rulings.  We affirm the judgments.  
	[¶2]  In the early morning of July 17, 1995, Baileyville police were
called to the scene of an alleged rape.  The perpetrator had broken into the
victim's house where she lived with her young son and raped her at
knifepoint, thereafter fleeing the scene.  The defendant, John Cole, lived on
the victim's street.  He called police to report that early in the morning he
saw someone run by his house and drop a knife in his yard.  The police
arrived at Cole's house and stayed outside in his driveway, talking with him
for about 45 minutes.  During this interval a state police canine team,
consisting of a trooper and a trained dog, tracked human scent from the
victim's house to Cole's driveway.  The team immediately performed a
second track, which led to a vehicle in Cole's driveway in which he had
recently been sitting.  On both occasions when the  team reached Cole's
driveway he was inside his house.  
	[¶3]  The suspicions of the police began to center on Cole.  In the
afternoon of July 17 he voluntarily submitted to questioning at the station
house.  This interview lasted for three hours, was tape recorded, and was
variously conducted by Baileyville police officers and two state police
detectives.  They told Cole they believed he committed the rape and that he
should confess.  Cole repeatedly denied his involvement in the crime.  At
one point Baileyville police officer Richard Rolfe told Cole that his wife and
two children would have to be questioned.  Rolfe also reminded Cole that a
year earlier Rolfe and personnel from the Department of Human Services
had temporarily removed Cole's children from his and his wife's custody. 
One of the state police detectives them implied to Cole that if he were the
rapist, "the Department of Human Services [is] going to have to be contacted
... and you know why."  Cole responded affirmatively, after which Rolfe said,
"So what's next?  I don't want to have to come back and take your kids
again, John."  Cole replied, "You ain't going to have to because I didn't do
it."  
	[¶4]  At 7:00 p.m., after the interview was finished, Cole was placed
under arrest and held at the station house.  At 9:15 p.m. Rolfe took Cole to
the county jail in a police cruiser, a trip lasting 45 minutes.  Also in the
cruiser was an emergency medical technician who was prepared to assist if
Cole, an epileptic, suffered a seizure.  During the drive, Rolfe twice urged
Cole to "do the right things for his wife and family" by telling the truth. 
Other than those two statements, the police made no efforts to question
Cole after the interview at the station house.  When Cole arrived at the jail at
10:00 p.m. he asked to speak with Rolfe privately, at which time he gave a full
and complete confession of the rape.  
	[¶5]  At the trial, the defendant cross-examined the victim concerning
the rapist's statement, made during the commission of the crime, that he
was performing a favor for someone else.  The victim testified she asked the
rapist whether he was acting for her estranged husband, who at the time of
the rape lived across the street from her.  The rapist's only reply was "I
think you know the answer."  The defendant then attempted to introduce
evidence that one week prior to the rape, the victim obtained a protection
from abuse order against her estranged husband.  The court ruled that
evidence of the order was inadmissible and stopped the defendant from
inquiring further into why the victim asked her attacker if he were acting
for her estranged husband.  

I.
Evidence of the Confession

	[¶6]  Cole contends his confession should have been suppressed
because it was made involuntarily as the result of psychological coercion.  We
disagree.  The State bears the burden of establishing beyond a reasonable
doubt that a statement made to investigators by a defendant is voluntary. 
State v. Smith, 615 A.2d 1162, 1163 (Me. 1992).  A trial court should
determine whether a statement is voluntary by considering the totality of
the circumstances.  Id.  "A confession is voluntary if it results from the free
choice of a rational mind, if it is not a product of coerced police conduct,
and if under all the circumstances its admission would be fundamentally
fair."  Id. (quoting State v. Mikulewicz, 462 A.2d 497, 501 (Me. 1983)).  We
review for clear error a trial court's finding that the State has met its burden
as to voluntariness.  Smith, 615 A.2d at 1163.  
	[¶7]  In this case there was competent evidence to support the trial
court's finding that Cole's confession was voluntary.  Although he was
repeatedly coaxed to confess, that in itself does not render his confession
involuntary.  See, e.g., State v. Theriault, 425 A.2d 986, 990 (Me. 1981) (a
mere admonition or exhortation to tell the truth, as opposed to a promise of
prosecutorial leniency, does not render a confession involuntary).  Nor is it
decisive that the police at times conducted themselves in a confrontational
manner.  See, e.g., State v. Candage, 549 A.2d 355, 359-60 (Me. 1988)
(defendant's statements were voluntary even though the interviewing officer
"conducted the interrogatories in a confrontational way").  Cole voluntarily
submitted to questioning, the duration of the interview was not excessive,
he was given several opportunities to take a break, and he was informed by
one of his interrogators that they were not "offering [him] any deals with the
D.A.'s office."  Given the totality of the circumstances, we cannot say the trial
court's decision was clearly erroneous.  

II.
Scent Tracking Evidence

	[¶8]  Cole challenges the trial court's decision to admit the evidence
of human scent tracking performed by the state police canine team, Trooper
Timothy McCadden and his dog Zak, at the scene of the rape.  McCadden
testified to his conclusion that Zak tracked Cole's scent from where the
rapist entered the victim's house back to Cole's house.  By way of foundation,
McCadden testified that he and Zak had been together as a team since April
1992 and had received training together, including tracking training, at a
sixteen-week Maine State Police K-9 school.  They received two days of in-
service training per month and underwent a recertification every six
months, which included a performance test that evaluated the team's
tracking ability.  McCadden also testified that prior to the tracking
performed at the scene of the rape, he and Zak had successfully tracked
people both in actual cases and in training exercises.  
	[¶9]  The trial court did not abuse its discretion by admitting in
evidence McCadden's testimony.  See State v. Case, 672 A.2d 586, 588 (Me.
1996) (decision to admit or exclude evidence is reviewed for abuse of
discretion).  The law of a majority of states is that evidence of dog tracking
is admissible to prove identity provided a proper foundation is laid.  See
Annotation, Evidence of Trailing By Dogs in Criminal Cases, 18 A.L.R.3d
1221 (1968 & Supp. 1996).  In this case McCadden testified that he and
Zak had received extensive training together in tracking human scent, that
Zak had previously successfully tracked humans, and that Zak had been
placed on the trail where circumstances indicated the perpetrator had
recently been.  This foundation was sufficient to permit McCadden's
testimony.  

III.
Alternate Perpetrator Evidence

	[¶10]  Cole argues that the court erred by excluding evidence of the
victim's protection from abuse order against her estranged husband and by
preventing the defendant from inquiring any further into why the victim
asked her attacker if he was acting for her estranged husband.  The
defendant concedes that he had no evidence to identify a specific alternate
perpetrator.  He argues, however, that the statement of the rapist, coupled
with the protection from abuse order, suggests that the victim's estranged
husband solicited the attack on her.  He proposed to present testimony of
the husband to the effect that the husband was not acquainted with Cole. 
The introduction of such evidence would have required the jury to consider
several additional issues.  First, was the victim's perception and recollection
of the rapist's statements accurate?  Second, was the rapist speaking
honestly or perpetrating a hoax?  Third, if in fact the estranged husband
solicited the rape, would his denial of any acquaintance with the defendant
be persuasive?  We conclude that the probative value of that evidence is
slight and that the court could properly exclude such evidence pursuant to
M.R. Evid. 403 to avoid confusion of the issues and misleading the jury.  See
State v. Boobar, 637 A.2d 1162, 1172 (Me. 1994) (the probative value of
alternate perpetrator evidence must be weighed against the danger of
confusing or misleading the jury).  
	The entry is:
				Judgments affirmed. 
                                                               
Attorneys for State:

Michael E. Povich, District Attorney
Paul F. Cavenaugh, II, Asst. Dist. Atty. (orally)
88 South Street
Calais, ME 04619 

Attorney for defendant:

Jeffrey C. Toothaker, Esq. (orally)
Toothaker & Chong
277 High Street, Suite 2
Ellsworth, ME 04605