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Supreme Court
No. 2005-77-C.A.
State                                                                                       :
v.                                                                                          :                             (N2/03-378A)
Auston L. Forbes.                                                                           :
State                                                                                       :
v.                                                                                          :                             (N2/03-378B)
Nicholas D. Lockhart.                                                                       :
Present:  Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Chief Justice Williams, for the Court.   The state has initiated this interlocutory
appeal challenging the ruling of a motion justice of the Superior Court suppressing the
alleged  confessions  of  the  defendants,  Auston  L.  Forbes                              (Forbes)  and  Nicholas  D.
Lockhart (Lockhart) (collectively defendants).  This case came before the Supreme Court
for oral argument on May 15, 2006, pursuant to an order directing the parties to appear
and show cause why the issues raised in this appeal should not summarily be decided.
After hearing the arguments of counsel and examining the record and the memoranda
filed by the parties, we are of the opinion that this appeal may be decided at this time,
without further briefing or argument.   For the reasons set forth herein, we reverse the
ruling of the motion justice.
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I
Facts and Travel
In the waning hours of April 15, 2003, a long-term investigation undertaken by
the  Newport  Police  Department  culminated  in  the  defendants’  arrests  for  allegedly
conspiring to rob a grocery store in that city in violation of G.L. 1956 § 11-1-6;1 some
time later, a single criminal information formally charged both defendants with this
offense.
Before  the  start  of  their  criminal  trial,  defendants  filed  separate  motions  to
suppress statements they made to police immediately following their arrests.   In arguing
these motions, defendants alleged that their statements were given involuntarily and
without either defendant having been apprised of his constitutional rights.
In November 2004, at the pretrial suppression hearing on defendants’ motions,
Lieutenant Russell Carlone  (Carlone)2 testified for the state as to the circumstances
surrounding defendants’ arrests and subsequent questioning.    According to Carlone,
immediately after being taken into custody, in the early morning hours of April 16, 2003,
defendants  were  brought  to  the  Newport Police  Station, where  he  questioned  each
defendant.   One by one, beginning with defendant Lockhart at approximately 1 a.m.,
Carlone ushered defendants into a ten-foot-by-ten-foot room furnished only with a table
and a couple of chairs, and informed each defendant of his Miranda3 rights.   No person
other than Carlone and the particular defendant being questioned was present during
1 A review of the criminal complaint filed against defendant Lockhart confirms that he
was charged additionally with criminal solicitation in violation of G.L. 1956 § 11-1-9.
That charge was not included in the criminal information.
2 At the time of defendants’ arrests and questioning, Lieutenant Russell Carlone was a
sergeant in the Newport Police Department.
3 Miranda v. Arizona, 384 U.S. 436 (1966).
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either interview.  Carlone said that he was not armed, and that he made neither threats nor
promises to either defendant.
Carlone testified that prior to questioning, each defendant was presented with a
“rights”  form.    Carlone  stated  that  he—along  with  each  defendant  individually—
reviewed the forms, that each defendant marked a box on his form indicating that he
understood his Miranda rights, and that both defendants signed their respective forms.
Carlone also signed each form as the “officer advising suspect of his rights,” dated the
documents and indicated the time each document was signed.   On cross-examination,
Carlone admitted he erred by failing to note the crimes for which each defendant had
been arrested on either form in the space provided.   He insisted, however, that he orally
informed both defendants about the same prior to questioning.   Both “rights” forms were
admitted as full exhibits at the suppression hearing.
According to Carlone, each interview was recorded by means of audiotape;
however, the state did not present these tape recordings at the suppression hearing.
Instead, the state offered two transcriptions as evidence of defendants’ tape-recorded
statements.    Carlone testified that, assuming the transcription of the tape recordings
followed standard protocol, each tape recording was given to a secretary at the Newport
Police Station to be transcribed.  Upon being shown the transcriptions, Carlone confirmed
that they were, in fact, transcriptions of defendants’ statements and that they fairly and
accurately represented the conversations Carlone had with both defendants in the early
morning  of  April                                                                            16,   2003.   The  motion  justice,  however,  did  not  allow  either
transcription as a full exhibit until the defense had an opportunity to cross-examine
Carlone.
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On  cross-examination,  Carlone  admitted  that  he  had  not  reviewed  either
transcription  to  determine  whether  they  were,  in  fact,  verbatim  transcriptions  of
defendants’ tape-recorded statements.  There was no testimony as to whether Carlone had
listened  to  the  tape  recordings  of  either  interview  before  the  suppression  hearing.
Carlone also confirmed that neither transcription had been shown to its corresponding
defendant, and that neither defendant had signed his own transcribed statement.   Carlone
was the state’s only witness at the suppression hearing, and the state rested at the
conclusion of his testimony.
After brief argument, the motion justice issued his ruling.   He began by framing
the issue as follows:                                                                              “The issue before the Court is the admissibility of what has been
marked as State’s Exhibit [4], which is the so-called ‘confession,’ if you would, of Mr.
Lockhart and * * * State’s Exhibit [2], which is supposedly the ‘confession’ of Mr.
Forbes.”   The motion justice concluded that the transcriptions were not the “statements”
of  either  defendant,  noting  additionally  their  questionable  authenticity.                   Having
determined that the transcriptions were not evidence of any statements defendants had
made, the motion justice noted that “[t]here was no testimony by Carlone as to what
[defendants] said to him at the police station.    And in fact, my recollection of the
testimony is that Carlone could not remember what he said to them, and obviously, there
was no testimony whatsoever about any statements * * * made by either [defendant] to
Carlone at that time.”  Finally, after pointing out that the state did not offer the actual tape
recordings as evidence of the defendants’ statements, the motion justice concluded as
follows:
“So for that reason, not really reaching the issue as to
whether or not the state has met its heavy burden * * * of
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proving  by  clear  and  convincing  evidence  that  the
confession  was  voluntary  and  intelligent,  it  was  not
illegally obtained, the fact of the matter is that neither of
these [transcriptions] is the ‘confession’ of either of these
individuals.  So, therefore, the objection to the admissibility
of [the transcriptions] is sustained.”
When the defense asked him to clarify whether his ruling precluded the state from being
able “to introduce the tapes as evidence in the trial,” the motion justice responded that
“[t]here was no testimony put before me that there was any tape.   There was no evidence
put before me that [the state] would introduce any statements.   Obviously, the state has
not met its burden in that regard.”
In January  2005, the state filed a motion seeking clarification of the motion
justice’s ruling; specifically, the state sought to ascertain whether the motion justice’s
ruling was limited to the transcriptions or whether the state was also precluded from
admitting into evidence at defendants’ trial the tape-recorded statements themselves.  The
motion justice made clear that his ruling extended to the tape-recorded statements of
defendants:
“So my ruling applied not only to the transcription but also
to the statements themselves because the state failed in its
burden, heavy burden of proof that the statements were
admissible.   As I said, the tapes themselves were not even
offered  into  evidence,  which  really  constitutes  the
statement of the defendants in this case, and as I said then
and I will reiterate, the state failed in its burden of proof.
The motion to suppress went to the statements themselves.”
The state pursued this interlocutory appeal of the motion justice’s ruling pursuant
to G.L. 1956 § 9-24-32.
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II
Analysis
The  state’s  only  contention  on  appeal  is  that  the  motion  justice  committed
reversible error in granting defendants’ motions to suppress their custodial, tape-recorded
statements to Carlone.4    The state argues that Carlone’s testimony, coupled with the
signed                                                                                         “rights”  forms,  satisfied  its  burden  of  proving  that  defendants  gave  these
statements voluntarily.
A
Standard of Review
It is well settled that this Court will “accord deference to the trial court’s factual
findings concerning the historical events pertaining to the confession by using a ‘clearly
erroneous’ standard of review.”  State v. Ramsey, 844 A.2d 715, 720 (R.I. 2004) (quoting
State v. Carter, 744 A.2d 839, 845 (R.I. 2000)); see also State v. Grayhurst, 852 A.2d
491, 513 (R.I. 2004).                                                                          “However, we review the voluntariness of a confession on a de
novo basis because ‘[t]he voluntariness of a confession is a legal question.’”  In re Joseph
B., 822 A.2d 172, 174 (R.I. 2003) (quoting State v. Kryla, 742 A.2d 1178, 1183 (R.I.
1999)).
B
Voluntariness
A pretrial determination of voluntariness requires the following:
“[It]  must  be  made  on  the  basis  of  all  facts  and
circumstances, including the behavior of the defendant and
the behavior of the interrogators, and the ultimate test ‘is
whether the defendant’s statements were the “product of his
free and rational choice” * * * or the result of coercion that
had  overcome  the  defendant’s  will  at  the  time  he
4 In its brief the state does not challenge the motion justice’s ruling that the transcripts
were inadmissible as substantive evidence of the defendants’ statements.
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confessed.’”   State v. Torres, 787 A.2d 1214, 1224-25 (R.I.
2002)  (quoting State v. Briggs, 756 A.2d 731, 738 (R.I.
2000)).
We will not presume voluntariness “from the fact that the accused has actually made a
confession or a statement.”   State v. Perez, 882 A.2d 574, 589 (R.I. 2005).   With respect
to the voluntariness determination to be made by the motion justice, “the burden of proof
that is imposed upon the state is that of  ‘clear and convincing evidence.’”   State v.
Dennis, 893 A.2d 250, 262 (R.I. 2006) (quoting State v. Lima, 546 A.2d 770, 773 n.3
(R.I. 1988)).
“The sole issue in * * * a [suppression] hearing is whether a confession was
coerced.”  Lego v. Twomey, 404 U.S. 477, 485 n.12 (1972).  That is, considerations other
than the voluntariness of a custodial statement—for example, the reliability of that
statement—are inappropriate at a suppression hearing.   In fact, a motion justice is “duty-
bound to ignore implications of reliability in facts relevant to coercion and to shut from
his [or her] mind any internal evidence of authenticity that a confession itself may bear.”
Id.; accord Powell v. State, 540 So. 2d 13, 15 (Miss. 1989).   The suppression hearing is
not intended to determine the evidentiary admissibility of a custodial statement, but rather
to ensure, as a threshold matter, that the taking of the statement comported fully with the
rights afforded a criminal defendant under article  1, section  13, of the Rhode Island
Constitution  and  the  Fifth  and  Fourteenth  Amendments  to  the  United  States
Constitution.5   This determination is made based on the totality of the circumstances.
See Torres,  787 A.2d at  1224-25.   The fact that a motion justice must refrain from
5 To be sure, “[p]rotections under article 1, section 13, of the Rhode Island Constitution
have uniformly been interpreted as tantamount to those available under the Federal
Constitution in matters relating to, for example, Miranda rights and waiver of those rights
* * *.”  State v. Bertram, 591 A.2d 14, 21 (R.I. 1991).
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allowing either internal or external indicia of a statement’s reliability to sway his or her
determination  of  that  statement’s  voluntariness  lends  substantial  support  to  our
conclusion  herein,  that  a  statement’s  evidentiary  authenticity  vel  non  cannot  be  a
legitimate  consideration  in  a  pretrial  determination  of  voluntariness.    Instead,  the
determination of whether a criminal defendant’s custodial statement is admissible under
the rules of evidence at trial is only properly before the court when it is offered into
evidence at trial.   To hold otherwise essentially would require the state to offer into
evidence at a suppression hearing a criminal defendant’s custodial statement.   Especially
in light of the United States Supreme Court’s delineation of the scope of a suppression
hearing in Lego, we decline to adopt such a bright-line standard.
After an independent review of the evidence presented at the suppression hearing,
we are of the opinion that defendants’ custodial statements were voluntarily made.   First,
Carlone testified that he was alone with each defendant during each interview, that he did
not wear a weapon, and that he made neither promises nor threats to either defendant.
This evidence was undisputed.    In addition, defendants’ acknowledgements of their
understandings of each Miranda warning on the  “rights” forms tend to corroborate
Carlone’s testimony that he went over the content of the forms with each defendant
before questioning him.   The forms themselves contain an acknowledgement that each
defendant understood his rights, and display the signature of each defendant.       Finally,
Carlone’s inability to recall whether Forbes orally acknowledged comprehension of his
rights is not fatal to the state, especially since Forbes signed a document certifying
exactly this.
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Lockhart  argues,  however,  that  defendants  could  not  have  knowingly,
intelligently, and voluntarily made those statements because they never were informed of
the crimes for which they had been arrested.   For support, Lockhart cites the noticeable
blanks on his “rights” forms in the spaces provided for such information, as well as
Carlone’s testimony that defendants likely were not informed of the offenses causing
their arrests at the time they were taken into custody.   Lockhart cites no authority for this
proposition.
Lockhart’s argument is easily dismissed.  First, at the suppression hearing Carlone
insisted—despite repeated attempts by defense counsel to spur an admission to the
contrary—that he informed both defendants of the crimes for which they had been
arrested.   Yet, even if he had failed to so inform defendants, such an omission does not
automatically require a finding of involuntariness, but is merely a single factor to be
considered in light of all the evidence presented at the suppression hearing.   In fact, the
United States Supreme Court has held that  “valid waiver does not require that an
individual  be  informed  of  all  information                                                   ‘useful’  in  making  his  decision  or  all
information that ‘might * * * affec[t] his decision to confess.’                                 ‘[W]e have never
read  the  Constitution  to  require  that  the  police  supply  a  suspect  with  a  flow  of
information to help him calibrate his self-interest in deciding whether to speak or stand
by his rights.’”   Colorado v. Spring, 479 U.S. 564, 576-77 (1987) (quoting Moran v.
Burbine, 475 U.S. 412, 422 (1986)).   “[A] suspect’s awareness of all the possible subjects
of questioning in advance of interrogation is not relevant to determining whether the
suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege.”
Id. at 577.   Accordingly, it was unnecessary for Carlone to have divulged to defendants
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the various topics to be addressed at questioning.   It is enough that Carlone thoroughly
informed each defendant of his Miranda rights, as evidenced by the two “rights” forms.6
We  hold  that  the  state  proved  by  clear  and  convincing  evidence  that  the
defendants gave their statements to Carlone voluntarily.
Conclusion
For the foregoing reasons, we reverse the decision of the Superior Court.   The
record shall be returned to the Superior Court for further proceedings not inconsistent
with this opinion.
6 The defendants also allege that the state failed to furnish them with their tape-recorded
statements pursuant to a pretrial discovery request.   Apparently, defendants have yet to
file a motion to compel these statements from the state.   As such, there is no ruling of the
Superior Court for us to review.   See G.L. 1956 § 9-24-32.   Therefore, this issue is not
properly before the Court, and we will not address it.
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Supreme Court
No. 2005-77-C.A.
State                                                                   :
v.                                                                      :   (N2/03-378A)
Auston L. Forbes.                                                       :
State                                                                   :
v.                                                                      :   (N2/03-378B)
Nicholas D. Lockhart.                                                   :
NOTICE:    This  opinion  is  subject  to  formal  revision  before
publication in the Rhode Island Reporter.  Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island, 02903 at Tel. 222-3258
of any typographical or other formal errors in order that corrections
may be made before the opinion is published.
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COVER SHEET
TITLE OF CASE:   State v. Auston L. Forbes
State v. Nicholas D. Lockhart
DOCKET SHEET NO.:                                                 2005-77-C.A.
COURT:                                                            Supreme
DATE OPINION FILED:   June 21, 2006
Appeal from
SOURCE OF APPEAL:    Superior                                     County:  Newport
JUDGE FROM OTHER COURT:      Judge Stephen P. Nugent
JUSTICES:                                                         Williams, CJ., Goldberg, Flaherty, Suttell, and Robinson, JJ.
WRITTEN BY:      Chief Justice Frank J. Williams, for the Court
ATTORNEYS:
For Plaintiff:      Aaron L. Weisman, Esq.
ATTORNEYS:
For Defendant Forbes:                                             Judith Crowell, Esq.
For Defendant Lockhart:   Denita M. Trembly, Esq.
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