Marcus McCammon was a live in boyfriend to Ivy Fulton. Fulton’s seven year old granddaughter, LAV, lived with them. In 2016, LAV told Fulton that she asked McCammon if he wanted a massage one day and he said he wanted her to massage his groin. She did not tell anyone after that incident because she was scared.
Fulton and LAV confronted McCammon about the incident and LAV called 911 to tell them she had been abused. McCammon then told police he wanted to tell his side of the story and went to Madison P.D. McCammon told Officer Ryan Wigley that he was in his garage one night when he woke up to find LAV massaging his groin (his pants were not down). He never told anyone about this.
LAV was given a forensic interview (she said she was abused three or four times by McCammon) and McCammon was then charged with sexual battery. After arrest, he was Mirandized and gave a second interview. This time, he said when he awoke, LAV was rubbing his penis on her mouth.
At trial, McCammon said he was intoxicated during the first interview and doesn’t remember what he said. His second interview with police was the truth. He was convicted of sexual battery and sentenced to 30 years. On appeal, he argued he should have been Mirandized for the first interview and also he was intoxicated. He then argued that the second interview should have been suppressed as fruit of the poisonous tree. MCOA affirmed.
A. First Interview
In Culp, MSC said that a suspect is in custody if, under all the circumstances, a reasonable person would believe that his ability to freely leave has been restricted. In Hunt, MSC noted the factors to determine custody includes the time and place of the interview, who is present, whether officers use force or physical restraints, the length of the interview and nature of the questions, whether the suspect came to the authorities voluntarily, and what the suspect was told about the situation.
McCammon told the officer that he would like to go to the police station to give his side of the story but he didn’t feel comfortable driving because he had had a beer. Officers agreed to drive him to the station. McCammon was not handcuffed or restrained.
At the station, Wigley clearly advised McCammon that he was free to leave and Wigley confirmed that McCammon had come to the station voluntarily. McCammon told Wigley that he felt like he was under arrest. But Wigley again told McCammon that he was not under arrest and could leave at any time. McCammon then made his statement.
It is clear from the video of this interview that it was not a custodial interrogation. McCammon asked to give his side of the story, and he went to the police station voluntarily. He was told more than once that he was not in custody and that he was free to leave, and he did in fact leave the station that night without being placed under arrest.
McCammon was not placed under any physical restraints, and Wigley asked him open ended questions that allowed him to tell his side of the story. Therefore, McCammon was not entitled to Miranda warnings prior to or during his initial interview.
B. Intoxication during first interview
In Taylor, we said that intoxication does not automatically render a confession involuntary, but the trial court may consider the degree of intoxication as part of its voluntariness inquiry. McCammon asked for a ride to the police station because he had had a beer. However, Wigley and another officer testified that they did not observe any signs that McCammon was intoxicated, and the video of the interview corroborates their testimony.
C. The Second Interview
McCammon was arrested and taken to the police station. He was taken to an interview room, and Officer Cooley read him his Miranda rights. The recording of the interview shows Cooley explaining each right to McCammon, one at a time. McCammon was given a written Miranda waiver, and he initialed next to each right after Cooley explained it to him.
McCammon asked Cooley questions, and Cooley fully explained that by signing the waiver form, McCammon was agreeing to speak with officers and waive his rights to remain silent and to have an attorney present. Finally, McCammon signed the waiver form and then made his statement.
On appeal, McCammon argues that his second statement was tainted and inadmissible because officers failed to read him his Miranda rights prior to his first statement. This argument fails because we have already held that no Miranda warnings were required prior to the first statement.