State v. Fleming: Race, Miranda and Trafficking in Prison Contraband.
Posted by Edmund R. Folsom, Esq.
Date: October 29, 2020
State v. Fleming, decided October 13, 2020, is full of good stuff. It deals with required voir dire for racial bias, custodial interrogation, and the element of intent for proof of trafficking in prison contraband. It all started for Fleming when he was arrested for domestic violence assault and was taken to the Oxford County Jail. When he arrived, a corrections officer asked him if he had any drugs or weapons on or inside of him. Fleming answered that, to his knowledge, he had no drugs or weapons. He also said he had already been patted down by the police.
The corrections officer warned Fleming that it’s a Class C crime to bring contraband into the jail – the same warning that appeared on a sign at the jail’s entrance. In the booking room, corrections officers patted Fleming down and found drug paraphernalia. This led to a strip search. During the strip search, a corrections officer noticed a plastic bag wrapped around Fleming’s penis. Fleming looked down at the bag and said, without being prompted by any question or comment from the officer, “That’s not mine, I don’t know how that got there.” The corrections officer asked Fleming whose it might be. Fleming replied that it belonged to the girl who was trying to set him up. During all of this, Fleming was clearly in custody but had not been read Miranda warnings.
The bag contained crack cocaine. Fleming was subsequently indicted for domestic violence assault, trafficking in prison contraband, unlawful possession of scheduled drugs and violating conditions of release. He was convicted of everything except the domestic violence assault and was sentenced to serve 6 months.
The Miranda Issue.
Before trial, Fleming filed a motion to suppress his statements to the corrections officer, arguing that they were obtained in violation of his Miranda rights. Miranda v. Arizona holds that a person in custody must be given specific warnings before statements in response to “custodial interrogation” may be used against the person in the State’s case in chief. The issue at the hearing was whether the Miranda ruling required Fleming’s statements to be suppressed as responses to custodial interrogation. Miranda teaches that custodial interrogation means either express police questioning or statements that an officer should know are reasonably likely to elicit an incriminating response from the suspect.
The trial judge refused to suppress either of Fleming’s statements. Fleming’s first statement was spontaneous, not a response to custodial interrogation. The judge found that the corrections officer’s follow-up question about whose bag it might be was merely intended to clear up the ambiguity in Fleming’s spontaneous statement, not custodial interrogation. On appeal, the Law Court rejected the trial court’s rationale for admitting the second statement. The Court found that Fleming’s statement about not knowing how the bag got on his penis wasn’t ambiguous, it was just “totally implausible.” The corrections officer should have known his follow-up question was reasonably likely to elicit an incriminating response from Fleming, given that an incriminating response for Miranda purposes is anything inculpatory or exculpatory that the prosecution might seek to use against the person at trial.
Voir Dire on Racial Prejudice.
At jury selection, Fleming presented the Court with a proposed jury questionnaire. It contained eleven race-related questions asking about any positive or negative beliefs or experiences prospective jurors might have had in connection with a person of Fleming’s race. The trial judge rejected Fleming’s questionnaire and instead presented the prospective jurors with a questionnaire that asked four “yes” or “no” questions. The court’s questions asked about potential difficulty with fairness and impartiality if a defendant were of a different race or ethnicity, and whether potential jurors had experiences with a person of a different race or ethnicity that might cause them difficulty being fair and impartial in Fleming’s case.
On appeal, the Law Court found the trial court’s four racial bias questions deficient. The Court acknowledged it had previously failed to provide sufficient guidance to trial courts regarding the need for voir dire to detect racial bias, declaring, “[W]e must task the trial courts with doing more.” How much more is not entirely clear, but the Law Court stated, “Whenever a trial includes racial issues, trial courts are required to thoroughly probe the issue of racial bias.” This includes more than just questioning people about their explicit views, opinions or beliefs about people of a different race. It requires trial courts to inquire about negative opinions or beliefs potential jurors might have toward people of the same race or ethnicity as the defendant, in particular. And, the Law Court declared that to thoroughly probe racial bias a trial court should exercise discretion to allow follow-up questions during individual voir dire, seeking to ferret out implicit or unconscious racial bias. The Law Court instructed trial courts “to be proactive about addressing implicit bias.”
Fleming’s trial judge failed to ask questions about any negative opinions or beliefs the potential jurors might have had against people of Fleming’s race in particular. This failure rendered Fleming’s voir dire process insufficient to disclose facts that would reveal juror bias. This might strike the reader as obvious stuff that wouldn’t require a major effort to bring about, but given the judicial stinginess that traditionally greets attorney-proposed voir dire in Maine’s criminal courts, it’s kind of a big deal.
Intent Required for Trafficking in Prison Contraband.
Recall that Fleming was taken to jail in handcuffs after being arrested for domestic violence assault. At the jail, he was asked whether he had drugs on him and was warned that he’d be prosecuted for a Class C crime unless he admitted possessing any drugs he had. This is common practice. Police often arrest a person who happens to be in possession of an illegal drug, often for an offense that has nothing to do with the illegal drug. If they just pat the person down for weapons before transport, instead of doing a thorough search incident to arrest, they sometimes fail to detect the drugs. The person, who is relieved that the police did not find the drugs, thinks maybe he’ll get lucky and avoid an additional charge of illegal possession of drugs. Everyone knows we’re not obligated to confess our illegal activities to the police. We have a constitutional right not to incriminate ourselves, right?
Police take the arrested person to jail, where corrections officers have a duty to search people brought there by police, to make sure they don’t bring illegal drugs or other contraband into the jail. At the jail, the corrections officer asks if the person has any contraband and tells the person that failing to admit to possessing whatever contraband the person has will result in a charge of trafficking in prison contraband. This forces the person who happened to possess illegal drugs at the time of arrest into a difficult choice. The person can admit to the as yet undetected crime of possessing illegal drugs, thereby avoiding a charge of trafficking in prison contraband; or the person can remain silent and hope the drugs continue to go undetected during the search that will surely follow; or the person can deny possessing illegal drugs and hope the corrections officer doesn’t do a search and find them. By arresting the person and bringing the person to the jail, the State creates the conditions for a charge of trafficking in prison contraband, then forces the person to either self-incriminate to possession or face a trafficking in prison contraband charge. To understand what the Law Court had to say about this in Fleming’s case requires taking a look at the elements of trafficking in prison contraband.
The Applicable Statutes.
The portion of the statute that Fleming was charged with violating provides: “A person is guilty of trafficking in prison contraband if…[b]eing a person in official custody, the person intentionally makes, obtains or possesses contraband.” 17-A M.R.S. §757(1)(B). The term “contraband” is defined very broadly, to include “anything that a person confined in official custody is prohibited by statute from making, possessing or trafficking in or a scheduled drug as defined in section 1101, subsection 11, unless the drug was validly prescribed to the person in official custody and was approved for use by the person pursuant to the procedures of the custodial agency.” 17-A M.R.S. §757(2). What does it mean to be in “official custody?” That term is defined to include “arrest, custody in, or on the way to or from a courthouse or jail, police station, house of corrections, or any institution or facility under the control of the Department of corrections.” 17-A M.R.S. §§755(3), 757(2). From this, we see that a person might traffick in prison contraband from the moment the person is under arrest or is placed in custody on the way to a police station or jail if, in that circumstance, the person intentionally possesses a drug that is not legal for the person to possess. This brings us to the next question, the critical question in Fleming: What does it mean to “intentionally” possess illegally drugs, being a person in official custody?
The Maine Criminal Code defines “intentionally” as follows:
A person acts intentionally with Respect to a result of the person’s conduct when it is the person’s conscious object to cause such result… A person acts intentionally with respect to attendant circumstances when the person is aware of the existence of such circumstances or believes that they exist. 17-A M.R.S. §35(1)(A), (B).
The Criminal Code also provides that, as a general rule, whenever the definition of a crime specifies a culpable state of mind, that state of mind applies to all elements of the crime. With that in mind, the intent issue should boil down to whether it was enough for Fleming to have intentionally possessed illegal drugs (the result of his conduct) and to have ended up in official custody while still in possession of those drugs (attendant circumstances of which Fleming must have been aware), or whether it was necessary to prove that Fleming had the conscious object to possess illegal drugs while in official custody (whether the element of intent extends not only to the possession of the drugs but to their possession in circumstances of official custody). The Law Court declared that the State was required to prove Fleming formed the intent to possess illegal drugs at some point after he became aware he was going to be placed in official custody — that he had the conscious object to possess the drugs while in custody. Two points about that: (1) It’s funny how the Court got there, and (2) the Court’s articulation of its test for intent leaves matters a little ambiguous.
Harmless Error Analysis as the Avenue to Decide the Required Intent.
As the Fleming footnotes make clear, there was a battle at trial over what intent is required to commit trafficking in prison contraband, but the defense did not pursue the issue on appeal. On appeal, the defense did not argue error in the jury instruction regarding intent or in the court’s denial of the defendant’s post-verdict motion for judgment of acquittal. The defense also abandoned its argument, raised at trial, that the trial court’s broad interpretation of the statute violates a defendant’s right not to self-incriminate when warned that possessing drugs beyond a certain point is a Class C crime.
In closing argument at trial, the D.A. used Fleming’s un-Mirandaed statement — that the drugs were on his penis because a girl tried to set him up — to argue that Fleming knew he had drugs on him, knew he was going into the jail and was trying to avoid getting caught with the drugs. The Law Court was bothered by the D.A.’s argument that Fleming committed the crime because he knew he was going to jail and knew he had drugs on him. If the element of “intentionally” requires more than that, the D.A.’s argument was wrong. The D.A. used Fleming’s statement — admitted by the trial court despite the Miranda violation – to support this line of argument, so the Court decided it was necessary to determine the intent issue to determine whether admission of Fleming’s statement, obtained in violation of Miranda, was more than harmless error. The Court ultimately decided it was more than harmless error to have admitted Fleming’s statement because the statement might have contributed to the guilty verdict.
What Did the Law Court decide the “Intentionally” Element Requires?
The Law Court pointed out that the trafficking in prison contraband statute is much broader than its title implies. Because “official custody” begins as soon as a person is arrested, if the only intent required for the crime is the intent to possess drugs by a person who happens to end up in official custody, the person would have to determine exactly when an arrest is going to occur, and disclose any illegal possession before that point is reached to avoid committing the crime. And because prison contraband is so broadly defined, a person would have to disclose possession of even a lawfully possessed item if the item is one that becomes “prison contraband” at the point of arrest, such as a lawfully possessed firearm. The Law Court said it would be “wholly unreasonable” to interpret the statute that way. Instead, the Court declared:
For our construction of this statute not to be overly broad, and not to encompass mere possession at the time of one’s arrest, the State would have to prove that the defendant was, at the time he initially placed the drugs on his person, aware that he was going to be placed in official custody. It is irrelevant whether Fleming, while possessing the drugs and unable to dispose of them, learned that he was going to jail—what matters is whether Fleming formed an intent to possess the drugs after he learned he was being taken into official custody.
I think the Law Court reached the right result in Fleming. There’s so much abusive overreach in the State placing a person in the position of having to self-incriminate to avoid a Class C charge of trafficking in prison contraband that I think the statute could not have been intended to endorse the practice. But I think the Law Court could have been clearer in its ruling.
To illustrate the problem with the tests of “intentionally” articulated by the Law Court, let’s take them one at a time. First, let’s apply as our test whether Fleming was aware when he first placed the drugs on himself that he was about to be placed in custody. Let’s suppose Fleming was not aware of any such thing at that point, but that after whatever plans he had were interrupted by his arrest for domestic violence assault, he saw a business opportunity in sneaking the drugs inside the jail. And finally let’s suppose that, once the corrections officer found the drugs on Fleming, Fleming admitted, during interrogation after valid waiver of Miranda, his late-formed intent to smuggle the drugs into the jail. Does the Law Court mean to say Fleming didn’t have the requisite intent for trafficking in prison contraband in that scenario, because when he first placed the drugs on himself he was not aware he was about to be placed in custody? Did the Law Court really mean that any intent to smuggle drugs inside the jail is irrelevant unless it existed when Fleming first placed the drugs on himself? Not if the test is whether Fleming formed an intent to possess the drugs after he learned he was being taken into custody – the alternative test the Law Court articulated in the quote above. So, is that the test?
Suppose Fleming never formed a specific intent to smuggle the drugs into the jail as a business opportunity. Instead, his only intent was to continue to possess the drugs until he had an opportunity to discard them. If that was his intent, doesn’t that amount to intent to possess the drugs while in official custody, formed after Fleming learned he was about to be placed in custody? Apparently not, or the Law Court would presumably not have decided Fleming as it did. And yet, in this circumstance, Fleming clearly intended to possess the drugs, versus giving up possession to the authorities, and he clearly did so while he was in official custody. Why, then, in yet another articulation of its rule on intent, did the Law Court state the test this way: “A defendant’s possession of contraband while in official custody cannot be ‘intentional’ for purposes for section 757(1)(B) unless the defendant intended to have the contraband while in official custody.”? If Fleming intended to possess the drugs while he was in official custody, for the purpose of attempting not to get caught with them before he could discard them, didn’t he intend to have the contraband while in official custody? Do you see what I mean about the ambiguity?
Returning to the general rule that when a statute contains the element “intentionally,” that culpable state of mind applies to all other elements of the offense, the Law Court, in Fleming, seems to have intended to say that the element of “intentionally” applies to the circumstance of being in official custody as well as to the act of possession. In other words, the person must have the conscious object to possess the contraband and the conscious object for the possession to occur in a setting of official custody. Construed this way, the trafficking in prison contraband statute does not support prosecution of a person arrested in possession of prison contraband unless the State can prove that, at some point during official custody, the person had both the conscious object to possess the drugs and the conscious object for the possession to take place in the setting of official custody. At the same time, construed this way, the statute criminalizes possession at jail with the intent to carry drugs inside for sale, even though the person had no idea when he first placed the drugs on himself that he was about to be taken into official custody. This must be what the Law Court was getting at. Instead of articulating its test in terms of when Fleming first intended to possess the drugs and whether he knew he would be placed in custody at that point, the test would have been more clearly articulated if it focused on the statutory requirement of intention as the conscious object to possess the drugs in the setting of official custody: Was it the specific objective of the person, at some point during official custody, to possess the drugs in the setting of official custody? It’s important for the test to be as clear as possible. When articulated as a jury instruction, the legal standard must be clear enough for jurors to clearly determine whether the facts as they find them meet the standard by proof beyond a reasonable doubt.
In any event, the result is appropriate. Fleming ends the practice of forcing a person who happens to be arrested while in possession of drugs and is transported to jail — who at no point forms a specific objective to possess the drugs in the setting of official custody — to either self-incriminate to a possession charge or face a charge of trafficking in prison contraband. Good riddance to that.
DISCLAIMER: This post is not legal advice and is not to be taken as legal advice. It is for information purposes only. The reader does not have an attorney-client relationship with the author by virtue of reading this post.