April 16, 2018



                                                                    Supreme Court

                                                                    No. 2016-40-C.A.
                                                                    (P1/13-2349A)

                     State                     :

                      v.                       :

                 Marc Gouin.                   :




                 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 Telephone
                 222-3258 of any typographical or other formal errors in order that
                 corrections may be made before the opinion is published.
                                                                     Supreme Court

                                                                     No. 2016-40-C.A.
                                                                     (P1/13-2349A)

                    State                      :

                      v.                       :

                 Marc Gouin.                   :



               Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

         Justice Indeglia, for the Court. The state appeals a Providence County Superior Court

justice’s decision granting a motion to suppress brought by the defendant, Marc Gouin (Gouin or

defendant). The defendant was indicted by a grand jury on four counts of child molestation.

Prior to trial, he moved to suppress statements he made to a Massachusetts Department of

Children and Families (DCF) investigator on grounds that he had rendered the statements

involuntarily. The hearing justice granted his motion, and the state appealed as allowed by G.L.

1956 § 9-24-32. For the reasons set forth herein, we vacate the decision of the Superior Court.

                                                   I

                                         Facts and Travel

          In August 2013, a grand jury indicted defendant on two counts of first-degree child

molestation sexual assault and two counts of second-degree child molestation sexual assault, in

violation of G.L. 1956 §§ 11-37-8.1 and 11-37-8.3. The complaining witness, defendant’s niece

Emma,1 alleged that in 2005 defendant had sexually abused her. On December 7, 2015, in

advance of trial, defendant moved to suppress statements that he made to Kristin Prescott, a DCF

1
    The complaining witness’s name has been changed to protect her anonymity.
                                                -1-
investigator, during a July 11, 2012 interview at his home.2 The hearing justice conducted an

evidentiary hearing on the motion on January 19, 2016.

                                                A

                                Accusations Against Defendant

       At the motion to suppress hearing, Prescott testified for the state. Prescott had worked

for DCF at its office in Taunton, Massachusetts, as an investigator for eighteen years. In that

role, she probed abuse and neglect allegations to ascertain their veracity. In 2012, she began

investigating defendant.

       Prescott testified that DCF had received a report from a mandated reporter3 stating that

Emma revealed during a July 9, 2012 SAIN interview4 that she had been sexually abused by

defendant, as well as by her father. According to Prescott, Emma told the mandated reporter

specifically that defendant “had touched her in her vaginal area under her underwear,” that he

had “‘put his thing in her mouth’ on more than one occasion,” and that “he would touch himself

while he was touching her, things of that nature.”

       The defendant also had a stepdaughter, Marie.5 During the SAIN interview, Emma

indicated that Marie’s daughter, Olivia,6 lived with defendant, and Emma was concerned for

Olivia’s safety.7



2
  The defendant also filed a motion in limine, arguing that his statements were inadmissible
pursuant to the Rhode Island Rules of Evidence.
3
  A mandated reporter is a person who has a statutory duty to report any evidence of criminal
activity to the police. Mass. Gen. Laws Ann. ch. 119, § 51A.
4
  According to Prescott, a SAIN interview is a recorded interview conducted by a forensic
interviewer after allegations of sexual abuse.
5
  This name has also been changed in the interest of anonymity.
6
  This name has also been changed in the interest of anonymity.
7
  Emma alleges that these incidents occurred in 2005. They were originally reported to law
enforcement at that time, along with similar allegations made by Marie. However, the 2005
criminal investigation was suspended; the papers presented in this appeal do not elucidate why.
                                               -2-
       Emma’s interview resulted in the preparation of a report8 implicating defendant, and

imposed an obligation on DCF to investigate her accusations. Prescott alerted law enforcement

to Emma’s allegations against defendant and her father; and, on July 10, 2012, Prescott made an

unannounced visit to defendant’s Seekonk, Massachusetts home. The defendant was not home,

and Prescott scheduled a visit with him through Michelle Gouin—defendant’s wife—for July 11,

the following day.9 Prescott testified that, during that July 10 conversation, when she informed

Michelle of Emma’s claims, Michelle became upset and “told [her] this [was] something that

happened a long time ago * * *.”

       Prior to the July 11 interview, Prescott contacted the East Providence and Seekonk police

departments to obtain the 2005 records of the accusations against defendant. She received East

Providence police reports regarding defendant the morning of the interview and attempted to

contact a detective there, but was unsuccessful.         Prescott testified that neither the East

Providence nor the Seekonk police instructed her to speak with defendant.

                                                 B

                                   Interview with Defendant

       On July 11, 2012, Prescott went to defendant’s home for the scheduled visit. The

purpose of the visit, she testified, was to assess Olivia’s safety in the home. Once there, Prescott

spoke with Marie before speaking with defendant and Michelle.               Prescott characterized

defendant and Michelle as intelligent people without any apparent cognitive delays. Prescott

spoke with defendant and Michelle while seated at defendant’s kitchen table.



8
  This report is referred to as a “51A report,” which is “[a] report of suspected child abuse filed
with the Department of Children and Families in accordance with G.L.c. 119, § 51A * * *.”
Commonwealth v. Monroe, 35 N.E.3d 677, 683 n.8 (Mass. 2015).
9
  Her name is inconsistently spelled both “Michele” and “Michelle” throughout the record. We
use the latter spelling, as that is how it appears in the DCF records.
                                               -3-
       Prescott testified that she gave defendant and Michelle a summation of Emma’s SAIN

interview and told them of her intent to evaluate Olivia’s safety.10 The defendant told Prescott

that “he was in a really difficult situation having to discuss these things again and this was

something that had happened a long time ago.” He continued that he “had spent so many years

trying to get his family back and * * * he had been forgiven by [Emma] and been forgiven by

[Marie] * * *.” The defendant brought up his brother—Emma’s father—and represented that he

was “upset that his brother had been mad at him for what he had done when [his brother] was

doing the same thing this whole time.” He also told Prescott that he “had spent the next six

months [after the allegations] trying to kill himself * * *.” Prescott described defendant as

“emotional and clearly upset * * * [but] polite and cooperative. He was never angry. * * * [A]t

the beginning he was a little defensive and upset that [Prescott] was there and the reason that

[Prescott] was there, but that changed and [defendant and Prescott] had a conversation * * *.”

       Prescott reiterated that “the conversation was difficult” and that it was emotional,

highlighting that defendant “recognized the concerns around the conversation * * *.” Prescott

testified that neither defendant nor Michelle asked her to stop the interview, leave their home, or

wait until they contacted an attorney. She could not recall if defendant or Michelle asked for an

attorney, nor could she recall if she told them that they had the right to stop the interview at any

time or ask her to leave.11 In addition, she stated that, despite knowing the nature of her visit,

neither defendant nor Michelle engaged an attorney to be present. While Prescott did not reveal

her status as a mandatory reporter to defendant, she testified that no DCF policy required as

10
   At this time, Michelle had guardianship of Olivia, although it is unclear whether defendant
also was her guardian.
11
   Prescott indicated that, in her experience, if an alleged suspect being interviewed requests an
attorney, “that’s usually the end of the conversation. People usually stop speaking, people also
obtain attorneys prior to home visits[,] * * * [and defendant] did obtain an attorney after my
home visit * * *[.]”
                                               -4-
much. Prescott also insisted that she never spoke about Olivia’s potential removal from the

home and, in fact, there was no cause to remove her at that point.12

         On cross-examination, Prescott said that—at some point during the interview—she

handed defendant and Michelle a brochure entitled “A Family’s Guide to Protective Services for

Children.” The brochure discussed the purpose of a DCF investigation and was typically given

to every family involved with DCF. It advised that a parent involved with DCF has “the right to

speak with an attorney or have one with [him or her] at any time. * * * If DCF takes the case to

court and [he or she is not] able to pay for an attorney, the Judge will appoint one for [him or

her].”    Prescott indicated, however, that DCF investigators were not required to inform

interviewees of these rights at the start of the interview. The brochure also explained that if a

DCF investigator received evidence of abuse, then the investigator was required to give that

evidence to law enforcement. Prescott also testified that she provided defendant with a letter

informing him that allegations had been levied against him. However, Prescott could not recall

precisely when during the interview she gave defendant that letter.

         Michelle testified for the defense. She stated that Prescott’s interview lasted between an

hour and an hour and a half and that Prescott gave defendant and Michelle the letter and the

brochure as she was leaving their home. Michelle also conveyed that, during the interview, she

and defendant asked Prescott if they should get an attorney, to which Prescott responded that

“there was no time, that she could take [Olivia] that day, and she kept on picking up her cell

phone. She said, ‘All I have to do is make a phone call.’”

12
   After Prescott concluded her investigation, she allowed Olivia to stay in the home provided
that defendant left the premises; however, Olivia was removed after it was discovered that
defendant visited the home. Prescott testified that, when Olivia was eventually removed from
the home, “it was much later[,] * * * far after [her] investigation.” When she testified at the
hearing, Michelle confirmed that Olivia was removed approximately nine months after the
interview.
                                                -5-
                                                 C

                                   Hearing Justice’s Decision

         In his argument to the hearing justice, defendant conceded that Miranda13 protections did

not apply because he was not in custody during the interview. The defendant argued, however,

that the state had not met its burden of proving the voluntariness of the statements. Based on the

totality of the circumstances, defense counsel argued that Prescott’s failure to advise defendant

of his rights rendered the statements involuntary. In response, the state asserted that Prescott was

not acting at the direction of the police when she spoke with defendant; rather, her sole purpose

was to check on Olivia’s well-being. Alternatively, the state argued that defendant had made the

statements voluntarily.

         In a bench decision on January 20, 2016, the hearing justice granted defendant’s motion

to suppress. He concluded that, while Prescott was not a law-enforcement official, she was

“clearly an agent of the government * * *.” In support of that holding, he focused on the fact

that she worked with the police on child-abuse complaints and was a mandated reporter. On the

issue of the voluntariness of defendant’s statements, the hearing justice found that the DCF

brochure, which stated that defendant had the right to counsel at any time, was delivered after the

interview was over. He found Prescott “evasive” in her testimony that she was unaware that the

brochure contained information about defendant’s right to counsel. The totality of these facts, he

concluded, reflected either “sloppy investigative techniques” or “establish[ed] an inference of

deception on the part of the government regarding defendant’s rights. Either way it diminishes

the [s]tate’s quantum of proof that has been presented.” He did note, however, that he did not




13
     Miranda v. Arizona, 384 U.S. 436 (1966).
                                                -6-
find Michelle credible in her testimony that Prescott notified defendant and Michelle that there

was no time to get an attorney and that Olivia could be taken away with one phone call.

          Based on these findings, the hearing justice determined “that the [s]tate failed to prove,

by clear and convincing evidence, that the defendant knowingly and voluntarily waived his Fifth

Amendment rights in this case.”14 It is from this decision that the state appeals.

                                                  II

                                         Standard of Review

          When we review a trial justice’s decision granting or denying a motion to suppress, “we

defer to the factual findings of the trial justice, applying a ‘clearly erroneous’ standard.” State v.

Sabourin, 161 A.3d 1132, 1138 (R.I. 2017) (quoting State v. Jimenez, 33 A.3d 724, 732 (R.I.

2011)).     However, when reviewing constitutional issues, such as voluntariness, this Court

conducts a de novo review. Id. at 1139.

                                                  III

                                              Discussion

          We begin by accepting defendant’s concession that he was not in custody at the time of

the interview. As such, defendant is foreclosed from arguing that his statements were taken in

violation of his Miranda rights. Moreover, defendant does not contend that his right to counsel

had attached at the time of the interview. His sole remaining argument is that his statements

were involuntary, in violation of the due process clause of the Fifth and Fourteenth Amendments

to the United States Constitution, and article 1, section 10 of the Rhode Island Constitution.

          In deferring to the hearing justice’s factual findings, we review them for clear error. See

Sabourin, 161 A.3d at 1138. The hearing justice “had an opportunity to see the witnesses and

14
   Based on his decision, the hearing justice ruled that defendant’s motion in limine had been
rendered moot.
                                                 -7-
observe their demeanor as they testified, and therefore had the advantage, which we do not have,

of determining where the truth lay.” State v. Humphrey, 715 A.2d 1265, 1274 (R.I. 1998)

(quoting Migliaccio v. A. & S. Angolano, Inc., 87 R.I. 194, 203, 139 A.2d 383, 388 (1958)).

Based on our comprehensive review of the cold record before us, we cannot say that his findings

were clearly erroneous, and we thus accept them and continue to our de novo analysis. See id.;

see also Sabourin, 161 A.3d at 1138.

       Before evaluating the voluntariness of defendant’s statements, we first must determine

whether Prescott was an agent of the police during the interview. See Colorado v. Connelly, 479

U.S. 157, 163 (1986).      We have previously considered whether a state protective agency

investigator acted as an agent of the police. In State v. Oliveira, 961 A.2d 299 (R.I. 2008), we

held that a Department of Children, Youth, and Families (DCYF) investigator was a state actor

for purposes of the Sixth Amendment. Oliveira, 961 A.2d at 307, 311. We recognized that,

while she “did not interview [the] defendant at the direct behest of the police or prosecution, she

had met and exchanged information with them on the previous day * * *.” Id. at 310. We

emphasized that “she was statutorily required to forward any information she * * * obtain[ed]

from [the] defendant concerning child abuse to the police.” Id. We further noted that the

investigator’s “role as a child protective investigator was not primarily prosecutorial; rather it

was to protect children who might have been at risk due to [the] defendant’s suspected abuse.”

Id. at 310-11. Nevertheless, we concluded that she was a state actor because “[i]t [was] clear to

us * * * that [she] deliberately intended to elicit incriminating evidence from [the] defendant,

which she knew she would then be required to turn over to the police * * *.” Id. at 311.

       While the analysis in Oliveira concentrated on a claimed Sixth Amendment violation, we

believe that the rationale for holding that a DCYF investigator was a state actor translates to this



                                               -8-
case. Oliveira, 961 A.2d at 310. Like the investigator in Oliveira, here Prescott communicated

with the police about defendant and was statutorily obligated to report any incriminating

information to them. See id. The fact that she interviewed defendant for reasons other than

prosecutorial purposes does not convince us now, as it did not convince us in Oliveira, that she

was not acting as an agent of the police. See id. at 310-11. Accordingly, we hold that Prescott

acted as a police agent during the interview.

       We can now address the voluntariness of defendant’s statements.15          “A defendant’s

statement is voluntary when it is the product of his free and rational choice.” State v. Bojang,

138 A.3d 171, 180 (R.I. 2016) (quoting State v. Bido, 941 A.2d 822, 836 (R.I. 2008)). In

contrast, an involuntary statement is one “extracted from the defendant by coercion or improper

inducement, including threats, violence, or any undue influence that overcomes the free will of

the defendant.”   Id. (quoting Bido, 941 A.2d at 836).      When a defendant alleges that his

statements were coerced, we require the state to “prove voluntariness by clear and convincing

evidence.” State v. Amado, 424 A.2d 1057, 1061 (R.I. 1981). “In deciding whether a statement

is voluntary, this Court considers the totality of the circumstances surrounding the challenged

statement.”   Bojang, 138 A.3d at 180 (quoting Bido, 941 A.2d at 836).                 The relevant

considerations “are the background, experience and conduct of the accused, as well as the level

of a suspect’s educational attainments.” Id. at 181 (quoting Bido, 941 A.2d at 836).

       The gravamen of defendant’s argument is that Prescott’s failure to tell defendant at the

start of the interview that she was a mandatory reporter and her failure to give him the DCF

brochure informing him of his right to counsel “created confusion and resulted in a statement



15
   While the state asserts that the hearing justice applied the incorrect standard in analyzing
defendant’s statements, we need not decide whether that is so because our review is conducted
de novo.
                                                -9-
that can only be described as coerced.” However, the hearing justice’s factual findings illustrate

that Prescott and defendant engaged in a dialogue that defendant never sought to cease.

       The “conversation,” as Prescott described it, does not reflect a coercive confabulation.

Prescott remembered defendant as mostly polite and cooperative during the interview; at worst,

she described him as “a little defensive” and emotional. See Bido, 941 A.2d at 836 (holding that

there was no evidence of coercion or intimidation where the defendant appeared “calm” and

“spoke spontaneously”). She further described defendant as intelligent, thus evidencing that he

“had the capacity and knowledge to understand what he was doing[.]” State v. Marini, 638 A.2d

507, 513 (R.I. 1994); see also State v. Ramsey, 844 A.2d 715, 720 (R.I. 2004) (concluding that

“[t]he defendant also had held positions of employment and responsibility that required

intelligence and competence; he therefore had the intelligence to make the statement a voluntary

product”). Moreover, Prescott’s July 11 interview with defendant was scheduled in advance,

giving him an opportunity to cancel it or obtain counsel. And yet, defendant willingly met with

her without counsel.    See Jimenez, 33 A.3d at 734 (determining that the defendant made

statements voluntarily where the “defendant’s own attorney admitted that [the] defendant was

not forced to make a statement to police”).

       It is also significant that the hearing justice found Michelle’s testimony that Prescott said

Olivia could be removed with one phone call incredible. That testimony is the only evidence

that even remotely suggests coercive tactics. Because the hearing justice determined that it was

unreliable, we discern no viable basis for defendant’s claim of coercion. It is undisputed that

defendant never told Prescott that he was confused or asked Prescott to leave; nor is there any

credible evidence that Prescott threatened him. See Jimenez, 33 A.3d at 734. This “exposes the

lack of any evidence suggesting that defendant’s statements * * * were not of his own free will.”



                                              - 10 -
Id. In fact, Prescott’s interview at defendant’s kitchen table is the antithesis of a coercive

interrogation likely to cause a suspect to make an involuntary statement. See State v. Hall, 940

A.2d 645, 657 (R.I. 2008) (holding that the defendant’s statement to police was voluntary where

“although [he] had one arm in a handcuff affixed to the wall, there [was] nothing in the record to

suggest that he even was uncomfortable”).

       The defendant relies heavily on the fact that Prescott gave him the brochure at the end of

the interview, contending that Prescott’s untimely delivery of the brochure prevented him from

being adequately informed of his rights. We disagree. Because defendant conceded that he was

not in custody, his Fifth Amendment right to counsel had not attached; and, because he had not

been charged with a crime, neither had his Sixth Amendment right to counsel.16 It is axiomatic

that “[o]nce the right to counsel has attached and been asserted, the [s]tate must of course honor

it.” Maine v. Moulton, 474 U.S. 159, 170 (1985). But if the right to counsel has not attached,

then there is nothing for the state to honor. See id.; cf. Oliveira, 961 A.2d at 310-11 (holding that

the DCYF investigator obtained statements from the defendant while he was incarcerated in

violation of his Sixth Amendment right, where the defendant had been charged and was in

custody). No DCF policy required Prescott to give defendant the brochure at the beginning of

the interview. While Prescott could have done so, it does not follow that it was unconstitutional

for her to have waited.

       In conclusion, we hold that the defendant’s statements were voluntary and that the motion

to suppress should have been denied.




16
  While defendant initially argued to the hearing justice in support of his motion to suppress that
he had a right to counsel based on the 2005 criminal charges against him, defendant did not
pursue that argument at the hearing on the motion to suppress, and thus it is not before us now.
                                               - 11 -
                                                IV

                                           Conclusion

         For the foregoing reasons, we vacate the decision of the Superior Court. The record shall

be remanded to that tribunal for further proceedings consistent with this opinion.17




17
     Based on our holding, defendant’s motion in limine must be readdressed on remand.
                                               - 12 -
STATE OF RHODE ISLAND AND                                   PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        State v. Marc Gouin.
                                     No. 2016-40-C.A.
Case Number
                                     (P1/13-2349A)
Date Opinion Filed                   April 16, 2018
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Gilbert V. Indeglia

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Brian Van Couyghen
                                     For State:

                                     Christopher R. Bush
                                     Department of Attorney General
Attorney(s) on Appeal
                                     For Defendant:

                                     Melissa Larsen, Esq.
                                     Edward C. Roy, Jr., Esq.
                                     James E. O’Neil, Esq.




SU-CMS-02A (revised June 2016)
