                                                   Supreme Court

                                                   No. 2014-269-C.A.
                                                   (P1/09-1119A)


      State                      :

        v.                       :

Mustapha Bojang.                 :




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. 2014-269-C.A.
                                                                    (P1/09-1119A)
                                                                    (Concurrence begins on
                                                                    Page 15)

                      State                      :

                       v.                        :

               Mustapha Bojang.                  :

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

                                          OPINION

       Chief Justice Suttell, for the Court. The defendant, Mustapha Bojang, appeals from his

conviction of first-degree child molestation. In this appeal, we revisit the defendant’s argument

that the statements he made after his arrest and during his interrogation at the Woonsocket Police

Department should have been suppressed by the trial justice as the product of illegal coercion by

the detectives who interrogated him. For the reasons set forth below, we affirm the judgment of

the Superior Court.

                                                I

                                 Facts and Procedural History

       In State v. Bojang, 83 A.3d 526 (R.I. 2014) (Bojang I), this Court remanded this case to

the Superior Court for additional factfinding and credibility determinations regarding both the

events that transpired during an unrecorded portion of defendant’s interrogation and the

voluntariness of defendant’s confession. On remand, the parties waived their opportunity to

present additional evidence, and the trial justice made oral findings of fact and credibility

determinations based on his review of the testimony provided during both the hearing on

defendant’s motion to suppress and the jury trial. In this section, we recount the facts and travel

                                               -1-
of this case that are relevant to the present issues on appeal—namely, the testimony and evidence

regarding defendant’s interrogations and the statements that he made during these interrogations,

as well as the travel of defendant’s motion to suppress these statements.           For a complete

summary of the facts that led to defendant’s conviction, we refer the reader to Bojang I. 1

       In the spring of 2009, a grand jury returned an indictment charging defendant with eight

counts of first-degree child molestation, allegedly perpetrated against one of the young daughters

of the friends with whom defendant was living at the time (the complainant), in violation of

G.L. 1956 § 11-37-8.1. The defendant filed a motion to suppress the statements he had made

after his arrest and during his interrogations at the Woonsocket Police Department, claiming that

the statements were coerced and not made voluntarily. A trial justice of the Superior Court held

a hearing over two days in April 2010, at which he heard extensive testimony from one of the

detectives who had arrested and interrogated defendant as well as brief testimony from the

patrolman who had transported defendant to the police station after his arrest. 2

       At the suppression hearing, Det. Kevin Hammann testified that, on February 2, 2009 at

9:40 p.m., he was one of two detectives who executed the arrest warrant for defendant at a

residence in Woonsocket. Detective Hammann stated that defendant was calm throughout his

arrest. Detective Hammann testified that defendant’s interrogation was conducted in two parts:



1
  In State v. Bojang, 83 A.3d 526 (R.I. 2014) (Bojang I), we resolved the other two issues that
defendant argued were errors made by the trial justice that required vacating his conviction. We
held that the trial justice had not erred in either his evidentiary rulings or when he denied
defendant’s motion for a new trial. Id. at 540.
2
  Woonsocket Patrolman Anthony Conetta, Jr. testified that he had transported an “African male,
approximately [five foot eight]” from East School Street to the police station, a journey that took
“two minutes.” Patrolman Conetta could neither definitively identify defendant as the male
subject he had transported, nor recall any details from this transport. Patrolman Conetta denied
assaulting, yelling at, or threatening the male subject; he asserted that he had “never done that in
[his] career.”

                                                -2-
the first occurred at approximately 10:10 p.m. in a room that did not have video or audio

recording equipment, and the second occurred at approximately 10:50 p.m. in a room that did

have video recording equipment. Detective Hammann testified that this second interrogation

was video-recorded in its entirety. Detective Hammann further testified that defendant read,

initialed, and signed a form acknowledging his Miranda rights 3 (rights form) in each

interrogation room before the detectives began asking questions. Detective Hammann also

testified that defendant had not, at any point, either asked for an attorney, a break from the

questioning, or for the detectives to stop the interrogation.

         With respect to the first (unrecorded) interrogation, Det. Hammann testified that, after

initially denying any sexual contact with the complainant, defendant admitted to kissing her one

time and to inserting his finger in her vagina one time. According to Det. Hammann, these

statements were made after he told defendant that the complainant had, that morning during an

interview at the Child Advocacy Center, alleged repeated instances of rape. Detective Hammann

admitted that he had spoken to defendant about his immigration status and that he had discussed

calling the immigration authorities. According to Det. Hammann, the other detective in the

room, Ronald LaBreche, was standing near the door during the first interrogation. Detective

Hammann admitted that Det. LaBreche yelled at defendant at one point, but he also repeatedly

stated that he could not recall many details of the first interrogation, such as whether Det.

LaBreche swore at defendant several times.          Detective Hammann admitted that “it [was]

possible” that Det. LaBreche had banged on the table during the first interrogation. Detective

Hammann denied that defendant was assaulted at any time during this first interrogation.




3
    Miranda v. Arizona, 384 U.S. 436, 444 (1966).
                                                 -3-
       Detective Hammann also testified that, after defendant admitted to some sexual contact

with the complainant, defendant agreed to go to the room that was equipped with recording

equipment.   The video-recorded second interrogation (the DVD) was admitted during Det.

Hammann’s testimony. The first two minutes of the DVD showed defendant sitting alone at a

table before the detectives entered. After the detectives entered the room, the DVD showed

defendant reading, initialing, and signing a rights form. Next, the DVD captured an interrogation

in which defendant admitted to three separate sexual encounters with the complainant, as well as

to kissing her. The defendant specified that he had inserted his finger into her vagina one time,

that he had rubbed her naked body on his naked body one time, resulting in his orgasm, and that

he had rubbed her against him on another occasion when they were both fully clothed. The

defendant denied any penile penetration. The DVD showed that the second interrogation ended

approximately thirty minutes after it began and that defendant was again left alone in the room

for approximately two minutes before he was instructed to follow someone (off camera) out of

the room and the recording ended.

       At the conclusion of the testimony, the trial justice rendered a bench decision denying

defendant’s motion to suppress, finding that the state had proven by clear and convincing

evidence that defendant’s confession was not the product of coercion and that defendant had

“knowingly, intelligently, and voluntarily waived his constitutional rights.” The trial justice

noted that, based on Det. Hammann’s testimony, defendant was in the first interrogation room

for approximately thirty minutes and that defendant had signed the second rights form forty

minutes after he had signed the first form. The trial justice also specifically commented on Det.

Hammann’s demeanor during the hearing:

              “The Court did notice before it was even pointed out by opposing
              counsel that there was a difference in dynamics timing responses

                                              -4-
               [sic] when [Det.] Hammann would respond to [the prosecutor],
               * * * as opposed to what was happening with [defendant’s
               attorney], all of which leaves me wondering exactly what went on
               in interview room number one.”
       The trial justice also commented on the DVD of the second interrogation. He found that

the detectives were visible at times, “albeit from the back sides * * *, so the [c]ourt was unable

to see any facial expression.” The trial justice described defendant’s demeanor as “relaxed. He

actually sat and twirled his thumbs, one around the other. He did not appear to be overly

sensitive. He did not appear to be emotionally upset * * *. He did not appear apprehensive at

that time * * *.” The trial justice also noted that he had not observed defendant’s hand shaking

as defendant was reading the rights form, that defendant had not rubbed his head or “appear[ed]

as if he had been wounded,” and that defendant “became increasingly more comfortable as the

interview progressed.”

       During the jury trial, Dets. Hammann and LaBreche as well as defendant testified about

the interrogations. Detective LaBreche testified that defendant had not invoked any of the rights

that were listed on the rights form. Detective LaBreche also testified that Det. Hammann asked

most of the questions during the interrogations. Detective LaBreche admitted that, during the

first interrogation, defendant had initially denied the allegations several times and that defendant

had stated several times that he was innocent. Detective LaBreche further testified that, at one

point, defendant was not paying attention to a question that Det. LaBreche had asked, so the

detective “banged on the table in front of [him] to get [defendant’s] attention to look at [him].”

Detective LaBreche admitted that, when he banged on the table, he “raised [his] voice, trying to

get [defendant’s] attention because [defendant] wasn’t focusing on what [Det. LaBreche] was

asking him.” Detective LaBreche denied making any threats or promises of leniency with

respect to immigration proceedings, and he denied slapping defendant on the head or swearing at


                                               -5-
him. Detective LaBreche testified that he could not recall whether he or Det. Hammann had

accused defendant of lying. Detective LaBreche also stated that defendant’s calm demeanor was

the same in the second interrogation as in the first.

       When Det. Hammann testified at trial regarding Det. LaBreche’s behavior during the first

interrogation, he stated that he

               “believe[d] at one time [he] might have been looking through [his]
               notes [and Det. LaBreche] might have, [he] wouldn’t say raised his
               voice, [but Det. LaBreche] might have elevated his voice a little bit
               to get * * * [defendant’s] attention * * *. [Detective LaBreche]
               might have banged on the end of the table to get his attention.”

Detective Hammann admitted that he had accused defendant of lying when defendant initially

denied the allegations against him. According to Det. Hammann, “it [was] possible” that Det.

LaBreche had used profanity when speaking to defendant but Det. Hammann denied that Det.

LaBreche had slapped defendant on the head. Detective Hammann also denied making any

deportation-related threats during the first interrogation.

       When defendant took the stand during the trial, he testified that he was thirty-eight years

old and that he came to the United States from The Gambia in West Africa in 2005 on a student

visa to pursue studies in business administration and engineering management. The defendant

had attended a three-year technical college for electrical engineering in West Africa, and he had

left his wife and young daughter there to pursue his studies abroad. With respect to his arrest,

defendant testified that he had initially assumed that the detectives were immigration officials

because his student visa had expired and he was waiting to hear about the application for

permanent residency that he had filed prior to the expiration of his student visa. The defendant

also testified that, during his arrest, he was kicked and pushed on his way to the police car and




                                                 -6-
that Det. Hammann had said ‘“[h]ow about f[’]ing deporting you to Gambia?’ and ‘[y]ou’re

f[’]ing going to get killed.’”

        With respect to the charges filed against him, defendant testified that he had never had

any sexual contact with the complainant. He testified that, during the first interrogation, he was

told that he was lying when he denied the complainant’s allegations against him. He asserted

that he was slapped on the head twice, once after he commented that the complainant was lying

and once after he agreed to take a lie-detector test. He further testified that the detectives had

threatened to call immigration officials, and that he would be deported and killed, and that they

had also promised not to call the immigration officials if he admitted to molesting the

complainant. The defendant also testified that he had falsely confessed to the sexual encounters

with the complainant because he was scared of being deported and he wanted to seem

cooperative. Because he had been assaulted and threatened by the detectives, he thought that

anything he told them would be deemed “involuntary” and “void” by the court once the court

was made aware of the assault and threats. The defendant asserted that he had taken cues from

what the detectives had said when they accused him of rape and had used these cues to provide

the false details in his confession. The defendant further testified that, during the second

interrogation, he was feeling both nervous and relieved because he had decided to tell the court

what had happened during the first interrogation. 4 The defendant acknowledged that he had not

invoked any of the rights that he read and waived on the rights forms.

        On May 13, 2010, after an eight-day jury trial, the jury returned guilty verdicts on two of

the eight counts of first-degree child molestation that had been charged in the indictment. The

defendant filed a motion for a new trial, which the trial justice denied.        The trial justice

4
 The DVD of the second interrogation had been played in open court earlier in the trial, during
Det. LaBreche’s testimony.
                                               -7-
subsequently sentenced defendant to thirty years’ incarceration with twenty years to serve and

ten years suspended, with probation.

       In defendant’s first appeal from his conviction, he argued that the trial justice had made

three errors: (1) denying the motion to suppress the statements defendant had made to the police

during his post-arrest interrogation, (2) not allowing defendant to inquire into a false accusation

by the complainant against her mother regarding physical abuse, and (3) denying defendant’s

motion for new trial. In Bojang I, this Court affirmed the trial justice’s evidentiary ruling and his

denial of the motion for a new trial; but, as previously stated, we remanded the case to the

Superior Court for additional factfinding and credibility determinations regarding the first

interrogation and the voluntariness of defendant’s confession.

       On remand, the trial justice held a hearing in which he rendered additional findings and

conclusions from the bench. He noted that the attorneys had not sought to enter any additional

evidence and that they had agreed that he could make the additional findings of fact and

credibility determinations based on his review of the transcripts and the notes that he had taken

during the trial. He also noted that he had reviewed 671 transcript pages of suppression-hearing

and trial testimony from Dets. Hammann and LaBreche as well as from defendant. After

reviewing these testimonies, the trial justice found that defendant’s version of events during the

first interrogation was “at odds” with the DVD of the second interrogation. The trial justice also

noted that defendant became “more and more relaxed and more and more engaged as the

interview progresse[d].” The trial justice found that defendant’s allegations of “assaults, threats,

and fear” were not credible because defendant was “somewhat inconsistent.” The trial justice

further found that Det. Hammann, notwithstanding his resistance during the suppression-hearing

testimony to defense counsel’s questions, had unequivocally denied that Det. LaBreche had


                                                -8-
struck defendant. The trial justice concluded that Det. LaBreche had not assaulted defendant,

that the detective’s raised voice and banging on the table had not affected the voluntariness of

defendant’s statement, and that defendant’s confession was “voluntary and not the result of

assault, threats, or coercion.” The trial justice entered an order denying defendant’s motion to

suppress his confession, from which defendant timely appealed.            Additional facts will be

provided as we discuss the issue raised on appeal.

                                                 II

                                       Standard of Review

       “Both the Rhode Island and the United States Constitutions bar the use of a defendant’s

involuntary statements in a criminal trial.” State v. Bido, 941 A.2d 822, 835 (R.I. 2008). “When

deciding a motion to suppress, a trial justice can admit a confession or a statement against a

defendant only if the state can first prove by clear and convincing evidence that the defendant

knowingly, intelligently, and voluntarily waived his [or her] constitutional rights expressed in

Miranda v. Arizona.” State v. Mlyniec, 15 A.3d 983, 994 (R.I. 2011) (quoting Bido, 941 A.2d at

835). “In reviewing a trial justice’s decision on a motion to suppress a statement that is alleged

to be involuntary, this Court employs a two-step analysis.” Id. “The first step is to review the

trial justice’s findings regarding the historical facts relevant to the voluntariness of the

challenged confession.” Id. (quoting State v. Perez, 882 A.2d 574, 588 (R.I. 2005)). “This Court

will not overturn a trial justice’s findings of historical fact relevant to the voluntariness of a

confession unless such findings are clearly erroneous.” Bido, 941 A.2d at 835 (quoting State v.

Humphrey, 715 A.2d 1265, 1273 (R.I. 1998)). “The second step of the analysis, assuming we

accept the trial justice’s findings of historical fact, requires this Court to apply those historical

facts and review de novo the trial justice’s determination of the voluntariness of the statement.”


                                                -9-
Mlyniec, 15 A.3d at 994 (quoting Bido, 941 A.2d at 836). “Before we will reverse a trial court’s

ruling on a motion to suppress, our independent review of the conclusions of the trial court that

are drawn from the historical facts must establish that the defendant’s constitutional rights were

denied.” Id. (quoting Perez, 882 A.2d at 588).

                                                  III

                                           Discussion

       The defendant argues that the trial justice erred by admitting his confession into evidence

because his confession was coerced in violation of his due process rights pursuant to the Fifth

and Fourteenth Amendments to the United States Constitution, and article 1, section 10 of the

Rhode Island Constitution.       The defendant contends that the trial justice’s credibility

determinations were clearly erroneous because Det. Hammann was not a credible witness and

defendant’s testimony regarding the first interrogation should not have been discredited. The

defendant also contends that the trial justice “overlooked and misconceived critical evidence”

that the detectives had threatened and assaulted defendant.      The defendant argues that his

confession was involuntary because, “[w]hen viewing the ‘totality of the circumstances,’ it is

apparent that [his] will was overborne by a combination of actual violence, threats of violence,

deportation, and harsh punishment if he were not to confess.” The defendant asserts that he is

entitled to a new trial because, without evidence of physical trauma or eyewitnesses to the

molestation, the only other evidence of guilt in the trial court’s record was the complainant’s

testimony; thus, the admission of his confession was not a harmless error.

       We begin our analysis with a careful review of the record to determine whether the trial

justice’s findings of fact and determinations of credibility are clearly erroneous. “A finding is

clearly erroneous when, although there is evidence to support it, the reviewing court on the basis


                                                 - 10 -
of the entire evidence is left with the definite and firm conviction that a mistake has been

committed.” Bido, 941 A.2d at 835-36 (quoting Perez, 882 A.2d at 588). The trial justice noted

his concern with Det. Hammann’s apparent resistance to answering questions throughout the

record, commenting on several occasions about Det. Hammann’s evasive demeanor and

testimony during the suppression hearing. During the hearing on remand—and after reviewing

the voluminous transcripts in this case—the trial justice noted that, during the suppression

hearing, Det. Hammann “resist[ed] answering yes or no to certain questions * * * a lot.” The

trial justice also noted on remand that there were two redirect and two re-cross examinations

during the suppression hearing, and that “[e]ach time there was a cross, [Det.] Hammann would

become more disengaged * * *.”              During the suppression hearing itself, the trial justice

acknowledged an “exceptional cross-examination” despite Det. Hammann “resisting on every

question,” and he assured defense counsel that he was absorbing “the dynamics of what [wa]s

going on.” The trial justice also made a comment in the midst of trial—outside of the presence

of the jury—regarding Det. Hammann’s testimony during the suppression hearing.                After

defendant had moved for a mistrial upon hearing that Det. Hammann would not be available to

testify during the trial, the trial justice stated:

                 “Before I hear from the [s]tate, let’s make the record clear this
                 morning on what the [c]ourt recalls, notwithstanding what the
                 transcript indicates from the suppression hearing. The [c]ourt
                 remembers, without extensively reviewing my own notes, it took
                 [Det.] Hammann, especially in day number two of the suppression
                 hearing, it took him several seconds, at least, to acknowledge what
                 was possible. And, the [c]ourt remembers him thinking on the
                 stand, and there was clearly a dynamic that was related to that,
                 between the pause, [Det.] Hammann sometimes would look
                 straight ahead, he would sometimes look up * * *. At one point
                 the pauses became so pronounced, the record would show that
                 [Det.] Hammann was actually excused from the courtroom, where



                                                      - 11 -
               we could speak about what exactly was going on, notwithstanding
               what the transcript would show in this particular case.” 5

After wading through all the testimony regarding the interrogations and his own notes, and

despite all of his expressions of reservations regarding Det. Hammann’s demeanor and

testimony, the trial justice concluded on remand that defendant had not been assaulted because

Det. Hammann had consistently denied that Det. LaBreche had ever struck defendant. The trial

justice also concluded that Det. Hammann’s resistance to some of defense counsel’s questions

had not “undermine[d] [his] credibility regarding denials as to specific assaults and threats.”

       The trial justice also found that, when defendant testified at trial, he was “confrontational,

* * * not shy or reserved * * *,” and that his testimony regarding the first interrogation was “at

odds” with his demeanor reflected in the second interrogation, such that “defendant’s allegations

with regard to assaults, threats and fear * * * [were] not credible because he’s somewhat

inconsistent * * *.” In addition, the trial justice found that Det. LaBreche’s raised voice and

banging on the table “did not affect” the voluntariness of defendant’s statements made during the

second interrogation.

       After carefully scrutinizing the record, it is our opinion that the trial justice’s findings of

fact regarding the voluntariness of defendant’s confession were not clearly erroneous.            On

remand, the trial justice had to consider divergent accounts of the events that had transpired

during the first interrogation in order to render factual findings and credibility determinations.

The trial justice clearly parsed through the record as well as his own recorded observations from

the hearing and trial to conclude that (1) despite Det. Hammann’s hesitant behavior on the

witness stand, he had consistently denied any physical assault on defendant and (2) defendant’s



5
 The trial justice reserved his ruling on defendant’s motion for a mistrial, and then Det.
Hammann did testify the following week, which rendered defendant’s motion moot.
                                               - 12 -
account of the events in the first interrogation room was not credible. Clearly the trial justice

was troubled, as were we, by Det. Hammann’s evasive responses at the suppression hearing.

The trial justice’s initial failure to make adequate factual findings and credibility assessments left

us unable—during defendant’s first appeal—to review the factual predicates of his finding that

defendant’s statement had been freely and voluntarily given. On remand, however, the trial

justice has supplied the insight that cannot be derived from reading a cold transcript, but rather is

only possible through the firsthand observation of a witness’s demeanor during the course of a

trial. With respect to Det. Hammann’s testimony, the trial justice observed a difference between

how this witness responded to questions on direct and redirect examination and how he

responded on cross- and recross-examination.             The trial justice characterized the cross-

examination as “above vigorous” and “exceptional,” noting that “the detective began to fence

with the cross-examiner” and “resist[ed] answering yes or no to certain questions.”               He

ultimately concluded that this resistance did not “undermine [Det.] Hammann’s credibility

regarding denials as to specific assaults and threats.” This conclusion, together with his finding

that “defendant’s testimony was not credible in this regard,” are just the sort of evidentiary

determinations for which we afford a trial justice abundant discretion. We rely on a trial

justice’s assessment of the credibility of the witnesses because, as we have often acknowledged,

a trial justice is in the best position to assess the credibility of the witnesses. See Bido, 941 A.2d

at 836. After reviewing the recorded portion of defendant’s confession and considering Det.

LaBreche’s denial that defendant was physically assaulted, we are not “left with the definite and

firm conviction that a mistake has been committed.” Id. at 835-36 (quoting Perez, 882 A.2d at

588). 6



6
    We note, however, that the remand would undoubtedly have not been necessary if defendant’s
                                                - 13 -
       Since we have accepted the trial justice’s findings of historical fact, we must now apply

these facts and review de novo whether defendant’s confession was voluntary. See Mlyniec, 15

A.3d at 994. “A defendant’s statement is voluntary when it is the product of his free and rational

choice.” Bido, 941 A.2d at 836 (quoting Humphrey, 715 A.2d at 1274).               “A statement is

involuntary if it is 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 Humphrey, 715 A.2d at 1274). “In deciding whether a statement is voluntary, this

Court considers ‘the totality of the circumstances surrounding the challenged statement.’” Id.

(quoting State v. Ramsey, 844 A.2d 715, 720 (R.I. 2004)). “The factors this Court may consider

are the background, experience and conduct of the accused, as well as the level of a suspect’s

educational attainments.” Id. (quoting Ramsey, 844 A.2d at 720).

       After carefully reviewing the record, including the taped interrogation, we agree with the

trial justice that defendant’s confession was voluntary. The defendant testified that he had been

in the United States since 2005, had studied electrical engineering at a college in West Africa

and that he had traveled to the United States to pursue studies in engineering management. The

defendant read and signed a form describing his Miranda rights on two occasions in a one-hour

period. Based on the evidence admitted during the suppression hearing and at trial, the first

interrogation was twenty to thirty minutes in duration, and the total interrogation time was less

than ninety minutes in duration. We accept the trial justice’s findings that defendant was not

assaulted during the first interrogation and that defendant’s statement was not the result of threats

or coercion. See Ramsey, 844 A.2d at 718, 720 (holding that a defendant’s confession was

voluntarily made when there was no evidence that the defendant was intimidated by the



entire interrogation had been recorded.
                                               - 14 -
detectives, who had admitted to yelling at the defendant during the interrogation and calling him

a “f’ing liar”).

        In addition, the record is replete with references to the defendant’s demeanor throughout

his arrest and interrogations as “calm.” For example, Det. Hammann referred to the defendant’s

calm demeanor several times during his testimony at the suppression hearing and at trial.

Detective LaBreche described the defendant as “calm” on at least three occasions during his

testimony at trial, and the trial justice noted that the defendant was relaxed during the second

interrogation. As this Court has previously observed, a defendant’s “calm, detached” voice

during a confession can be an indication that the confession was not the product of

impermissibly coercive tactics. Humphrey, 715 A.2d at 1273, 1274. After considering the

totality of the circumstances, it is our opinion that the defendant’s confession was voluntary and

was not the product of coercion or impermissible conduct on the part of the interrogating

detectives.

                                                 IV

                                           Conclusion

        For the reasons stated in this opinion, we affirm the trial justice’s decision to deny the

defendant’s motion to suppress, thereby affirming the defendant’s conviction. The record of this

case shall be returned to the Superior Court.




        Justice Flaherty with whom Justice Robinson joins, concurring. I concur with the

opinion of the Court in this case and observe that the trial justice followed this Court’s remand in

State v. Bojang, 83 A.3d 526 (R.I. 2014) (Bojang I). However, and at the risk of sounding

repetitive, I take this opportunity to express my opinion that this case remains a textbook

                                                - 15 -
example of why custodial interrogations, whenever possible, should be video recorded in their

entirety. Had that been done here, I am confident that this case would not have precipitated two

appeals to this Court.

       It is significant that the Rhode Island Police Accreditation Commission has

recommended that police departments require that their officers videotape interviews with

individuals suspected of committing capital offenses. 1 And the Department of Justice now

presumes that its law enforcement agents will electronically record custodial interrogations. 2

When this Court issued its opinion in Bojang I, eighteen jurisdictions in this country either

required recorded confessions by constitutional interpretations, statute, court rule, or mandated

jury instructions on the scrutiny to be applied to unrecorded confessions. 3 Since then, three more

jurisdictions have, in one way or another, restricted or discouraged the use of unrecorded

confessions. 4 We should do so as well.




1
  See Rhode Island Police Accreditation Commission, RIPAC, Accreditation Standards Manual,
Ch. 8, § 8.10 at 44-46 (May 2013), available at http://ripolicechiefs.org/wp-
content/uploads/2015/
11/RIPAC_Accreditation_Standards_Manual_First_Edition_May_2013.pdf (last visited April
13, 2016).
2
  See Press Release, Department of Justice, Attorney General Holder Announces Significant
Policy Shift Concerning Electronic Recording of Statements (May 22, 2014), available at
http://www.justice.gov/opa/pr/attorney-general-holder-announces-significant-policy-shift-
concerning-electronic-recording (last visited April 13, 2016).
3
  State v. Bojang, 83 A.3d 526, 545 n.7 (R.I. 2014) (Flaherty, J., dissenting).
4
  Cal. Penal Code § 859.5(a) (West Supp. 2016) (“Except as otherwise provided in this section, a
custodial interrogation of a minor, who is in a fixed place of detention, and suspected of
committing murder * * * shall be electronically recorded in its entirety.”); Utah R. Evid. 616(b)
(“[E]vidence of a statement made by the defendant during a custodial interrogation in a place of
detention shall not be admitted against the defendant in a felony criminal prosecution unless an
electronic recording of the statement was made and is available at trial.”); Vt. Stat. Ann. tit. 13,
§ 5585(b)(1) (2015) (Providing that a custodial interrogation that occurs in a place of detention
concerning the investigation of a homicide or sexual assault shall be electronically recorded in its
entirety.)
                                               - 16 -
                                 RHODE ISLAND SUPREME COURT CLERK’S
                                               OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Mustapha Bojang.

CASE NO:              No. 2014-269-C.A.
                      (P1/09-1119A)

COURT:                Supreme Court

DATE OPINION FILED: April 26, 2016

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

WRITTEN BY:           Chief Justice Paul A. Suttell

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice William E. Carnes, Jr.

ATTORNEYS ON APPEAL:

                      For State: Lauren S. Zurier
                                 Department of Attorney General

                      For Defendant: Kara J. Maguire
                                     Office of the Public Defender
