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State v. Say

Superior Court of Maine, Kennebec

July 17, 2018



          William R. Stokes, Justice


         Pending before the court for resolution is the Defendant's Motion to Suppress recorded statements he made to Detective Tori Tracy of the Augusta Police Department on May 17, 2016. A testimonial hearing was held on June 4, 2018 at which the court received the testimony of the following witnesses: Detective Tracy; Toni Cunningham; Bunvandy Say, and; Dr. Ribert Riley, Psy.D. State's Exhibit 1, being the audio recording of Detective Tracy's interview of the Defendant, was admitted into evidence without objection. Also admitted without objection were two reports authored by Dr. Riley, the first being dated April 20, 2017 which was a standard competency evaluation, and the second dated June 14, 2017 which was a more comprehensive neuropsychological evaluation.[1] The court has received and reviewed the post-hearing memoranda submitted by the parties.

         The court has listened to the recorded interview of the Defendant multiple times and has reviewed, for a second time, Dr. Riley's reports. The court has also reviewed its notes of the testimony of all of the witnesses presented at the hearing. Based upon the evidence presented, and after consideration of the parties' written arguments, the court makes the following findings of fact.


         In November 2015, Detective Tracy received information from the State of Florida relating to an interview that had been conducted with the alleged victim (the Defendant's niece) named in the Indictment in this case. As a result of that information, Det. Tracy made several attempts to contact the Defendant, but was unsuccessful until May 17, 2016 when she went to his residence and he came to the door in response to her knock. Det. Tracy had activated her audio recorder prior to approaching the house. The total length of the recording is 16 minutes, 51 seconds.

         After confirming that the person who came to the door was Eric Say, Det. Tracy asked him if he had a few minutes to talk with her. He agreed and the two of them spoke on the porch. The detective asked the Defendant if he knew why she wanted to speak with him - he said he did not. The officer then explained that the Defendant's niece had come forward with information about something that had happened between them some time ago. The Defendant volunteered: "I did something wrong." The detective immediately told the Defendant that no matter what he said to her she would be leaving by herself and he would not be taken into custody.

         The Defendant said that "it was a long story," that his whole family had talked about it, that he "had done a really bad thing" to his niece, that he does not do that anymore, and that after talking with his family, including his sister (the mother of his niece), "everything is fine." The Defendant repeated that his whole family had talked about it. At that point (at 2:49 of the recording) Det. Tracy said: "But you need to talk about it with me."

         The detective asked the Defendant to tell his side of the story. The Defendant expressed a lack of memory about the incident because it happened a long time ago but agreed that he would have been 19 and his niece was 7 at the time. He described how he would babysit his niece and they would play video games in his bedroom. As Det. Tracy asked for specifics, the Defendant was reluctant to discuss it, stating: "I don't know." Det. Tracy said (at 4:34 of the recording): "Well, you do know, and you know it was wrong, and you're kind of uncomfortable talking about it, but we have to talk about it Eric." The Defendant responded: "It was a mistake."

         Because of the Defendant's discomfort with discussing the details of what had happened with his niece, Det. Tracy told him what she knew based on what his niece had said and asked the Defendant to correct anything that was not accurate. In particular, Det. Tracy reported that the Defendant's niece had said that the Defendant and she had sexual intercourse when they were younger. Before the detective could finish her sentence, the Defendant said: "Yes, I'm not going to lie." He further acknowledged that he put his penis inside his niece's vagina only once. The Defendant explained that when his older sister found out what had happened, she was "pissed," and "I was too, because I was wrong." And the whole family had talked it over.

         The Defendant denied otherwise touching his niece and maintained that the intercourse happened one time. He could not explain how he let himself do what he did, but he returned to the theme that he had apologized to his sister (and wanted to apologize to his niece), they had talked "one-to-one," and "everything is alright now" because "we talked about it."

         Det. Tracy emphasized to the Defendant at that point (6:46 of the recording) that what had been done was illegal, even though the family may have talked about and "dealt" with it within the family. Throughout the interview, the Defendant repeatedly expressed his awareness that what he had done was "wrong," that it had happened once and that it would never happen again. Det. Tracy explained to the Defendant that she would be writing her report and submitting it to the District Attorney's Office for review and a decision on prosecution. She made no promises of any kind to the Defendant and told him that even though the family may have dealt with it internally, he may have to face further consequences because what he had done was illegal.

         The Defendant immediately asked: "What consequences?" Det. Tracy told the Defendant that the offense was called "gross sexual assault" and that it was a Class A felony. The Defendant can be heard saying: "Man." Det. Tracy did say that given his cooperation and remorse, perhaps "they (the D.A.'s Office) may give you a plea - plead it down," although she emphasized that she had no knowledge whatsoever as to whether that would happen. Once again, the Defendant returned to the theme: "what if my parents knew about it and the family had talked about it?" Det. Tracy firmly pointed out that whether his family, including his parents, had talked about the matter was irrelevant to its illegality and the involvement of law enforcement. By this point in the interview, the seriousness of the situation appears to be settling in upon the Defendant

         The interview wrapped up with the detective telling the Defendant that if the case is prosecuted she will personally communicate directly with the Defendant. She also encouraged the Defendant to stay in touch with her if he had any questions or if he left the area. At no point during ...

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