In re E.W.

• Decision Date: 16 January 2015
• Docket Number: No. 13–441.,13–441.
• Citation: 2015 VT 7,114 A.3d 112
• Court: Vermont Supreme Court
• Parties: In re E.W., Juvenile.

114 A.3d 112

2015 VT 7

In re E.W., Juvenile.

No. 13–441.

Supreme Court of Vermont.

Jan. 16, 2015.

Allison N. Fulcher of Martin & Associates, Barre, for Appellant.

Sarah A. Baker, Orleans County Deputy State's Attorney, Newport, for Appellee.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and CRAWFORD, JJ.¹

Opinion

SKOGLUND, J.

¶ 1. In this delinquency proceeding, E.W. appeals from an order denying his motion to suppress statements to the police allegedly made in violation of his rights under the Fifth and Sixth Amendments to the U.S. Constitution and Chapter I, Article 10 of the Vermont Constitution. For both his federal and state claims, the critical issue is whether E.W. was “in custody” while being questioned by the police at his foster home without being apprised of his Miranda rights. We conclude that the juvenile was in custody, and therefore reverse the trial court judgment.

¶ 2. The facts may be summarized as follows. E.W. was fifteen years old, in the custody of the Department for Children and Families (DCF), and living in a foster home when the events in question occurred. On the morning of June 7, 2013, a Vermont state trooper in uniform arrived at E.W.'s foster home to investigate a break-in and motor-vehicle theft.² The officer testified that his focus centered on E.W. as a suspect after receiving information that a vehicle had been stolen in Glover and learning on the way to the scene that E.W. “had run away from a foster home and that he had previously stolen a vehicle in the past.”

¶ 3. After arriving at E.W.'s residence, the officer spoke with an adult male, who informed the officer that he was E.W.'s foster father. The foster father testified that E.W. had been living there about six to eight weeks at the time. He recalled that the officer explained that “he wanted to speak with E.W. in regards to some stolen property that he needed to find,” that “there was a witness and that someone had seen E.W.,” and that “they were looking for a car.”

¶ 4. The foster father then spoke privately with E.W. and told him not to say anything to the officer until the foster father contacted DCF. When asked what he and E.W. discussed, the foster father responded, “[h]onesty,” explaining that he was “trying to encourage E.W. to be honest,” and how “[i]t's not always easy to do the right thing.” He denied specifically directing E.W. to do the right thing, however, or telling him that he had to speak with the officer.

¶ 5. The foster father telephoned for guidance from E.W.'s guardian ad litem (GAL), who told him that “[u]sually the

attorneys do not like the children interviewed unless they are there.” The GAL then attempted to reach E.W.'s attorney, leaving a voice mail, and then spoke with the foster father again.³ The GAL advised him to be present during any conversation between E.W. and the police officer, and the officer then took the telephone. The GAL recalled explaining to the officer that their attorneys generally do not like the children questioned “without them present.” The officer responded that there was a family “without their car and that E.W. was the only one that knew where the car was because they believe he had taken it” and they “would like to be able to get these people back their car.” The GAL then told the officer “to do what you gotta do” but to be sure that the foster parent was present during the interview. While the officer and the foster parent spoke with the GAL, E.W. did not.

¶ 6. The ensuing interview was not recorded, and very little testimony was adduced about its specific content or progression. The officer recalled that it lasted about an hour, started inside the house, and then moved outside to the porch and finally to a roofed vegetable stand in front of the house. No Miranda warnings were given. The foster father was present throughout. He recalled that the officer “asked E.W. about where the car was,” informing him that the police “were aware” he had taken it to Derby “but didn't know where it had gone after that.” The foster father also recalled that he twice interrupted the officer's questioning to speak privately with E.W. when it appeared that “the floodgates ... opened” and E.W. started making admissions to offenses beyond those that the officer had described.

¶ 7. E.W. was subsequently charged with two counts of burglary, four counts of unlawful trespass in an occupied residence, three counts of petit larceny,⁴ one count of unlawful mischief, and one count of operating a vehicle without owner consent. He moved to suppress his statements to the officer and dismiss all counts, asserting violations of his Fifth and Sixth Amendment rights as well as his rights under Chapter I, Article 10 of the Vermont Constitution. The trial court denied the motion, concluding that

E.W. was not in custody at the time of the interrogation, and that Miranda warnings were therefore not required. E.W. then entered a conditional plea to all counts except the unlawful-mischief count, which was dismissed by the State, and reserved his right to appeal the suppression ruling.

¶ 8. On appeal, E.W. argues that his motion to suppress should have been granted under both the federal and state constitutions. As to the U.S. Constitution, E.W. argues that he should have been given Miranda warnings because he was in custody during his conversation with the officer. As to the Vermont Constitution, E.W. claims that he should have had the opportunity to consult with a genuinely interested adult independent from the State before being questioned, whether or not he was in custody, as required by In re E.T.C., 141 Vt. 375, 377–80, 449 A.2d 937, 939–40 (1982).

¶ 9. A motion to suppress raises a mixed question of fact and law. State v. Sullivan, 2013 VT 71, ¶ 15, 194 Vt. 361, 80 A.3d 67. We uphold the trial court's findings of fact unless they are clearly erroneous. State v. Mara, 2009 VT 96A, ¶ 6, 186 Vt. 389, 987 A.2d 939. Whether the facts meet the proper standard to justify the relevant police action is a question of law, which we review de novo.Id.

¶ 10. Under the Fifth and Sixth Amendments to the U.S. Constitution, criminal defendants have the right to receive certain warnings before being subjected to custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444–45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).⁵ Since it is uncontested that E.W. was interrogated, we must determine whether he was “in custody” at the time in order to determine whether he had a right to Miranda warnings. See State v. Garbutt, 173 Vt. 277, 282, 790 A.2d 444, 448 (2001) (“Suspects not in custody are not entitled to Miranda warnings.”). “Defendant bears the burden of proving that he was ‘in custody’ and, therefore, entitled to Miranda warnings.” State v. LeClaire, 2003 VT 4, ¶ 15, 175 Vt. 52, 819 A.2d 719.

¶ 11. Our seminal case on juvenile rights under the Vermont Constitution, Chapter I, Article 10, is In re E.T.C. There, we found that a juvenile may voluntarily and intelligently waive his right against self-incrimination and his right to counsel under Article 10 only if:

(1) he [is] given the opportunity to consult with an adult; (2) that adult [is] one who is not only genuinely interested in the welfare of the juvenile but completely independent from and disassociated with the prosecution, e.g., a parent, legal guardian, or attorney representing the juvenile; and (3) the independent interested adult [is] informed and... aware of the rights guaranteed to the juvenile.

141 Vt. at 379, 449 A.2d at 940.

¶ 12. The parties treat E.W.'s Miranda claim as entirely distinct from his Article 10 claim. It is not so distinct. The year after deciding E.T.C., we held that a juvenile's right to consult with an independent interested adult under Article 10 attaches simultaneously with the right to Miranda warnings—during custodial interrogation—and not before and not without custody. State v. Piper, 143 Vt. 468, 473, 468 A.2d 554, 557 (1983) ( “[S]uch right accrues to a person under the age of eighteen years at the commencement of a custodial interrogation by the police ... simultaneously with the right to be given Miranda warnings.”); cf. State v. Zumbo, 157 Vt. 589, 591–93, 601 A.2d 986, 988 (1991) (rejecting argument by adult defendant that Article 10 requires Miranda warnings in circumstances other than those required by the Fifth Amendment). In Piper, the defendant, who was a juvenile, made exactly the same argument E.W. makes here—that the requirement of an independent interested adult should apply whenever police interrogate a juvenile whether or not the juvenile is in custody. We rejected the argument, explaining:

Defendant would have us extend the rule to cover all situations in which minors are questioned by the police. We find this position untenable. The burden on law enforcement officials would far outweigh the benefit accruing to minors. The police would face a significant handicap if, before questioning any witness who is a minor, they had to summon an interested adult to the station or scene. The difficulty in producing such an adult could cause unwarranted and prejudicial delay in investigatory situations when time is often of the essence.

Piper, 143 Vt. at 473, 468 A.2d at 557.

¶ 13. This holding is congruent with the determination that, for adult defendants, Article 10 is coextensive with the Fifth Amendment right against self-incrimination and very closely related to the Sixth Amendment right to counsel. State v. Oney, 2009 VT 116, ¶ 8 n. 1, 187 Vt. 56, 989 A.2d 995. E.W.'s claim under Article 10 that E.T.C. was violated because the foster father was not an independent interested adult therefore also hinges on whether E.W. was “in custody” as defined under Miranda. As discussed below, however, the presence or absence of an independent adult may have some bearing on whether E.W. was in custody, i.e., whether a reasonable person in E.W.'s position would have felt free to terminate the interview.

¶ 14. We therefore turn to the question of whether...