State v. Badger

Decision Date13 July 1982
Docket NumberNo. 340-81,340-81
PartiesSTATE of Vermont v. Donald A. BADGER, Jr.
CourtVermont Supreme Court

John J. Easton, Jr., Atty. Gen., Glenn A. Jarrett, Asst. Atty. Gen., and Christopher Micciche, Law Clerk (on the brief), Montpelier, and Raymond G. Bolton, Bennington County State's Atty., Bennington, for plaintiff-appellant.

David A. Howard, Bennington County Public Defender, Bennington, and Barry E. Griffith, Rutland, for defendant-appellee.

Before BARNEY, C.J., BILLINGS, HILL and UNDERWOOD, JJ., and SHANGRAW, C.J. (Ret.), Specially Assigned.

HILL, Justice.

The defendant, Donald Badger, Jr., has been charged with second degree murder. This interlocutory appeal concerns the suppression of physical evidence and a confession given by the defendant. The State contends that the trial court erred in granting the defendant's motions to suppress. We granted the State's motion for an interlocutory appeal under V.R.A.P. 5(b).

On appeal, the State has not challenged the factual findings of the trial court on the motions to suppress. A detailed recitation of those findings follows, as it is necessary to the resolution of the legal issues presented in this case.

I.

The murder took place in the afternoon of August 9, 1980. The investigating officer received a call from a witness who reported that the defendant was with the victim a short time before the murder, and within a five minute walk of where the body was discovered. At 11:15 that evening, the officer telephoned the defendant's home. He asked the defendant's father (the defendant was sixteen years old at the time) to bring the defendant to the Manchester police station. In response to the father's question, the officer stated that they should come to the police station immediately.

A short time later, the defendant and his father arrived at the police station. There, they entered a room with three officers, and the door was closed. The police recorded the subsequent interrogation.

An officer questioned the defendant on his contact with the deceased on that day. The officer did not issue the Miranda warnings. The questioning was close and intense. The interrogating officer scrutinized the defendant's answers, comparing the responses to other evidence, and pointing out inconsistencies.

One-third of the way through this interrogation, one of the officers noted a spot of blood on the defendant's sneaker. The defendant stated that the blood came from a cut on his finger. The officers inspected the shoe, and remarked that its tread pattern matched a footprint in blood at the scene of the crime. Then, there was the following dialogue:

Officer: I think we're going to have to hang onto your shoes for you tonight, O.K.?

Defendant: Do what you want to do.

Officer: I'm gonna have to send those to the lab and have them check that blood ... to see if it matches you ... know what your blood type is?

Defendant: No, I don't.

Officer: I'm going to have to get a blood test from ya. I want to do that tonight....

The officer had yet to advise the defendant of his Miranda rights.

The officer further questioned the defendant. He then asked the defendant's father whether he had any objections to the officers seizing the shoes. The father replied that he did not, believing that he had no other choice, as the police could have seized the shoes with a court order.

Now the questioning became increasingly accusatory. The officer emphasized inconsistencies between the defendant's testimony and other evidence. He described a wealth of evidence available to the police as a means of verifying, or contradicting, the defendant's story. The defendant asked the officer, "what's going on?" The officer replied: "Well, I'll tell you what's going on.... Right now you're a suspect in a homicide...."

The officer still did not issue any Miranda warnings.

The officer continued the questioning, and made numerous statements concerning the consequences to the defendant should he confess to murder. He emphasized that the defendant need not be incarcerated. He asserted that the defendant could not go to jail, because he was a juvenile. He tempered this assertion in a vague retreat, stating that the defendant's fate would rest with a court, not the officer. The officer also emphasized the defendant's duty to be honest for the sake of his father.

After fifty minutes of such interrogation, the defendant admitted his responsibility for the crime. Only then did the police issue the Miranda warnings. The defendant signed a waiver of those rights, gave a full confession (hereinafter termed the "first confession"), and signed a statement of that confession which had been transcribed by the interrogating officer. The defendant signed the confession at approximately 1:20 a.m.

Throughout the questioning, neither the defendant nor his father were told that they could leave. The defendant became emotionally upset under the persistent interrogation, and broke down crying at times. Both the defendant and his father, in reliance on the officer's representations, believed that he could only be tried as a juvenile. The defendant's father was present during all the questioning. He believed that he was acting as his son's guardian, but he was never given the opportunity of consulting privately with the defendant.

After the defendant signed the confession, he was photographed and fingerprinted, and then he went home with his father. The interrogating officer followed the Badgers home, where the defendant's father gave the officer the clothing worn by the defendant on the day of the murder. The officer did not obtain a search warrant, and relied on the consent of the defendant's father to justify his action.

At approximately 11:30 a.m. on the following day, the defendant and his parents arrived at the Shaftsbury office of the Vermont State Police. The same officer who had interrogated the defendant the previous night met the Badgers, and asked the defendant's father to permit the defendant to take a polygraph test. The father stated that he preferred that the defendant first see a psychologist at a prearranged appointment. Following the appointment, the defendant and his parents returned to the Shaftsbury office.

At approximately 4:00 p.m. the officer resumed the interrogation. The defendant and his father understood that the defendant had two choices: submit to the questioning or take a lie detector test. The second interrogation session was prompted by the officer's suspicion concerning the accuracy and completeness of the defendant's initial statement.

The officer advised the defendant of his Miranda rights at the commencement of the second interrogation session. The defendant signed a waiver of his rights, and made a second confession (hereinafter termed the "second confession") which clarified some of the inconsistencies posed by his initial statement. During this second interrogation, the defendant and his father continued to believe that the defendant could only be prosecuted as a juvenile. The defendant had not yet spoken with an attorney.

By information, the State charged the defendant as an adult with second degree murder. See 13 V.S.A. § 2303. The defendant filed three motions to suppress evidence. First, he asserted that the initial confession should be suppressed under the fourth, fifth, sixth, and fourteenth amendments of the United States Constitution; the tenth and eleventh articles of the Vermont Constitution; and, under 13 V.S.A. § 5234. Second, he asserted that the second confession should be suppressed under the same authorities. Third, he moved to suppress all physical evidence seized under the same authorities.

The trial court granted the motions and suppressed all the challenged evidence. The court found that "in the totality of the circumstances, the defendant was a suspect in the minds of the police from the outset and that both he and his father could reasonably have formed the belief at the time when the shoes were seized that the defendant was not free to leave." Thus, the court suppressed all statements made from this point in time to the issuance of Miranda warnings. The Court then held that this initial illegality tainted the first confession, obtained after the issuance of Miranda warnings, and suppressed that confession as a fruit of the initial illegality. The court also suppressed the first confession on two other grounds. It held that the defendant had not knowingly and intelligently waived his rights, and that the confession was not voluntary.

The court also suppressed the second confession that was obtained on the following day. It relied on two separate grounds. First, the court held that the second confession was a fruit of the earlier illegality. Second, the court held that the defendant had not knowingly and intelligently waived his rights.

Finally, the court granted the defendant's motion to suppress all the physical evidence. The court held that the warrantless seizure of the shoes could not be upheld, as the defendant's consent to the seizure was involuntary, and there had been no showing of exigent circumstances to allow seizure under the plain view doctrine. The court also suppressed the clothing given to the police by the father on the ground that the prosecution had not met "its burden of showing that the defendant's consent was voluntary and not a product of coercion."

This Court granted the State's motion for interlocutory appeal under V.R.A.P. 5(b). 1 On appeal, the State has not challenged the suppression of the first confession. Thus, we only consider the propriety of excluding the second confession and the physical evidence. Since the authority of the Vermont Constitution cannot validate the admission of matters prohibited under the fourth, fifth, and fourteenth amendments, we begin by examining the order under the United States Constitution.

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