State v. Barron

Citation16 A.3d 620,2011 VT 2
Decision Date28 January 2011
Docket NumberNo. 09–225.,09–225.
PartiesSTATE of Vermontv.David BARRON.
CourtUnited States State Supreme Court of Vermont

OPINION TEXT STARTS HERE

Diane C. Wheeler and John T. Lavoie, Franklin County Deputy State's Attorneys, St. Albans, for PlaintiffAppellee.Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General, Montpelier, for DefendantAppellant.Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.DOOLEY, J.

¶ 1. Following a jury trial in Franklin District Court, defendant was convicted of sexual assault on a minor. Subsequently, the court also adjudged him guilty of being a habitual offender. Defendant makes the following three arguments on appeal from these convictions: (1) he was subjected to interrogation while in custody without a Miranda waiver and this violation tainted his subsequent confession; (2) his right to counsel was violated; and (3) the habitual offender statute does not include a decriminalized conviction. We affirm the convictions and conclude that: (1) the law enforcement officer's initial interview of defendant on July 11 violated the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but the confession obtained at his second interview did not need to be suppressed as “fruit of the poisonous tree”; (2) the officer's second interview with defendant on August 2 did not violate the requirements of Miranda; (3) defendant's Sixth Amendment right to counsel was violated by the July 11 interview but not by the August 2 interview; and (4) defendant was properly found guilty of being a habitual offender.

¶ 2. We first present the facts related to defendant's motion to suppress and right to counsel claims, which are not in dispute. On July 5, 2007, defendant and his wife were involved in an altercation, and two Franklin County deputy sheriffs were dispatched in response. As a result of this domestic disturbance, defendant was found to be in violation of probation 1 and was charged with disorderly conduct. Defendant was consequently placed in custody. On July 8, the court assigned a public defender to represent him.

¶ 3. While being transported from his home to the sheriff's office on the day of the incident, defendant voluntarily stated that his wife wanted him arrested so that she could have a sexual affair with A.M., a fifteen-year-old female who resided with them. Once at the sheriff's office, defendant wrote an affidavit describing the events surrounding the altercation for which he had been arrested. Defendant noted in the affidavit that his wife was having a sexual relationship with A.M., and he further claimed that his wife and A.M. had threatened to have him “locked up” if he ever said anything about their relations.

¶ 4. A detective was assigned to investigate defendant's allegations about his wife. On July 11, 2007, the detective interviewed defendant about this complaint at the Chittenden Correctional Center, where defendant was incarcerated based on his violation of probation. The detective spoke with defendant in the superintendent's office, and defendant appeared happy to discuss his allegations. The interview lasted for about forty-five minutes, of which the last ten minutes were recorded. No Miranda warnings were read or waived at the July 11 interview, and defendant did not waive his right to counsel. Defendant's court-appointed counsel was not informed of the interview.

¶ 5. Following his interview with defendant, the detective met separately with both A.M. and defendant's wife on July 16, 2007. A.M. confirmed that she had had sexual relations with defendant's wife, but in her initial interview, she denied having relations with defendant. Defendant's wife was charged with sexual assault, and A.M. was taken into the custody of the Department for Children and Families (DCF). The detective re-interviewed A.M. on August 1, 2007, and during this interview, A.M. stated that she had had sexual contact with defendant as well as with his wife.

¶ 6. Also on August 1, defendant called and left a message for the detective stating that he had more information concerning his wife. By this time, defendant had been released from prison and was residing with his mother. The detective arranged a meeting with defendant on August 2, 2007, near defendant's mother's house, and defendant was waiting for the detective when he arrived. The detective wore civilian clothes and was driving an unmarked police cruiser. Defendant voluntarily entered the detective's vehicle, and the detective used a hidden recorder to document the interview.

¶ 7. The August 2 interview began with a discussion of the problems defendant was having with his wife. The detective then steered the conversation to a discussion of defendant's complaint against his wife and introduced A.M.'s claim that she had had sexual relations with defendant. In the course of this discussion, defendant made admissions that he had participated in “threesomes” with his wife and A.M. and had once had sexual intercourse with A.M.

¶ 8. On August 6, 2007, defendant received a citation to appear in court in connection with his alleged sexual activity with A.M. The following day, the State filed an information charging defendant with two counts of sexual assault on a minor under 13 V.S.A. § 3252(c).

¶ 9. Before the trial on the sexual assault charges, defendant submitted two motions to exclude evidence related to his interviews with the detective. Defendant first argued that his admissions to the detective on August 2 were inadmissible because they did not result from a valid waiver of Miranda rights. In his second motion, defendant claimed that all of the post-arrest questioning to which he was subjected violated his right to counsel. He further argued that the July 11 interview violated Miranda because he was not informed of his rights, and he claimed that the subsequent accusations by A.M. and his wife were “fruits” of the July 11 interrogation.

¶ 10. After hearings on April 15, 2008, and May 6, 2008, the trial court denied both defendant's motions to exclude evidence. The court felt that defendant's right to counsel had not been violated because it found that he had not been interviewed as a suspect in a matter for which counsel had been appointed, but rather, as a complainant in an unrelated matter. Furthermore, the court determined defendant's Miranda rights had not been violated by the July 11 interview because defendant was not questioned as a suspect, but “as a complainant in a wholly separate matter,” and was, therefore, not in custody for Miranda purposes. The court similarly found no violation of Miranda during the August 2 interview because defendant was not in custody when he voluntarily entered the detective's vehicle.

¶ 11. A motion to suppress evidence presents a mixed question of fact and law. State v. Bauder, 2007 VT 16, ¶ 9, 181 Vt. 392, 924 A.2d 38. In general, we apply a deferential standard of review to the trial court's findings of fact. If the findings of fact are not clearly erroneous, we review the trial court's legal conclusions de novo. State v. Bryant, 2008 VT 39, ¶ 9, 183 Vt. 355, 950 A.2d 467.

¶ 12. On appeal, defendant first argues that the trial court erred in denying his motion to exclude the statements he made to law enforcement officers without a Miranda waiver. Defendant claims that he was wrongly subjected to interrogation while in custody without Miranda warnings or a waiver of those warnings, a violation that tainted the subsequent confession which formed the basis of his sexual assault conviction. We will address the July 11 and August 2 interviews separately in assessing the merits of defendant's Miranda argument.

¶ 13. In Miranda, the United States Supreme Court held that, before being subjected to custodial interrogation, criminal suspects must be advised of their rights to remain silent and to have an attorney present for questioning. 384 U.S. at 444, 86 S.Ct. 1602. The Court explained that, [b]y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id.; see also State v. Delaoz, 2010 VT 65, ¶ 13, ––– Vt. ––––, ––– A.3d ––––; State v. Sole, 2009 VT 24, ¶ 16, 185 Vt. 504, 974 A.2d 587; State v. FitzGerald, 165 Vt. 343, 345, 683 A.2d 10, 13 (1996).

¶ 14. First, we consider whether a Miranda warning was required at the July 11 interview with defendant. The trial court found that on July 11 defendant was not being questioned as a suspect “but as a complainant in a wholly separate matter” and was therefore not “in custody” for Miranda purposes. Defendant argues that this finding was unsupported because the record shows the detective asked defendant about events related to his defense to the disorderly conduct charge and violation of probation for which he was in custody.

¶ 15. Although the court held that defendant was not in custody, its rationale fits better with a holding that there was no interrogation because defendant was giving a statement as a complainant “in a wholly separate matter.” Thus, the court appears to have relied on the holding of Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), which states that words not “reasonably likely to elicit an incriminating response from the suspect” do not trigger the need for Miranda warnings. We need not decide whether this theory applies to “express questioning,” as apparently occurred here, because the premise that the questioning was about a “wholly separate matter” is inaccurate. See id. (interrogation refers to express questioning or “its functional equivalent”); State v. Beer, 2004 VT 99, ¶ 30, 177 Vt. 245, 864 A.2d 643, overruled on other grounds by State v. Brillon, 2008 VT 35, 183 Vt. 475, 955 A.2d 1108 (finding that Miranda applies to express questioning even if the person being questioned is not a suspect).

¶ 16. It is...

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