State v. Bean

• Decision Date: 31 March 1995
• Docket Number: No. 94-138,94-138
• Citation: 163 Vt. 457,658 A.2d 940
• Parties: STATE of Vermont v. Ronald BEAN.
• Court: Vermont Supreme Court

Page 940

658 A.2d 940

163 Vt. 457

STATE of Vermont v. Ronald BEAN.

No. 94-138.

Supreme Court of Vermont.

March 31, 1995.

Peter R. Neary, Rutland County Deputy State's Atty., Rutland, for plaintiff-appellant.

Robert Appel, Defender Gen., and William A. Nelson, Appellate Defender, Montpelier, for defendant-appellee.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

The State of Vermont appeals an order of the Rutland District Court granting defendant Ronald Bean's motion to suppress incriminating statements and an attempted guilty plea made by defendant to the trial court during two hearings in which he was not represented by counsel. The State contends that the trial court erred in ruling that defendant did not knowingly and intelligently waive his right to counsel, as secured by the Sixth Amendment to the United States Constitution and Chapter I, Article 10 of the Vermont Constitution, and, further, erred in suppressing the statements and guilty plea. We affirm.

On February 18, 1993, defendant was arrested for violating an abuse prevention order, and the next day, he was brought before the Rutland District Court pursuant to V.R.Cr.P. 5. The affidavit of the arresting officer expressed concern about defendant's mental health, noting that he had recently been in two psychiatric hospitals, that he said "he believes he is the reincarnation of Christ," and that he was talking of suicide to bring inner peace. Although defendant had talked with a public defender prior to his appearance, he rejected her representation. In response to questions from the judge, defendant stated that he had been denied use of the telephone to contact "my proper counsel," who practiced in another state. When asked whether he would like to represent himself, defendant answered, "For now, yes, sir." He would not sign a waiver, however, stating, "I am having a really hard time right now."

The court then proceeded to provide defendant the information required by V.R.Cr.P. 5(d), including that anything that defendant said "here can be used against you during prosecution of the case." The court stated:

If you don't wish to be arraigned today, you can wait until Monday, that would be the next arraignment day. You are allowed to speak with family and friends before entering a plea today.

The court asked defendant if he would like to read the information and affidavit. Once he had read the information and affidavit, defendant began asking questions and making statements about the charges and his rights. The court did nothing to stop defendant's questions or statements. In the course of his comments, defendant stated: "I know this can be used against me, I was planning on killing that woman that night." He described that he had an axe ready to split her head open, and wood ready to burn her body, but he could not get her to say anything "that I could kill her for." After some more comments by defendant, the court entered a pro forma not guilty plea for defendant, scheduled an arraignment for the following Monday, continued cash bail, and ordered a psychiatric examination of defendant.

On February 22, 1993, defendant appeared before the district court for arraignment. By this time, the State had added the charge of kidnapping to the charge of violating an abuse prevention order. Defendant stated he would not "go with this lawyer," referring to the public defender, and demanded "to go pro se." The court allowed defendant to proceed, and another rambling discussion ensued. Defendant first asked not to plead "until time of trial." At that point, the court entered a not guilty plea for defendant. When the court asked defendant whether he wanted to represent himself at all stages of the proceedings, defendant once again alluded to the out-of-state attorney with whom he had yet to consult, and stated that he wanted to leave open the option of obtaining an attorney. The court commented that obtaining an attorney was advisable due to the serious nature of the charges. Defendant then abruptly announced that he wanted to plead guilty to both charges. The trial court would not accept defendant's changed plea, and the proceeding ended.

The public defender subsequently assumed defendant's representation and moved to suppress the incriminating statements and the rejected guilty plea. ¹ In an opinion dated January 30, 1994, the trial court granted the motion. The court ruled that defendant's waiver of the right to counsel was not knowing and intelligent on either of the occasions involved. Because defendant had not waived his right to counsel, the court found his statements could not be used against him. The State has taken an interlocutory appeal from this ruling as it affects the kidnapping charge. ²

We take the issues in the order they were decided by the trial court. The first issue is whether there was a valid waiver of the right to counsel. Both the Vermont and United States Constitutions provide an accused a right to counsel. See U.S. Const. amend. VI; Vt. Const. ch. I, art. 10. The right can be waived if the waiver is made knowingly and intelligently. See State v. Pollard, 163 Vt. 199, ----, 657 A.2d 185, 190 (1995). Waiver of this right will not be inferred from doubtful conduct, however, and courts will "indulge every reasonable presumption against waiver." In re Huard, 125 Vt. 189, 194, 212 A.2d 640, 644-45 (1965). In a series of cases stretching back thirty years, we have defined the necessary elements of a valid waiver of counsel. See State v. Pollard, 163 Vt. at ----, 657 A.2d at 190-91; State v. Lewis, 155 Vt. 653, 654, 586 A.2d 550, 551 (1990); State v. Merrill, 155 Vt. 422, 425-27, 584 A.2d 1129, 1131-32 (1990); State v. O'Connell, 147 Vt. 60, 64-66, 510 A.2d 167, 169-70 (1986); State v. Quintin, 143 Vt. 40, 43-44, 460 A.2d 458, 460-61 (1983); State v. Ahearn, 137 Vt. 253, 260-65, 403 A.2d 696, 700-04 (1979); State v. Hartman, 134 Vt. 64, 65-67, 349 A.2d 223, 224-25 (1975); In re Huard, 125 Vt. at 194-95, 212 A.2d at 644-45; In re Mears, 124 Vt. 131, 138-39, 198 A.2d 27, 32 (1964). The elements are provided in part by statute. See 13 V.S.A. § 5237. Normally, the elements must be shown by the record of the trial court proceedings, although in a relatively close case the record may be supplemented to show defendant's actual knowledge and understanding. See Merrill, 155 Vt. at 426, 584 A.2d at 1131-32.

The evidence supports the trial court's conclusion that there was not a knowing and intelligent waiver of counsel at either hearing. See In re Huard, 125 Vt. at 194, 212 A.2d at 644 (conclusion of trial court that there was no intelligent waiver upheld where supported by the evidence). At neither hearing was there an inquiry into defendant's experience, motives and understanding to determine the quality of the waiver. See Hartman, 134 Vt. at 66, 349 A.2d at 225. There was no attempt to explain the possible adverse consequences of waiver. See Ahearn, 137 Vt. at 262, 403 A.2d at 702. At both hearings, defendant's statements were inconsistent and often bizarre, indicating an inability to comprehend what was occurring. See State v. Pollard, 163 Vt. at ----, 657 A.2d at 188-90. Also, there was confusion at both hearings about the nature of the charges. Indeed, the major charge of kidnapping, punishable by life in prison, was not filed until after the first appearance, so defendant could not have appreciated the risk at the first hearing. At the first hearing, defendant complained that he had been prevented from contacting his lawyer, and he refused to sign a written waiver because he was "having a real hard time right now." At the second hearing, he still had not contacted his lawyer.

The second issue before us is whether the rejected guilty plea and the incriminating statements should have been suppressed. The trial court decided this issue on constitutional grounds, ruling that because the statements and attempted plea were fruits of a violation of the right to counsel, they must be suppressed. The State argues that the remedy is inappropriate because it is used only to deter police misconduct, and not court errors, and is not necessary to protect the underlying right.

We have a preference for deciding issues on nonconstitutional grounds. See e.g., In re Club 107, 152 Vt. 320, 322, 566 A.2d 966, 967 (1989). We conclude that the trial court's action was proper under provisions of the Vermont Rules of Evidence and the Vermont Rules of Criminal Procedure and affirm on that basis. As a result, we do not decide whether the trial court's remedy was necessary to implement defendant's constitutional right to counsel.

For purposes of analysis, it is helpful to distinguish between the rejected plea of guilty and the incriminating statements. The former is inadmissible irrespective of whether there was a violation of the right to counsel. Vermont Rule of Evidence 410 provides in pertinent part:

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant or ward who made the plea or was a participant in the plea discussions:

(1) a plea of guilty which was later withdrawn;

....

(3) any statement made in the course of any proceedings under Rule 11 of the Vermont Rules of Criminal Procedure or comparable state or federal procedure regarding either of the foregoing pleas;....

See also V.R.Cr.P. 11(e)(5) (similar provision). Neither of the two exceptions to this provision are applicable here. Although the language of Rule 410 "is not completely apt," 23 C. Wright & K. Graham, Federal Practice and Procedure: Evidence § 5343, at 360 (1980), we conclude that it is intended to cover the situation where a plea is not accepted. See id. The need for a broad interpretation of the word "withdrawn" ³ was anticipated in the Reporter's Notes as follows:

The rule is silent on the effect of the collateral overturning of a judgment...