State v. Brooks

• Decision Date: 29 March 2013
• Docket Number: No. 11–329.,11–329.
• Citation: 2013 VT 27,70 A.3d 1014
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Rusty BROOKS.

70 A.3d 1014

2013 VT 27

STATE of Vermont

v.Rusty BROOKS.

No. 11–329.

Supreme Court of Vermont.

March 29, 2013.

Christina Rainville, Bennington County Chief Deputy State's Attorney, Bennington, for Plaintiff–Appellee/Cross–Appellant.

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

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

SKOGLUND, J.

¶ 1. Defendant appeals convictions on two counts of aggravated sexual assault on a minor following a jury trial, alleging three errors. Defendant asserts that the trial court committed reversible error by failing to suppress all statements made to the police on August 31, 2009, and by admitting evidence of defendant's website-browsing history. Defendant also contends that the introduction of previously excluded testimony at trial rendered the trial unfair. As a final matter, defendant maintains that even if none of his individual claims constitutes reversible error, the cumulative effect of all errors denied him a fair trial. We disagree and affirm defendant's convictions.

¶ 2. The facts are as follows. On August 31, 2009, defendant was called into the Bennington Police Station and questioned by Detective Cole for approximately forty minutes regarding allegations of sexual abuse of defendant's twelve-year-old daughter. Defendant denied the allegations during the interview. At the conclusion of the interview, defendant was arrested and placed in a holding cell. Six hours later, Detective Plusch approached defendant to arrange defendant's dinner.

¶ 3. Defendant asked “what was going on” in the case, and Detective Plusch informedhim of the current police investigation. Defendant then volunteered, “Well, if everyone said I did this I must have.” At the time, police had not informed defendant of his Miranda rights. Detective Plusch immediately advised defendant that if he wished to talk about the case, he would need to wait so Plusch could get the necessary paperwork and move defendant to an interview room. Ten minutes later, Detective Plusch transferred defendant to an interview room and advised him of his Miranda warnings. Defendant informed Detective Plusch that he understood his rights, was willing to discuss the case, and did not want to contact an attorney at that time. Defendant signed the Miranda rights form. Defendant also consented to a sworn recorded statement.

¶ 4. Detective Plusch interviewed defendant for approximately seventy-five minutes. Defendant initially denied all allegations of sexual molestation. Defendant, however, provided hypothetical answers, saying, “I don't remember ever doing anything ... [but] it probably happened naturally .... she'd probably take her [pants] off and I'd do mine.... probably she just lays down and I get on top of her ... put a condom on and I'd probably start having sex with [her].” Eventually, Detective Plusch left defendant with a blank statement form and told him that if he wanted to write a statement, he could fill out the form. Defendant wrote an incriminating statement, confessing to having sexual intercourse with his twelve-year-old daughter. He subsequently signed the statement in the presence of Detective Plusch.

¶ 5. At a pretrial suppression hearing, defendant challenged the validity of all statements given to the police on that day in August, claiming that his statements were involuntary and taken in violation of his Miranda rights. The trial court suppressed the pre-Miranda-warning statement given in the holding cell, concluding that defendant was not properly informed of his right to remain silent while under custodial interrogation, and therefore, such statements were obtained in violation of defendant's Fifth and Fourteenth Amendment rights and inadmissible. The court, however, admitted the post-Miranda-warning statements, finding that the unwarned statement did not taint subsequent warned statements, as discussed below.

¶ 6. Also prior to trial, the State gave notice pursuant to Vermont Rule of Criminal Procedure 26(c) that it intended to offer evidence of defendant's history of browsing pornographic and incest websites. Defendant objected to the evidence, arguing that it was not relevant and could not be connected to defendant specifically, as others in the house used the computer. He further argued that its prejudicial effect substantially outweighed any probative value regarding the charged counts. The trial court permitted the State to present a “limited list of site names” related to incest as prior bad acts under Vermont Rule of Evidence 404(b), finding the probative value of these sites to show a plan, scheme, or motive and to outweigh the prejudicial effects, as discussed in detail below.

¶ 7. At trial during the State's case-in-chief, Detective Plusch began to repeat defendant's excluded holding cell statement. Defendant objected. The court sustained the objection and instructed the jury to “ignore [Detective Plusch's] response.” The jury found defendant guilty of two counts of aggravated sexual assault on a minor in violation of 13 V.S.A. § 3253(a)(8). This appeal followed.

¶ 8. Defendant asserts that the trial court erred in failing to suppress all statements he made to the police on August 31, 2009, as a violation of his constitutional rights. As noted, the court suppressed defendant's statement made in the holding cell before being informed of Miranda rights but declined to suppress statements made to the police after the administration of Miranda warnings. Defendant contends the court erroneously concluded that the “mid-stream” Miranda warnings effectively safeguarded his rights and that his waiver of those rights was voluntary. We find no error.

¶ 9. “A motion to suppress evidence presents a mixed question of fact and law. While we uphold the trial court's factual findings absent clear error, we review the trial court's conclusions of law de novo.” State v. Bauder, 2007 VT 16, ¶ 9, 181 Vt. 392, 924 A.2d 38.

¶ 10. The Fifth Amendment grants every citizen the right not to be “compelled in any Criminal Case to be a witness against himself.” U.S. Const. amend. V. To safeguard this right, law enforcement officers must warn a person in custody, prior to interrogation, “ ‘that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.’ ” State v. Fleurie, 2008 VT 118, ¶ 11, 185 Vt. 29, 968 A.2d 326 (quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)). Miranda warnings serve to ensure that the person in custody has sufficient knowledge of his constitutional rights concerning the interrogation and that any waiver of such rights is knowing, intelligent, and voluntary. Id.

¶ 11. The U.S. Supreme Court has articulated two standards for assessing whether the failure to administer Miranda warnings by law enforcement in an initial interrogation taints subsequent warned statements, which we discussed at length in Fleurie, 2008 VT 118, ¶¶ 12–21, 185 Vt. 29, 968 A.2d 326. In Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the Court found that, despite the officers' initial failure to administer Miranda warnings, the defendant's post-warning confession remained admissible. It held that without more, a simple failure to administer warnings will not preclude the admissibility of statements made subsequent to a voluntary and informed waiver. Id. at 300, 105 S.Ct. 1285. But, the Court cautioned, if the failure to administer warnings was accompanied “by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will,” the same result may not follow. Id. at 309, 105 S.Ct. 1285.

¶ 12. Nineteen years later, the Supreme Court confronted a coercive and manipulative practice in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). In Seibert, police deliberately withheld Miranda warnings before an initial interview, extracted a full confession, and then gave the suspect a twenty-minute break. After the break, the police then administered Miranda warnings, obtained a waiver, resumed questioning, and then elicited a second confession, pressuring the defendant into giving the same responses that she had given earlier. A plurality of the Court rejected the idea that a subsequent recitation of Miranda warnings, after a manipulative interview had produced a confession, could satisfy Miranda 's guarantees. It concluded that question-first interrogation techniques, designed to circumvent Miranda v. Arizona, may make subsequent warned statements inadmissible. Seibert, 542 U.S. at 609–13, 124 S.Ct. 2601. The Court wrote, once a defendant thoroughly incriminates himself, a mid-stream warning may fail to “reasonably convey that he could choose to stop talking.” Id. at 612, 124 S.Ct. 2601. Therefore, the plurality adopted a five-factor test to assess the effectiveness of mid-stream Miranda warnings. See id. at 615, 124 S.Ct. 2601.

¶ 13. Finding substantial overlap between Elstad 's “voluntariness” test and Seibert 's “effectiveness” test, this Court concluded in Fleurie that the two, together, “operate essentially as a totality-of-the-circumstances analysis.” 2008 VT 118, ¶ 24, 185 Vt. 29, 968 A.2d 326. In Fleurie, police observed the defendant on the streets a few minutes before receiving a robbery report of an armed suspect matching the defendant's description. Police went to the defendant's mother's apartment and requested permission to speak with her son. The mother let the officers in the home.

¶ 14. Officers confronted the defendant about the robbery and informed him that he matched the description of the suspect. Without being informed of the identifying characteristics of the suspect, the defendant volunteered that he did not have guns or a mask. Officers told the defendant that they saw him nearby the site of the...