State v. Brown

• Decision Date: 08 December 1989
• Docket Number: No. 87-555,87-555
• Citation: 571 A.2d 643,153 Vt. 263
• Parties: STATE of Vermont v. Richard BROWN.
• Court: Vermont Supreme Court

Page 643

571 A.2d 643

153 Vt. 263

STATE of Vermont v. Richard BROWN.

No. 87-555.

Supreme Court of Vermont.

Dec. 8, 1989.

Kevin G. Bradley, Chittenden County State's Atty., Lauren Bowerman, Deputy State's Atty., Burlington, and Robert Katims and Jo-Ann Gross, Law Clerks (on the brief), Department of State's Attorneys, Montpelier, for plaintiff-appellee.

Walter M. Morris, Jr., Defender General, and Henry Hinton, Appellate Defender, Montpelier, for defendant-appellant.

Before ALLEN, C.J., PECK, DOOLEY and MORSE, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

ALLEN, Chief Justice.

Defendant appeals from his conviction, following a trial by jury, of attempted sexual assault in violation of 13 V.S.A. § 3252(1)(A). We affirm.

At trial, the victim of the assault testified that, on January 21, 1986, defendant entered the office in which she worked and sat down beside her desk. Defendant attempted to converse with the victim, but she stated that she had work to do, rose from her desk, and walked to a nearby file cabinet. Defendant approached her from behind, grabbed her by the shoulders, and tried to kiss her. She then told him to "get away," but he became agitated and began fondling her breast. Again, the victim told defendant to "get away and stop it and leave me alone." Instead, defendant dragged her behind a partition, pulled her skirt up, and placed his hand on her thigh and crotch, stating that he found the victim very attractive and that he wanted to make love to her. The victim testified that she continued to resist but could not remember whether she was finally successful in pushing defendant away or whether he let her go; she stated that "all of a sudden, I was free." Defendant eventually left the office, after apologizing for his actions. He was later charged by information with attempted sexual assault.

Defendant was already on probation on an unrelated charge when the information was filed. His probation officer became aware of the charge and asked defendant on two occasions "if he wanted to talk about the charge." On each occasion, defendant indicated that he did not. Later, on July 1, 1986, while defendant was in the probation officer's office pursuant to his obligation on the unrelated charge, the officer asked defendant "what his court status was as far as the pending case." Defendant then made a series of statements regarding the alleged offense. At the time the question was asked, the officer was aware that the charge was still pending and that defendant was represented by counsel.

When it became clear that the State intended to introduce these statements at trial, defendant filed a motion to suppress. At the suppression hearing, the probation officer testified about his conversation with defendant as follows:

He mentioned where it was at, as far as what pending stage it was in, that I don't recall.... And he told me some things as I recall that, in the beginning, when this offense was taking place, that [the victim] acted as if she wanted involvement with him.... And then he also went on to say that he shouldn't have continued going as far as he did. So initially it was both of them wanted that kind of contact, and then he kept going further when he shouldn't have.

The motion to suppress was denied, and defendant's alleged statements to his probation officer were admitted at trial. On June 11, 1987, defendant was convicted of attempted sexual assault. He was later sentenced to serve three to ten years in jail.

On appeal, defendant raises four arguments for our consideration. First, he contends that the trial court erred in admitting the statements that he made to his probation officer. Second, he maintains that the jury charge was fundamentally deficient because it totally omitted any requirement of a finding that defendant knew he was attempting to compel a sexual act without the victim's consent. Third, defendant challenges the adequacy of the State's information, arguing that it failed to charge him with an offense. Finally, he highlights portions of the prosecutor's final argument and contends that his right to a fair trial was compromised by these remarks.

I.

In Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981), the United States Supreme Court held that a criminal suspect who has requested counsel "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards was grounded on the Fifth Amendment, as interpreted in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but its "bright-line" rule was explicitly adopted under the Sixth Amendment in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). In Jackson, the Court opined that "the reasons for prohibiting the interrogation of an uncounseled prisoner who has asked for the help of a lawyer are even stronger after he has been formally charged with an offense than before." Id. at 631, 106 S.Ct. at 1408.

Here, defendant has no Fifth Amendment claim because he was not in custody when the probation officer questioned him. See Minnesota v. Murphy, 465 U.S. 420, 430, 104 S.Ct. 1136, 1143, 79 L.Ed.2d 409 (1984). ¹ He argues, however, that since he had requested and been assigned counsel prior to the meeting with his probation officer, that officer's question about defendant's "court status" in the "pending case" violated his Sixth Amendment right to counsel under Jackson. Defendant's right to counsel and his invocation of that right are undisputed. Because defendant did not initiate the challenged exchange with his probation officer, the critical inquiry is whether the officer's question constituted interrogation. We hold that it did not.

The United States Supreme Court first discussed the significance of interrogation and related official activity under the Sixth Amendment in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). There, the defendant had been freed on bail after retaining a lawyer and pleading not guilty to federal drug charges. A federal agent installed a radio transmitter in a co-defendant's automobile and intercepted several incriminating statements made by the defendant. At trial, the agent testified regarding these statements, over defense counsel's objections, and the defendant was convicted. On appeal, the Supreme Court characterized the agent's actions as "surreptitious interrogation" and held that:

[Defendant] was denied the basic protections of [the Sixth Amendment's] guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.

Id. at 206, 84 S.Ct. at 1203. Thus, under Massiah, whether post-indictment actions by state officials so interfere with an individual's right to counsel as to violate the Sixth Amendment depends on whether those actions constitute "deliberate elicitation" of incriminating statements. See also United States v. Henry, 447 U.S. 264, 270-71, 100 S.Ct. 2183, 2186-87, 65 L.Ed.2d 115 (1980) (where government agents intentionally created a situation likely to induce an indicted defendant to make incriminating statements, by using a fellow inmate as an informant, defendant's Sixth Amendment rights were violated).

In Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985), the Court made clear that a Sixth Amendment violation could be found even without an intentional "set up" of a defendant by the State. In Moulton, one of two individuals accused of several motor vehicle thefts went to police and confessed to the thefts charged as well as other crimes he claimed to have accomplished with his co-defendant. In return for promises that no further charges would be filed against him, the defendant agreed to record all telephone conversations and one planned face-to-face meeting with his co-defendant. Incriminating statements were obtained during the meeting, and evidence of these statements was introduced at the co-defendant's trial. On appeal, the State urged that Massiah and Henry were not applicable because those cases involved situations intentionally created by the police. The Court disagreed, stating that:

[K]nowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State's obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity. Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a state agent.

Id. at 176, 106 S.Ct. at 487. The Court emphasized the affirmative nature of the State's obligation to avoid circumvention of an individual's Sixth Amendment rights. Id.

Here, the evidence established that defendant's probation officer had been supervising defendant's probation on an unrelated offense and that the two had been meeting on a monthly basis since September of 1985. The probation officer testified at the suppression hearing that, at a routine meeting on July 1, 1986, he had asked defendant "what his court status was as far as the pending case." The officer stated that his purpose in making the inquiry had been to "find out what stage it was at, whether he had a trial date set, or if he was going to plead out or whatever." He testified further that defendant had first "mentioned where [the case] was at, as far as what pending stage it was in...." Only then did defendant begin his incriminating comments.

Those remarks, following defendant's initial answer to his probation officer's routine question, can be characterized only as unresponsive. Further, defendant...