State v. Brunelle

• Decision Date: 14 August 1987
• Docket Number: No. 85-072,85-072
• Citation: 148 Vt. 347,534 A.2d 198
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Douglas BRUNELLE.

Page 198

534 A.2d 198

148 Vt. 347

STATE of Vermont v. Douglas BRUNELLE.

No. 85-072.

Supreme Court of Vermont.

Aug. 14, 1987.

William S. Bos, Windsor Co. State's Atty., and Emily S. Davis, Deputy State's Atty., White River Junction, for plaintiff-appellee.

Fink & Birmingham, P.C., Ludlow, for defendant-appellant.

Before ALLEN, C.J., and HILL, PECK, GIBSON and HAYES, ^* JJ.

GIBSON, Justice.

Defendant was convicted of one count of operating a motor vehicle while under the influence of intoxicating liquor (DUI) with death resulting, and a second count of DUI with injury resulting. ¹ Prosecution arose out of a two-car head-on collision in March of 1984 in which one person was killed and another seriously injured. Defendant, the driver of one of the vehicles, was transported by ambulance to Springfield Hospital where the investigating officer obtained a blood sample and statements from him without advising him of his right to counsel and his right to remain silent. 23 V.S.A. § 1202; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Defendant moved to suppress the results of the blood-alcohol-content (BAC) test, as well as all statements made by him at the Springfield Hospital. Pursuant to a stipulation of the parties, the trial court granted defendant's motion by an order entered June 5, 1984.

In January of 1985, the State gave notice of its intent to use the BAC test to impeach defendant if he testified at trial. Defendant then filed a motion in limine in which he sought to have the BAC test results suppressed for all purposes. The court denied defendant's motion and ruled that if, during his testimony, defendant denied on direct or cross-examination that he had been under the influence of intoxicating liquor, the State could then introduce the BAC test results to impeach him as a witness.

Defendant did not testify at trial, and a jury found him guilty on both counts. Defendant's motion for a new trial was denied, and he subsequently appealed to this Court. We reverse. Although federal cases are discussed herein, we base our decision exclusively on the provisions of the Vermont Constitution. See Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983).

The questions presented to this Court are (1) whether the self-incrimination ² or due process ³ clauses of the Vermont Constitution prohibit previously suppressed evidence from being introduced for any purpose, and (2) whether previously suppressed evidence may be used to impeach or rebut testimony given by a defendant-witness on direct or cross-examination. These questions in turn raise the issue of whether Vermont should adopt the doctrines set forth by the United States Supreme Court in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), and United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980).

I.

Harris established that evidence obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, could be used to impeach the testimony of a defendant-witness given on direct examination. Harris, 401 U.S. at 224-25, 91 S.Ct. at 645. Prior to Harris, the long-standing and widely accepted rule was that unlawfully obtained evidence could never be used for impeachment purposes. Agnello v. United States, 269 U.S. 20, 33-35, 46 S.Ct. 4, 6-7, 70 L.Ed. 145 (1925); see Harris, 401 U.S. at 231 n. 4, 91 S.Ct. at 648-49 n. 4 (Brennan, J., dissenting); Dershowitz & Ely, Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority, 80 Yale L.J. 1198, 1208, 1215 (1971). Defendant maintains that this Court should adopt a rule similar to the one established in Agnello.

In affirming the conviction in Harris, the United States Supreme Court relied on Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954). In Walder, the issue on appeal was whether the defendant's assertion on direct examination that he had never possessed any narcotics opened the door, solely for purposes of impeachment, to the introduction of evidence unlawfully seized in connection with a prior, unrelated charge against him that had been dismissed two years earlier. Id. at 64, 74 S.Ct. at 355. Justice Frankfurter, writing for the majority, held that such impeachment was permitted:

It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths.

Id. at 65, 74 S.Ct. at 356. The Court distinguished defendant Walder's situation from that of the defendant in Agnello, where the defendant had been asked for the first time on cross-examination whether he had ever seen narcotics and, following his denial, was impeached with suppressed evidence seized in connection with the case then being tried. Id. at 66, 74 S.Ct. at 356. The Harris Court, relying on Walder, reasoned that "[e]very criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury." Harris, 401 U.S. at 225, 91 S.Ct. at 645.

Nine years later, the Harris doctrine was extended to allow impeachment based on testimony first elicited on cross-examination. In United States v. Havens, 446 U.S 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980), the Court held that "a defendant's statements made in response to proper cross-examination reasonably suggested by the defendant's direct examination are subject to otherwise proper impeachment ... by evidence that has been illegally obtained...." Id. at 627-28, 100 S.Ct. at 1917.

This case raises the Harris-Havens issue for the first time under the Vermont Constitution. Defendant argues that the federal rule should not be adopted because it is a radical departure from the previously established rule of Agnello and chills a defendant's right to testify. The State contends that the federal rule should be adopted by this Court because only the defendant's ability freely to commit perjury is hindered, not the right to testify. Thus, we consider two competing interests: (1) preservation of the right to testify freely, and (2) deterrence of perjury.

A state, as a matter of its own law in determining constitutional rights, may impose higher standards for police activity than those imposed by the United States Supreme Court under the federal constitution. Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 750 (1975); see also Ker v. California, 374 U.S. 23, 34, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963) (states are not precluded from developing their own rules governing arrests, searches and seizures, provided those rules do not violate the constitutional proscription against unreasonable searches and seizures and the evidence so seized is not admissible against a person having standing to complain). Although we have held that the term "laws of the land" in Chapter I, Article 10 of the Vermont Constitution is synonymous with the term "due process of law" in the United States Constitution, State v. Messier, 145 Vt. 622, 627, 497 A.2d 740, 743 (1985); see State v. Stimpson, 78 Vt. 124, 132-33, 62 A. 14, 17 (1905); Quimby v. Hazen, 54 Vt. 132, 139 (1881), we also note that, as final interpreter of the Vermont Constitution, this Court has final say on what process is due in any given situation.

This Court has previously rejected a claim that because of its different language, the Vermont Constitution's self-incrimination clause is broader than its federal counterpart. State v. Brean, 136 Vt. 147, 151, 385 A.2d 1085, 1088 (1978). In Brean, the defendant contested his conviction for drunk driving, arguing that Vermont's self-incrimination clause is broader than the federal provision because it uses the word "evidence" rather than "witness," which appears in the federal provision. ⁴ Id. We stated that "[b]oth this Court and the United States Supreme Court have recognized that the various state and federal constitutional provisions relating to self-incrimination, although using slightly variant phraseology, have a common origin and a similar purpose." Id. (citing Schmerber v. California, 384 U.S. 757, 761 n. 6, 86 S.Ct. 1826, 1831-32 n. 6, 16 L.Ed.2d 908 (1966); State v. Pierce, 120 Vt. 373, 378, 141 A.2d 419, 422-23 (1958)).

We have also held that certain other provisions in the Vermont Constitution provide rights similar to those in the United States Constitution. See State v. Dorn, 145 Vt. 606, 619, 496 A.2d 451, 458 (1985) (particularity of descriptions in search warrants); State v. Sprague, 144 Vt. 385, 390 n. 2, 479 A.2d 128, 131 n. 2 (1984) (similar rights under the confrontation clause).

Nevertheless, this Court has also on occasion found that the Vermont Constitution affords greater rights than the federal constitution, which acts as a threshold for state-granted rights. See In re E.T.C., 141 Vt. 375, 378, 449 A.2d 937, 939 (1982) (Chapter I, Article 10 requires that stricter criteria than are present under federal Fifth and Sixth Amendment Miranda rights must be met before a juvenile may waive right against self-incrimination and right to counsel); State v. Ludlow Supermarkets, Inc., 141 Vt. 261, 268, 448 A.2d 791, 794-95 (1982) (Sunday closing law found to violate Chapter I, Article 7 prohibition against preferential legislation, a provision more stringent than the federal constitutional standard which requires only a rational justification); State v. Becker, 130 Vt. 153, 154, 287 A.2d 580, 581 (1972) (Chapter I, Article 10 gives right to trial by jury in misdemeanors as well as felonies).

The due process clause of the Fourteenth Amendment ⁵ guarantees every defendant the right to testify in his own defense. In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 507, 92...