State v. Caron

Decision Date21 December 1990
Docket NumberNo. 89-329,89-329
Citation155 Vt. 492,586 A.2d 1127
PartiesSTATE of Vermont v. Richard D. CARON.
CourtVermont Supreme Court

Jeffrey L. Amestoy, Atty. Gen., and Susan R. Harritt, Asst. Atty. Gen., Montpelier, for plaintiff-appellee.

Walter M. Morris, Jr., Defender General, and Anna E. Saxman, Appellate Defender, Montpelier, for defendant-appellant.

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

DOOLEY, Justice.

Defendant Richard Caron entered a conditional plea of guilty to a burglary charge and was sentenced to four to thirteen years of imprisonment. Defendant appeals the trial court's denial of his motion to suppress evidence, claiming that the evidence was obtained pursuant to an illegal arrest. Defendant also appeals the denial of his motion to suppress statements, claiming that statements and his waiver of his constitutional rights were obtained in violation of the Vermont Constitution and that the waiver of his right to counsel violated the requirements of the Vermont Public Defender Act, 13 V.S.A. § 5237. We affirm.

I.

On December 13, 1987, at approximately 11:40 p.m., the Bennington Police Department received a call from Mary Flanders, reporting that she and her husband had been robbed and assaulted in their Bennington home. Police officers were dispatched to the Flanders' home, where the Flanders told them that two men had entered their home, beaten them, and robbed them of a safe and a pocketbook. Mrs. Flanders stated that one of the assailants was named "Gary." The police department also received a call from Donald Mears, who described seeing and hearing an older model pickup truck pull up and park in front of his home, which was located across the street from the Flanders' residence. According to Mr. Mears, the truck sounded as if it had no muffler, its engine skipped, and it had a cap over the truck bed. Mr. Mears stated that a man exited the truck, stood in front of the Flanders' home for several minutes, and then returned to the vehicle. The truck drove off, but Mr. Mears heard what he believed to be the same vehicle return and leave several times over the next half hour and finally leave at a high rate of speed. Mr. Mears also noticed that there was oil on the ground where the truck had been parked.

Based on the information received from the Flanders and Mr. Mears, the Bennington Police department issued two "be on the lookout" (BOL) bulletins to neighboring Vermont, New York, and Massachusetts police units. The first BOL, issued at 12:28 a.m., stated:

BOL for the following vehicle in connection with a robbery that just occurred in Bennington, Vermont. A pickup truck, unknown reg[istration] or make. Loud exhaust, leaking oil, sputtering. Two male occupants, one with long hair and one with the first name of Gary. Should be in the possession of a small safe. This robbery took place on Grove St[reet] in Bennington. The two males driving the above vehicle beat and injured an elderly couple before robbing them at their residence.

A follow-up bulletin, broadcast at 12:48 a.m., contained this additional information:

The vehicle's described as a late model full size pickup truck with oversized taillights. The rear of the truck is closed in (possible cab [sic] on back) and has some sort of a fin or spoiler on rear of it. One of the male subjects is described as being 5[']10["'], 160 [pounds], wearing light colored pants.

At approximately 1:30 a.m., Officer Davendonis from the Hoosick Falls, New York, police department observed a pickup truck which appeared to match the vehicle described in the BOLs. The truck had two occupants who matched the BOL descriptions and appeared frightened and disconcerted. He followed it to a convenience store where the driver bought a quart of oil. He finally encountered the vehicle while it was parked behind a school bus garage. The officer approached the vehicle and asked the driver to step out of the truck and provide identification. The driver identified himself as Gary Skidmore but did not have a license or registration. Attempts to obtain information on the vehicle registration number or the name failed because Vermont's computer that provides such information was not operating. The officer then radioed for assistance from the New York State Police. While waiting for assistance, the officer asked Skidmore where he was coming from and going to, and Skidmore provided inconsistent responses to these questions.

Two New York State Police officers, Troopers Duff and Overdorf, arrived in response to the call for assistance. Trooper Duff observed a shotgun in the pickup truck and asked the passenger, later identified as the defendant, to step out of the cab so that he could remove the shotgun. Defendant exited the vehicle. While Trooper Duff was removing the shotgun, he observed a paper sack, open at the top, which appeared to contain shredded paper currency. Officer Duff then asked the other officers to handcuff Skidmore and defendant. Defendant was handcuffed and placed into the rear of a police vehicle. Skidmore, however, pushed Trooper Overdorf and escaped into the surrounding woods. Skidmore surrendered to police officers the following day.

Officers Briggs and Colgan of the Bennington Police Department arrived at the scene to participate in the investigation. Officer Briggs was familiar with defendant and approached him. After Officer Briggs identified himself, defendant immediately stated, "I'll tell you one thing, I didn't beat those old people." There was no further conversation with defendant until 3:15 a.m. at the Hoosick Falls police barracks when Officer Briggs read defendant his Miranda rights from a form consisting of seven parts, each followed by a question asking defendant whether he understood the preceding part. 1 Defendant answered "yes" to each question, and Officer Briggs recorded each response on the form. In answering the seventh question, defendant indicated that he had his rights in mind and wished to talk with Officer Briggs. At 3:17 a.m., defendant signed a provision at the bottom of the form stating that he had been advised of his rights, understood them, and agreed to waive them. Defendant asked for a cigarette and was given a pack. He indicated that he would not sign a statement. He described his participation in the robbery but denied that he had assaulted the Flanders. He identified Gary Skidmore as his accomplice. The questioning ended approximately forty-five minutes later, after which defendant was brought to a jail cell and allowed to sleep.

Approximately four hours later, defendant was questioned by an officer of the New York State Police Department. 2 He was read a version of the Miranda rights from a New York State Police form. He was not required to respond to each part, but he acknowledged verbally that he had been advised of and understood his rights and that he agreed to waive these rights and speak with the officer. Although he refused to sign the form or a written statement, he again admitted that he had participated in the robbery. The interview was concluded at approximately 11:00 a.m.

The two officers who took statements noted that defendant had been drinking during the evening, but both concluded that defendant showed no signs of impairment before or after giving his statements. After he was returned to Vermont, defendant filed several pretrial motions to suppress physical evidence and his own statements. He entered a conditional guilty plea to a charge of burglary, reserving the right to appeal the denial of his suppression motions.

II.

Defendant first challenges the legality of the initial stop by Officer Davendonis and the trial court's refusal to suppress evidence obtained from Skidmore's pickup truck during that stop. Defendant contends that the evidence should have been suppressed under the federal and Vermont Constitutions because there was no probable cause to arrest him or conduct a search either at the time Officer Davendonis stopped the vehicle or soon thereafter. The trial court held that the officer had probable cause to arrest defendant at the time of the stop, and further concluded that, if probable cause did not exist initially, there was reasonable suspicion to warrant an investigatory stop, and that this reasonable suspicion quickly ripened into probable cause.

Police officers may conduct a warrantless investigatory stop when specific and articulable facts, taken together with rational inferences from those facts, warrant a reasonable belief that a suspect is engaging in criminal activity. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984); State v. Schmitt, 150 Vt. 503, 507, 554 A.2d 666, 668 (1988). A warrantless investigatory stop may also be made based on reasonable suspicion that the person stopped was involved in a completed felony. United States v. Hensley, 469 U.S. 221, 229, 105 S.Ct. 675, 680, 83 L.Ed.2d 604 (1985). An investigatory stop must be brief, however, and "any further detention must be based on consent or probable cause." State v. Phillips, 140 Vt. 210, 215, 436 A.2d 746, 749 (1981). In the present case, the BOLs contained more than ample information to create reasonable suspicion and justify an investigatory stop. Officer Davendonis spotted a vehicle which, as stated in the BOL, had a loud exhaust, a sputtering engine, an oil leak, and two male occupants. During the brief questioning following the stop, the driver identified himself with the same first name as specified in the BOL and gave inconsistent responses to questions about his route and destination. There can be no doubt that the officer had probable cause at that point to arrest the occupants of the vehicle. See Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964) (probable cause to arrest exists where facts and circumstances were sufficient to warrant a...

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