State v. Clark

• Decision Date: 05 April 1983
• Docket Number: No. 82-214,82-214
• Citation: 143 Vt. 11,460 A.2d 449
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Kevin P. CLARK.

Page 449

460 A.2d 449

143 Vt. 11

STATE of Vermont v. Kevin P. CLARK.

No. 82-214.

Supreme Court of Vermont.

April 5, 1983.

Richard G. English, Addison County State's Atty., and John T. Quinn, Deputy State's Atty., Middlebury, for plaintiff-appellee.

Richard F. Taylor, Middlebury, for defendant-appellant.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

BILLINGS, Chief Justice.

Defendant was convicted of operating a motor vehicle on a public highway while under the influence of intoxicating liquor. 23 V.S.A. § 1201(a)(2). Prior to the hearing on the merits, defendant filed a motion to suppress certain incriminating statements he had made to the police while being processed for the offense charged. Defendant claims that at the time he made the statements he was incapable of knowingly and intelligently waiving his constitutional rights. Of primary concern to the defendant was his admission as to the operation of the vehicle, without which the State would have been unable to prove this element of the offense.

The suppression motion was heard by a second judge, prior to trial. In denying the suppression motion, the court found that at the time defendant waived his rights, his mental capacity "was not so overborne by his alcoholic condition that he could not have been conceived to be able to comprehend such rights and make a knowing waiver thereof." The court then cited State v. Pease, 129 Vt. 70, 74-75, 271 A.2d 835, 838 (1979), as authority for this standard. Defendant contends, however, and the State agrees, that Pease recites an appellate review standard, applicable where the issue of competent waiver was not raised below. In contrast, at the trial level it is the State's burden to establish, by a preponderance of the evidence, that the defendant knowingly and intelligently waived his Fifth Amendment rights. State v. Badger, 141 Vt. 430, 439, 450 A.2d 336, 341 (1982); State v. Breznick, 134 Vt. 261, 265, 356 A.2d 540, 542 (1976).

We agree with the parties that the standard used impermissibly shifted the burden of proof to defendant, and as such constituted reversible error. The State would argue against reversal, contending that the trial court's findings provide a sufficient basis for the conclusion that the State proved by a preponderance of the evidence that defendant's waiver was knowing and voluntary. However, with regard to the crucial issue of defendant's mental capacity at the time of the supposed waiver, the two relevant findings merely recite the witnesses' testimony, and as such are improper and provide no support for a judgment. Valsangiacomo v. Paige & Campbell, Inc., 136 Vt. 278, 279-80, 388 A.2d 389, 390-91 (1978); Krupp v. Krupp, 126 Vt. 511, 514-15, 236 A.2d 653, 655-56 (1967). While the remainder of the findings are not improper, neither are they sufficient to establish defendant's mental competence to the degree required by law.

For these reasons the trial court's suppression order is reversed, and defendant is entitled to a new trial on the merits.

Reversed and remanded.

PECK, Justice, dissenting.

For the reasons set forth below, I am firmly convinced that the disposition of this case by the majority is wrong, and that there exist more than ample grounds to affirm based on our own precedential holdings. Accordingly, I have no choice but to dissent.

I do agree with the majority that the suppression court's findings 10 and 12 are not proper as findings of fact. Finding 10 is a mere recitation of testimony: "[T]he witness, Trooper Yustin, explained that ...." Had the court even added, "and the court so finds," it might have been saved. However, it did not do so, and this "recitation" cannot, therefore, be relied on to support the order. Similarly, finding 12 merely recites an opinion of the police without any factual conclusion based thereon.

Findings 10 and 12 would, if properly phrased, have provided strong support for the lower court's conclusion that "the mental capacity of the Defendant was not so overborne by his alcoholic condition that he could not have been conceived to be able to comprehend such rights and make a knowing waiver thereof."

The court found that defendant told the police "You can't get me for D.U.I.," and further that he told the police he was going to sue them.

When defendant was asked if he wished an attorney, he "replied that he did not need one, that he'd been through the process before and knew how to handle the situation."

After he had been advised of his rights, the court said that defendant "stated he would not answer any questions." He reconsidered almost immediately and said, " 'You ask the questions and I tell you whether I'll answer it'; or words to that effect."

The court found that defendant refused to discuss where he had been drinking and when he had taken his last drink, but that he answered all the other questions on page 2 of the processing form, "and such answers were logical and appropriate."

When the police started to explain to defendant the procedure by which a breath sample test is given, the court found that he stated he understood...