State v. Howe

• Citation: 386 A.2d 1125,136 Vt. 53
• Decision Date: 15 March 1978
• Docket Number: No. 97-77,97-77
• Court: United States State Supreme Court of Vermont
• Parties: STATE of Vermont v. Robert A. HOWE.

Page 1125

386 A.2d 1125

136 Vt. 53

STATE of Vermont v. Robert A. HOWE.

No. 97-77.

Supreme Court of Vermont.

March 15, 1978.

John A. Rocray, Windham County State's Atty., Brattleboro, for plaintiff.

Weber, Fisher, Perra & Gibson, Brattleboro, for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

HILL, Justice.

Following trial in the Windham Superior Court, appellant was convicted of first degree murder and sentenced to life in prison. He complains of several alleged errors on the part of the trial court. We affirm.

In the early morning of April 1, 1975, an elderly woman was sexually assaulted and murdered in her room at the Latchis Hotel in Brattleboro, Vermont. Human bitemarks were found on the victim's neck and one of her breasts, and hairs not matching the victim's were found in her bed. The discovery of the body was reported to the hotel desk clerk by appellant, who occupied the room next to the victim's. In subsequent statements to the police, appellant said that he had been in bed, heard a scream, put on a pair of pants, gone into the hallway and seen a man hurrying down the hall toward a fire exit. Seeing the victim's door ajar, appellant's story continued, he entered her room, saw the body, checked both wrists for a pulse, and, finding none, ran downstairs and reported the crime to the hotel desk clerk.

The clerk called the police. He and appellant then went up to the victim's room, observed the body and left the room. The police arrived and, in the course of investigation, took several statements from appellant. At the request of one of the police officers, appellant went to the police station and gave additional statements. At 4:00 a. m. on April 1, appellant was given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Appellant remained at the Brattleboro police station during the daylight hours of April 1. While at the station house, appellant was served with warrants to search his hotel room, for the clothes he was wearing when he reported the murder and for samples of his cranial and pubic hair. These warrants were fully executed.

Appellant was taken out to lunch and to the State Police office in Rockingham, Vermont, for further questioning and was then returned to the Brattleboro station house. He left the station house at approximately 8:00 p. m. on April 1, accompanied by a police officer. Appellant and the officer spent the night at the home of appellant's wife. The next morning appellant and the officer returned to the station house, whereupon appellant decided to consult a lawyer. A public defender and another lawyer came to the station house, talked to appellant and then left with appellant. Until his arrest two days later, on April 4, 1975, appellant was free of all restrictions. He was charged with first degree murder.

Appellant alleges the following errors by the court below:

I. Error in refusing to suppress certain statements which appellant made to police before he was given the Miranda warnings;

II. Error in refusing to suppress appellant's clothing and hair samples seized pursuant to search warrants allegedly issued without probable cause;

III. Error in refusing to suppress dental impressions, fingerprints and results of a blood test, all acquired pursuant to a court order allegedly issued without the requisite cause;

IV. Error in refusing to limit the scope of the State's cross-examination of an expert witness for appellant;

V. Error in denying appellant's motion for a separate trial on the issue of insanity;

VI. Error in admitting certain testimony and exhibits relating to the identification of bitemarks and the relation between the bitemarks on the victim's body and appellant's dentition;

VII. Error in permitting a certain witness for the State to testify;

VIII. Error in denying appellant's motions for a judgment of acquittal and for a new trial; and

IX. Error in the inclusion of an instruction relating to intoxication in the charge to the jury.

I.

The Miranda warnings must be given when a suspect has been "taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, supra, 384 U.S. at 444, 86 S.Ct. at 1612; Oregon v. Mathiason, 429 U.S. 492, 494, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). Appellant argues that the trial court erred in refusing to suppress statements which appellant made to police at the Brattleboro Police station house prior to receiving the Miranda warnings. After a pretrial hearing, the court issued an order denying appellant's motion to suppress these statements. The court's order concluded that appellant was "properly and timely advised of his rights," but the order did not include findings of fact, and we have not found any such findings in our review of the record. V.R.Cr.P. 12(d) requires the court to state its essential findings on the record when "factual issues are involved in determining a motion." Ordinarily the trial court's failure to comply with this requirement would preclude our review of its determination and require reversal. However, for the reasons discussed below, this omission on the part of the trial court does not preclude us from resolving this issue.

First, our review of the transcript of the suppression hearing indicates that there was no evidence presented which would be sufficient to establish that appellant was "in custody" when he gave the statements challenged here. In the absence of such evidence the court could not properly have concluded that the police were required to give appellant the Miranda warnings.

Secondly, appellant has not alleged on appeal that he was "in custody" as that concept has been developed since Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602. Nor does appellant's reconstruction of the facts surrounding his interrogation at the police station tend to show that he was " in custody." On the contrary, appellant seems to base his claim that the warnings were not given soon enough on the allegation that he was a "suspect" at the time he gave the challenged statements. If the constitutionality of the police procedures in this case actually did depend on the truth or falsity of this allegation, we would probably be precluded from determining this issue without the requisite V.R.Cr.P. 12(d) findings. This is because the evidence presented at the suppression hearing could have supported either a finding that appellant was a suspect when questioned at the station house or a finding that he was not a suspect at that time. But whether or not appellant was a suspect does not matter if he was not in custody. As the United States Supreme Court said in Oregon v. Mathiason, supra, 429 U.S. at 495, 97 S.Ct. at 714: "(P) olice officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect." Since appellant neither alleged nor offered facts tending to show that he was in custody, we cannot see how the recorded findings of fact by the court at the suppression hearing could have included a finding that appellant was "in custody."

Finally, even if we assume that appellant should have been given his Miranda warnings earlier, and that the court below therefore erred in denying the motion to suppress appellant's statements, this would be harmless error. In State v. Miner, 128 Vt. 55, 71, 258 A.2d 815, 824-25 (1969), we said:

A federal constitutional error can be held harmless only if the court is able to declare its belief, beyond reasonable doubt, that the shortage has not adversely affected the accused. And the conviction must be supported by overwhelming evidence of guilt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284, 288; Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705.

This conviction is, we feel, supported by such "overwhelming evidence." Although there was no eye-witness testimony to the commission of the crime itself, and appellant's complained of statement was far from a confession, the contained admission of his presence at the scene was amply corroborated by other statements properly taken, and by conversation with the desk clerk, in no way connected with the police. Hair samples, bitemark patterns, appellant's glasses at the scene, and testimony of his prior statement that he might kill an elderly woman, although all circumstantial in nature, lead us to conclude beyond a reasonable doubt that the verdict of the jury would not have been different even if the statement had been suppressed.

We are therefore able to conclude that the claimed error regarding the admission of statements given before appellant received the Miranda warnings is not reversible error.

II.

Appellant also alleges error on the part of the trial court for its refusal to suppress the clothing and hair samples obtained pursuant to search warrants. The gist of appellant's argument is that the affidavits filed in support of the request for the warrants were insufficient to establish probable cause to search.

The affidavits challenged here were identical except that the affidavit supporting the request for the warrant for the hair samples alleged that hairs which were believed to belong to the perpetrator were found on the victim's bed. To establish probable cause an affidavit filed in support of a request for a search warrant must show circumstances from which a "man of reasonable caution" would conclude that a crime has been or is being committed and that evidence of that crime will be found in the place to be searched. United States v. Neal, 500 F.2d 305, 307 (10th Cir. 1974); see Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). That a crime had been committed was clearly established here by the affidavit...