State v. Ives

• Decision Date: 27 May 1994
• Docket Number: No. 91-571,91-571
• Citation: 648 A.2d 129,162 Vt. 131
• Parties: STATE of Vermont v. Bruce IVES.
• Court: Vermont Supreme Court

Page 129

648 A.2d 129

162 Vt. 131

STATE of Vermont v. Bruce IVES.

No. 91-571.

Supreme Court of Vermont.

May 27, 1994.

M. Patricia Zimmerman, Windsor County State's Atty., White River Junction, for plaintiff-appellee.

Charles Martin and Edward Wayland, Law Clerk, of Martin & Paolini, Barre, for defendant-appellant.

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

ALLEN, Chief Justice.

Defendant appeals his conviction for sexual assault, 13 V.S.A. § 3252(a)(1), alleging three errors. First, defendant contends that the trial court erred in holding that he was capable, notwithstanding his low IQ, of a knowing and intelligent waiver of his Miranda rights. Second, defendant argues that the trial court erred by denying his motions for an additional competency hearing, a psychological evaluation and a continuance. Finally, defendant alleges that the trial court improperly admitted hearsay evidence as excited utterances. We affirm.

On January 12, 1990, the victim was sexually assaulted and identified defendant, a person known to her, as her assailant. The victim identified defendant to her father over the telephone, to the examining physician at the hospital, to the trooper who met her at the hospital, and, finally, to the detective who also came to the emergency room. The victim later identified defendant in a photographic lineup. Defendant was arrested and taken into custody. After explaining the Miranda rights to defendant and obtaining a waiver, a detective interviewed him. During this interview, defendant did not confess to the assault but admitted being in the victim's store on the day of the assault.

Defendant moved to suppress his statements, arguing that he could not have knowingly and intelligently waived his Miranda rights because he exhibited difficulty understanding the Miranda warnings. This motion was denied. Subsequently, it was discovered that defendant had a full scale IQ of 72, indicating he is borderline to being retarded. Defendant renewed his motion to suppress, and the trial court again denied the motion.

The trial court did, however, order a psychiatric evaluation and competency hearing, after which the court determined that defendant was competent to stand trial. Nearly five months later, on July 17, 1991, defense counsel moved for a continuance and an psychological evaluation of defendant's competence to stand trial. The court held a hearing on the motions the following day. Regarding the motion for a second competency evaluation, the court noted that Dr. Theodore Robbins, who performed the first competency evaluation, had examined defendant three days before on July 15. Dr. Robbins had communicated to the court that he still believed defendant was competent to stand trial, and the court agreed. The court denied both motions without taking evidence. Defendant was subsequently tried and convicted.

I.

Defendant moved twice, unsuccessfully, to suppress his statements to police, alleging that he had not knowingly and intelligently waived his rights to remain silent and to the assistance of counsel. Because he was given the required Miranda warnings before interrogation ensued, a valid waiver depends on two findings.

First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140, 89 L.Ed.2d 410 (1986) (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979)). Defendant does not claim that police coerced him, "a necessary predicate to the finding that a confession is not 'voluntary.' " Colorado v. Connelly, 479 U.S. 157, 167, 169-70, 107 S.Ct. 515, 522, 523, 93 L.Ed.2d 473 (1986). Thus, our inquiry concerns only whether defendant's waiver was knowing and intelligent, which the State must prove by a preponderance of the evidence. State v. Badger, 141 Vt. 430, 439, 450 A.2d 336, 341 (1982).

In both motions, defendant contended that he did not understand his rights or the consequences of waiving them. To be constitutional, a waiver must be made with a "requisite level of comprehension," such that an individual has "a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran, 475 U.S. at 421, 106 S.Ct. at 1141. The trial court must consider the "totality of the circumstances" in determining whether the defendant understood the Miranda warnings. Fare v. Michael C., 442 U.S. at 725, 99 S.Ct. at 2572. The factors relevant to this inquiry include defendant's "experience, education, background, intelligence or capacity to understand the warnings and the meaning of a waiver." State v. Malinowski, 148 Vt. 517, 522, 536 A.2d 921, 924 (1987).

This Court accords great deference to the trial court's findings under the totality of the circumstances approach. Id. at 520, 536 A.2d at 923. In making these findings, the trial court determines the weight and sufficiency of the evidence, including the credibility of the witnesses and the persuasive effect of their testimony. State v. Wall, 137 Vt. 482, 486, 408 A.2d 632, 635 (1979), cert. denied, 444 U.S. 1060, 100 S.Ct. 993, 62 L.Ed.2d 738 (1980). That determination stands "if supported by credible evidence, although there may be inconsistencies or even substantial evidence to the contrary." Id. The findings must stand unless they are clearly erroneous. Malinowski, 148 Vt. at 520, 536 A.2d at 923.

A.

We turn first to the denial of defendant's initial motion to suppress. When that motion was heard, the evidence consisted of testimony by the interrogating officer, a signed copy of the Miranda warnings issued to defendant, and a transcript of the interrogation. Defendant did not testify at the hearing, or raise the issue of his level of intelligence. Defense counsel did cross-examine the interrogating officer, Detective Jeffrey Cable. Neither the interrogating police officer nor the court knew that defendant's IQ was borderline to retarded.

The interrogating officer testified that defendant acted as if he understood what was being said, that he did not appear to be under the influence of drugs, and that he understood English. Moreover, the transcript of the interrogation reveals that defendant was an adult and had graduated from high school. Based on this evidence, the court found that:

defendant understood English; had no physical or mental disability affecting his ability to hear and understand Detective Cable; exhibited no signs of being under the influence of alcohol or drugs; responded to questions coherently, logically and appropriately; detailed his activities the day prior to the interrogation to a degree where he described the clothing he was wearing at that time. He exhibited sufficient coherence of thought to adequately demonstrate a mental capacity to understand and intelligently waive his Miranda rights to remain silent and to the assistance of counsel.

In short, the court took evidence on factors deemed important to evaluating a waiver of Miranda rights. See Malinowski, 148 Vt. at 522, 536 A.2d at 924.

Defendant argues that the court never considered the totality of the circumstances, because it did not discover that defendant cannot read and write, and that he apparently had no previous experience with the police. In this vein, the dissent believes that the colloquy between the police officers and defendant should have raised sufficient doubt about his intelligence to compel the State to delve further into defendant's background prior to questioning. Having so concluded, the dissent goes on to fault the trial court for not undertaking the "cursory check" that would have revealed defendant's limitations. The trial court, however, expressly noted that

[a]lthough the State did not introduce any evidence as to the defendant's age, education or prior experience with law enforcement authorities, it did introduce by way of [the interrogating officer's] observations of the defendant and the verbatim transcript of the entire interrogation in question sufficient evidence going to the defendant's background, intelligence and general capacity to understand the waiver, to permit the Court to adequately evaluate this issue, especially in light of the fact that no issue has been raised casting doubt on the defendant's mental capacity or physical ability to understand the nature of the asserted waiver.

In ruling that the evidentiary record was sufficient to support a finding of waiver, the court did not relieve the State of its burden to prove that defendant's waiver was knowing and voluntary. How defendant had performed in the context of the interrogation was more important than his specific age, education, or IQ. The trial court weighed evidence provided by the State on each relevant factor in determining that defendant intelligently waived his Miranda rights.

In effect, defendant and the dissent would put the burden on interrogating police officers and the court to discover or diagnose mental deficiencies not reasonably evident. Defendant answered "yes" to every question about understanding his rights, questions that were repeated when defendant hesitated in his initial responses. Police officers are not trained psychologists; as a general rule, it would not be desirable to have them interpret "yes" to mean "no."

With the benefit of perfect hindsight, the dissent argues that defendant answered ambivalently, and that this should have prompted an in-depth inquiry. But in the...