State v. Keith

• Decision Date: 21 May 1993
• Docket Number: No. 91-582,91-582
• Citation: 160 Vt. 257,628 A.2d 1247
• Parties: STATE of Vermont v. James E. KEITH.
• Court: Vermont Supreme Court

Page 1247

628 A.2d 1247

160 Vt. 257

STATE of Vermont v. James E. KEITH.

No. 91-582.

Supreme Court of Vermont.

May 21, 1993.

Howard E. VanBenthuysen, Franklin County State's Atty. and Jo-Ann L. Gross, Deputy State's Atty., St. Albans, for plaintiff-appellee.

Charles Martin and Edward Wayland, Law Clerk (on the brief) of Martin & Paolini, Barre, for defendant-appellant.

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

GIBSON, Justice.

Defendant appeals from a jury conviction of first-degree arson, in violation of 13 V.S.A. § 502. He argues that the trial court committed reversible error by refusing to suppress two statements he made on separate occasions to different police officers. He contends that in both instances his intoxicated state prevented him from making a knowing and intelligent waiver of his constitutional rights, as required by Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1629-30, 16 L.Ed.2d 694 (1966), and that the court should have suppressed the second statement because the police did not obtain a signed waiver of his right to counsel, as required by 13 V.S.A. § 5237. He also argues that the court abused its discretion by refusing to dismiss the prosecution for lack of a speedy trial. We affirm.

I.

On December 19, 1989, Swanton Police Chief Michael McCarthy arrested defendant and transported him to the police station for questioning regarding incidents involving the passing of forged checks. Chief McCarthy noticed that defendant had been drinking but had no problem "functioning." At the station, Chief McCarthy read defendant his Miranda rights from a form consisting of eight parts, each followed by a question asking defendant whether he understood the preceding part. Defendant's responses included comments such as, "That's right," "Not guilty," "Yeah, anytime," and "What do I want a lawyer for. No." Chief McCarthy described defendant's demeanor as "indifferent" and "cocky." Defendant acknowledged his responses by initialing the waiver form.

Defendant then gave a statement explaining his actions concerning the forged checks. After this statement was transcribed and signed, he became increasingly upset while explaining that the alleged victim, Philip Seymour, had not paid him for work previously performed. During the course of this conversation, defendant stated that "he would get even with [Mr. Seymour], he'd just burn his barn down." Although Chief McCarthy was taken aback by the comment, he did not alter the already transcribed statement to include the comment. Two weeks later, upon learning that Mr. Seymour's barn had burned down, he wrote out an affidavit concerning defendant's comment for Sergeant Bombardier of the state police, who was assigned to the fire investigation unit.

On New Year's Eve, December 31, 1989, Mr. Seymour's barn was destroyed by fire. Upon learning that defendant had made threatening statements about burning the barn and had been at the scene of the fire in an intoxicated state, Sergeant Bombardier decided to talk with defendant. On January 1, 1990, the day after the fire, the officer found defendant on Mr. Seymour's property, which was a violation of a prior court order. Sergeant Bombardier took defendant into custody and transported him to the state police barracks, where he read defendant his Miranda rights. Defendant responded to most of the questions by saying, "Yes. Not Guilty." Although he was aware that defendant had been drinking, Sergeant Bombardier believed that defendant understood his rights and was "playing head games" with his responses. Although defendant was willing to talk, he refused to sign the waiver form, saying, "Every time I sign something I get in trouble."

Following his refusal to sign the waiver form, defendant continued to answer in the affirmative when Sergeant Bombardier asked him if he understood his rights and wanted to talk. Defendant then provided a number of inconsistent versions of his whereabouts and actions on the night of the fire. Officer Bombardier wrote out a statement, which defendant signed. The statement indicated that on the night of the fire defendant saw one of Mr. Seymour's hired hands, who had threatened Mr. Seymour earlier in the day, walking from the barn two or three minutes before the fire began, carrying a red can. Shortly after defendant signed the statement, he submitted to an alcosensor test, which showed his blood-alcohol content to be .203%. He was then taken to the correctional center because he would neither agree to remain at the detoxification center voluntarily nor arrange to have someone pick him up.

On January 23, 1990, defendant was charged by information with first-degree arson. He remained in jail because of his failure to pay the $5000 cash bail. He filed motions to suppress in April and May of 1990, and a hearing on the motions was held on June 7, 1990. In October, defendant sought and was granted release into his mother's custody, subject to certain restrictions. On November 15, he was arrested for violating one of the conditions of release. He remained in jail for failure to pay the $1000 cash bail. On December 20, the trial court denied defendant's motions to suppress. A jury drawing was held a month later, but a mistrial was declared after jurors overheard defendant complain about having been in jail for a year. Another mistrial was declared on April 16, 1991 because the jurors had discussed the case prior to being brought into the courtroom.

On May 6, 1991, defendant filed a motion to dismiss for lack of a speedy trial. A hearing on the motion was set for July 15, but the hearing did not take place until September 10 because of two motions to continue by each of the parties. Defendant's motion to dismiss was denied, and the jury trial took place on October 9-10, 1991. Defendant was found guilty and sentenced on November 12, 1991 to four to ten years to serve. This appeal followed.

II.

Defendant first contends that his Miranda rights were not knowingly and intelligently waived because he was intoxicated on the two occasions when he made statements to the police. Defendant relies on the Miranda decision and other case law interpreting the federal constitution. Because the United States Supreme Court has held that "coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause of the Fourteenth Amendment," Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986), defendant's primary argument is that his waiver was not "knowing and intelligent." He also contends, however, that his statements were involuntary because they were taken by the police despite the fact that they knew he was drunk.

The State must prove by a preponderance of the evidence that a waiver of Miranda rights is voluntary, knowing, and intelligent. State v. Caron, 155 Vt. 492, 504, 586 A.2d 1127, 1134 (1990). The trial court must favor every reasonable presumption against a waiver of these rights, but it alone determines the weight and sufficiency of the evidence and the credibility of the witnesses. See State v. Stanislaw, 153 Vt. 517, 529, 573 A.2d 286, 293 (1990); State v. Malinowski, 148 Vt. 517, 520, 536 A.2d 921, 923 (1987). On appeal, we give great deference to the trial court's findings of a waiver under the totality of the circumstances. Stanislaw, 153 Vt. at 529, 573 A.2d at 293. We will uphold the court if its ruling is not clearly erroneous and is supported by credible evidence, even though evidence to the contrary exists. Id.

The question of whether Miranda rights have been validly waived must be determined on the particular facts and circumstances of each case, "including the background, experience and conduct" of the defendant. North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 1758, 60 L.Ed.2d 286 (1979); Malinowski, 148 Vt. at 522, 536 A.2d at 924. This totality-of-the-circumstances approach may include consideration of such factors as the defendant's experience with the police and familiarity with the warnings, in addition to the defendant's age, level of intelligence, level of education, reading ability, and physical and mental condition. See Malinowski, 148 Vt. at 522, 536 A.2d at 924; State v. Usry, 205 Conn. 298, 533 A.2d 212, 216 (1987). Intoxication is an important factor that bears on the waiver's validity, but it does not, of itself, require the conclusion that a waiver was invalid. Indeed, courts have generally not suppressed statements based solely on the defendant's claim of being under the influence of drugs or alcohol. See, e.g., State v. Norris, 244 Kan. 326, 768 P.2d 296, 302-03 (1989) (despite testimony that defendant had consumed half a case of beer and some whiskey before interrogation, defendant's responses and behavior indicated he made a valid waiver of his rights); Commonwealth v. Shipps, 399 Mass. 820, 507 N.E.2d 671, 676 (1987) (though defendant appeared glassy- eyed and smelled of alcohol during interrogation, he had no difficulty understanding what was said to him); see generally 1 W. LaFave & J. Israel, Criminal Procedure § 6.9, at 527 (1984) ("defendants have generally been unsuccessful in claiming that their Miranda waivers should be held invalid because they were either intoxicated or under the influence of drugs").

Here, defendant argues that his intoxicated state and inappropriate responses to questions concerning his understanding of his rights indicate that his waiver of those rights was not knowing or intelligent. We disagree. The only testimony presented at the suppression hearing was by the interrogating officers. Regarding the first interrogation prior to the fire, Chief McCarthy testified that, while it was apparent defendant had been drinking, he had no problem walking to the cruiser or getting in or out of the vehicle. He also testified that defendant's conversation "made sense." Defendant points...