State v. McElreavy

• Court: Vermont Supreme Court
• Writing for the Court: Before ALLEN; GIBSON; PECK; MORSE
• Citation: State v. McElreavy, 595 A.2d 1332, 157 Vt. 18 (Vt. 1991)
• Decision Date: 07 June 1991
• Docket Number: No. 88-260,88-260
• Parties: STATE of Vermont v. Edward A. McELREAVY.

Page 1332

595 A.2d 1332

157 Vt. 18

STATE of Vermont v. Edward A. McELREAVY.

No. 88-260.

Supreme Court of Vermont.

June 7, 1991.

Jane Woodruff, Orleans County State's Atty., Newport, Gary Kessler and Rosemary Hull, Dept. of State's Attys., Montpelier, for plaintiff-appellee.

Robert Katims of Martin & Paolini, P.C., Barre, for defendant-appellant.

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

GIBSON, Justice.

Defendant appeals from a conviction after jury trial for arson, arguing a violation of Vermont constitutional guarantees against self-incrimination, improper failure of the trial court to suppress statements made in the absence of a Miranda warning, and certain errors during sentencing. We affirm.

I.

Defendant operated a restaurant as a lessee in a St. Johnsbury building in which a fire occurred on the night of September 24, 1986. When the firemen arrived, the door of the building was locked. Detective Richard Hall, a state fire investigator, arrived at the scene during the fire and noticed a petroleum odor, although the building was heated by propane. He testified that the evidence indicated a multiple-origin fire, which was consistent with arson. In the bar area of the restaurant, there was a melted plastic jug, and another jug in the kitchen inside a pail. Tests indicated that the liquid in the jugs was gasoline. Defendant, who was in the building when the fire began, had been seen emptying out jugs in the parking lot of a department store earlier that same evening. Plastic rings from gallon jugs found at the parking lot matched the jugs found at the scene of the fire. Inside a closet that was determined to be a separate point of origin, firemen found some burned debris on top of a plastic pail; the debris emitted a strong odor of petroleum.

Defendant testified that he had left the building after closing the restaurant prior to the fire, but returned to retrieve a forgotten money bag. He stated that a "ball of fire" emerged when he threw a breaker switch to turn on the lights. A witness who was driving by the restaurant at the time testified that he saw the entire dining area light up in flames, an account that was consistent with a gasoline fire, according to the testimony of the St. Johnsbury fire chief. Detective Hall questioned defendant at the scene of the fire. The trial court denied a motion to suppress testimony about that interview and also refused to suppress physical evidence seized at the scene immediately after the fire was extinguished.

Subsequent to the fire, defendant filed a claim with his fire insurance carrier seeking recovery of more than $11,000. Defendant's policy included a provision requiring him to submit to examination under oath in connection with any claim he might make. When the insurance carrier sought to depose defendant about his claim, it notified him that he would forfeit his claim if he failed to appear for the deposition. Shortly after notice of the deposition was given to defendant, the State filed its information against him. Defendant did not appear at the deposition or ever communicate, either directly or through a representative, with the insurance company or its attorney.

Prior to trial, the court denied defendant's motion in limine to exclude testimony that he had failed to appear for the civil deposition. After an eight-day trial, the jury returned a guilty verdict, and the present appeal followed.

II.

A.

Defendant argues that the State's comment on his failure to appear for the civil deposition violated his Vermont constitutional rights. He contends that Chapter I, Article 10 of the Vermont Constitution offers broader protection against self-incrimination than the United States Constitution, and urges this Court to follow Pennsylvania's lead and not " 'differentiate between situations where the right to remain silent is exercised following warnings and where it is exercised without warnings being given.' " Commonwealth v. Turner, 499 Pa. 579, 584, 454 A.2d 537, 540 (1982) (quoting Commonwealth v. Easley, 483 Pa. 337, 341-42 n. 5, 396 A.2d 1198, 1200-01 n. 5 (1979)).

We have previously held that Article 10 requires a timely assertion of the privilege against self-incrimination. In re Consolidated Rendering Co., 80 Vt. 55, 75-76, 66 A. 790, 798 (1907), aff'd, 207 U.S. 541, 28 S.Ct. 178, 52 L.Ed. 327 (1908); State v. Duncan, 78 Vt. 364, 370, 63 A. 225, 228 (1906). Our rule reflects the well-established federal rule that the privilege is not self-executing but, instead, must be timely asserted. See, e.g., Minnesota v. Murphy, 465 U.S. 420, 427, 104 S.Ct. 1136, 1142, 79 L.Ed.2d 409 (1984) (if a witness desires the protection of the privilege, he must claim it); Roberts v. United States, 445 U.S. 552, 559, 100 S.Ct. 1358, 1364, 63 L.Ed.2d 622 (1980) ("privilege may not be relied upon unless it is invoked in a timely fashion"). Defendant could have exercised his privilege at the civil deposition, even though it was not a criminal proceeding. See Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97 S.Ct. 2132, 2135, 53 L.Ed.2d 1 (1977).

Defendant, however, failed to appear for the deposition and, at the time, provided no explanation whatsoever. His silence does not constitute an assertion of the privilege. See United States v. Nabors, 707 F.2d 1294, 1299 (11th Cir.1983) (failure to respond to insurance company's request for information commented upon at defendant's criminal trial; court held that because privilege was not claimed at "the time of the silence, [defendant] could not claim it at trial"); Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir.1981) (privilege lost when defendant failed to object or respond in a timely manner to interrogatories). Defendant asserted the privilege for the first time in a pretrial motion in limine. By failing to assert the privilege in a timely manner in response to specific questions, defendant has prevented court review of his claim in the context of those questions. See In re Dewar, 102 Vt. 340, 345, 148 A. 489, 490 (1930) (legitimacy of witness's assertion of the privilege under Chapter I, Article 10 is determined by the court, not the witness); State v. Wood, 99 Vt. 490, 492-93, 134 A. 697, 698 (1926) (same); see also Roberts, 445 U.S. at 560 n. 7, 100 S.Ct. at 1364 n. 7 (same rule under federal constitution); Davis, 650 F.2d at 1160 ("blanket claim of privilege is simply not sufficient"). Accordingly, defendant may not now be heard to assert that the prosecutor's comment upon his failure to appear at the deposition violated his privilege.

B.

Defendant also contends that this evidence should not have been admitted because it was irrelevant, relying on State v. Benneig, 146 Vt. 391, 397-98, 505 A.2d 1192, 1196-97 (1985) (citing People v. Diaz, 98 Mich.App. 675, 684, 296 N.W.2d 337, 341 (1980)). In Benneig, we affirmed the trial court's ruling that barred comment by counsel on a witness's assertion at trial of his privilege. In contrast, the instant case involves use of defendant's silence. We note that Benneig relies on Michigan case law, which distinguishes between use of a defendant's silence and a witness's assertion of the privilege. Compare People v. Cetlinski, 435 Mich. 742, 760, 460 N.W.2d 534, 542-43 (1990) (prearrest pre-Miranda "nonverbal conduct by a defendant, a failure to come forward, is relevant and probative for impeachment purposes when the court determines that it would have been 'natural' for the person to have come forward with the exculpatory information under the circumstances"), with People v. Dyer, 425 Mich. 572, 581, 390 N.W.2d 645, 650 (1986) (" 'As a matter of public policy, we believe the exercise of a witness's constitutional right to remain silent should not be used as evidence to support an inference for either side.' ") (quoting Diaz, 98 Mich.App. at 684, 296 N.W.2d at 341). ^* Thus, the rule expressed in Benneig is not strictly applicable herein.

Further, the posture of the instant case is significantly different from that in Benneig. In Benneig, we affirmed the trial court's ruling to exclude comment during final argument. In contrast, defendant seeks reversal of an evidentiary ruling. The trial judge has broad discretion in determining whether evidence is relevant. State v. Derouchie, 153 Vt. 29, 34, 568 A.2d 416, 418 (1989). Additionally, whether the " 'probative value is substantially outweighed by the danger of unfair prejudice' " is also left to the trial court's discretion. Id. (quoting V.R.E. 403). In making Rule 403 determinations, the trial judge has substantial discretion and, absent an abuse of discretion, will not be overruled. State v. Callahan, 155 Vt. 571, ----, 587 A.2d 970, 973 (1991). " 'To support a claim of abuse of discretion, defendant must show that the court's discretion was either totally withheld or exercised on grounds clearly untenable or unreasonable.' " State v. Parker, 149 Vt. 393, 401, 545 A.2d 512, 517 (1988) (quoting State v. Dorn, 145 Vt. 606, 616, 496 A.2d 451, 457 (1985)). "This burden is a heavy one and often difficult to satisfy; nevertheless, it has always been the standard." Id.

In the instant case, the state's attorney argued before the trial court that "for someone to throw away a claim worth $11,000 needs some explanation, and I can't think of any explanation other than he didn't want to talk about this fire because he did it." Defendant argued that the evidence was not relevant and that, in any event, pursuant to V.R.E. 403, it should be excluded. The trial court ruled that the proffered testimony was "not insolubly ambiguous," that a "jury could reasonably draw some inferences" from it, and that under "the unique factual situation here" the evidence was admissible.

Defendant's failure to attend the deposition may well have some probative value under a consciousness-of-guilt theory. See Gainer v. State, 553 So.2d 673, 683 (Ala.Crim.App.1989) (defendant's failure to attend a civil deposition held admissible in a...