State v. Mecier

• Decision Date: 05 February 1980
• Docket Number: No. 88-79,88-79
• Citation: 412 A.2d 291,138 Vt. 149
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Richard D. MECIER.

Page 291

412 A.2d 291

138 Vt. 149

STATE of Vermont v. Richard D. MECIER.

No. 88-79.

Supreme Court of Vermont.

Feb. 5, 1980.

M. Jerome Diamond, Atty. Gen., and Susan R. Harritt, Asst. Atty. Gen., Montpelier, and P. Scott McGee, Lamoille County State's Attorney, Hyde Park, for plaintiff.

James L. Morse, Defender Gen., William A. Nelson, App. Defender, and Jacqueline Coates and Carol Smith, Law Clerks (on the brief), Montpelier, and Barry E. Griffith, Rutland County Public Defender, Rutland, for defendant.

Before BARNEY, C. J., DALEY, BILLINGS and HILL, JJ., and BRISTOW, District Judge, Specially Assigned.

BILLINGS, Justice.

This case arises as a result of the defendant-appellant's convictions on July 21, 1978, on two counts of aggravated assault for the shooting of his estranged wife and daughter on October 10, 1977, in Rutland, Vermont. The defendant did not contest the shootings, but raised the defense of insanity. He appeals claiming error, both in the pretrial proceedings and during trial.

The defendant claims error in the admission of certain tape recorded statements amounting to admissions made during the period of time after the shootings when the defendant left the scene of the crime and barricaded himself in his house. He alleges that the tapes were not properly authenticated and that there was a failure to account for their continuous custody.

During the three hours that the defendant was barricaded in his house, a deputy sheriff and several other persons spoke by telephone with the defendant urging him to surrender. These conversations were taped by the deputy sheriff. The deputy sheriff testified that he had custody of the tapes "most of the time," but that on two occasions he had left them at the state's attorney's office. The deputy did identify the tapes, however, as those he had made. In addition, he testified that he was familiar with and recognized the defendant's voice and that the tapes were continuous or unspliced despite several accountable gaps therein. There was no countervailing evidence that the tapes were inaccurate or that they had been tampered with.

As this Court has stated:

The test for a foundation for admissibility is not absolute certainty. It only requires that the evidence be of demonstrable relevance and of sufficient meaningful substance to be justifiably relied upon as a fact by the jury, rather than an insubstantial invitation to conjecture.

State v. Burack, 133 Vt. 482, 484, 346 A.2d 192, 194 (1975). See also State v. Ross, 130 Vt. 235, 240, 290 A.2d 38, 41 (1972). While there may be technical shortages in the proof of the chain of custody, this alone may not require exclusion of the evidence. State v. Robair, 133 Vt. 262, 264, 336 A.2d 183, 185 (1975).

Where the identity of the evidence is established, the evidence is generally admissible. State v. Lacaillade, 131 Vt. 161 163, 303 A.2d 131 (1973). The identification and authentication of the tapes is an issue to be ruled upon by the trial court on the basis of relevance and reasonable certainty. See State v. Ross, supra, 130 Vt. at 240, 290 A.2d at 41.

The tapes admitted below appear to have been identified with reasonable certainty. The circumstances of their preparation and custody may give rise to some doubts about their ultimate credibility, but the defects in proof here are such that a jury could have found the tapes believable for the accuracy of their contents beyond a reasonable doubt. The tapes are not a substantial invitation to conjecture. These defects of proof may affect the weight accorded the tapes, but do not control their admissibility. State v. Magoon, 128 Vt. 363, 367, 264 A.2d 779, 781 (1970).

The defendant next claims error on the ground that the tape recorded statements were inadmissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because they resulted from interrogation while the defendant was in custody and had not been warned of his right to remain silent. During the phone conversations, the defendant was barricaded in his own house with complete freedom of movement. He used his telephone to call persons other than the police and betrayed no signs that he felt his liberty restrained by the police.

The determination of whether the defendant was in custody focuses on the compulsive aspect of the interrogation. United States v. Caiello, 420 F.2d 471, 473 (2d Cir. 1969), cert. denied, 397 U.S. 1039, 90 S.Ct. 1358, 25 L.Ed.2d 650 (1970); State v. Hohman, 136 Vt. 341, 349, 392 A.2d 935, 940 (1978). As this Court stated in State v. Hohman, supra, "(t)he key question is whether the defendant could reasonably have believed he was not free to leave." Although the police surrounded the house as they were attempting to persuade the defendant to surrender, it cannot be said that he was in custody, State v. Lacaillade, supra, 131 Vt. at 164, 303 A.2d at 133, or that he had a reasonable belief that he was not free to avoid compulsive interrogation, State v. Hohman, supra. The fact that the police investigation was focusing on the defendant is relevant only to the extent that it "contributed to the defendant's reasonable belief that he could not leave." Id. Under the facts of this case, it does not appear that the conduct of the police contributed to the defendant's belief that he was in an inherently compelling atmosphere. Rather, the defendant appears to have "spontaneously and voluntarily initiated" the statements to the police. State v. Killary, 133 Vt. 604, 606, 349 A.2d 216, 217 (1975). Inasmuch as there was no custody, there was no constitutional obligation to give the defendant the Miranda warnings. State v. Howe, 136 Vt. 53, 59-60, 386 A.2d 1125, 1129 (1978).

The defendant further claims that the statements were erroneously admitted into evidence without a full and fair hearing as to their voluntariness. Prior to trial, a full hearing was held on defendant's motion to suppress with respect to the admissibility of these statements. The court made specific findings that the statements were voluntary. State v. Lapham, 135 Vt. 393, 400, 377 A.2d 249, 253 (1977). At trial the defendant renewed his motion before a new trial judge. The trial judge indicated that he had listened to the tapes, and without another hearing denied defendant's motion on voluntariness. Where the court below has made specific findings of voluntariness and "(u)nless it can be said as a matter of law that this decision on a preliminary question was wrong, it must stand." State v. Rocheleau, 131 Vt. 563, 574, 313 A.2d 33, 41 (1973). There was no error below.

The defendant also contends that the second judge should have reconsidered the issue of voluntariness at trial. The instant appeal does not present an appropriate case for a determination of the scope of the law of the case doctrine as a limitation on the power of coordinate trial judges to review each other's rulings in the same case below. Were this Court to have found the ruling of the first judge below on voluntariness in error, the propriety of coordinate review below might have been before this Court. It is not and we decline to rule on the issue.

The defendant contends that the State's cross-examination of the psychiatrist, called by the defendant to testify in support of the defense of insanity, elicited answers which violated the defendant's physician-patient privilege. 12 V.S.A. § 1612(a). Any admission made by defendant to his psychiatrist which tends to prove any element of the crime is privileged and cannot be introduced at a trial for that crime. State v. Hohman, supra, 136 Vt. at 345-46, 392 A.2d at 938; State v. Lapham, supra, 135 Vt. at 404, 377 A.2d at 255-56. The information elicited concerned a young girl whom the defendant thought was his illegitimate daughter, the fact that the defendant took nude pictures of the girl, the relationship between the defendant, his wife and the young girl, the defendant's desire to have his wife return home, and the amount of the defendant's alcoholic consumption immediately prior to the shootings. While the defendant asserts this violated the mandate of Hohman and Lapham because the evidence introduced was relevant to his motive for committing the offense, those cases are distinguishable from the case at bar. There the evidence bore directly on the essential elements of premeditation and malice. In the case at bar, the evidence did not directly bear on such essential elements of the crime alleged. 13 V.S.A. § 1024(a). The cross-examination here reached only the factual basis for the psychiatrist's opinion, an opinion which was based on only two interviews with the defendant. In order to attack the credibility of the doctor's opinion, the State elicited the factual basis of it and attempted to prove its inaccuracy. This cross-examination was a proper method of impeaching a psychiatrist's testimony. There was no violation of the physician-patient privilege.

It is also contended by the defendant that the trial court abused its discretion in permitting the State to inquire on rebuttal into the relationship between the defendant and the young girl whom he believed to have been his illegitimate daughter, including the fact that the defendant took nude pictures of the girl. Defendant claims this evidence was more prejudicial than probative. State v. Beyor, 129 Vt. 472, 473-74, 282 A.2d 819, 820 (1971). This line of inquiry was originally opened by the defendant during the testimony of the defendant's psychiatrist on the defense of insanity. The psychiatrist stated that her diagnosis was based in part on the defendant's relationship to the young girl and his preoccupation with that relationship. It was proper rebuttal to contradict this evidence by showing that the young girl was not the defendant's illegitimate daughter and that the psychological relationship between them was not paternal. This evidence did not go to the elements of the offenses charged here but rather...