State v. Mosher

• Decision Date: 07 June 1983
• Docket Number: No. 288-81,288-81
• Citation: 143 Vt. 197,465 A.2d 261
• Parties: STATE of Vermont v. William MOSHER.
• Court: Vermont Supreme Court

Page 261

465 A.2d 261

143 Vt. 197

STATE of Vermont v. William MOSHER.

No. 288-81.

Supreme Court of Vermont.

June 7, 1983.

John A. Rocray, Windham County State's Atty., and William E. Kraham, Deputy State's Atty., Brattleboro, for plaintiff-appellee.

Andrew B. Crane, Defender Gen., William A. Nelson, Appellate Defender, and Nancy E. Kaufman, Montpelier, for defendant-appellant.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

GIBSON, Justice.

Defendant was convicted after trial by jury of counseling burning to defraud an insurer, in violation of 13 V.S.A. § 506. He submits three issues on appeal: (1) that the trial court lacked jurisdiction, (2) that the trial court committed plain error in its jury charge, and (3) that the State violated defendant's rights against self-incrimination and to due process by introducing evidence of defendant's silence prior to his arrest, but following receipt of Miranda warnings and his execution of a waiver. We shall consider these issues in order.

In evaluating defendant's claims, we must view the evidence in the light most favorable to the State as the prevailing party below. State v. Billado, 141 Vt. 175, 189, 446 A.2d 778, 786 (1982). Thus considered, the evidence disclosed that in October of 1979 defendant was alleged to have arranged for two accomplices to take his 1975 Ford Pinto "and either smash it or burn it" in return for $150 or $200 from the insurance proceeds. The accomplices in turn approached a third person, who agreed to dispose of the car. However, his efforts were ill-starred, and ultimately, the two accomplices managed to take the car from defendant's workplace in Vermont and drive it to a secluded road which defendant had located in nearby New Hampshire where the destruction by burning was accomplished. Defendant reported to the police that his car had been stolen and filed a claim with his insurance carrier.

A few days later, the third person who had bungled his attempt confessed to police his involvement, and implicated the two accomplices who had succeeded. Those two in turn implicated the defendant and eventually testified against him, after being granted immunity from prosecution by state and federal authorities. Thus it happened that defendant, knowing nothing about the statements against him, voluntarily went to the Brattleboro police station in response to a police request. Without arresting him, the police read defendant the Miranda warnings, and defendant executed a waiver of his rights thereunder. When he was then confronted with evidence that his partners in crime had implicated him, defendant became upset, said he had to talk to somebody, and left.

I.

Defendant's first argument is that, under our holding in State v. Huginski, 139 Vt. 95, 422 A.2d 935 (1980), the trial court lacked jurisdiction over the offense charged. Defendant claims that since many of the arrangements and the actual burning took place in New Hampshire, the acts which did occur in Vermont did not constitute "counseling." 13 V.S.A. § 2 gives the courts of this state jurisdiction whenever "[a] person who, with intent to commit a crime, does an act within this state in execution or part execution of such intent, which culminates in the commission of a crime either within or without this state ...." In Huginski, the defendant made all the arrangements for the burning of his Vermont home in New York and Connecticut. No act of procuring or counseling was shown to have occurred in Vermont. Id. at 98, 422 A.2d at 937. Here, however, the initial arrangements for burning the car were made with the accomplices in Vermont. Moreover, defendant left his car with the keys in it and a note of instructions to his accomplices, at his Brattleboro, Vermont, worksite. Viewing the evidence in the light most favorable to the State, the trial court correctly exercised jurisdiction over the offense charged in the information.

II.

Defendant's second contention is that it was plain error to charge the jury that the State occupied a different position from that of a private party when it called a witness because of the State's duty to shed all light possible on the incident. In recent years, this Court has frequently reviewed similar instructions and has provided the trial bench and bar with guidelines in such cases. See, e.g., State v. Gates, 141 Vt. 562, 451 A.2d 1084 (1982); State v. Jaramillo, 140 Vt. 206, 209, 436 A.2d 757, 759 (1981); State v. St. Amour, 139 Vt. 99, 102-03, 422 A.2d 937, 939 (1980). In Gates, we held that trial courts may no longer instruct juries in this manner and that if the defense makes timely objection to such an instruction, failure by the court to correct the error will mandate reversal. State v. Gates, supra, 141 Vt. at 573, 451 A.2d at 1091. In the case now before us, defendant did not timely object to the instruction. Further, the trial court cautioned the jury about giving undue weight to State witnesses. Finally, the defendant has not demonstrated prejudice as a result of the potentially erroneous charge. With these factors in mind, we find that defendant has not met his burden of showing plain error as required by V.R.Cr.P. 52. Thus, he does not overcome his failure to object properly to the charge below.

III.

The third issue is whether the defendant's Fifth and Fourteenth Amendment rights were violated by the State's use of defendant's prearrest silence following receipt of Miranda warnings and the execution of a waiver. As noted above, defendant voluntarily went to the police station at police request, ostensibly to discuss matters relating to the "theft" of his car. Upon his arrival, he was read and subsequently waived his Miranda rights. Immediately thereafter, officers told defendant what they had found out from the accomplices. According to the officer's testimony during the State's case in chief, "[w]hen he found out what we had learned and why we wanted to talk to him, he just got up and said, 'I have got to talk to somebody.' And he walked out of the police station."

At trial, the court allowed over objection the prosecution's use of the above exchange, as well as the officer's observations that the defendant, when confronted, "seemed very upset--almost surprised, I think--he became very nervous." The defendant later chose to take the stand in his own defense, and testified on direct examination essentially in accordance with the above-quoted officer's testimony. On cross-examination, the state's attorney elicited testimony that defendant had not denied the accusations but merely said, "I got to talk to somebody" and left. Finally, during closing arguments, the State argued as follows:

If Mr. Mosher's testimony here today was the truth, why didn't he, ladies and gentlemen, why didn't he deny right then and there to [the officer] at the police station that it was a story that [the accomplices] had told, that it was a bunch of malarkey.

If that story is the same that he told his mother when he come [sic] home at two o'clock in the morning on the [day following the burning] ... why didn't he go in and tell the police the next day?

A.

Before reviewing defendant's claims of error, we must first dispose of a threshold inquiry. Although defendant initially waived his Miranda rights, it is beyond dispute that his subsequent actions effectively reasserted those rights. The State has the burden of proving "an intentional relinquishment or abandonment of a known right or privilege" and the courts must "indulge in every reasonable presumption against waiver." Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977). The fact that defendant clearly was under the misimpression that he had been asked to come to the police station regarding his complaint of a stolen car, and that he signed the Miranda waiver form while under that misimpression, casts considerable doubt on the effectiveness of the initial waiver.

In any event, "[i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966) (emphasis added). "Valuable rights are not lost through their inartful assertion ...." United States v. Crowder, 691 F.2d 280, 282 (6th Cir.1982). When defendant said, "I have got to talk to somebody," he was clearly indicating that he did not wish to discuss the accusations further. See id. at 282-83. The age of defendant, eighteen years old, his emotional and mental maturity, prior experience with police, his family environment and education all bear on the degree of sophistication needed to invoke successfully the Fifth Amendment. Fare v. Michael C., 442 U.S. 707, 725-26, 734 n. 4, 99 S.Ct. 2560, 2572, 2576 n. 4, 61 L.Ed.2d 197 (1979). We do not attach significance to defendant's failure to use the word "lawyer" in his request, particularly where, unlike the defendant in Fare v. Michael C., supra, defendant here did not know the true reason for his police-requested presence. Thus, we treat defendant's statement that he had to talk to "somebody" as an effective invocation of his right to remain silent. In light of the totality of the circumstances, the conduct of the eighteen-year-old defendant amounted to a revocation of his earlier waiver of his Miranda rights.

Thus, we have a situation where the prosecution used in its case in chief and during closing arguments (1) the fact of defendant's assertion of his Fifth Amendment rights, and (2) defendant's subsequent silence and his failure to provide an exculpatory explanation to law enforcement officers. In addition, the State chose to emphasize both defendant's silence and his unease and agitation after being accused during its closing argument and invited the jury to draw inferences from that silence.

B.

Although it would seem that the applicable law on the use of defendant's silence is well...