State v. Parizo, 91-264
| Docket Nº | No. 91-264 |
| Citation | 163 Vt. 103, 655 A.2d 716 |
| Case Date | December 23, 1994 |
| Court | United States State Supreme Court of Vermont |
Page 716
v.
Charles D. PARIZO.
[163 Vt. 104] Scot Kline, Chittenden County State's Atty., and Pamela Hall Johnson, Deputy State's Atty., Burlington, for plaintiff-appellee.
Charles S. Martin and James Teixteira, Law Clerk (On the Brief), of Martin & Paolini, Barre, for defendant-appellant.
Page 717
Before ALLEN, C.J., GIBSON, DOOLEY, MORSE and JOHNSON, JJ.
GIBSON, Justice.
Defendant Charles Parizo challenges his conviction for attempted murder, alleging that he had a constitutional right to counsel at a preindictment lineup; that the Vermont public defender statute required the state to provide him with counsel at the lineup; that the nontestimonial identification order requiring his presence at the lineup did not conform to law; and that the court committed reversible error in failing to instruct the jury on a lesser-included charge of aggravated assault. * We affirm.
[163 Vt. 105] On October 8, 1986, a parking garage attendant in Burlington was shot by a man he and others were pursuing following a purse-snatching incident. On September 29, 1989, defendant was served with a nontestimonial identification order to appear for a lineup and voice identification in connection with the shooting. See V.R.Cr.P. 41.1 (setting forth procedures for obtaining such order). Defendant was incarcerated on an unrelated charge at the time. He attempted to secure an attorney to represent him at the lineup, but was unable to do so. Although the police routinely allow attorneys to be present at such lineups, defendant did not repeat his request for counsel at the time of his appearance, and none was present on his behalf. Three witnesses identified defendant, who was then charged with attempted murder. Defendant moved to suppress testimony obtained as a result of the lineup, but the court denied the motion. Subsequently, defendant was convicted by a jury, and this appeal followed.
Defendant contends that Chapter I, Article 10 of the Vermont Constitution entitled him to counsel at the preindictment lineup. That provision states, in relevant part, "[t]hat in all prosecutions for criminal offenses, a person hath a right to be heard by himself and his counsel." Vt. Const. ch. I, art. 10. In denying defendant's motion to suppress, the trial court stated, "Like its federal counterpart, the Vermont Constitution's right to counsel is premised on there being a 'criminal prosecution.' " We agree that a preindictment lineup is not the equivalent of a criminal prosecution and does not trigger a right to counsel under the Vermont Constitution.
At the time of the lineup, defendant had not been arrested for or charged with any offense connected with the crime that was being investigated. Reasonable grounds supporting a nontestimonial identification order need not amount to the probable cause necessary to justify an arrest. V.R.Cr.P. 41.1(c)(2). Under the federal constitution, the right to counsel only attaches at or after the time adversary judicial proceedings have been initiated--whether by way of formal charges, preliminary hearing, indictment, information or arraignment. See Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S.Ct. 1877, 1881-82, 32 L.Ed.2d 411 (1972) (plurality opinion). Nevertheless, defendant urges us to conclude that protections under the Vermont Constitution are broader than those afforded by the federal constitution. Defendant points to the words, "a person [163 Vt. 106] hath a right to be heard by himself and his counsel." Vt. Const. ch. I, art. 10. In focusing on these words, however, defendant ignores the preceding phrase in the same sentence: "in all prosecutions." Id. (emphasis added). At the time of the lineup, no prosecution had yet commenced.
Defendant cites to jurisdictions that have held that their state constitutions entitle a defendant to counsel at a preindictment lineup. See, e.g., Blue v. State, 558 P.2d 636, 640-41 (Alaska 1977); People v. Bustamante, 30 Cal.3d 88, 177 Cal.Rptr. 576, 585, 634 P.2d 927, 935-36 (1981). We have followed the United States Supreme Court, however, in holding that the right to counsel attaches "upon formal charge, preliminary hearing, indictment, information or arraignment, because these mark the beginnings of a criminal proceeding." State v. Smith, 140 Vt. 247,
Page 718
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State v. Senn, No. 15–0624.
...of his right to counsel”), abrogated on other grounds by State v. Saylor, 117 S.W.3d 239, 245–46 (Tenn.2003) ; State v. Parizo, 163 Vt. 103, 655 A.2d 716, 717 (1994) (holding that the state constitutional right to counsel does not attach until there is a “criminal prosecution” as contemplat......
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Com. v. Arroyo
...431 (N.C.1998); State v. Stephenson, 878 S.W.2d 530 (Tenn.1994); Poullard v. State, 833 S.W.2d 270 (Tex.Ct.App.1992); State v. Parizo, 163 Vt. 103, 655 A.2d 716 (Vt.1994); State v. Earls, 116 Wash.2d 364, 805 P.2d 211 (Wash.1991); State v. Legursky, 195 W.Va. 435, 465 S.E.2d 892 (W.Va.1995)......
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State v. Provost, No. 04-160.
...Because the Public Defender Act provides "no greater right to counsel to a needy person than to any other individual," State v. Parizo, 163 Vt. 103, 107, 655 A.2d 716, 718 (1994), and a valid waiver of counsel under Miranda also waives a detainee's rights under § 5234(a), Caron, 155 Vt. at ......
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State v. Stevens, No. 01-465.
...435, 479 A.2d 757, 762 (1984) (Court will ordinarily not hear objection to sentencing raised for first time on appeal); State v. Parizo, 163 Vt. 103, 108, 655 A.2d 716, 719 (1994) (Court declines to address claimed error in jury charge where defendant failed to object after charge was given......
-
State v. Senn, No. 15–0624.
...of his right to counsel”), abrogated on other grounds by State v. Saylor, 117 S.W.3d 239, 245–46 (Tenn.2003) ; State v. Parizo, 163 Vt. 103, 655 A.2d 716, 717 (1994) (holding that the state constitutional right to counsel does not attach until there is a “criminal prosecution” as contemplat......
-
Com. v. Arroyo
...431 (N.C.1998); State v. Stephenson, 878 S.W.2d 530 (Tenn.1994); Poullard v. State, 833 S.W.2d 270 (Tex.Ct.App.1992); State v. Parizo, 163 Vt. 103, 655 A.2d 716 (Vt.1994); State v. Earls, 116 Wash.2d 364, 805 P.2d 211 (Wash.1991); State v. Legursky, 195 W.Va. 435, 465 S.E.2d 892 (W.Va.1995)......
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State v. Provost, No. 04-160.
...Because the Public Defender Act provides "no greater right to counsel to a needy person than to any other individual," State v. Parizo, 163 Vt. 103, 107, 655 A.2d 716, 718 (1994), and a valid waiver of counsel under Miranda also waives a detainee's rights under § 5234(a), Caron, 155 Vt. at ......
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State v. Stevens, No. 01-465.
...435, 479 A.2d 757, 762 (1984) (Court will ordinarily not hear objection to sentencing raised for first time on appeal); State v. Parizo, 163 Vt. 103, 108, 655 A.2d 716, 719 (1994) (Court declines to address claimed error in jury charge where defendant failed to object after charge was given......