State v. Provost

Decision Date23 December 2005
Docket NumberNo. 04-160.,04-160.
Citation2005 VT 134,896 A.2d 55
PartiesSTATE of Vermont v. Douglas PROVOST.
CourtVermont Supreme Court

William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.

Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.

Present: REIBER, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ., and GIBSON, J. (Ret.), Specially Assigned.

¶ 1. JOHNSON, J.

Defendant Douglas Provost appeals his conviction on four counts of first-degree murder and his sentence of four consecutive terms of life without parole. Defendant argues that the trial court erred by (1) failing to suppress defendant's statement to the police pursuant to the Public Defender Act; (2) permitting the State's medical expert to testify regarding matters outside the scope of the expert's report; and (3) enhancing his sentence to life without parole based on constitutionally impermissible factors. We affirm defendant's conviction, but we vacate his sentence. Defendant's sentence will be four terms of imprisonment for life with minimum terms of thirty-five years, to be served consecutively.

¶ 2. On Friday night, July 13, 2001, defendant shot and killed four people inside a house in Belvidere, Vermont. Mitchell Bishop, his wife, Melissa Bishop, and their two daughters, Angel and Jessica Bishop, lived in the house, along with Jessica's fiancé, George Weatherwax, and Angel's boyfriend, Christopher Bocash. Deric Davis, a local college student, and his girlfriend, Lauren Ursitti, lived in an apartment on the same property. At the time of the shooting, defendant, Mitchell Bishop, Melissa Bishop, and Deric Davis were sitting in the living room. Defendant was attempting to sell his handgun to Mitchell Bishop in exchange for cash and a bag of marijuana. When Mitchell Bishop refused defendant's offer, and everyone but defendant began to leave the room, defendant suddenly pointed his gun at the chest of Deric Davis and shot him at close range. Defendant then shot Mitchell Bishop. Melissa Bishop ran out the door. Jessica Bishop and George Weatherwax, who had been upstairs, came downstairs in response to the gunshots, and defendant shot them both. Defendant drove away in his car as Melissa Bishop arrived at a neighbor's house and called the police. Christopher Bocash heard the shootings and described them to the police when they arrived. Both Lauren Ursitti and Angel Bishop slept through the shootings.

¶ 3. Melissa Bishop described defendant's vehicle, which she had seen driving away from the scene on Route 109. A state police officer stopped defendant's vehicle on Route 109 and recorded his conversation with defendant, who denied any involvement with the shootings. The officer arrived at the Bishop home and showed the videotape to Melissa Bishop, who confirmed that defendant was the shooter. Police officers then went to defendant's home and observed it until the next morning, Saturday, July 14. When defendant's mother came outside, the officers asked her to ask defendant to step outside. When he did, the officers identified themselves and asked him to assist with an investigation, which he agreed to do. The officers then took defendant to the state police barracks in St. Albans.

¶ 4. After arriving at the barracks, defendant was advised of his Miranda rights, which he waived in writing. Between 8:30 a.m. and noon, the officers questioned defendant about the shootings. Defendant denied involvement with the shootings, then stopped answering the officers' questions. After continuing to ask defendant about the shootings without response for an extensive period, one of the officers stated that defendant appeared not to want to talk to them anymore, at which point defendant nodded. The officers ceased questioning defendant and placed him under arrest, whereupon defendant was taken to the correctional center in St. Albans. Later in the afternoon on the same day, officers approached defendant and asked if he had anything further to say, and defendant replied that he did not. Because it was a Saturday, the police also contacted Judge Burgess so that he could set bail by telephone pursuant to Vermont Rule of Criminal Procedure 5(b).1 Judge Burgess ordered defendant held without bail pending arraignment on Monday, July 16.

¶ 5. On Sunday, July 15, the day following defendant's arrest, the officers returned to the correctional center and asked to speak with defendant again. Defendant agreed to speak with the officers and signed a second waiver of his Miranda rights.2 During this interview, defendant admitted shooting all four victims. Defendant claimed that his gun fired accidentally and hit Deric Davis, and that he shot Mitchell Bishop in self-defense. Defendant said that he shot Jessica Bishop and George Weatherwax because he thought Deric Davis and Mitchell Bishop were still coming after him as he ran for the door. Prior to trial, defendant moved to suppress this statement, asserting violations of his rights under Miranda and the Public Defender Act. The trial court denied the motion, and the statement was admitted at trial. Defendant's eight-day jury trial included the statement and eyewitness testimony, as well as expert testimony as to whether the gun could have fired accidentally and whether the positioning of the victims' bodies was consistent with defendant's statement. The jury convicted defendant on four counts of murder in the first degree, and the trial court sentenced him to four consecutive terms of life without parole.

I.

¶ 6. Defendant first contends that the trial court erred in failing to suppress, pursuant to Vermont's Public Defender Act, the statement he gave on Sunday, July 15, the day after his arrest. Defendant argues that (1) the officers who detained and questioned him failed to contact a public defender on his behalf; and (2) Judge Burgess failed to inform defendant of his rights under the Act when he denied bail by telephone. We review de novo the trial court's conclusions of law on motions to suppress. State v. Rheaume, 2004 VT 35, ¶ 8, 176 Vt. 413, 853 A.2d 1259. We agree with the trial court's conclusions that defendant waived his right to have an attorney present during questioning and that this waiver was still in effect at the time he gave his statement.

¶ 7. Under the Public Defender Act, 13 V.S.A. §§ 5201-5277, needy individuals detained by law enforcement officers are entitled to have an attorney present during questioning. 13 V.S.A. § 5231(1). In addition,

[i]f the person detained or charged does not have an attorney and does not knowingly, voluntarily and intelligently waive his right to have an attorney when detained or charged, [law enforcement officers shall] notify the appropriate public defender that he is not so represented. This shall be done upon commencement of detention, formal charge, or post-conviction proceeding ....

Id. § 5234(a)(2). Section 5234(a)(2) required the officers to contact a public defender on defendant's behalf when he was detained unless he waived his right to counsel. Defendant concedes that he waived that right by signing a Miranda waiver prior to his interview with police on July 14, the morning after the shootings. A waiver of the right to counsel under Miranda also serves as a valid waiver of counsel under § 5234(a). State v. Caron, 155 Vt. 492, 510, 586 A.2d 1127, 1137-38 (1990). Section 5234(a), rather than establishing a set of substantive rights in addition to the Miranda right to have counsel present at questioning, "recognizes Miranda's concern for bad faith interrogation of individuals accused of a crime without the presence of counsel, and reflects this state's policy of securing for those individuals an immediate right to counsel." State v. Picknell, 142 Vt. 215, 224, 454 A.2d 711, 715 (1982). Defendant does not deny that he waived his right to counsel prior to the first interview. Instead, he argues that he revoked his Miranda waiver when he "became silent and verbally unresponsive" over the course of the first interview, then nodded when one of the officers stated that he appeared not to want to talk anymore. See Miranda, 384 U.S. at 473-74 86 S.Ct. 1602 ("If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease."). Defendant asserts that through this alleged revocation of his waiver of the right to remain silent, he also revoked his waiver of his Public Defender Act rights, which, in turn, required the officers to contact a public defender on his behalf.

¶ 8. Defendant's actions, however, even assuming they revoked his waiver of the right to remain silent, did not revoke his waiver of the right to counsel, and, therefore, did not implicate § 5234(a)(2). See Picknell, 142 Vt. at 224, 454 A.2d at 715 (identifying "securing ... an immediate right to counsel" as the purpose of § 5234(a), without mentioning the right to remain silent). 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 510, 586 A.2d at 1137-38, the question of whether defendant revoked his waiver of counsel is the same under Miranda and § 5234(a). For Miranda purposes, the United States Supreme Court has drawn a distinction between invocations of the right to remain silent and the right to counsel. See Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (holding that while police may reinitiate questioning after a detainee has asserted only the right to remain silent, an invocation of the right to counsel automatically ends all questioning until an attorney is present); ...

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22 cases
  • State v. Yoh
    • United States
    • Vermont Supreme Court
    • September 8, 2006
    ...We also consider appellant's challenge to his sentence, raised after oral argument in light of our recent decision in State v. Provost, 2005 VT 134, 179 Vt. ____, 896 A.2d 55, and we remand to the district court for ¶ 2. Appellant was convicted by a jury of first-degree murder in October 19......
  • State v. Garrymore
    • United States
    • Montana Supreme Court
    • October 2, 2006
    ... ...         ¶ 140 Garrymore cites a number of cases in his briefs and his notices of supplemental authority that reach a contrary result. These decisions, however, are distinguishable from the case at hand. State v. Provost, 896 A.2d 55 (Vt.2005), provides a typical example. In Provost, the statute at issue stated, in relevant part: ...         The punishment for murder in the first degree shall be imprisonment for life and for a minimum term of 35 years unless the court finds that there are aggravating ... ...
  • State v. Webster
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    • October 20, 2017
    ...by minimizing the "inherently compelling pressures" of "custodial questioning." See Miranda, 384 U.S. at 457, 467; State v. Provost, 2005 VT 134, ¶ 7, 179 Vt. 337, 896 A.2d 55 (acknowledging that PDA "recognizes Miranda's concern for bad faith interrogation of individuals accused of a crime......
  • State v. Maugaotega
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    ... ... Dilts, 337 Or. 645, 103 P.3d 95, 100-01 (2004) (declining to address the issue of empaneling a jury upon remand in order to allow the parties to develop arguments at the new sentencing hearing); State v. Provost, 179 Vt. 337, 896 A.2d 55, 66-67 (2005) ("declin[ing] ... 168 P.3d 581 ... to follow the example of those courts that have created their own sentencing procedures to replace legislative schemes held unconstitutional in the wake of Apprendi and Blakely "); State v. Hughes, 154 Wash.2d 118, ... ...
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