State v. Smith, 81-80

Decision Date22 September 1981
Docket NumberNo. 81-80,81-80
Citation140 Vt. 247,437 A.2d 1093
CourtVermont Supreme Court
PartiesSTATE of Vermont v. Richard SMITH a/k/a Kevin West.

Michael J. Sheehan, Windsor County State's Atty., White River Junction, for plaintiff.

Valsangiacomo & Detora, P. C., Barre, for defendant.

Before BARNEY, C. J., and LARROW, BILLINGS, HILL and UNDERWOOD, JJ.

HILL, Justice.

Defendant appeals a conviction for rape of a sixteen year old woman under 13 V.S.A. § 3201 (1974), 1 and murder of an eight year old child under 13 V.S.A. § 2301. He was sentenced to life imprisonment for murder in the first degree and for a period not to exceed twenty years in connection with his conviction for the offense of rape. We review this case for a second time, an earlier conviction having been reversed on grounds that the lower court improperly curtailed evidence directed toward establishing an insanity defense. State v. Smith, 136 Vt. 520, 525, 396 A.2d 126, 128 (1978).

Defendant has been institutionalized in prison and in hospitals on and off since childhood. State and defense psychiatrists concur that defendant is mentally ill. Defendant's mental condition at the time of the offense was the critical issue both at the original trial and at the retrial.

A recounting of the facts of the crimes in unnecessary, as they were adequately recited in our earlier opinion. See id. at 522-53, 396 A.2d at 127. Certain aspects of defendant's history and of the detention by police after the crimes, however, lend perspective to the claims presented on appeal and will be detailed in conjunction with our review of those claims.

I.

Identification of defendant was not an issue at trial. Defendant knew the eight year old's mother and, due to an earlier phone conversation, had learned the boy was alone with a baby sitter on the night the crime was committed. Under the pretext of borrowing some phonograph records owned by the mother, defendant identified himself as Kevin West and gained entrance into the house. Ample evidence was presented at trial that defendant used both the name Kevin West and Richard Smith. In addition to learning defendant's name, the baby sitter spent almost an hour with defendant and gave police a complete physical description. When the victim took the stand at trial and was asked to identify defendant, defense counsel stipulated that she pointed to Richard Smith.

During the night of the crimes, both defendant and the rape victim spent time at the Windsor police station, the former having been placed in custody and the latter to give police a statement. The victim was asked if she could identify defendant, whereupon she was led to the room where defendant was being held. An officer opened the door to the room and the victim responded, "(t)hat's him." Three policemen who were present testified about that scenario at trial.

Before that event, defendant had requested counsel and refused to answer any questions. Defendant's attorney, however, had not yet arrived. Defendant claims that testimony concerning the one-to-one, out-of-court show up was inadmissible hearsay and, further, violated his right to counsel and due process rights.

Since United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), courts have struggled to determine when an accused's right to counsel attaches. The Wade Court's ruling that the right accrues "where counsel's absence might derogate from the accused's right to a fair trial," id. at 226, 87 S.Ct. at 1931 (footnote omitted), has been interpreted to mean a defendant must be given full Sixth Amendment rights when a "critical stage of the prosecution" has been reached. See United States v. Derring, 592 F.2d 1003, 1006 n.4 (8th Cir. 1979). Such a stage is reached upon formal charge, preliminary hearing, indictment, information or arraignment, because these mark the beginnings of a criminal proceedings. Kirby v. Illinois, 406 U.S. 682, 688-89, 92 S.Ct. 1877, 1881-82, 32 L.Ed.2d 411 (1972) (plurality opinion). See also Moore v. Illinois, 434 U.S. 220, 228-29, 98 S.Ct. 458, 464-65, 54 L.Ed.2d 424 (1977); United States ex rel. Gray v. New York State Board of Parole, 416 F.Supp. 823, 829 (S.D.N.Y.1976). Since identification of defendant here occurred before a critical stage of the prosecution was reached, as defined by the above decisions, there was no denial of the accused's right to counsel.

Defendant's alternative claim is that the confrontation as conducted was so unnecessarily suggestive and prejudicial that he was denied due process. The practice of one-to-one show ups "has been widely condemned." Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). However, a due process claim must be viewed in "the totality of the circumstances surrounding (the identification)," id., keeping in mind that the primary evil to be avoided is "a very substantial likelihood of irreparable misidentification," Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).

The United States Supreme Court has elucidated factors to be considered in determining whether an identification is reliable even though the confrontation may have been suggestive. "(T)he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation." Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972).

Reliability being "the linchpin in determining the admissibility of identification testimony," Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977), it is difficult to imagine a more trustworthy set of circumstances than the one presented by the case before us. See State v. Girouard, 135 Vt. 123, 134-35, 373 A.2d 836, 843-44 (1977).

Defendant's final challenge to the testimony relating to the pretrial identification hinges on the trial court's interpretation of hearsay evidentiary rules. The witness testified and was available for cross-examination. Defendant admits that the court's reliance on Federal Rule of Evidence 801(d)(1)(C), defining as "non-hearsay" the statements of a witness relating to a pretrial identification, is technically correct, see United States v. Moskowitz, 581 F.2d 14, 21 (2d Cir.), cert. denied, 439 U.S. 871, 99 S.Ct. 204, 58 L.Ed.2d 184 (1978), but contends that the testimony in the case at bar exceeded the limits outlined by this Court. While we did specify in State v. Unwin, 139 Vt. 186, 191, 424 A.2d 251, 254 (1980), that "an out-of-court identification may so unnecessarily suggest the guilt of the suspect that the admission of testimony relating to the identification may be prejudicial," our examination above of defendant's due process claim clearly indicates that the alleged prejudice is not present here.

II.

Defendant contends that certain statements he made to police officers at the station house on the night of the crime should have been excluded from evidence as violative of his Fifth and Sixth Amendment protections.

Defendant was given his Miranda warnings after being transported to the Windsor police station for questioning. He was placed in a small room and held, constantly in the presence of several officers, for a number of hours. Defendant indicated that he did not wish to answer questions without his attorney present and requested his foster parents to contact a lawyer. After that communication, defendant was asked only one question, how old he was. Defendant responded with a "flippant" answer. Defendant subsequently expressed a desire for some law books and discussed the possible penalty for murder. During these remarks defendant stated, "Jesus Christ, you'd think I'd killed the President of the United States."

Defendant filed a pretrial motion to suppress all statements made at the station house before counsel arrived. There was no dispute that defendant was in custody and had requested counsel.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), held that once an accused in custody has requested assistance of counsel, all interrogation must be halted until counsel is present. Id. at 474, 86 S.Ct. at 1627. Miranda, however, does not mandate an exclusion of all statements made subsequent to a request for counsel. "Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated." Id. at 478, 86 S.Ct. at 1629.

In light of these principles, the lower court excluded defendant's answer to the apparently routine question concerning his age, reasoning that age in this case is an element of the crime of rape. See 13 V.S.A. § 3201 (1974) (repealed 1977). The court, however, allowed admission of defendant's statement referring to killing the President, holding that it was voluntarily made and probative of defendant's mental condition shortly after the crime was committed.

Defendant claims that police procedures were so inherently coercive as to preclude the finding that the statement was volunteered. He also contends that the statement was not sufficiently attenuated from the earlier question about his age which the lower court excluded as being violative of the Sixth Amendment, to conclude that it was voluntarily offered.

The Miranda protections from coercive custodial interrogation refer not only to express questioning, but to any police actions reasonably likely to elicit an incriminating response from a suspect. Rhode Island v. Innis, ...

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  • State v. Barron
    • United States
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