State v. Vargus, 75--236-C

• Decision Date: 22 April 1977
• Docket Number: No. 75--236-C,75--236-C
• Citation: 373 A.2d 150,118 R.I. 113
• Parties: STATE v. John E. VARGUS. A.
• Court: Rhode Island Supreme Court

Page 150

373 A.2d 150

118 R.I. 113

STATE v. John E. VARGUS.

No. 75--236-C.A.

Supreme Court of Rhode Island.

April 22, 1977.

[118 R.I. 133] Julius C. Michaelson, Atty. Gen., Judith Romney Wegner, Special Asst. Atty. Gen., for plaintiff.

William F. Reilly, Public Defender, Richard M. Casparian, Bruce G. Pollock, Asst. Public Defenders, for defendant.

OPINION

BEVILACQUA, Chief Justice.

On October 8, 1974, a jury found the defendant, John E. Vargus, guilty of four counts of robbery and possession of a stolen motor vehicle. At his trial in Superior Court, the defendant moved to suppress certain oral statements made by him to a Pawtucket police officer shortly after his arrest, contending that they were obtained in violation of his privilege against self-incrimination. In addition, the defendant moved for a voir dire examination of expert testimony concerning a microscopic hair comparison test that had been performed by a Special Agent of Federal Bureau of Investigation. The trial justice denied these motions and the defendant appeals.

The facts surrounding this case are not in dispute. On the morning of February 15, 1973, four men wearing dark ski masks robbed the Fairlawn Credit Union. One of the men, later identified as defendant Vargus, was wearing a dark blue trench coat according to the testimony of the tellers. After leaving the Credit Union, the four men escaped in a tan-colored automobile which was intercepted by a police vehicle approximately one block from the bank and shortly thereafter crashed into a panel truck. Four men alighted from the automobile and the pursuing police officer continued the chase of foot. At trial the officer testified that he observed a man with a blue three-quarter-length coat and dark trousers fleeing from the automobile and running up Hazel Street.

Meanwhile, another member of the Pawtucket Police Department, who had been alerted by radio broadcasts of the robbery, proceeded to the vicinity where the suspects were reported to be heading. Arriving at Hazel Street, the officer observed a man wearing a blue coat and lying in a prone position next to a wooden fence. The officer immediately stopped his car, got out, and proceeded to where the man lay. The officer ordered the man to stand up and informed him that he was under arrest as a suspect in connection with the robbery of the Fairlawn Credit Union. After defendant had been escorted back to the parked car the police initiated a cursory search for weapons, but none were found. At that point defendant was apprised of the warnings set out in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). When asked if he understood these warnings, defendant made no reply.

By now at least two other policemen had responded to the arresting officer's earlier call for assistance and were present at the scene. The defendant was placed in the custody of one of them, Officer Ryan, until he was transferred to a police vehicle for temporary detention. Officer Ryan then proceeded to join the officers who were searching for the other suspects. Before going, however, he had a 'second thought'; he returned to the police vehicle and asked defendant the following question: 'Before the parties get hurt, both police and your friends, could you tell me if they had weapons?' After hesitating, defendant replied, 'Yes, they do have.' The officer then asked him if he knew what kind of weapons they had, and defendant answered that he did not know. ¹ There was no other conversation between the two men.

A search of the escape vehicle produced a ski mask which was identified at trial as one of the masks used in the robbery. Testimony by a state witness, an expert in microscopic analysis, indicated that the hair remnants found in the mask, and samples of hair taken from defendant were microscopically alike and could have originated from the same man.

At trial, the essence of defendant's arguments in support of his motion to suppress was that, because of the atmosphere of compulsion surrounding his detention, any declaration made to Officer Ryan violated the prophylactic rule enunciated in Miranda v. Arizona, supra, and for that reason should not have been admitted into evidence. Replying to this argument, the trial justice concluded that defendant's declarations were made in response to defensively motivated questions which is not an interrogation in the sense contemplated in Miranda and, therefore, that decision was inapplicable. Even if it were, ² the trial justice felt that the proper procedural safeguards were adhered to: defendant had been apprised of his constitutional rights prior to being placed in the police vehicle-that is, just shortly before being questioned by Officer Ryan; and defendant gave no indication of his unwillingness to respond to the questions asked of him, in effect, waiving his right to remain silent.

We begin our analysis by recognizing that Miranda's exclusionary rule is aimed at preserving the individual's privilege against self-incrimination. Thus, procedural safeguards have been enunciated '* * * to assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process.' Miranda v. Arizona, supra at 469, 86 S.Ct. at 1625, 16 L.Ed.2d at 721. The issue presented by this aspect of defendant's appeal concerns itself with one or more of these safeguards: Whether the questioning initiated by Officer Ryan while defendant was in custody falls within the rubric of Miranda, and if so, whether defendant by his conduct and response waived his constitutional right to remain silent.

The Supreme Court enunciated the following guideline in this respect: 'By custodial interrogation we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' Miranda v. Arizona, supra at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. See Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969); Annot., 31 A.L.R.3d 565 (1970). Here defendant already had been placed under arrest, searched, and confined to a police vehicle for temporary detention.

The Miranda decision leaves little doubt in our minds that under these circumstances the statements elicited from defendant were the result of a custodial interrogation. United States v. Hatchel, 329 F.Supp. 113, 117 (D.Mass.1971); State v. Lawson, 285 N.C. 320, 324, 204 S.E.2d 843, 846 (1974); State v. Dakota, 300 Minn. 12, 17, 217 N.W.2d 748, 751-52 (1974). The state concedes in its brief that defendant was in custody. Nevertheless, it contends that because the questions were motivated by fears for the public safety and for the safety of the investigating officers they violate neither the letter nor the spirit of Miranda. We disagree.

The state cites a number of decisions from other jurisdictions in support of its contention. People v. Mullins, 188 Colo. 23, 532 P.2d 733 (1975); People v. Toler, 45 Mich.App. 156, 206 N.W.2d 253 (1973); State v. Lane, 77 Wash.2d 860, 467 P.2d 304 (1970); People v. Brown, 13 Ill.App.2d 244, 266 N.E.2d 131 (1970); Ballew v. State, 246 Ark. 1191, 441 S.W.2d 453 (1969). We note that the facts in the case before this court are distinguishable. In each of the cases cited by the state, the reviewing court upheld a limited right of an investigating officer to direct questions concerning the presence of dangerous weapons at suspects who posed an actual threat to the officer's immediate physical safety. No such immediate threat to the inquiring officer's physical safety was involved in the instant case. The defendant already had been searched and confined to a police vehicle. Realistically, he was no longer a dangerous risk to the public or other investigating officers.

The trial justice concluded that the examining officer was seeking only to '* * * (maximize) the safety of the police whose obligation it was to apprehend the other persons who were suspects in this robbery.' Nevertheless, we are not persuaded that his characterization of the officer's purpose in questioning defendant, initiated while defendant was in custody and posed no immediate threat to the officer or others nearby, suffices to remove it from the scope of Miranda. To do so would be to disregard the pressures generated by police custody which can create the impression that the suspect is obligated to answer any questions, a result the Miranda Court clearly was attempting to avoid. There is nothing in the language of that decision which would support the trial justice's ruling. On the contrary, in circumstances of this nature its mandate seems clear: When an individual is taken into custody and subjected to questioning, the privilege against self-incrimination is jeopardized. Miranda v. Arizona, supra, 384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at 726. Thus, it was error for the trial justice to conclude that Officer Ryan's questioning was not an interrogation within the meaning of Miranda.

Nothing we have just said, however, would prevent an officer from asking a suspect defensively motivated questions. But unless the proper procedural safeguards have been adhered to, information received as a result of that questioning will not be admitted into evidence. See State v. Hudson, 325 A.2d 56 (Me.1974).

Having so concluded we must now determine the merit of the trial justice's alternate holding that even if defendant's statements were the result of a custodial interrogation and Miranda applied, they were still admissible into evidence since he had voluntarily waived his right to remain silent. Our review of the record leads us to a contrary conclusion.

It is clear that in a case involving the validity of a defendant's decision to forego a right constitutionally guaranteed to protect a fair trial and the reliability of the truth-determining process, any alleged waiver must meet the strict standard of an intentional...