State v. Cleary
Annotate this Case
STATE_V_CLEARY.91-569; 161 Vt. 102; 641 A.2d 102
[Filed 28-Feb-1994]
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.
No. 91-569
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 3, Lamoille Circuit
Donald Cleary October Term, 1992
Shireen Avis Fisher, J. (competency) and John P. Meaker, J. (motion to
suppress)
Joel Page, Lamoille County State's Attorney, Hyde Park, for plaintiff-
appellee
Charles S. Martin and Helena Quinn, Law Clerk, of Martin & Paolini, Barre,
for defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
MORSE, J. Defendant pled guilty to charges of unlawful trespass,
simple assault, and attempted sexual assault. He now appeals the order
declaring him competent to stand trial on grounds that the judge making that
ruling had a conflict of interest. He additionally appeals the denial of
his motion to suppress his confession on the ground that he waived his
Miranda rights. We affirm.
Defendant forced his way into a home in Wolcott, struggled with the
occupant, held her at gun point, and fled. About an hour later, an
investigator from the Lamoille state's attorney's office and a sergeant from
the Lamoille sheriff's department stopped defendant as he was driving his
truck in Wolcott because he fit the general description of the assailant.
The sergeant read defendant his Miranda rights twice, and defendant signed a
statement purporting to waive those rights. Defendant then confessed,
admitting that he had entered the victim's house and accosted her, and that
he had intended to rape her. At arraignment, Judge Fisher asked defendant
if she had ever represented him as his public defender, and defendant's
attorney responded that "he doesn't think so." Judge Fisher presided at a
subsequent competency hearing and, after two days of testimony, found
defendant competent to stand trial. Shortly thereafter, based on discovery
of a 1983 docket sheet indicating that Judge Fisher had been assigned to
represent him on a misdemeanor unlawful trespass charge, defendant moved for
her recusal and requested her to strike the competency order. Judge Fisher
recused herself from future proceedings, but declined to strike her
competency order, stating that she had not recollected representing
defendant when she heard and decided the competency issue.
Later, Judge Meaker heard and denied defendant's motion to suppress the
statements given to the investigator on grounds that defendant had not
intelligently and voluntarily waived his Miranda rights. Thereafter,
defendant pled nolo contendere to the three charges under V.R.Cr.P.
11(a)(2), reserving the right to appeal the competency determination, the
denial of the motion to strike the competency determination based on Judge
Fisher's 1983 representation of defendant, and the denial of the Miranda
waiver suppression motion.
Defendant's claim that Judge Fisher should have struck the competency
order when she discovered, after issuing the order, that she had represented
defendant in 1983 is not cause for reversal. Canon 3C(2)(a) of the Code of
Judicial Conduct, A.O. 10, states:
A judge shall disqualify [herself] in a proceeding in
which [she] has a personal bias or prejudice concerning
a party, or personal knowledge of disputed evidentiary
facts concerning the proceeding.
Judge Fisher stated plainly that she had "no recollection of any prior
representation, at the time of hearing and deciding the competency issue, or
at the present time." Defendant has made no showing that the judge's recol-
lection was faulty or that her former representation actually caused bias or
prejudice against him in the present case. See Cliche v. Fair, 145 Vt. 258,
262, 487 A.2d 145, 148 (1984) (one seeking judicial qualification must
clearly and affirmatively show bias or prejudice). Defendant was alerted to
the issue ahead of time and made no objection. When he did object,
defendant did not show any reason why a motion to recuse was not forth-
coming before the competency issue was resolved. Nor did he show any
actual harm. Under these circumstances, it would have been prejudicial to
the State and the orderly and efficient functioning of court proceedings for
Judge Fisher to have vacated her competency ruling.
Defendant next argues that Judge Meaker's finding that defendant
sufficiently understood the consequences of waiving his Miranda rights was
erroneous. He bases this contention solely on the uncontradicted testimony
of the expert witness, a psychiatrist, who stated that defendant, who is
mildly retarded, lacked the mental ability to understand the consequences of
a waiver. Waiver and defendant's competence to waive rights are legal, not
psychological, concepts, and the judge, not an expert witness, is the
ultimate decision maker on these issues. On appeal, "the trial court's
findings [on waiver] must stand if they are supported by substantial
credible evidence and are not clearly erroneous." State v. Malinowski, 148
Vt. 517, 520, 536 A.2d 921, 923 (1987).
Moreover, the expert witness was not the sole basis for the court's
determination. Rather, a waiver analysis requires a "'totality-of-the-
circumstances approach," which
permits -- indeed, it mandates -- inquiry into all the
circumstances surrounding the interrogation. This
includes evaluation of [defendant's] age, experience,
education, background, and intelligence, and into
whether he has the capacity to understand the warnings
given him, the nature of his Fifth Amendment rights, and
the consequences of waiving those rights.
Id. (quoting Fare v. Michael C., 442 U.S. 707, 725 (1979)). Defendant's
mental retardation does not by itself require a finding that he was unable
to understand his rights. See Dunkins v. Thigpen, 854 F.2d 394, 399-400
(11th Cir. 1988) (high mild range of retardation); Segerstrom v. State, 783 S.W.2d 847, 850 (Ark. 1990) (IQ of 77 and mental age of six years and four
months); State v. Toste, 504 A.2d 1036, 1041 (Conn. 1986) (fairly low IQ,
operating at sixth- or seventh-grade level); People v. Williams, 62 N.Y.2d 285, 287, 290, 465 N.E.2d 327, 328-29 (1984) (borderline mentally retarded);
State v. Parsons, 381 S.E.2d 246, 249-50 (W. Va. 1989) (IQ of 75, borderline
intelligence). Rather, it is simply another circumstance, albeit a highly
significant one, to be considered among all the others. Suppression of
evidence is warranted only if defendant's impairment is shown to have
interfered with his ability to exercise his rights in the particular
circumstances of the interrogation. See State v. Austin, 155 Vt. 531, 537,
586 A.2d 545, 548 (1990) (suppression not warranted when defendant proved
that he had a hearing impairment but not that the impairment "in any way
intervened to taint the fruits of his interrogation").
At the beginning of the suppression hearing, the State asked the court
to take judicial notice of Judge Fisher's findings and order on defendant's
competence to stand trial. Defendant's counsel stated that she did not
object, nor did she ultimately appeal the substance of Judge Fisher's
ruling. Judge Fisher's findings provide the context necessary for
understanding defendant's background. Judge Fisher noted that defendant had
four prior encounters with the criminal justice system: unlawful trespass in
1983, second-degree arson in 1987, second-degree arson again in 1988, and
attempted sexual assault and unlawful trespass in 1989. All these charges
were ultimately dismissed. Judge Fisher noted that Judge Kilburn had
previously found defendant incompetent to stand trial on the two arson
charges.
Judge Fisher found that defendant had attended school through the
eleventh grade and had limited ability to read, write, and do mathematics.
He had also participated in programs for mentally retarded adults and con-
tinued to actively work with two counsellors. She stated that defendant,
"in spite of his intellectual limitations, has the ability to learn and puts
his learning to practical use." For example, defendant had operated his own
logging business for seven years. He purchased and maintained equipment for
the business and had negotiated bank loans, timber contracts, and truck
transportation for his timber. He had also demonstrated an ability to farm
and had run a beef cattle operation while its owner was hospitalized.
Defendant possessed other practical skills: he had a driver's license,
maintained a vehicle, was knowledgeable about how it worked, and purchased
parts for it.
Judge Fisher found that defendant's capacity to learn extended to the
legal system, that his understanding of the court adversarial process had
improved since 1988 when he was found incompetent. In particular, she found
that he was better able to comprehend those concepts he had previously
encountered -- his fifth and sixth amendment rights, the function of his
defense counsel, the role of the prosecutor, and that his actions had
criminal consequence.
The expert at the suppression hearing before Judge Meaker, Dr. Robert
Linder, had evaluated defendant several times in connection with the prior
charges. He stated that defendant had an IQ of 65, which translated into a
mental age between ten and twelve, and only a limited ability to read and
write. Dr. Linder testified that defendant had difficulty thinking
abstractly and anticipating future events, which, the doctor concluded,
would limit his ability to comprehend the language of the Miranda warnings.
He conceded, however, that the Miranda language was partly concrete and
partly abstract and that defendant could understand much of the language,
for example, that he did not have to talk to the police, that he could speak
with an attorney if he wished, and that he could stop answering questions
whenever he choose.
Dr. Linder further testified that defendant might have difficulty
understanding the legal impact of exercising his rights. The court
questioned him extensively on the level of abstraction at which defendant
could understand consequences, and Dr. Linder stated this would depend on
the complexity of the factual situation. Under cross-examination, he
conceded that defendant had undergone a learning process through his prior
contacts with the police and court system -- defendant had previously been
questioned in the arson and sexual assault investigations -- and that he
understood more now than he had on those prior occasions, for example, that
he knew the prosecutor sought to put him in jail and that he could be
punished for what he had done. Finally, on cross-examination, Dr. Linder
further conceded that defendant could understand some of the more abstract
legal concepts, if on a somewhat rudimentary level:
State: Wouldn't it be fair to say that, at the very
least, he would know that [his statements could
be] "used against [him]" means that he could end
up in court -- in this room as he has been on
numerous previous occasions and that he could
end up in jail punished, as he puts it?
Expert: I guess the answer -- That's a lot of different
conditions, but I guess to the degree that he
can think about this in his more simple terms,
yes.
Thus, Dr. Linder's testimony was at best equivocal on what defendant
could understand about waiver. He certainly established that there were
limits to defendant's understanding, but his testimony nevertheless showed
defendant understood that he was in an adversarial process, understood the
basic mechanics of waiver, and was capable of better extrapolating some
consequences of his actions based on prior contacts with the legal system.
In this case, the trial court considered the expert testimony but also
took additional testimony from a number of other witnesses, including
defendant himself. Citing Malinowski, the court noted that it must look at
the totality of the circumstances in determining that defendant voluntarily,
knowingly and intelligently waived his Miranda rights. It also noted that
there was no standardized testing capable of determining with certainty that
defendant had the capacity to "understand something" of legal significance
and acknowledged that its decision was somewhat "a subjective judgment
call." The court added:
I must say at the outset that in this case [the test] is
not an easy [one] to apply . . . because we have a
defendant who has a slight mental retardation, and that
complicates the matter.
The court then weighed defendant's intelligence, along with his age, employ-
ment, education, and background. It also noted defendant's responses in the
courtroom:
The Court has observed the defendant in the course of
his own testimony. He would respond quickly to ques-
tions when he understood the question and knew what the
answer was. There were some questions he didn't under-
stand. That's not to suggest it was his fault. This
legal process is probably mystifying to most people who
have not been in it before to some extent.
The court also noted previous instances when defendant had been exposed to
the Miranda issue: first, in connection with an arson investigation in 1987
when defendant had waived his Miranda rights, and again, in connection with
a sexual assault investigation in 1989, when he invoked his Miranda rights.
The court reviewed the transcript of a taped interview with defendant con-
cerning the 1987 arson investigation. It determined from this lengthy
interview that defendant was able to understand the questions and to give
appropriate answers. The court also inferred from this interview that
defendant could appreciate the consequences of his conduct.
This evidence is particularly relevant in light of Dr. Linder's
observations that defendant had learned from his prior interactions with
the police and court system. In addition, numerous cases recognize that a
mentally retarded defendant's prior experience with Miranda rights is a key
factor in establishing defendant's capacity to comprehend them. See Hatley
v. State, 709 S.W.2d 812, 816 (Ark. 1986) (mildly retarded sixteen-year-old
found to understand rights which he had "heard . . . over and over again" in
last five years and which he indicated he understood); State v. Fincher, 305 S.E.2d 685, 697 (N.C. 1983) (retarded defendant's prior experiences with
criminal justice system was "an important consideration in determining
whether an inculpatory statement was made voluntarily and understandingly").
In sum, the expert's evidence on waiver was somewhat equivocal and, in
any case, not dispositive. The court's determination was supported by
credible evidence. State v. Wall, 137 Vt. 482, 486, 408 A.2d 632, 635
(1979) (ruling will not be overturned even if there are inconsistencies in
evidence or even substantial evidence to contrary). Moreover, the court
weighed all of the evidence, not just that of the expert, and its decision
clearly fell within the scope of its discretion.
The dissent, however, proposes that a different waiver standard be used
for mentally retarded defendants. In addition to understanding the language
used by the officers in explaining Miranda rights and what a waiver means, a
mentally retarded suspect has not waived Miranda rights unless the
prosecution proves that the suspect understood "the significance of the
rights . . . and the immediate and ultimate consequences of a waiver of
those rights." In addition, the dissent would require a "context-specific
inquiry into the defendant's cognitive limitations and how these limitations
affect the defendant's understanding of the language used to obtain a waiver
of rights and the abstract concepts underlying both the rights and the
waiver of the rights."
This standard obviously imposes a more rigorous inquiry than that
presently required in deciding whether a mentally retarded defendant waived
Miranda rights. Despite conducting a full inquiry into some of the issues
raised by the dissent's standard, the trial court's findings in this case
would not satisfy the amplified standard. Indeed, the very definitions of
the standard virtually insure that it generally could not be met by mentally
retarded defendants. The standard would suppress virtually all self-
incriminating statements provided by mentally retarded defendants regardless
of the need for, or reliability of, that evidence.
We do not believe, given the present state of the mental health and
social service professions, that administration of the dissent's test would
be practical, nor, given the present state of the law, that administration
of such a test is necessary to protect the rights of the accused. Indeed,
the more stringent elements of the dissent's proposed test have been re-
jected elsewhere. For example, the United States Supreme Court has held
that a defendant's limited awareness of possible adverse consequences
resulting from statements made to the police does not render a Miranda
waiver involuntary. Oregon v. Elstad, 470 U.S. 298, 316 (1985). The Court
reiterated that
we have not held that the sine qua non for a knowing and
voluntary waiver of the right to remain silent is a
full and complete appreciation of all of the con-
sequences flowing from the nature and the quality of
the evidence in the case.
Id. at 317. To waive a right, a person need not have a thorough under-
standing of the potential legal consequences flowing from it. Few
defendants would have this level of understanding, and factors other than
intelligence -- anxiety, temperament, feelings of guilt -- could limit the
capacity of others to fully appreciate the consequences of waiving their
rights.
Although defendant's counsel argued that legal concepts were simply too
difficult for a mentally retarded person to understand, she underscored a
different problem when she argued:
Any lawyer who practices public defense law and gets DWI
phone calls in the middle of the night is accustomed to
the situation where . . . you say to the defendant:
Don't answer any questions. [And the defendant will
answer], Oh I already told him that. . . . Now, if
normal defendants of normal intelligence when asked,
"Haven't you ever heard of the Fifth Amendment?" will
say, "Well, I thought I had to talk to him because he
was the police officer . . . ." Even college graduates
do that all the time to the frustration of the defense
bar. Someone with Donald Cleary's deficits clearly has
even more trouble comprehending what it means . . . .
The stupidity of the average criminal defendant some-
times gets to be . . . rather frustrating . . . for the
defense bar and, I'm sure, for the court.
The purpose of the Miranda warnings is just that -- to warn the unwary,
those with little contact with the criminal justice system, from acting
blindly or impulsively, to speak without first being told about their
options. In terms of this goal, a person with defendant's level of
intelligence, but with some experience with the legal process, stands a fair
chance of remaining silent or asking for a lawyer because the suspect
"knows" it is a good idea, albeit without knowing why.
Given the relatively limited Miranda goal -- that "the accused must be
adequately and effectively apprised of his rights and the exercise of those
rights must be fully honored," Miranda v. Arizona, 384 U.S. 436, 467 (1966)
-- a concrete understanding of a right's meaning and the effect of waiving
it is all that is required.
If intelligent knowledge in the Miranda context means
anything, it means the ability to understand the very
words used in the warnings. It need not mean the
ability to understand far-reaching legal and strategic
effects of waiving one's rights, or to appreciate how
widely or deeply an interrogation may probe, or to
withstand the influence of stress or fancy; but to waive
rights intelligently and knowingly, one must at least
understand basically what those rights encompass and
minimally what their waiver will entail.
People v. Bernasco, 562 N.E.2d 958, 964 (Ill. 1990); see also State v.
Knights, 482 A.2d 436, 441 (Me. 1984) (affirming mentally retarded
defendant's waiver because trial court could reasonably infer from his
responses that he "understood that he was in an adversarial situation and
that the authorities could not compel him to talk").
Defendant here demonstrated significant understanding of the waiver
process. He himself testified that he knew he did not have to answer
questions and that he could speak with an attorney if he wished. Even his
expert witness concluded that he knew the meaning of the waiver words.
Defendant had considerable prior experience with the legal system,
understood that it was an adversarial process and realized that he could go
to jail. He had demonstrated that he could and did learn legal concepts.
He had previously exercised his right not to speak to police and to have an
attorney represent him. This evidence was more than sufficient to establish
a knowing and intelligent waiver.
Although we do not agree with the dissent's test, we agree with State
v. Flower, 539 A.2d 1284, 1287 (N.J. Super. Ct. Law Div. 1987), cited by the
dissent, that because persons with diminished mental capacity hold a pro-
tected status in our society, courts must determine that "the administering
of constitutional rights was more than a mere perfunctory procedure." The
ultimate safeguard against perfunctory procedure in protecting the rights of
persons of lower intelligence is a probing inquiry. Our task is to review
the record of the court to determine if it scrutinized all the important
factors -- the nature of the defendant, the conditions of the
interrogation, and the circumstances of the waiver, including the language
and tactics of the police and the resources available to the accused.
The trial court in the present case exhibited thoroughness and care.
Adding more formalism to the proceeding will not insure the kind of
scrutiny that justice demands in these cases. The court took a hard look at
the facts and made findings that were far from perfunctory. The court's
palpable sense of the reality of the situation convinces us that justice was
achieved in this case.
Finally, the dissent also asserts that "where the police were aware of
defendant's mental limitations, the courts must also carefully consider
whether the confession was voluntary," and faults the trial court because
"[v]irtually no inquiry was made as to whether this confession was
voluntary." The issue of voluntariness was not raised below or on appeal
nor are there facts in the record to indicate that plain error may have
occurred. Nothing more was required of the trial court.
There is no entirely satisfactory way to balance the rights and needs
of defendants with lower intelligence against society's interest in seeking
to provide workable measures for providing justice. The problems of
mentally retarded persons who come in contact with the legal system are
complex; addressing these problems fully will require comprehensive and
multi-disciplinary approaches. This Court cannot in this opinion
effectively overhaul major parts of the legal and social services systems.
See, e.g., In re D.C., ___ Vt. ___, ___, 618 A.2d 1325, 1328-29 (1992)
(insufficient resources exist to provide individual programs for mentally
retarded new offenders). Our context-specific decisionmaking process does
not lend itself to fashioning such sweeping changes.
For our part, we believe that judges can and should be educated to
better understand defendants with special needs. Nevertheless, the Miranda
rules should apply equally to all defendants, not just to those who
demonstrate sufficient sophistication about the hows and whys of their
procedures to meet the dissent's standard.
Affirmed.
FOR THE COURT:
__________________________________
Associate Justice
-----------------------------------------------------------------------------
Dissenting
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
order that corrections may be made before this opinion goes to press.
No. 91-569
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 3, Lamoille Circuit
Donald Cleary October Term, 1992
Shireen Avis Fisher, J. (competency) and John P. Meaker, J. (suppression)
Joel Page, Lamoille County State's Attorney, Hyde Park, for plaintiff-
appellee
Charles S. Martin and Helena Quinn, Law Clerk, of Martin & Paolini, Barre,
for defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
JOHNSON, J., dissenting. The majority decides today that a mentally
retarded defendant knowingly and intelligently waived his rights to counsel
and to remain silent, even though one of the interrogating officers knew
defendant was mentally retarded and made no effort, other than reciting the
language of the standard waiver form, to assure that he understood both the
nature of the rights and the consequences of waiving them. My view is that
a person with mental retardation cannot waive Miranda rights unless the
State shows that the person understood the significance of the rights, the
language used by the officers in explaining them, the concept of waiver, and
the immediate and ultimate consequences of a waiver of those rights.
Because the State's evidence failed to meet that standard here, I dissent
from that part of the majority opinion affirming the district court's denial
of defendant's motion to suppress statements made to police.
I.
A more detailed statement of facts than that supplied by the majority
is necessary to fully explore the question of whether defendant made a
knowing waiver of his constitutional rights. Defendant, who was twenty-six
years old at the time of the alleged offense, is a mentally retarded man
with an IQ of sixty-five, placing him in the bottom two percent of the
population. He attended special education classes from the ages of eleven
to seventeen but reads at approximately a second-grade level. The court-
appointed psychiatrist who testified at the suppression hearing, Dr. Linder,
estimated defendant's mental age to be between ten and twelve, while
defendant's former mental health services counselor estimated his mental
capacity to be that of a seven- or eight-year-old child and his emotional
level to be that of a four or five-year-old child.
On October 26, 1990, approximately an hour after the assault that led
to the charges in this case, defendant was stopped by a state's attorney's
criminal investigator and a police officer and questioned in their cruiser
for over an hour. Although at least one of the interrogators had dealt with
defendant before and was aware that a court had found him to be incompetent
to stand trial due to mental retardation, they merely read defendant his
rights from the standard Miranda waiver form, without providing any further
explanation of the nature of the rights involved or the consequences of
waiving those rights. The officer testified at the suppression hearing that
he made no attempt to elaborate on, or simplify, the language used on the
form even though he knew a court had found defendant to be incompetent
because,
There was no question in his mind, as far as I was
concerned. He didn't question it. They were read very
clearly to him, and each question is: Do you understand?
And like the first one was: Yep. So forth and so on.
Defendant's response to each of the seven questions listed on the waiver
form was a single word, "Yes." Neither the officers' explanation of the
form nor the subsequent interrogation was recorded.
Dr. Linder testified at the suppression hearing that defendant did not
have the mental ability to comprehend the significance or potential con-
sequences of speaking to the police and would have said almost anything to
please the officers and extricate himself from the immediate situation he
faced. Regarding his first point, Dr. Linder testified:
[Defendant] has difficulty in thinking in anything but
very concrete terms. He has a poor ability or no
ability at all to think in abstractions. He is not able
to anticipate events very well. He is not able to
really evaluate the potential outcomes of situations
that he gets himself involved in.
Dr. Linder elaborated on the depth of defendant's understanding of each of
the rights the court ruled defendant knowingly waived. For instance, Dr.
Linder testified that although defendant would understand that the right to
remain silent meant he did not have to talk, he would not understand "[w]hat
protection it is providing him." According to Dr. Linder, defendant would
not understand the relevance of the fact he did not have to talk or the
ramifications of deciding one way or another whether to talk. When asked
whether defendant would understand the long-term effect or consequences of
speaking to the officers, he answered, "Not at all." Similarly, Dr. Linder
testified that defendant would understand that he could stop talking at any
time and that he could speak to a lawyer, but he would not understand how
those rights protected him.
Regarding the statement that "anything you say can and will be used
against you in a court of law," Dr. Linder opined that defendant would not
understand that this meant the officers could tell the jury what he told
the officers and the jury could then use these statements to convict him.
Dr. Linder explained that defendant would not be able to look beyond his
immediate concerns to a future court proceeding in which comments he had
made earlier would be used against him. According to Dr. Linder, defendant,
who was susceptible to suggestion, would speak to police in order to achieve
what he perceived as the shortest route to accomplish his immediate needs
and desires -- to please the officers, to make himself feel better, and to
go home. Dr. Linder further testified that defendant would stop talking
only if he felt uncomfortable about what he had done or about what the
officers thought of him, not out of concern that what he was saying could be
used against him later.
The majority states that Dr. Linder's testimony regarding defendant's
understanding of the consequences of his waiver is "at best equivocal."
This statement, which is based on one exchange during cross-examination of
Dr. Linder, is farfetched. The colloquy following the majority's quoted
exchange makes it abundantly clear that Dr. Linder believed that any
understanding defendant had regarding the significance of talking to police
was nothing more than a "pseudo-capacity" to understand. According to Dr.
Linder, defendant's prior experiences with police merely made him familiar
with various legal "buzzwords," a familiarity that belied his limited
ability to comprehend his rights.
Defendant's own testimony at the suppression hearing reinforces the
limited nature of his understanding. He answered in the affirmative when
the prosecutor asked him if he had understood that he did not have to talk
to the officers, that he could speak with a lawyer, and that he could change
his mind and stop talking. He also testified, however, that he spoke to the
officers because he thought they would help him and because he could not
leave until he spoke to them. At various times during his testimony,
defendant stated he talked to the officers because they just kept sitting
there and "talking to me until I did talk."
Defendant testified as follows regarding his understanding of the
consequences of waiving his right to remain silent:
DEFENSE COUNSEL: And then [the officer] said: Anything
you say can and will be used against you in a court
of law. What does that mean, Donald?
A: I'm not sure.
Q: Did you know what it meant then?
A: I don't remember.
Q: What's a court of law?
A: I don't know.
Q: Where are we right now?
A: In court.
Q: Is this a court of law?
A: I guess so.
At another point, the following colloquy took place:
DEFENSE COUNSEL: Donald, why are we in court today?
A: I know why I'm in here for, but I don't know how to
say it.
Q: Can you try?
A: Because I got in trouble in Wolcott.
Q: But what about this particular day? Why are we here?
What particular thing are we trying to do today?
A: I have been told, but I can't remember the name of
it.
Q: Did you know that if you told [the officer]
something, that he could talk about it in court?
A: No. I thought they were going to try to help me.
Q: When he told you that anything you said could be used
against you in court, what did you think that meant?
A: I wasn't sure.
Q: What would be the reason to maybe ask to talk to a
lawyer before you talked to the officers.
A: I'm not sure I understand what you're saying.
Q: Well, if the officers said you could talk to a lawyer
if you wanted one, why would you maybe want to talk
to one?
A: Get some help if I could.
In ruling that defendant knowingly and intelligently waived his rights,
the court noted that during his testimony at the suppression hearing
defendant responded "quickly to questions when he understood the question
and knew what the question was," that he had been read Miranda rights on two
prior occasions, that he had invoked his right to remain silent on one of
those occasions, and that a tape of the custodial interrogation made on the
other occasion showed his ability to comprehend the subject matter at hand.
The court then concluded:
His responses to questions asked [during the custodial
interrogation] were pertinent and in context. He knew
that with respect to his conduct he could go to jail.
He knew what his behavior had been and that that is why
he was in trouble. He's been in contact with the
justice system in the past. The more he comes in
contact with it the better he understands it. He
understands that the consequences of his behavior in
this instance is or could be jail, probation or a fine.
He understands that when he's told he has the right to
remain silent, that he doesn't have to talk. He does
appear to like to cooperate with people. He does appear
to want to receive some help for the he calls it "a
mess" he got in. And I conclude from this totality of
circumstances that the defendant did understand the
rights that were explained to him by [the officer] when
he stopped him for the October 26, 1990 questioning.
And I further conclude that no threats or promises were
made to him at that time to induce him to waive his
rights or to speak or to answer questions. And I con-
clude that he knowingly waived these rights and that he
understood the consequences of doing so.
II.
The preceding facts demonstrate that there is no substantial credible
evidence supporting the trial court's conclusion that the State met its
heavy burden of showing a knowing and intelligent waiver. See Miranda v.
Arizona, 384 U.S. 436, 475 (1966) (if interrogation continues without
presence of counsel, state has heavy burden to show knowing and intelligent
waiver); State v. Malinowski, 148 Vt. 517, 519-20, 536 A.2d 921, 922-23
(1987) (state bears heavy burden of proving knowing and intelligent waiver
and trial court must engage in every reasonable presumption against waiver).
On the contrary, the evidence creates, at minimum, substantial doubt as to
whether defendant knowingly and intelligently waived his constitutional
rights. See State v. Flower, 539 A.2d 1284, 1288 (N.J. Super. Ct. Law Div.
1987) (doubt concerning whether mentally retarded defendant knowingly waived
Miranda rights must be resolved in favor of defendant), aff'd, 539 A.2d 1223
(N.J. Super. Ct. App. Div. 1988).
The State had the burden of showing defendant's "full awareness of both
the nature of the right being abandoned and the consequences of the decision
to abandon it." Moran v. Burbine, 475 U.S. 412, 421 (1986). The critical
question for courts in determining whether a defendant understood the con-
sequences of a waiver of Miranda rights is whether the defendant was fully
aware that any statement he made could be used to convict him in subsequent
criminal proceedings. See Patterson v. Illinois, 487 U.S. 285, 292-93
(1988). Here, the court found defendant understood that "the consequences
of his behavior in this instance is or could be jail, probation or a fine."
But concluding that defendant understood he could go to jail for the charged
offense is a far cry from concluding that he was aware that his statements
to police concerning that offense could be used against him in a court of
law. There is no testimony suggesting defendant's understanding of this
concept, and the court made no finding on this point. See Commonwealth v.
Daniels, 321 N.E.2d 822, 827-28 (Mass. 1975) (reversing lower court's denial
of mentally retarded defendant's motion to suppress and remanding for new
trial to consider whether defendant was fully aware of consequences of
waiver of rights).
As noted, the court found the following in support of its conclusion
that defendant made an effective waiver: (1) defendant "respond[ed] quickly
to questions when he understood the question and knew what the answer was,"
and (2) he had been read Miranda rights on two prior occasions. Regarding
the second point, the court noted that defendant invoked his right to
counsel on one of those prior occasions and that the taped interview of the
other occasion demonstrated defendant's ability to understand and respond to
the Miranda questions. Neither point is significant. First, although the
court may consider its own observance of a defendant's communications skills
in determining whether the defendant is capable of waiving Miranda rights,
its statement here that defendant would answer quickly questions that he
understood says absolutely nothing about whether defendant understood the
abstract concepts underlying Miranda rights and waiver of those rights.
Second, the mere fact that defendant said he did not want to talk to an
officer during a past interrogation does not demonstrate that he understood
the concept or the consequences of waiver either at that time or at some
later interrogation. There was virtually no testimony regarding this past
incident, other than that defendant said he did not want to talk. There was
little testimony regarding the circumstances of the interview or the extent
of the warning provided on that occasion. All we know is that an officer
contacted a public defender on one occasion when defendant said he did not
want to talk.
Further, the court's reliance on the prior interrogation, in which
defendant talked to police, is even more questionable. Rather than focus on
the warning provided to defendant before the interrogation, the court
stressed defendant's ability to answer questions during the interrogation
itself concerning his actions at the time of the offense. Again,
defendant's responses to such questions say little about whether he has the
ability to make a knowing waiver of his rights or whether he was fully aware
of the consequences of making statements to the police at the time of that
prior interrogation or, more importantly, at the time of the interrogation
in the instant case.
The ultimate purpose of the Miranda warnings is to assure that all
suspects, particularly those susceptible to coercion, are aware that they do
not have to speak to the police before obtaining the advice of counsel, and
that, if they do, their statements may be used to convict them of a crime.
Smith v. Kemp, 664 F. Supp. 500, 504-05 (M.D. Ga. 1987), aff'd, Smith v.
Zant, 887 F.2d 1407 (1989). In situations involving a mentally retarded
suspect, this assurance will be difficult to satisfy unless the suspect is
adequately assisted by counsel or an independent and interested adult. See
Henry v. Dees, 658 F.2d 406, 411 (5th Cir. 1981) (police must painstakingly
determine that suspects with limited mental abilities understand Miranda
rights and must obtain counsel for such suspects absent an unmistakable
knowing waiver of those rights). Compare Flower, 539 A.2d at 1287-88
(adults with limited intelligence, like juveniles, are protected class;
mentally retarded person with mental age of six- or seven-year-old child did
not knowingly waive his Miranda rights in absence of counsel) with In re
E.T.C., 141 Vt. 375, 379, 449 A.2d 937, 940 (1982) (juvenile's valid waiver
of Miranda rights requires prior consultation with attorney or interested
adult).
Absent the presence of counsel, courts have, at minimum, required the
State to show that police were careful in assuring that mentally retarded
defendants knowingly and intelligently waived Miranda rights. For instance,
in Smith v. Kemp, 664 F. Supp. at 505, the district court concluded that a
mentally retarded defendant with an IQ of sixty-five and a mental age of ten
or eleven did not knowingly waive his Miranda rights, considering his level
of intelligence and the fact that the police failed to provide the kind of
detailed explanation that expert witnesses testified he needed to understand
the implication of a waiver of his rights.
Similarly, in State v. Bushey, 453 A.2d 1265, 1266, 1268 (N.H. 1982),
the court reversed the lower court's finding that a defendant with an IQ of
sixty-six intelligently waived his Miranda rights, despite the fact that the
officers took forty-five minutes to explain the rights. The court held that
although defendant appeared to understand some of the rights, he did not
fully understand the concept of waiving rights. Id. at 1267. As the court
stated: "Although he ultimately was able to state that waiver meant that he
did not have to say anything unless [he] want[ed] to, . . . [t]here [was] no
evidence in the transcript that the defendant made a choice to waive his
rights after considering the consequences of a waiver," and the State failed
to introduce any expert testimony rebutting other expert testimony that
defendant did not understand the concept of waiver. Id. at 1268.
That is precisely the situation here. Defendant openly testified he
understood that he did not have to speak and that he could speak to an
attorney. But there was no evidence suggesting he understood the concept of
waiver or any consequences beyond the immediate that would result from his
speaking to police. Indeed, the only testimony at the suppression hearing
on this point, provided by a neutral expert, indicated otherwise. The court
was not bound by the expert's opinion, but when a neutral expert provides
detailed testimony indicating that a mentally retarded defendant had no
understanding of the consequences of waiving his constitutional rights, the
court's finding of an effective waiver must be based on evidence that erases
any doubt as to whether the waiver was knowing and intelligent. The evi-
dence relied on by the court -- such as the interrogating officer's self-
serving testimony that defendant appeared to understand his rights -- fell
far short of that here. See Commonwealth v. Daniels, 321 N.E.2d at 827
(simple assertions of "yes" by mentally retarded defendant did not establish
knowing waiver of Miranda rights).
This case is particularly disturbing because at least one of the
interrogating officers was aware that a court had previously found defendant
to be incompetent due to mental retardation. Knowing what he did, the
officer should have either obtained counsel for defendant before any
interrogation, cf. In re E.T.C., 141 Vt. at 379, 449 A.2d at 940, or, at
minimum, engaged defendant in a detailed colloquy regarding his rights to
assure that he was fully aware of the consequences of waiving them.(FN1) See
People v. Higgins, 607 N.E.2d 337, 346 (Ill. App. Ct. 1993) ("whenever the
police know that they have a subnormally intelligent suspect the police
should take extra care to ensure that this person understands the Miranda
warnings and that the alleged confession obtained is not simply a repetition
of what the police desire to hear in order to solve the crime").
In my view, a mentally retarded defendant cannot effectively waive
Miranda rights absent a showing that the defendant understood the basic
concept of waiver and the legal ramifications, both immediate and ultimate,
of providing statements to the police. Such a showing should entail a
context-specific inquiry into the defendant's cognitive limitations and how
those limitations affect the defendant's understanding of the language used
to obtain a waiver of rights and the abstract concepts underlying both the
rights and the waiver of those rights. See State v. Lockwood, ___ Vt. ___,
___, 632 A.2d 655, 668-69 (1993) (Johnson, J., dissenting) (context-specific
inquiry into nature of decision required to protect mentally retarded
defendant's rights). There was no such showing in the record here. Indeed,
the record is devoid of any substantial evidence demonstrating that
defendant made a knowing and intelligent waiver of his constitutional
rights. Rather, the evidence, including the testimony of the court-
appointed expert, indicates that defendant had no real understanding of the
consequences of speaking to the police. Accordingly, I would reverse the
trial court's denial of defendant's motion to suppress.
The majority states that the more rigorous standard I propose is
impractical and would give mentally retarded suspects an unfair advantage
over other suspects. I believe that my proposed standard would assure only
that mentally retarded suspects are provided the same protection afforded by
the fifth amendment to all suspects. See Smith v. Kemp, 664 F. Supp. at 507
(in ruling that mentally retarded defendant did not make knowing and
intelligent waiver absent presence of counsel, court stated that "rationale
for the Miranda decision was to put all criminal defendants on equal (or
nearly so) footing when deciding whether to talk to the authorities before
getting the advice of a lawyer"); cf. In re E.T.C., 141 Vt. at 379, 449 A.2d
at 940 (juvenile's valid waiver of Miranda rights requires prior
consultation with attorney or interested adult). As for the "practicality"
of my position, our determination of whether defendant was afforded his
constitutional rights should be based on the relevant legal criteria, not on
the capability of the current system to handle certain types of offenders.
Finally, I emphasize that I do not presume to assume the role of the
trial court in weighing the evidence or determining the credibility of
witnesses. Rather, I suggest that the trial court did not consider all of
the relevant questions in determining whether this mentally retarded
defendant waived his constitutional rights. I propose a more rigorous
standard for determining whether mentally retarded persons have waived their
rights, not a less deferential standard of review of the trial court's
determination.
_________________________________________
Denise R. Johnson, Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. In a situation such as this, where the police were aware of
defendant's mental limitations, courts must also carefully consider whether
the confession was voluntary. See Commonwealth v. Reynolds, 446 A.2d 270,
272 (Pa. Super. Ct. 1982) (court considered fact that police knew defendant
had subnormal intelligence in determining that his statement to police was
product of coercion); cf. State v. Cumber, 387 N.W.2d 291, 294 (Wis. Ct.
App. 1986) (confession held to be involuntary where evidence showed, among
other things, that defendant with subnormal intelligence regarded interro-
gating officer as friend who would help him get out of trouble). Because
persons with mental retardation are susceptible to suggestion and have
difficulty understanding abstract concepts or projecting into the future,
they can be exploited so subtly that normally acceptable police tactics are,
in reality, quite coercive. See Note, Constitutional Protection of
Confessions Made by Mentally Retarded Defendants, 14 Am. J. Law & Med. 431,
453 (1989); Daniels, 321 N.E.2d at 826 ("circumstances and techniques of
custodial interrogation which pass constitutional muster when applied to a
normal adult may not be constitutionally tolerable as applied to one who is
immature or mentally deficient"). Virtually no inquiry was made as to
whether this confession was voluntary.
The majority's only response to this point is that "[t]he issue of
voluntariness was not raised below or on appeal nor are there facts in the
record to indicate that plain error may have occurred." It would be
difficult to conceive of a more apparent example of plain error than the
court's failure to consider the voluntariness of a confession of a person
known to be mentally retarded by the interrogators who elicited the
confession. The issue should be addressed head-on regardless of whether it
was raised at the suppression hearing or briefed on appeal. See State v.
Moran, 141 Vt. 10, 20, 444 A.2d 879, 884 (1982) (under plain error rule,
Court will address manifestly improper argument by prosecution on its own
motion because of possible adverse effect on fair administration of justice
and rights of defendant).
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