State v. Jeffreys

State v. Jeffreys  (95-024); 165 Vt 579; 682 A.2d 951

[Opinion Filed 27-Jun-1996]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 95-024

                            SEPTEMBER TERM, 1995


State of Vermont                     }     APPEALED FROM:
                                     }
                                     }
     v.                              }     District Court of Vermont,
                                     }     Unit No. 2, Chittenden Circuit
William Earl Jeffreys, Jr.           }
                                     }     DOCKET NO. 4218-10-93Cncr


       In the above-entitled cause, the Clerk will enter:

       This interlocutory appeal arises from the Chittenden District Court's
  ruling on defendant William Earl Jeffreys's motion to suppress four
  statements made to the Burlington police during an investigation of an
  assault and robbery.  The court suppressed two of four statements on the
  ground that they were obtained in violation of Miranda and the public
  defender statute.  The State contends that all of defendant's statements
  are admissible. Defendant cross-appeals, contending that none of his
  statements are admissible.  We affirm.

       On October 15, 1994, Detective Charland of the Burlington Police
  Department obtained a search warrant for the apartment where defendant was
  living and proceeded to that address accompanied by Officers Lewis and
  Bettino.  Defendant arrived shortly after the police.  Officer Lewis
  approached defendant and revealed that he had information linking him to an
  assault and robbery that had occurred in City Hall Park on October 4, in
  which a man was robbed and beaten with a cinder block.  The officer asked
  defendant to tell the truth about what had happened.  Defendant replied
  that he was high on marijuana and did not want to talk.  Lewis did not
  notice any odor of marijuana or symptoms of intoxication and continued to
  question defendant.  Defendant did not respond other than to ask, "What do
  you get for attempted murder -- twenty years?"  Despite continued
  questioning, defendant said nothing further and left the porch.

       Detective Charland then approached defendant, said that he knew
  defendant had been involved in the assault, and asked him to cooperate. 
  Defendant stuck his hands out, said the police had nothing on him, and
  invited them to arrest him if that was their intent.  He was handcuffed and
  put in the back of a cruiser where, with Officer Bettino present, Officer
  Lewis again tried to elicit a statement.  Then Officer Lewis read defendant
  his Miranda rights, and defendant agreed, orally, to waive them.  Defendant
  was not asked to sign a written waiver. Nevertheless, Officer Lewis
  continued questioning defendant.  Ultimately, defendant told Officer Lewis
  that he had struck the victim in the head with a cement block, knocking him
  to the ground.  He also repeated that he was high and could not remember
  well.

       About forty-five minutes later, while defendant was still in the
  cruiser, Officer Lewis obtained, and defendant signed, a written waiver
  form.  Officer Lewis then asked defendant to

 

  make a taped statement.  Defendant said he was high and did not want to
  make a taped statement.  Nevertheless, Officer Lewis obtained a recorder
  and continued questioning defendant. Defendant acknowledged on tape that
  his rights had been read to him.  He then admitted having gone to the park
  with an individual named Ritchie.  In the park, defendant and Ritchie had
  encountered the victim, and defendant had hit him with a cinder block,
  knocking him to the ground.  Defendant further stated that Ritchie had
  kicked the victim and said, "Let's do him," or words to that effect, to
  which defendant had replied, "Let me do him."

       Several hours later, at the police station, defendant approached
  Detective Charland and said that he remembered more about the incident and
  wanted to expand upon his prior answers. Defendant proceeded to give an
  additional statement.

       First, defendant claims that the trial court erred by failing to
  suppress the question defendant asked in the course of his conversation
  with Officer Lewis on the back porch: "What do you get for attempted murder
  -- twenty years?"  Relying on Miranda v. Arizona, 384 U.S. 436 (1966), he
  contends that the statement was obtained in violation of his right to
  remain silent because the officer continued to question him after he told
  the officer that he did not want to talk.  We have held, "[T]he right
  against self incrimination . . . does not attach absent custodial
  interrogation or a situation approximating incommunicado interrogation in a
  police-dominated atmosphere."  State v. Houle, 162 Vt. 41, 44-45, 642 A.2d 1178, 1181 (1994).  To determine whether defendant was in custody, the
  court must make an objective inquiry into the totality of the circumstances
  to determine if a reasonable person would have felt free to leave or to
  refuse to answer police questions.  State v. McElreavy, 157 Vt. 18, 25, 595 A.2d 1332, 1336 (1991).

       In this case, defendant was questioned at his home and evidently felt
  free to refuse to respond to questions because he walked away from Officer
  Lewis without answering.  The trial court, therefore, found that defendant
  was not in custody when he spoke on the porch, and we conclude that the
  court's determination was not clearly erroneous.  See State v. Brunell, 150
  Vt. 388, 390, 554 A.2d 242, 243 (1988) (court's ruling on whether defendant
  was in custody reviewed under "clearly erroneous" standard).

       Defendant also relies on Coppola v. Powell, 878 F.2d 1562, 1568 (1st
  Cir. 1989), where the court ruled that the petitioner's prearrest statement
  that he was not going to confess to police was an invocation of the right
  to remain silent and that this right was violated when the trial court
  admitted the statement in the state's case-in-chief.  Here, however,
  defendant's prearrest statement that he did not want to talk is not at
  issue.  Rather, he maintains that his prearrest invocation of the right to
  remain silent is valid under Coppola and must be "scrupulously honored"
  under Miranda, 384 U.S.  at 479.  We reject this argument because Coppola
  applies only to a noncustodial statement invoking the right to remain
  silent, and Miranda does not apply in a noncustodial situation.  Neither
  rule is applicable here.  Indeed, there is no right to cut off questioning
  where the suspect is not in custody.  See United States v. Serlin, 707 F.2d 953, 957-58 (7th Cir. 1983).

       Next, the State argues that the court erred by suppressing defendant's
  statements made in the cruiser.  The trial court suppressed these
  statements on the ground that they were obtained in violation of
  defendant's Miranda rights and the public defender statute, 13 V.S.A. §§
  5234 (notice of rights) & 5237 (waiver must be in writing or otherwise
  recorded).  We agree that the statements were obtained in violation of the
  public defender statute and therefore do not reach the Miranda issues.

       Under the public defender statute, the officers are required to notify
  the appropriate

 

  public defender "upon commencement of detention" unless the detainee has an
  attorney or waives the right to have an attorney.  13 V.S.A. § 5234(a)(2). 
  To be effective, the waiver must be in writing.  13 V.S.A. § 5237.  The
  State argues that the written waiver executed after defendant's initial
  statement effectively waived defendant's rights for the unrecorded
  statements previously made and for the recorded statements subsequently
  made.  We conclude that the written waiver is legally insufficient and
  therefore affirm the court's suppression of all statements defendant made
  in the cruiser.

       The waiver form here lists the Miranda warnings followed by three
  questions: "(1) Do you understand each of these rights? (2) Do you wish to
  exercise any of these rights? (3) Having these rights in mind, do you wish
  to talk to me now?"  Defendant's signature and the signatures of two
  witnesses appear below.  Nowhere on the form does it indicate that
  defendant answered any of the questions or waived any of these rights. 
  Moreover, the questions do not address the right to counsel as required by
  the public defender statute.  "[T]he requirement of a written waiver is
  clear.  If a waiver was required and not given in the manner prescribed by
  statute, the evidence obtained in the subsequent questioning of defendant
  must be suppressed."  State v. Pellerin, 161 Vt. 229, 232, 637 A.2d 1078, 1080 (1993).  Because the waiver form was ineffective, we need not
  determine whether a written waiver can be effective as to previously made
  statements.

       Defendant argues that the court erred in admitting the statement he
  made several hours later at the police station.  The trial court concluded
  that the statement was admissible because it was spontaneously volunteered,
  not the product of interrogation.  Defendant maintains that the earlier
  confessions, obtained in violation of Miranda and the public defender
  statute, tainted his subsequent statement at the station, which therefore
  should be suppressed as involuntary.  Even considering the public defender
  statute violation, and assuming a Miranda violation, we conclude that the
  spontaneous statement made several hours later at the station was voluntary
  and therefore admissible.  Cf. Medeiros v. Shimoda, 889 F.2d 819, 824-25
  (9th Cir. 1989) (although first statement suppressed for failure to give
  Miranda warnings prior to custodial interrogation, second statement made by
  defendant not suppressed because it was spontaneous, there had been a
  half-hour lapse of time, and statement was given to different officers). 
  We reject defendant's claim that not knowing that his prior confessions
  were not admissible compromised the voluntariness of the statement at the
  station.  See Oregon v. Elstad, 470 U.S. 298, 316-17 (1985) (rejecting
  argument that defendant could not give fully informed waiver because he did
  not know that prior statements could not be used against him).

       Affirmed.

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                          Concurring and Dissenting

       Morse, J., concurring and dissenting.  I agree with the Court
  regarding all of defendant's statements, except the last statement made at
  the police station.  Where the detainee's initial statement was voluntary
  but technically obtained in violation of Miranda, the relevant inquiry is
  whether the second statement was voluntary.  Oregon v. Elstad, 470 U.S. 298, 318 (1985).  To make this determination, we examine the totality of
  the circumstances. See id.  Applying the same test to determine whether a
  violation of the public defender statute taints subsequent statements, I
  would conclude that the statement at the station must be suppressed. 
  Although the statement was spontaneously volunteered, it was made solely to
  correct and clarify the illegally obtained statements.  The situation is
  unlike Elstad, where the United States Supreme Court held that "[a]
  subsequent administration of Miranda warnings to a suspect who has given a
  voluntary but unwarned statement ordinarily should suffice to remove the
  conditions that precluded admission of the earlier statement."  Id. at 314. 
  Here, defendant had not waived his rights in writing in the interim to
  comply with the statute.  The circumstances

 

  here indicate that the taint of the confessions in the cruiser had not
  dissipated.

       I would reverse the trial court's ruling that the statement made at
  the police station is admissible.  I am authorized to state that Justice
  Johnson joins in this dissent.



     BY THE COURT:



Concurring and dissenting:         _______________________________________
                                   Frederic W. Allen, Chief Justice

_________________________________  _______________________________________
James L. Morse, Associate Justice  Ernest W. Gibson III, Associate Justice

_________________________________  _______________________________________
Denise R. Johnson, Associate Justice John A. Dooley, Associate Justice