State v. Oney ( 2009 )

Dooley, J.

¶ 1. Defendant appeals the Rutland District Court’s denial of his motion to suppress statements made at a police interview, arguing that the police violated his rights under the Fifth and Sixth Amendments to the United States Constitution, and Chapter I, Article 10 of the Vermont Constitution. The trial court found that defendant was not in custody at the time the incriminating statements were made and denied defendant’s motion. We affirm.

¶2. The material facts are not in dispute. In July 2006, defendant became a person of interest in a series of fires in the Rutland area. On July 26, the night three of these fires were set, a police officer approached defendant at a local convenience store and asked if he could have a word with him outside. Defendant agreed. The officer asked defendant about the fires, and defendant denied setting them. The officer told defendant that he was not under arrest and asked if he would voluntarily accompany the officer to the police department. Again, defendant agreed. The officer loaded defendant’s bicycle into the police car and drove defendant, who sat in the front seat of the car, to the department. Defendant, unrestrained, entered the department through a nonpublic door.

¶ 3. Two police sergeants spoke with defendant in an interview room at the police department. They did not give Miranda warnings to defendant at any point in the interview. They closed the interview room door, but did not lock it. They did not restrain defendant during the interview, nor did they obstruct his access to the door. At the start of the conversation, both sergeants emphasized that defendant was there on his own free will and that he was free to go at any time. Defendant acknowledged that he understood. One officer then addressed the three fires that occurred that night, telling defendant that he had been seen leaving the scene of the second fire and in the area of the third. Defendant thereafter admitted to setting these three fires. During this portion of the conversation, one of the sergeants starting videotaping the interview.

¶ 4. After defendant’s confession to these fires, an officer told defendant, “I want to talk to you for a little while longer.” The officer immediately began discussing other recent fires in the Rutland area, stating that they had evidence that tied defendant to many, but not all, of these other fires. Subsequent to this shift in the conversation, defendant again affirmed that he came to the station of his own free will, and that he had been told that he was free to leave at any time. At 11:29 p.m., defendant stated, “I still think I should have a lawyer here.” One of the officers responded, “Are you asking for a lawyer or do you want to still talk about this — because to me you’re not sure.” Defendant did not respond to this question and the interview continued. The officer told defendant that the police had surveillance tapes of several of the earlier fires. Subsequently, amid denying his involvement in numerous other fires, defendant admitted to setting three additional blazes. At 12:15 a.m., defendant stated that he would like to leave, and one of the sergeants prevented his departure by stating, “We’re not done yet.” Up until that point, the officers had given defendant repeated assurances that he was free to leave. Although defendant’s departure was delayed, defendant was soon thereafter given a citation and told he was free to go.

¶ 5. Defendant was later charged with six counts of arson of various degrees under 13 V.S.A. §§ 503-505. The first three counts were for the three fires on July 26, 2006. The fourth count was for a dumpster fire at a restaurant on June 28, the fifth for burning a building on May 12, and the sixth for a dumpster fire at the Rutland Middle School on April 25. Counts two and three were for attempted arson and were misdemeanor charges; the others were felonies.

¶ 6. Arguing that his constitutional rights to not incriminate himself and to the advice of an attorney had been violated, defendant moved in the trial court to suppress his statements to the police. The trial court determined that defendant was deprived of his freedom of action at 12:15 a.m., when defendant stated a desire to leave and the police responded that they were not done yet. The trial court ruled that all of defendant’s statements made before 12:15 a.m. were admissible, and it suppressed the subsequent statements.

¶7. Defendant then entered into a plea agreement, reserving his right to appeal his convictions on counts four, five, and six, which correspond to the incriminating statements made between 11:29 p.m. and 12:15 a.m.

¶ 8. On appeal, defendant argues that after he confessed to the first three fires, he was then in custody, and since no Miranda warnings were given, his subsequent confessions are inadmissible. Defendant also argues that his statement at 11:29 p.m. constituted a request to speak with an attorney and that the officers’ failure to honor his request violated his Fifth and Sixth Amendment rights to counsel.¹

¶ 9. We first address defendant’s arguments that his Fifth Amendment rights, as specified in Miranda v. Arizona, 384 U.S. 436 (1966), were violated.² This discussion encompasses both of defendant’s arguments that his confessions are inadmissible because they were given without Miranda warnings and because he invoked his right to counsel.³ The key inquiry for the resolution of both issues is whether defendant was in custody at the time of the confession. See State v. Pontbriand, 2005 VT 20, ¶ 10, 178 Vt. 120, 878 A.2d 227 (“Under Miranda, as currently applied, the police must stop questioning a suspect who is in custody after he or she requests an attorney. No such requirement exists, however, for suspects who are not in custody.” (citations omitted)); State v. Garbutt, 173 Vt. 277, 282, 790 A.2d 444, 448 (2001) (“Suspects not in custody are not entitled to Miranda warnings”).

¶ 10. Whether a suspect is in custody requires “an objective inquiry into the totality of the circumstances to determine if a reasonable person would believe he or she were free to leave or to refuse to answer police questioning.” State v. Willis, 145 Vt. 459, 475, 494 A.2d 108, 117 (1985). The inquiry focuses on the “coercive nature of the physical setting of police questioning.” Id. at 473, 494 A.2d at 116.

¶ 11. In reviewing a motion to suppress, we review the trial court’s legal conclusions de novo and its findings of fact under a clearly erroneous standard. Pontbriand, 2005 VT 20, ¶ 12. “Therefore, the trial court’s findings of fact regarding the course of the interview receive deference, but its ultimate legal determination that the totality of the circumstances would have led a reasonable person to believe that he or she was in custody is reviewed de novo.” Id.

¶ 12. Defendant does not argue that he was in custody before 11:26 p.m.⁴ He asserts that he was deprived of his freedom of action when the sergeant said, “I want to talk to you for a little while longer” and transitioned the conversation to earlier fires. He argues that a reasonable person in a small, windowless room at the police station, after having confessed to three crimes, would not believe that he was free to leave, despite the officer’s statements to the contrary.

¶ 13. We affirm that defendant was not in custody when he made the incriminating statements, considering the trial court’s uncontroverted factual findings regarding the circumstances of defendant’s questioning. The court made the following findings of fact: (1) defendant voluntarily left the convenience store to talk with the police; (2) defendant voluntarily went to the station and interview room; (3) the police could not have made it any clearer to him that he was there voluntarily, that he was free to leave, and that he could leave; (4) defendant was not handcuffed and had free access to an unlocked door; and (5) there was “no evidence on the video or from any testimony that he was deprived of his freedom of action in a significant way” before 12:15 a.m. None of the findings are clearly erroneous,⁵ and as such, we are bound by them. Pontbriand, 2005 VT 20, ¶ 12.⁶

¶ 14. We are not persuaded by defendant’s claim that a reasonable person would believe that the police would prevent him from leaving after having confessed to three crimes. A noncustodial situation does not become custodial automatically because the interviewee has confessed to a crime. See, e.g., United States v. Chee, 514 F.3d 1106, 1114 (10th Cir. 2008) (holding that defendant was not in custody even after confessing to sexual assault). A confession is just one of the circumstances to consider in evaluating whether a reasonable person would believe he or she was free to leave. See id.; Graham v. United States, 950 A.2d 717, 730-31 (D.C. 2008); State v. Champion, 533 N.W.2d 40, 43 (Minn. 1995). We acknowledge that once a suspect confesses to committing a serious criminal act, this fact is significant in this evaluation. See, e.g., State v. Pitts, 936 So. 2d 1111, 1134 (Fla. Dist. Ct. App. 2006) (holding that suspect in custody after confessing to “serious crime”). However, the severity of the crime confessed to affects the weight we attribute to this factor. See Graham, 950 A.2d at 731 (concluding that a reasonable person would not have perceived himself under arrest after confessing to “only a misdemeanor offense”); State v. Stringham, 2003-Ohio-1100, ¶ 25 (Ct. App.) (unreported) (distinguishing confession to misdemeanor from that to felony for purposes of determining custody); State v. Singleton, Nos. 17003, 17004, 1999 WL 173357, at *6 (Ohio Ct. App. Mar. 31, 1999) (‘We do not hold that a defendant who confesses to a crime at a police station is necessarily in custody immediately thereafter. Whether the defendant is thereafter in custody depends on the circumstances, particularly the crime confessed to”).

¶ 15. In this case, of the three crimes defendant initially admitted to, two were misdemeanors. While the third resulted in a felony charge, at the time of the interview, one sergeant told defendant that he believed any charge resulting from his confession would be a misdemeanor. For misdemeanors committed not in the presence of an officer, typically the police issue only a citation and do not arrest the suspect. See V.R.Cr.P. 3(c). In fact, after the interview was completed, defendant was issued a citation and left the police station. See, e.g., Chee, 514 F.3d at 1114 (considering fact that suspect freely left after police-station interrogation to be significant). Thus, mere confession to what defendant believed to be three misdemeanors would not necessarily lead a reasonable person in defendant’s circumstances to believe that he was not free to leave. It is, however, one of the facts to consider in evaluating whether the interview was custodial.

¶ 16. Considering all the facts regarding the circumstances of defendant’s interview, we conclude that a reasonable person would have believed he was free to leave, and, thus, defendant was not in custody. Custody is not established simply because the questioning takes place in a police station or because the questioned person is one whom the police suspect. Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam). While defendant had just confessed to three crimes that were believed to have been misdemeanors, the sergeants repeatedly told defendant that he was free to leave at any time, including after defendant’s confession. As the trial court found, “[tjhere’s no evidence on the video or from any testimony that he was deprived of his freedom of action in a significant way. In fact, to the contrary, the police officers made it very clear that he was free to leave at any time.” The questioning was not coercive, defendant was unrestrained and had free access to the unlocked door, and the officers repeatedly assured defendant that he was free to leave. See, e.g., Burket v. Commonwealth, 450 S.E.2d 124, 128-30 (Va. 1994) (holding that defendant not in custody when he willingly went to police station upon officer’s request and was advised that he was not under arrest and was free to leave at any time, even though defendant stated, “I’m gonna need a lawyer”). The statement, “I want to talk to you for a little while longer,” did not require defendant to continue the conversation; it merely expressed the officer’s request and did not negate all the other police statements that defendant was free to leave at any time. Because defendant was not in custody, the police were not obligated to inform him of his Miranda rights. Garbutt, 173 Vt. at 282, 790 A.2d at 448.

¶ 17. Because defendant was not in custody, there was also no violation of defendant’s Fifth Amendment right to counsel. Thus, the police were not obligated to stop questioning defendant even if he unequivocally asked to speak with a lawyer. Pontbriand, 2005 VT 20, ¶20 (“Looking at the totality of the circumstances, the facts found by the trial court illustrate that [the defendant] was not in police custody during the interview, and we so hold. Accordingly, Miranda is inapplicable here, and the police were not obliged to stop questioning [the defendant] when he indicated he wished to speak with a lawyer.”).

¶ 18. There was also no violation of defendant’s Sixth Amendment right to counsel. The Sixth Amendment right to counsel attaches at the Initiation of judicial criminal proceedings, whether the judicial proceedings have been initiated “by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Brewer v. Williams, 430 U.S. 387, 398 (1977) (quotation omitted); see also 2 W. LaFave et al., Criminal Procedure § 6.4(e), at 668-82 (3d ed. 2007). Because judicial criminal proceedings had not yet been initiated against defendant at the time of the interview, his Sixth Amendment right to counsel was not violated, even if defendant unambiguously requested counsel.

¶ 19. In making his Sixth Amendment claim, defendant relies upon a pre-Miranda case, Escobedo v. Illinois, 378 U.S. 478 (1964). Defendant asserts that Escobedo recognizes a right to counsel before formal judicial proceedings are commenced when, among other things, an “investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect.” Id. at 490. Despite contrary language in Escobedo itself, later authority makes clear that Escobedo applies only to a defendant’s Fifth Amendment rights. See Moran v. Burbine, 475 U.S. 412, 429 (1986) (“At the outset, subsequent decisions foreclose any reliance on Escobedo and Miranda for the proposition that the Sixth Amendment right, in any of its manifestations, applies prior to the initiation of adversary judicial proceedings. Although Escobedo was originally decided as a Sixth Amendment case, the Court in retrospect perceived that the prime purpose of Escobedo was not to vindicate the constitutional right to counsel as such, but, like Miranda, to guarantee full effectuation of the privilege against self-incrimination.” (quotations omitted)); United States v. Gouveia, 467 U.S. 180, 188 n.5 (1984) (“[W]e have made clear that we required counsel in Miranda and Escobedo in order to protect the Fifth Amendment privilege against self-incrimination rather than to vindicate the Sixth Amendment right to counsel.”). Hence, Escobedo does not support defendant’s claim that his Sixth Amendment right to counsel was violated.⁷

Affirmed.

1 Defendant also argues that his right to counsel under Chapter I, Article 10 of the Vermont Constitution was violated. As we have held that “the Article 10 privilege against self-incrimination and that contained in the Fifth Amendment are synonymous,” State v. Rheaume, 2004 VT 35, ¶ 18, 176 Vt. 413, 853 A.2d 1259; see also State v. Peterson, 2007 VT 24, ¶¶ 17-18, 181 Vt. 436, 923 A.2d 585, and that “the right to representation by counsel found in Chapter I, Article 10 of the Vermont Constitution confers a right similar to the federal Sixth Amendment right,” State v. Porter, 164 Vt. 515, 518, 671 A.2d 1280, 1282 (1996), we need not separately address this argument.

2 Defendant states in his brief that the issue of Miranda rights was not raised below and that this is therefore a plain error appeal in which defendant must demonstrate a “miscarriage of justice” or an “error so grave and serious that it strikes at the very heart of the defendant’s constitutional rights.” State v. Beaudoin, 2008 VT 133, ¶ 14, 185 Vt. 164, 970 A.2d 39 (quotations omitted). While the Miranda question was not raised in defendant’s written motion to suppress, it was raised in his oral argument to the trial court. Accordingly, we do not apply the limited plain error standard of review.

3 While the text of the Fifth Amendment does not contain a right to counsel, the United States Supreme Court in Miranda “established a number of prophylactic rights designed to counteract the ‘inherently compelling pressures’ of custodial interrogation, including the right to have counsel present.” McNeil v. Wisconsin, 501 U.S. 171, 176 (1991) (quoting Miranda, 384 U.S. at 467).

4 Defendant did argue before the trial court that the entire police station interview was involuntary and that defendant was in custody throughout. In this appeal, he has abandoned his claim that his presence at the police station was involuntary, as well as his argument that he was in custody during the interview prior to 11:26 p.m.

5 In fact, defendant does not argue that any of the findings regarding the circumstances of his interview are clearly erroneous.

6 The dissent, in concluding that defendant was in police custody between 11:26 p.m. and 12:16 a.m., looks beyond the trial court’s findings of fact and engages in appellate fact-finding. For instance, the dissent notes that the “nature and tone of the interview changed” during the period in question. Post, ¶ 21. Things like the “nature” and “tone” of the interview are factual determinations that are properly made by the trial court. They should not be determined de novo by this Court.

The dissent attempts to justify its de novo review of the trial court’s factual findings by asserting that the issue of whether defendant was in police custody is a mixed question of law and fact and is therefore subject to independent review. See post, ¶¶ 28-30. As the United States Supreme Court has explained, in determining whether a suspect is in police custody, “[t]wo discrete inquiries are essential . . . : first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.” Thompson v. Keohane, 516 U.S. 99, 112 (1995). As we noted in Pontbricmd, the second inquiry is a mixed question of law and fact and is therefore appropriately subject to independent review 2005 VT 20, ¶ 12. However, the former inquiry concerning the circumstances of the interrogation is a pure question of fact and as such is properly determined by the trial court. Thompson, 516 U.S. at 112. When the dissent, in an independent review of the videotaped interview, makes a determination as to the interview’s tone, the dissent makes findings as to the “circumstances surrounding the interrogation.” See id. Such a factual determination falls within the province of the trial court and can be reviewed by this Court only for clear error. See, e.g., Kanaan v. Kanaan, 163 Vt. 402, 405, 659 A.2d 128, 131 (1995); Mullin v. Phelps, 162 Vt. 250, 260, 647 A.2d 714, 720 (1994).

The dissent further contends that it is justified in appellate fact-finding because “the trial court made virtually no factual findings on the critical period of time at issue here.” Post, ¶ 30. However, as we have previously stated, this Court will not engage in appellate fact-finding to remedy deficiencies in the trial court’s findings. N. Sec. Ins. Co. v. Perron, 172 Vt. 204, 218 n.10, 777 A.2d 151, 161 n.10 (2001).

7 The right recognized in Escobedo has also been limited to arising only when the suspect is in police custody. See, e.g., State v. Kelter, 426 P.2d 500, 501 (Wash. 1967) (“Custodial interrogation is an essential element of the Escobedo exclusionary rule.”). The rationale for this limitation arises from the text of Escobedo itself, the holding of which was cautiously limited to the facts of that particular case:

We hold, therefore, that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied “The Assistance of Counsel” in violation of the Sixth Amendment to the Constitution as made obligatory upon the States by the Fourteenth Amendment, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial.

378 U.S. at 490-91 (quotation omitted).