State v. Parker

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, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 88-328


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Roger Parker                                 Unit No. 2, Chittenden Circuit

                                             June Term, 1989


Alden T. Bryan, J. (motion to suppress); Edward J. Cashman, J. (trial)

William Sorrell, Chittenden County State's Attorney, Burlington, and Robert
  Katims, Law Clerk (On the Brief), Department of State's Attorneys,
  Montpelier, for plaintiff-appellee

Kurt M. Hughes and Pamela Hall, Law Clerk (On the Brief), of Wool & Murdoch,
  Burlington, for defendant-appellant


PRESENT:  Allen, C.J., Peck, Gibson and Dooley, JJ.



     GIBSON, J.   Defendant appeals his conviction of operating a motor
vehicle on a public highway while under the influence of intoxicating
liquor, 23 V.S.A. { 1201(a)(2), claiming that the court erred by failing to
suppress statements he made to a police officer after his arrest.  We
reverse the judgment and remand the case for a new hearing without admission
of the inculpatory statements.
     Defendant was stopped for driving through a red light and, based on the
officer's observations, was taken to the police station for DUI processing.
The officer gave defendant Miranda warnings at the station, reading
verbatim from the standard processing form, (FN1) which was admitted into
evidence.  Defendant was advised, and affirmed his understanding, that he
had the right to talk to a lawyer for advice and to have a lawyer with him
during questioning.  Defendant then answered "Yes" to the question "Do you
want a lawyer?"  It is not clear from the form whether this question refers
to a lawyer for advice only or to have one present at questioning.
     When defendant was unable to find the listing for his attorney in the
telephone book he had been given, the officer found the number for him,
dialed it, and then left the room.  After defendant had completed his
conversation with his attorney, the officer came back into the room and
asked him, "With all these rights in mind, are you willing to talk to me
now?"  Defendant answered "Yes."  The officer then asked a series of
questions that led to inculpatory statements by defendant.
     The trial court denied defendant's motion to suppress the officer's
testimony about any statements defendant made after he had asked for an
attorney, and defendant was convicted as charged.  Following the court's
denial of his motion for a new trial, defendant appealed the verdict.  The
sole issue on appeal is whether the court erred in refusing to suppress the
statements.  Defendant argues that denial of his motion to suppress
constituted reversible error because, under State v. Trombley, 147 Vt. 371,
518 A.2d 20 (1986), once an accused has invoked his right to have counsel
present during custodial interrogation, a waiver of that right cannot be
established merely by showing that the accused responded to police-initiated
questioning.  We agree that Trombley is dispositive, and that defendant's
statements following his phone call must be suppressed.
     Trombley is very similar to the instant case.  There, the defendant,
who had been stopped for suspicion of DUI, responded to Miranda warnings by
indicating that he wished to consult with an attorney.  Following the
defendant's telephone conversation with the public defender, the officers
asked him, "What were you advised?"  The defendant answered that he had been
advised to take the breath test but not to answer any questions. (FN2) The
officers then reread the Miranda warnings from a standard form almost
identical to the one used in the instant case.  Again, the defendant
answered "Yes" to the question, "Do you want a lawyer?"  Nevertheless, based
on the defendant's affirmative response to the last question on the form  --
"With these rights in mind, are you willing to talk to me now?" -- the
officer asked him a series of questions that elicited inculpatory state-
ments.  The trial court denied a motion to suppress the statements.
     On appeal, the Court relied on "the per se rule," id. at 371, 518 A.2d 
at 21, announced in Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), where
the United States Supreme Court held as follows:
            [A]lthough we have held that after initially being
          advised of his Miranda rights, the accused may himself
          validly waive his rights and respond to interrogation,
          the Court has strongly indicated that additional safe-
          guards are necessary when the accused asks for counsel;
          and we now hold that when an accused has invoked his
          right to have counsel present during custodial inter-
          rogation, a valid waiver of that right cannot be
          established by showing only that he responded to further
          police-initiated custodial interrogation even if he has
          been advised of his rights.  We further hold that an
          accused, . . . having expressed his desire to deal with
          the police only through counsel, is not subject to
          further interrogation by the authorities until counsel
          has been made available to him, unless the accused
          himself initiates further communication, exchanges, or
          conversations with the police.

            Miranda itself indicated that the assertion of the
          right to counsel was a significant event and that once
          exercised by the accused, "the interrogation must cease
          until an attorney is present."

(Citations omitted.)  The Trombley Court concluded that the defendant had
twice invoked his right to deal with the police only through counsel, and
that, under Edwards, all interrogation should have ceased upon each
invocation.  Trombley, 147 Vt. at 375, 518 A.2d  at 23.  According to the
Court, by answering "yes" to the question "Do you want a lawyer?," the
defendant invoked his right to have a lawyer present during any further
questioning.  Id.  Further, the fact that the defendant then agreed to
answer questions initiated by the officers was "of no consequence in
determining whether [he] actually invoked his right to counsel," since the
"inquiry necessary to determine if the defendant invoked his right to
counsel, thereby terminating the officer's legal ability to question him,
must focus only upon the circumstances leading up to the request for
counsel."  Id. at 375, 518 A.2d  at 23-24.  Because the inculpatory
statements resulted from police-initiated questions after the defendant had
indicated that he wanted a lawyer, there was no valid waiver and the
statements had to be suppressed.  Id. at 376, 518 A.2d  at 24.
     In the instant case, defendant also asked for counsel.  From that point
on, regardless of what advice his attorney might later have given him over
the phone, there could be no further police-initiated questioning without
the presence of his attorney.  If defendant had wished to waive his right to
have an attorney present during questioning, he need only have indicated the
same to the authorities, but it had to have been on his own initiative
without police prompting.  Although it is true that an affirmative answer to
the question "Do you want a lawyer?" could be seen either as a desire to
speak with a lawyer before proceeding further or as a desire not to proceed
without the presence of counsel, we decline to apply this ambiguity against
a defendant where his constitutional rights are at stake.  See Miranda v.
Arizona, 384 U.S. 436, 475 (1966) (government has heavy burden to prove
waiver of constitutional rights).
     Reversed and remanded.

                                   FOR THE COURT:

                                   _______________________________
                                   Associate Justice



FN1.       The standard DUI processing form reads as follows:
-- You have the right to remain silent.  Do you understand?  __Yes __No
-- Anything you say can be used against you in court.  Do you understand?
   __Yes __No
-- You have the right to talk to a lawyer for advice and to have a lawyer
   with you during the questioning.  Do you understand?  __Yes __No
-- If you cannot afford a lawyer and want one, you can contact a Public
   Defender or one will be contacted for you before questioning, at the
   State's expense.  Do you understand?  __Yes __No
-- You may refuse to answer any questions asked of you at any time.  Do you
   understand?  __Yes __No
-- Do you want a lawyer?  __Yes __No
-- If yes, name of lawyer ____________ Time contacted ____________
-- With all of these rights in mind, are you willing to talk to me now?
   __Yes __No

FN2.       Despite the public defender's advice, the defendant did talk to
police upon further police-initiated questioning, but refused to take a
breath test.