State v. Austin

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. 89-321
 
 
State of Vermont                             Supreme Court
 
     v.                                      On Appeal from
                                             District Court of Vermont,
Hermin E. Austin                             Unit No. 1, Rutland Circuit
 
                                             November Term, 1989
 
 
Francis B. McCaffrey, J.
 
Kevin R. Klamm, Rutland County Deputy State's Attorney, Rutland, for
plaintiff-appellant
 
Cortland Corsones of Corsones and Corsones, Rutland, for defendant-appellee
 
 
PRESENT:  Allen, C.J., Peck, Gibson and Dooley, JJ.
 
 
     GIBSON, J.   The State of Vermont appeals from a trial court grant of
defendant's motion to suppress statements made to the police about alleged
charges of sexual abuse, following a polygraph test.  We reverse and remand.
     Defendant was arrested on September 12, l988 on a charge of sexually
assaulting a child, in violation of 13 V.S.A. { 3252(3).   Defendant filed a
motion to suppress certain incriminating statements made to the police
following a polygraph examination, asserting that he was not given his
Miranda rights, that the statements were either involuntary or not made by
him, and that, in any case, the statements resulted from coercion by the
police.
     At the hearing on the motion, the trial court found that Joseph Arduca,
chief of the Brandon police department, interviewed defendant on May 23,
l988 in connection with the complaint of sexual abuse.  The officer raised
the question of a polygraph test for defendant, and the trial court found:
            The officer then inquired of the Defendant as to
          whether or not he would submit to a polygraph.  He
          indicated to the Defendant that the victim would be
          taking a polygraph and based on that representation the
          Defendant agreed.
 
     A polygraph examination was scheduled for July 20, 1988, and Chief
Arduca brought defendant to the Rutland police barracks for the test.  The
trial court found that defendant had a serious hearing disability, which was
not substantially improved by hearing aids, and that he required corrective
glasses to see adequately.  The court further found that "[t]he officers are
not clear as to whether or not the Defendant had his hearing aid on at the
time the polygraph was commenced and during the polygraph exam, nor are they
sure whether or not he used his glasses."  In addition, the officer in
charge of the polygraph was not sure whether he had been aware that
defendant had a hearing disability and was not sure whether he had spoken
louder than usual to defendant to compensate for any hearing loss.
     The trial court found that the officer in charge of the test read
defendant his Miranda rights and had him sign a written waiver of those
rights.  The officer then proceeded to perform a pretest interview con-
cerning the areas the test would cover.  After the test was complete, Chief
Arduca joined the testing officer and defendant, and a conversation ensued,
during which defendant made statements that the alleged victim had "acted
inappropriately, had pinched him, and had taken a bath in his home."
Additional conversations followed, after which defendant executed a written
statement, which was the subject of the suppression motion.  The court
found that it was only in the post-test interview that defendant made the
admissions contained in his written statement.  The alleged victim was not
asked to take a polygraph test after defendant made his admissions.
     The trial court concluded that "[d]efendant was requested to submit to
a polygraph and was given the inducement that the victim would do likewise."
Noting that the alleged victim was never asked to take a polygraph test, the
court concluded that the effect on defendant was prejudicial.  Citing State
v. Comes, 144 Vt. 103, 108, 472 A.2d 1253, 1256 (l984), the court concluded
"that this is the very type of cajoling that the Supreme Court has expressly
proscribed."  The court also noted defendant's "severe loss of hearing, a
disability that the examining officer is uncertain as to whether he was
aware of at the time of the polygraph."  Finally, the court commented on
defendant's "anxiety about returning home to pick up his granddaughter upon
her return from school."  The court concluded that it was not persuaded that
the State had sustained its burden of proof on voluntariness and granted the
motion to suppress.
     The State bears a heavy burden in demonstrating a knowing and intelli-
gent waiver of Miranda rights.  State v. Stanislaw, 1 Vt. L. W. 37, 40 (Jan.
26, l990) (No. 88-131); State v. Malinowski, 148 Vt. 517, 520, 536 A.2d 921,
923 (1987).  The trial court must determine the weight and sufficiency of
the evidence and the credibility of witnesses.  1 Vt. L. W. at 40.  In
evaluating the State's claim of a Miranda waiver, "we will uphold trial
court rulings that are not clearly erroneous and that are supported by
credible evidence, even though inconsistencies or substantial evidence to
the contrary may exist."  Id.
     In cases like the present one, where doubt is raised about the capacity
or physical ability of a defendant to understand the nature of the asserted
waiver, it is especially important to inquire "into all the circumstances
surrounding the interrogation."  Fare v. Michael C., 442 U.S. 707, 725
(l979).  Those include defendant's "age, experience, education, background,
and intelligence, and . . . the capacity to understand the warnings given
him, the nature of his Fifth Amendment rights, and the consequences of
waiving those rights." Id.  The court in the present case fulfilled its
mandate to examine into the physical and mental condition of defendant; its
findings that he had a severe hearing impairment and required corrective
glasses are supported by the evidence and will not be disturbed.
     The hallmark of a voluntary confession is "the unfettered exercise of
free will."  State v. Zehner, 142 Vt. 251, 253, 453 A.2d 1126, 1127 (1982).
"A law enforcement official may not use threats, improper influence, or
physical or psychological pressure to extract a confession," and "'[t]he
ultimate question is whether the pressure, in whatever form, was sufficient
to cause the [defendant's] will to be overborne and his capacity for self-
determination to be critically impaired.'"  Id. at 254, 453 A.2d  at 1127
(quoting Ferguson v. Boyd, 566 F.2d 873, 877 (4th Cir. 1977)).
     The central finding on which the court based its conclusion -- that
defendant was cajoled into making a statement -- is not supported by the
evidence.  Defendant executed the written statement immediately after taking
the polygraph test, with full knowledge that the alleged victim had not yet
taken a similar test.  The State's undertaking to administer a test to the
alleged victim may well have induced defendant to undergo the polygraph
test, (FN1) but there is no evidence that it played any role whatever in per-
suading defendant to make the incriminating statement.  When defendant
signed the statement, he knew that the alleged victim's test had not yet
occurred.  Had the polygraph testing of the alleged victim been integral to
defendant's case, then the mere fact of its non-performance -- whatever the
reason -- would lend weight to defendant's claim of prejudice.  But defend-
ant gave his statement immediately following his own testing.  Thus, the
fact that he was told the alleged victim would also undergo testing is
immaterial where fulfillment of the State's promise, however expeditiously
it might have happened, would not have come soon enough to influence
defendant's decision on whether or not to give the statement.
     State v. Comes is not in point.  In that case, the defendant asserted
that he had been promised leniency in return for his confession, a con-
sideration that could arguably have presented a strong inducement to
cooperate.  144 Vt. at 108, 472 A.2d  at 1256.  In the instant case,
defendant points to no promise on the part of the State that induced him to
make his statement or worked to his prejudice at the time he agreed to give
the statement.
     Absent the element of improper inducement, the remaining findings do
not support the trial court's conclusion that defendant's statement was
given involuntarily.  The court found that "[t]he officer in charge of the
polygraph is not sure whether or not he was even aware that the Defendant
had a hearing disability."  But the officer administering the test testified
only that he did not notice if defendant was wearing a hearing aid and
glasses.  He was not asked if he knew that defendant had a hearing impair-
ment, and Chief Arduca, in fact, testified that he had informed the testing
officer to that effect.  The trial court found that the administering
officer read defendant his Miranda rights and had him sign a written waiver.
The court also found that the officer "indicated that the Defendant appeared
to understand those rights and to waive them knowingly."  At no point does
the court find that defendant misheard or misunderstood any statement or
question put to him during the interrogation.  At most, the court in its
conclusions stated that "[s]urely if the Defendant misheard, or failed to
accurately perceive, the questions posed to him, the correspondent answers
and polygraph results may have been largely or wholly invalid."  (Emphasis
added.)  The absence of findings that defendant failed to hear or
understand the information posed to him is consistent with the following
testimony of defendant's daughter:
          Q.  Did he tell you what kind of questions the police
              had asked him at the lie detector place?
          A.  He told me different questions that he was asked,
              yes.
 
          Q.  The questions concerned whether he touched [the
              alleged victim] in a sexual way, didn't they?
          A.  Yes.
          Q.  So he knew -- he told you about what they had asked
              him about?
          A.  Yes.
 
     The State's evidence that the police gave defendant his Miranda warning
and that defendant signed a waiver of his Miranda rights is at no point
opposed by evidence, including defendant's own testimony that he could not
hear or understand the Miranda warning, the conversation preceding the
polygraph test, the questions posed during the test, or the conversations
leading up to the written statement incriminating defendant.  At most,
defendant established that he had a hearing impairment, not that the
impairment in any way intervened to taint the fruits of his interrogation.
Finally, his passing reference to his need to end the interrogation to pick
up a granddaughter from school was insufficient to establish that his
appointment compelled him to confess to serious criminal charges, nor did
the trial court accord independent weight to defendant's testimony on this
point.
     Reversed and remanded.
 
 
 
                                        FOR THE COURT;
 
 
 
                                        __________________________________
                                        Associate Justice



FN1.      We grant defendant's contention here, arguendo, that he would not
have taken the test but for the State's agreement to give a similar test to
the alleged victim.  But his own testimony is equivocal on the point:
          Q.  Can you say whether or not you would have given the
          statement to the police on July 20th or consented or
          agreed to have the test if you knew [the victim] was not
          going to take the test?
          A. Well, I figured I wanted to clear my name, so I
          figured one way, I said, "Yeah, I should go down," but
          another way, I said, "Well, if she don't go down, I'm
          going to be just me alone."  And when he told me she
          had to go, I volunteered to go -- volunteered to go
          down.  That was under the understanding she was going
          down to [sic].