State v. Gulley

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. 89-227


State of Vermont                             Supreme Court

     v.                                      On Appeal from
                                             District Court of Vermont,
Robert J. Gulley                             Unit No. 1, Bennington Circuit

                                             April Term, 1990


Robert Grussing III, J.

Jeffrey L. Amestoy, Attorney General, Susan R. Harritt, Assistant Attorney
   General, and Gayle Middleton, Law Clerk (On the Brief), Montpelier, for
   plaintiff-appellee

Walter M. Morris, Jr., Defender General, and Anna Saxman, Appellate
   Defender, Montpelier, for defendant-appellant


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


     GIBSON, J.   Defendant Robert J. Gulley appeals from the district
court's exclusion of his mother's testimony at a suppression hearing and
the court's subsequent denial of his motion to suppress statements in which
he admitted to having stolen $1300.  We affirm.
                                    I.
     Upon learning that defendant might have been involved in the theft of
$1300 from a bus driver, Bennington Police Officer William Derosia called
the Gulley household on several occasions to arrange an interview with
defendant at the police station.  In response to those calls, defendant's
mother drove her nineteen-year-old son to the station during regular
business hours, where he was questioned by Officer Derosia.  The testimony
is conflicting as to what exactly Officer Derosia said to defendant over the
telephone and at the station before Miranda warnings were given and as to
whether defendant's mother was present during the entire interview.
     Upon defendant's arrival at the station, Officer Derosia informed
defendant that he wanted to talk about the theft of some money from a bus
driver.  The officer explained the evidence against defendant and the
potential penalties involved.  When defendant attempted to confess to the
theft, Officer Derosia interrupted him in order to give Miranda warnings.
After the warnings were read, defendant confessed to the theft and then
signed a written statement detailing his confession.  Defendant's mother
also signed the Miranda form and the statement; however, there is dis-
agreement over the point at which the mother joined her son and Officer
Derosia.  Defendant claims that halfway through the warnings he asked the
officer if he could see his mother and, at that point, he and Officer
Derosia went outside to bring defendant's mother into the station.
     Approximately two months later, after being cited for grand larceny,
defendant filed a motion seeking suppression of the oral and written
statements made to Officer Derosia.  At the suppression hearing, defense
counsel attempted to call defendant's mother to the stand following the
testimony of Officer Derosia and defendant.  The court refused to allow
defendant's mother to testify because she had been present in the courtroom
throughout the prior testimony and defense counsel had not informed the
State that she would be testifying at the hearing.  A pretrial order had
mandated that defendant list all witnesses expected to testify at trial, but
no request or order for the sequestration of witnesses preceded the court's
ruling at the suppression hearing.  Defendant did not object to the exclu-
sion of his mother's testimony at the time of the court's ruling, nor did he
subsequently move to reopen the evidence; however, a week after the hearing,
he filed an offer of proof regarding her testimony together with his
requested findings of fact.  Thereafter, the court denied the motion to
suppress, whereupon defendant entered a conditional plea of no contest.
     On appeal, defendant argues that (1) the trial court's exclusion of his
mother's testimony violated the United States and Vermont Constitutions; (2)
the court failed to make adequate findings regarding certain disputed
facts; and (3) the court erred in denying defendant's motion to suppress.
                                    II.
     Defendant first contends that the court's exclusion of his mother's
testimony violated state law as well as his right to present witnesses under
the Sixth and Fourteenth Amendments to the United States Constitution and
Chapter I, Article 10 of the Vermont Constitution.  We reject these
contentions since defendant has failed to show that the court's ruling
prejudicially affected his substantial rights.  See V.R.Cr.P. 52(a).
     At the request of a party or upon its own motion, the trial court may
order the exclusion of witnesses so they cannot hear the testimony of other
witnesses.  V.R.E. 615.  As noted, in this case neither party requested a
separation of witnesses, and the court never made a sequestration order.  In
its pretrial discovery order, issued prior to the suppression hearing, the
court ordered the defense attorney to disclose to the prosecuting attorney
the names of all witnesses to be called at trial.  Apparently, defendant's
mother was not on the list provided; in any event, the State did not expect
defendant to call her to testify at the suppression hearing.
     Neither the Sixth Amendment nor Chapter I, Article 10 forbids
preclusion of the testimony of a surprise witness as a discovery sanction,
in appropriate circumstances.  See Taylor v. Illinois, 484 U.S. 400, 410
(1988); State v. Edwards, 152 Vt. ___, ___, 569 A.2d 1075, 1076 (1989).
Nevertheless, under the instant circumstances -- where there was no
sequestration order and no violation of a discovery order -- we conclude
that the court erred by excluding the testimony of defendant's mother.  See,
e.g., State v. Jones, 354 So. 2d 530, 532 (La. 1978) (exclusion of witness's
testimony is constitutionally impermissible absent a knowing violation of
sequestration order by defendant or defendant's counsel); People v. Nixten,
160 Mich. App. 203, 209-10, 408 N.W.2d 77, 81 (1987) (no rational basis for
upholding nonexistent sequestration order that the judge might have made had
the prosecuting attorney thought to ask for it).
       Although erroneous, the court's ruling will not warrant reversal,
however, unless defendant can show that the error prejudicially affected his
substantial rights.  V.R.Cr.P. 52(a).  We conclude that it did not.  "[B]oth
the federal and state rights of compulsory process are mandated only where
the witnesses to be called will offer testimony which is competent, relevant
and material to the defense."  State v. Kennison, 149 Vt. 643, 649, 546 A.2d 190, 194 (1987) (exclusion of testimony was harmless error where offer of
proof did not sufficiently establish materiality of proposed testimony),
cert. denied, 486 U.S. 1011 (1988).  It is defendant's burden to show that
the excluded testimony would have been material.  Id.
     In defendant's offer of proof, he stated that his mother would have
testified as follows: (1) She did not accompany her son into the police
station; (2) Thirty to forty-five minutes elapsed while she waited for her
son outside the police station; (3) A police officer accompanied her son
when defendant came out and asked her to join them; (4) She does not
remember hearing the Miranda warnings prior to the section that refers to
hiring a lawyer.
     Defendant based his motion to suppress on the nature of the statements
made to him when he arrived at the station and the fact that he was seated
in a chair in close proximity to handcuffs hanging on the wall, not on the
length of the interview or his mother's absence from it.  Defendant, who was
not a minor, never argued that his mother was prevented from joining him
during the interview at the police station or that there was any reluctance
on the part of the police to include her when defendant requested her
presence.  The court found that it was unclear whether defendant's mother
had been present at the beginning of the interview but that she had been
present when he made his confession.  Further, although defendant represents
that his mother does not remember hearing all of the Miranda warnings, she
did sign the Miranda form and must therefore at least have had an
opportunity to read it.  Thus, although we believe defendant's mother should
have been allowed to testify, we are not convinced of the materiality of the
excluded evidence.  Accordingly, we hold that the court's error was harm-
less, and defendant's state and federal constitutional rights to present
evidence on his own behalf were not violated.  See id.; State v. Warren, 437 So. 2d 836, 840 (La. 1983) (erroneous exclusion of relevant, but cumulative
testimony by family member was not prejudicial).
                                   III.
     Defendant next argues that the court's failure to make findings
concerning whether the officer threatened him on the telephone and whether
defendant's mother was present throughout the questioning constitute
reversible error.  We find no merit in this argument.  Based on conflicting
testimony, the court concluded that Officer Derosia "request[ed]" that
defendant come to the police station for an interview.  See State v. Olson,
___ Vt. ___, ___, 571 A.2d 619, 623 (1989) (great deference is given to
trial court findings).  Moreover, although the court found that it could not
determine from the conflicting testimony whether defendant's mother had been
present throughout the interview, it did find that she was present when the
Miranda warnings were given to defendant and when he gave his confession.
The court's findings sufficiently support its determination that
defendant's statements were voluntarily offered.
                                    IV.
     Finally, defendant argues that the trial court's denial of his motion
to suppress the statements he made at the police station constitutes
reversible error.  In support of his contention, defendant relies heavily on
State v. Brunell, 150 Vt. 388, 554 A.2d 242 (1988), where we upheld the
trial court's suppression of statements obtained from a murder suspect held
"in custody."  We conclude that Brunell is distinguishable and that the
trial court's denial of defendant's suppression order in the instant case is
not clearly erroneous.
     In Brunell, three police officers arrived at the home of the suspect's
parents at approximately ten o'clock in the evening on the day of the crime
and asked the suspect and his wife to accompany them to the police station.
Although one of the officers told the couple that they did not have to go to
the station, the chief of police told the suspect's mother in the presence
of the couple that they had to go that night while the events were still
fresh in their minds.  After refusing to allow the suspect's brother to
accompany them, the police drove the couple thirty minutes in a police
cruiser to the police station, where they were immediately separated and
questioned.  The police informed the suspect at the outset that he was not
under arrest or in custody, that he did not have to talk, and that they
would give him a ride home when he wanted.  The suspect then agreed to be
interviewed.  After the suspect made incriminating statements as a result of
the questioning, the police gave him Miranda warnings; he then signed a
written waiver of those rights and gave a taped interview in which he
reiterated his earlier statements and acknowledged that his presence at the
police station was voluntary.  The police drove him home at approximately
one o'clock in the morning.
     The trial court concluded that the statements obtained from the
defendant had to be suppressed because he had been "in custody" -- a
reasonable person under similar circumstances would not have believed that
he or she was free to leave or to refuse to answer questions.  Id. at 391,
554 A.2d  at 244.  Emphasizing the chief of police's insistence that the
couple come to the station that night, the thirty-minute drive in a police
cruiser late at night, the refusal to permit the suspect's brother to
accompany the couple, and the lengthy interrogation at the station, we held
that the trial court's conclusion was not erroneous as a matter of law.  Id.
at 392, 554 A.2d  at 244.
     In contrast, in the instant case, defendant's mother drove defendant to
the police station during regular business hours several days after the
crime was committed.  Although defendant claimed that Officer Derosia had
told him on the phone that if he did not come in charges would be filed, the
court's determination that defendant voluntarily came to the station was
reasonable and within the evidence.  Moreover, as noted, there was no evi-
dence that defendant's mother was prevented from accompanying her son at
the interview; indeed, defendant concedes that he and the officer went to
get his mother immediately upon his request.
     The present case is much more similar to the case contrasted in
Brunell -- Oregon v. Mathiason, 429 U.S. 492 (1977) -- than to Brunell
itself.  In Mathiason, after the police called and left a card at a
suspect's apartment asking him to come to the station for an interview, the
suspect arrived at the station, was interviewed for about thirty minutes,
and then left.  Stressing the suspect's voluntary arrival and the his brief
stay at the station, the United States Supreme Court summarily reversed the
lower court's grant of the suppression motion.  Id. at 494-96.
     Defendant points out that, in contrasting the instant case and Brunell,
the trial court stated that defendant was released to go home after the
interview.  He claims that this statement is false and requires reversal.
We disagree.  It is unclear from the record what transpired after defendant
signed the statement; we note, however, that the citation to appear is dated
October 2, the day after the interview, and the information charging
defendant with grand larceny was not filed until the date of his court
appearance, one month later.  In any event, whether or not defendant was
released following the interview does not distinguish this case from Brunell
and does not affect our analysis here.
     Although the State bears a heavy burden of showing a knowing and
intelligent waiver of Miranda rights, the trial court determines the weight
and sufficiency of evidence and the credibility of witnesses.  State v.
Stanislaw, ___ Vt. ___, ___, 573 A.2d 286, 293 (1990).  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.  The court's conclusion that, based on the totality of the circumstances
in this case, a reasonable person would have believed that he or she was
free to leave or to refuse to answer police questioning, was not clearly
erroneous.  See State v. Willis, 145 Vt. 459, 475, 494 A.2d 108, 117 (1985).
     Affirmed.



                                        FOR THE COURT:


                                        ____________________________________
                                        Associate Justice