State v. Passino

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. 90-163
 
 
State of Vermont                             Supreme Court
 
     v.                                      On Appeal from
                                             District Court of Vermont,
Arthur Passino                               Unit No. 2, Franklin Circuit
 
                                             April Term, 1990
 
 
Ronald F. Kilburn, J.
 
James A. Hughes, Franklin County Deputy State's Attorney, St. Albans, for
   plaintiff-appellee
 
Walter M. Morris, Jr., Defender General, and William A. Nelson, Appellate
   Defender, Montpelier, for defendant-appellant
 
 
PRESENT:  Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
 
 
     DOOLEY, J.   This is a bail appeal, brought to this Court pursuant to
13 V.S.A. { 7556(b), and referred to the full Court for decision because of
the issues involved.  As in all such cases, the question before us is
whether the decision of the trial court is "supported by the proceedings
below."  Id.  For reasons discussed in greater detail below, we find that
the decision is not fully supported and remand for further proceedings.
     Defendant, Arthur Passino, is charged with murder in the first degree
in violation of 13 V.S.A. { 2301.  The maximum punishment for murder in the
first degree is imprisonment for life.  13 V.S.A. { 2303(a).  Because the
defendant is charged with an offense punishable by life imprisonment, the
State sought that he be held without bail pursuant to 13 V.S.A. { 7553,
which provides that a defendant is not "bailable as a matter of right" if
charged with an offense punishable by life imprisonment and the evidence of
guilt is great.  This section implements Chapter II, { 40 of the Vermont
Constitution.  See State v. Duff, 151 Vt. ___, ___, 563 A.2d 258, 261
(1989).
     The trial court, acting in response to the State's request, held a bail
hearing over a three-day period and took extensive evidence to determine
the case against defendant.  On March 23, 1990, it issued findings of fact
and conclusions of law, finding that "there is substantial, admissible
evidence of the guilt of Arthur Passino" and that the evidence was
sufficient to "fairly and reasonably convince a fact-finder beyond a
reasonable doubt" that defendant is guilty of murder in the first degree.
It ordered defendant held without bail.
     Defendant does not dispute that the evidence was sufficient to support
the court's conclusion and order under the standards announced in State v.
Duff.  Instead, defendant argues that the order cannot be sustained
because:  (1) the court failed to exercise its discretion to consider
releasing defendant on bail despite the court's findings and the nature of
the charge; and (2) the court erred in relying on evidence obtained in
violation of defendant's rights under Miranda v. Arizona, 384 U.S. 436
(1966).  We take these issues in order.
     Defendant's first claim is that the court had discretion to release him
on bail even though he was not bailable as of right, and there is no indi-
cation how the court exercised that discretion.  It is clear that the court
did have the discretion the defendant claims.  In In re Dexter, 93 Vt. 304,
315, 107 A. 134, 138 (1919), this Court held that the trial court had the
"sound, judicial discretion" to release a defendant on bail even though the
defendant fell within the constitutional exception to the right to bail.
The Dexter holding was recently reiterated in State v. Duff, 151 Vt. at ___,
563 A.2d  at 263.  Relying on the Rhode Island case of Fountaine v. Mullen,
117 R.I. 262, 271, 366 A.2d 1138, 1144 (1976), we likened the discretion to
that involved when a convicted defendant seeks release pending appeal.  We
emphasized, however, that the trial court is "under no obligation" to allow
bail in such a case.  Duff, 151 Vt. at ___, 563 A.2d  at 264.  We remanded
the case, in part, because we were unable to determine how the trial court
exercised its discretion on the record before us.  Id.
     The Duff and Dexter rule appears to be the majority rule in the states
with constitutional provisions similar to ours.  See, e.g., State v. Arthur,
390 So. 2d 717, 718 (Fla. 1980) (collects and analyzes cases from other
states).
     In this case, there is no indication that the trial court exercised its
discretion to consider bail despite its finding that the evidence against
defendant was great.  The opinion of the trial court discusses only the
strength of the evidence and not any of the facts that might bear on whether
bail was appropriate.  Accordingly, on this issue, we remand to the trial
court for a consideration of whether, in its discretion, the court should
set conditions of release. (FN1)
     Existing precedent does not control defendant's second issue. In his
bail review motion, defendant argued that the trial court committed error by
relying on evidence that was subject to a motion to suppress.  At oral
argument, defendant tempered the claim somewhat and argued that it  would
have been sufficient if the court had made a preliminary ruling on the
motion to suppress.
     The trial court responded to defendant's argument by a different
method.  In its findings, the court noted that it had to take the evidence
"in the light most favorable to the State."  It concluded that this standard
required it to use the challenged evidence.  It went on to point out,
however, that the evidence available to the State could "become lesser or
greater depending on the results of pending and future motions to suppress .
. . and the completion of . . . further investigation."  Thus, it noted that
in the future the available evidence might diminish to the point that the
defendant could no longer be held without bail.
     Although we have not had occasion to consider defendant's argument, our
decision in Duff relied heavily on case law from Rhode Island, a state
where defendant's argument has been squarely addressed.  In Massey v.
Mullen, 117 R.I. 272, 275-76, 366 A.2d 1144, 1145-46 (1976), the Court held
that a denial of bail could not be based on a confession taken in violation
of the protections set out in Miranda v. Arizona.  The decision is not based
on a conclusion that an exclusionary rule should apply at bail hearings.  It
is based instead on the pragmatic view that the determination that the
defendant can be held without bail must rest on a finding that the state has
the evidence to convict.  If the evidence held by the state is inadmissible,
it cannot meet its burden.  Under this "forward-looking test," illegally
seized evidence cannot be considered.  Massey, 117 R.I. at 280, 366 A.2d  at
1149.
     In Duff, we held that the standard to hold a defendant accused of a
crime punishable by life imprisonment without bail is the same as the
standard for determining a motion to dismiss for lack of a prima facie case.
151 Vt. at ___, 563 A.2d  at 263.  As we emphasized in Duff, that standard
requires that "substantial, admissible evidence of guilt" exist and the
evidence be sufficient to "fairly and reasonably" convince a fact-finder
beyond a reasonable doubt that defendant is guilty.  Id.  The standard can-
not be met by inadmissible evidence.
     Massey v. Mullen, however, was in a very different procedural posture
from this case.  In Massey, defendant sought habeas corpus in the Rhode
Island Supreme Court, alleging that the determination to hold him without
bail was based primarily on a confession obtained in violation of Miranda v.
Arizona.  Rather than ruling initially on whether the trial court had to
consider the claim, the Supreme Court remanded for a determination of
whether the State had obtained the confession illegally.  The trial court
ruled that the confession had been obtained illegally, and the matter again
went to the Supreme Court.  Only with this definitive ruling of illegality
in hand did the Supreme Court rule that the denial of bail violated the
Rhode Island Constitution.  The Court gave no guidance to the trial court on
how it should have handled the evidence question initially.  It concluded
that since the State offered virtually no evidence other than the
confession, it was error to deny bail on this evidence alone.
     A more relevant precedent, in a procedural posture similar to this
case, is State v. Tucker, 101 N.J. Super. 380, 244 A.2d 353 (1968), where
the defendant claimed that it was error for the trial court to consider his
statement without determining whether the requirements of Miranda v.
Arizona were met.  The appellate court noted that under New Jersey law, the
admissibility of a confession is determined at trial rather than prior to
trial.  It held:
          Considering the preliminary nature of this application
          for bail, the liberal use of evidence in hearings in
          connection therewith and the policy against fragmenting
          the trial by a pretrial hearing on the admissibility of
          the statement, all the state need do is demonstrate by
          prima facie proof that the requirements of Miranda . . .
          were met before the defendant signed the statement.
 
Id. at 383, 244 A.2d  at 355.  It accepted a signed statement of receipt of
Miranda warnings as prima facie proof of compliance with the requirements of
the decision.
     As is often the case in the law, we are balancing conflicting
considerations.  The right to bail in appropriate cases is specifically
provided for in our Constitution; it is a "concomitant of the presumption
of innocence."  State v. Konigsberg, 33 N.J. 367, 373, 164 A.2d 740, 743
(1960).  On the other hand, Chapter II, { 40 of the Constitution was
recently amended to provide specifically for the denial of bail for offenses
punishable by life imprisonment where the evidence of guilt is great.  This
exception to the right to bail responds to concerns about the risk of flight
and the dangerousness of persons charged with very serious offenses.  See
Note, Restricting the Right to Bail: Vermont's New Constitutional Bail
Amendment, 8 Vt. L. Rev. 347, 347 (1983).  Finally, we have a practical
concern that the bail decision be made expeditiously with a minimum of
duplicate adjudication.
     We believe that the New Jersey rule balances well the competing
considerations.  Thus, we conclude that in the face of a challenge to all or
part of the evidence relied upon by the State, if the challenge is based on
the application of an exclusionary rule because the use of the evidence
would violate the constitutional rights of the defendant, the court should
engage in a two-step process.  The first step is to determine whether the
state has sufficient evidence to deny bail without considering the evidence
challenged by the defendant.  If such evidence is found, the court need not
consider further the challenge to the evidence in making its bail decision.
See Steigler v. Superior Court, 252 A.2d 300, 305 (Del. 1969) (bail may be
denied where there is "sufficient admissible evidence," without considering
the challenged evidence, to support the denial of bail).  If the state can-
not show, without considering the challenged evidence, that substantial
admissible evidence of guilt exists, sufficient to fairly and reasonably
convince a fact-finder that defendant is guilty, State v. Duff, 151 Vt. at
___, 563 A.2d  at 263, the court must go forward to the second step of the
analysis.  At this step, it must determine whether the state can make out a
prima facie case of compliance with applicable constitutional requirements.(FN2)
This determination does not require the court to resolve conflicts that may
arise in the evidence.
     We recognize that the rule we have adopted can place a substantial
burden on the trial court at a very early point in the criminal proceeding.
For example, the bail proceeding in this case involved three days of
hearing.  Our rules require, however, that bail be determined at the first
appearance before a judicial officer.  See V.R.Cr.P. 5(g); 13 V.S.A. {
7554(a).  It will rarely be possible to hold a full hearing on whether
evidence of guilt is great at the first appearance.  Questions on
admissibility of evidence will not yet have surfaced. (FN3) To facilitate a fair
and full determination of the bail question, the bail proceeding must itself
have a "probable cause" stage.  Based on the initial determination that
there is probable cause to believe that the offense was committed and that
defendant committed it, see V.R.Cr.P. 4(b), the court can hold a defendant
charged with an offense punishable by life imprisonment without bail for
such time as is necessary to enable the parties to prepare for a full bail
hearing and to make appropriate motions. (FN4)  We emphasize that the bail
hearing must be scheduled as soon as reasonably possible to protect
defendant's right to bail.  The scheduling in this case -- twelve days
elapsed between the arraignment and the commencement of the bail hearing  --
met this mandate.
     We cannot determine on this record the impact of the motion to
suppress.  While it is described as a challenge to various statements
defendant made to the police and to physical evidence which the police
seized, defendant has failed to provide us with a copy of the motion.
Thus, we cannot determine whether there is sufficient evidence, apart from
that challenged by defendant, to meet the State's burden.  Assuming that the
State's showing is not otherwise sufficient, the trial court has not
evaluated the motion to suppress to determine whether the State can make a
prima facie showing of admissibility.  Thus, this matter must be remanded
for further analysis under the standards announced in this opinion.
     We conclude that the trial court's order holding defendant without
bail is not fully supported by the proceedings below.  In accordance with {
7556(b), we "remand the case for a further hearing."  Defendant shall remain
incarcerated until the court completes the additional proceedings required
by this opinion and thereafter if ordered by the trial court.
     Remanded.
 
                                   FOR THE COURT:
 
 
 
                                   _________________________________________
                                   John A. Dooley, Associate Justice
 
 


FN1.    In reaching this conclusion, we assume that the trial court will
continue to conclude that the evidence of guilt is great.

FN2.    We emphasize that the bail decision has no preclusive effect on the
ultimate determination of the admissibility of the evidence.  The doctrines
of res judicata and collateral estoppel do not prevent reconsideration of a
pretrial ruling.  See McRae v. United States, 420 F.2d 1283, 1286 (D.C. Cir.
1969).  Even if these doctrines did apply, there is no identity of issues
since the bail question is not whether the evidence must be suppressed.
We also emphasize that the fact that the issue of evidence admissibility
arises at the bail hearing does not eliminate the obligation of the defense
to make a timely motion to suppress under V.R.Cr.P. 12(b)(3).

FN3.    The motion to suppress in this case was made on the second day of
the bail hearing, almost two weeks after defendant initially appeared to
answer the information.

FN4.      It may be necessary for the trial court to make a scheduling order
at arraignment that requires the defendant to raise suppression issues well
before the bail hearing to give the state an opportunity to respond.
Normally we would consider a motion to suppress made in the middle of the
bail hearing as untimely.