State v. Pellerin

STATE_V_PELLERIN.92-413; 161 Vt. 229; 637 A.2d 1078

[Filed 17-Dec-1993]

 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, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.

                                 No. 92-413


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 1, Windsor Circuit

 Thomas Pellerin                              November Term, 1993



 Robert Grussing III, J. (sentencing); George F. Ellison, J. (motion to
    suppress)

 M. Patricia Zimmerman, Windsor County State's Attorney, White River
    Junction, for plaintiff-appellee

 William A. Hunter, Windsor, for defendant-appellant


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


      GIBSON, J.     Defendant was convicted, following a conditional nolo
 contendere plea, of sexual assault on a minor, 13 V.S.A. { 3252(a)(3).  On
 appeal, defendant challenges the denial of his suppression motion.  We
 reverse.
      Defendant was arrested in April 1989 and taken to Vermont State Police
 offices, where one of the arresting officers read the Miranda rights to
 defendant.  The court found that defendant, who had a prior criminal record,
 indicated he understood his rights, had no questions, and would talk to the
 officers without an attorney present.  The court also found as follows:
               The defendant did not sign a written waiver.  During
           the questioning the defendant did not request the
           questioning to stop at any time and did not ask for an

 

           attorney at any time.  There was no evidence the defend-
           ant was made any promises to induce his Miranda waiver,
           nor was there any evidence of force to extract his
           waiver.

           Defendant was questioned for fifteen to twenty minutes, after which an
           attorney telephoned to say he represented defendant.  Following the call,
           there was no further questioning by the police.
      Defendant entered a conditional plea of nolo contendere under V.R.Cr.P.
 11(a)(2), subject to his motion to suppress evidence obtained through police
 interrogation.  The court denied the motion, concluding that there had been
 no violation of defendant's rights under the Fifth or Sixth Amendments to
 the United States Constitution or under the Vermont Constitution.  The court
 also concluded that Vermont's statute providing for a written waiver of the
 right to counsel, 13 V.S.A. { 5234, had not been violated.  Defendant there-
 after entered the conditional plea of nolo contendere, and this appeal
 followed.
     13 V.S.A. { 5234 provides, in relevant part:
             (a) If a person who is being detained by a law
           enforcement officer without charge or judicial process
           . . . is not represented by an attorney under conditions
           in which a person having his own counsel would be
           entitled to be so represented, the law enforcement
           officer . . . shall:

               (1) Clearly inform him of the right of a person to
           be represented by an attorney and of a needy person to
           be represented at public expense; and

                (2) If the person detained . . . does not have an
           attorney and does not knowingly, voluntarily and
           intelligently waive his right to have an attorney when
           detained . . ., notify the appropriate public defender
           that he is not so represented.  This shall be done upon
           commencement of detention . . . .

      The requirements for an effective waiver of the right to counsel are
 set forth in 13 V.S.A. { 5237:

 

                A person who has been appropriately informed under
           section 5234 of this title may waive in writing, or by
           other record, any right provided by this chapter, if the
           court, at the time of or after waiver, finds of record
           that he has acted with full awareness of his rights and
           of the consequences of a waiver and if the waiver is
           otherwise according to law.  The court shall consider
           such factors as the person's age, education, and famili-
           arity with the English language, and the complexity of
           the crime involved.

      In State v. Caron, we held that to be valid and binding under { 5237,
 a waiver of the right to counsel must be in writing and signed by the person
 detained.  155 Vt. 492, 511-12, 586 A.2d 1127, 1138 (1990).  "'The
 requirement that [the waiver] be written or otherwise recorded not only
 provides evidence of the act but makes clear that the mere absence of a
 request for counsel . . . cannot be construed as a waiver.'"  Id. at 511,
 586 A.2d  at 1138 (quoting Handbook of the National Conference of
 Commissioners on Uniform State Laws { 7 Comment, at 277 (1970)).
     In this case the trial court concluded:
                Title 13 V.S.A. section 5234 provides the defendant
           his Sixth Amendment rights and how they are to be
           waived and has nothing to do with a waiver of Fifth
           Amendment rights.  Here the defendant was waiving his
           Fifth Amendment rights only.  His Sixth Amendment rights
           did not carry forward from the 1987 offense to this
           alleged offense and he had not asserted his Sixth
           Amendment rights to counsel at his waiver of the Fifth
           Amendment [sic] did not constitute a Sixth Amendment
           waiver of counsel[.] Therefore Title 13 V.S.A. section
           5234 is not applicable to his Fifth Amendment waiver
           which does not need to be in writing . . . .

                He waived his Fifth Amendment right and his
           interview was completed before [attorney for defendant]
           called the State Police station and his waiver was know-
           ing, voluntary and intelligent and did not encompass a
           waiver of his right to counsel under the Sixth
           Amendment.

        The court does not explain its conclusion that { 5234 applies only to
 the Sixth Amendment right to counsel, which attaches when a critical stage

 

 of the prosecution is reached.  See United States v. Wade, 388 U.S. 218,
 224-25 (1967).  The statute, however, clearly requires the law enforcement
 officer who is giving Miranda warnings to notify a public defender "upon
 commencement of detention" if an unrepresented detainee does not properly
 waive the right to counsel.  13 V.S.A. { 5234(a)(2).
     The State concedes that defendant did not sign a written waiver of his
 right to counsel, and does not contend that defendant failed to raise the
 issue properly at the motion stage.  But the State argues that in 1989, when
 defendant was arrested, the outcome of the motion was controlled by our 1976
 decision in State v. Breznick, 134 Vt. 261, 356 A.2d 540 (1976), and not our
 1990 Caron decision.  We cannot agree.
     Though Breznick held that a Miranda waiver "may be implied where
 warranted from the facts and circumstances of a particular case," and that
 "[a] defendant's refusal to sign either a waiver of rights form or a written
 confession is merely another of the facts and circumstances which must be
 weighed in order to determine if there has been a voluntary waiver of Fifth
 Amendment rights," 134 Vt. at 265, 356 A.2d  at 542, no { 5237 claim was made
 in Breznick.  Our holding therein was clearly limited to the scope of the
 defendant's Fifth Amendment rights.  The limits of the holding in Breznick
 are made clear in Caron, which cited Breznick as an example of prior case
 law that did not require a written waiver form signed by the defendant.
 155 Vt. at 510, 586 A.2d  at 1138.  This case stands on no different footing
 than Caron.  Once a construction of { 5237 is at issue, the requirement of a
 written waiver is clear.  If a waiver was required and not given in the
 manner prescribed by statute, the evidence obtained in the subsequent
 questioning of defendant must be suppressed.  See State v. Nicasio, 136 Vt.

 

 162, 166, 385 A.2d 1096, 1099 (1978) ("[T]he policy reasons underlying
 Miranda and its subsequent cases require suppression of any statement
 obtained otherwise than by statutory compliance.").
     Reversed and remanded.





                                   FOR THE COURT:



                _______________________________
                Associate Justice