State v. Caron

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as well as formal revision before publication in the Vermont Reports.
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                                No. 89-329

State of Vermont                             Supreme Court

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

Richard D. Caron                             September Term, 1990

Francis B. McCaffrey, J.

Jeffrey L. Amestoy, Attorney General, and Susan R. Harritt, Assistant
  Attorney General, Montpelier, for plaintiff-appellee

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

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

     DOOLEY, J.   Defendant Richard Caron entered a conditional plea of
guilty to a burglary charge and was sentenced to four to thirteen years of
imprisonment.  Defendant appeals the trial court's denial of his motion to
suppress evidence, claiming that the evidence was obtained pursuant to an
illegal arrest.  Defendant also appeals the denial of his motion to
suppress statements, claiming that statements and his waiver of his
constitutional rights were obtained in violation of the Vermont
Constitution and that the waiver of his right to counsel violated the
requirements of the Vermont Public Defender Act, 13 V.S.A { 5237.  We

     On December 13, 1987, at approximately 11:40 p.m., the Bennington
Police Department received a call from Mary Flanders, reporting that she and
her husband had been robbed and assaulted in their Bennington home.  Police
officers were dispatched to the Flanders' home, where the Flanders told them
that two men had entered their home, beaten them, and robbed them of a safe
and a pocketbook.  Mrs. Flanders stated that one of the assailants was
named "Gary."  The police department also received a call from Donald Mears,
who described seeing and hearing an older model pickup truck pull up and
park in front of his home, which was located across the street from the
Flanders' residence.  According to Mr. Mears, the truck sounded as if it had
no muffler, its engine skipped, and it had a cap over the truck bed.  Mr.
Mears stated that a man exited the truck, stood in front of the Flanders'
home for several minutes, and then returned to the vehicle.  The truck drove
off, but Mr. Mears heard what he believed to be the same vehicle return and
leave several times over the next half hour and finally leave at a high
rate of speed.  Mr. Mears also noticed that there was oil on the ground
where the truck had been parked.
     Based on the information received from the Flanders and Mr. Mears, the
Bennington Police department issued two "be on the lookout" (BOL) bulletins
to neighboring Vermont, New York, and Massachusetts police units.  The first
BOL, issued at 12:28 a.m., stated:
         BOL for the following vehicle in connection with a
         robbery that just occurred in Bennington, Vermont.  A
         pickup truck, unknown reg[istration] or make.  Loud
         exhaust, leaking oil, sputtering.  Two male occupants,
         one with long hair and one with the first name of Gary.
         Should be in the possession of a small safe.  This
         robbery took place on Grove St[reet] in Bennington.  The
         two males driving the above vehicle beat and injured an
         elderly couple before robbing them at their residence.

A follow-up bulletin, broadcast at 12:48 a.m., contained this additional
         The vehicle's described as a late model full size pickup
         truck with oversized taillights.  The rear of the truck
         is closed in (possible cab [sic] on back) and has some
         sort of a fin or spoiler on rear of it.  One of the male
         subjects is described as being 5[']10["], 160 [pounds],
         wearing light colored pants.

     At approximately 1:30 a.m., Officer Davendonis from the Hoosick Falls,
New York police department, observed a pickup truck which appeared to match
the vehicle described in the BOLs.  The truck had two occupants who matched
the BOL descriptions and appeared frightened and disconcerted.  He followed
it to a convenience store where the driver bought a quart of oil.  He
finally encountered the vehicle while it was parked behind a school bus
garage.  The officer approached the vehicle and asked the driver to step out
of the truck and provide identification.  The driver identified himself as
Gary Skidmore but did not have a license or registration.  Attempts to
obtain information on the vehicle registration number or the name failed
because Vermont's computer that provides such information was not operating.
The officer then radioed for assistance from the New York State Police.
While waiting for assistance, the officer asked Skidmore where he was coming
from and going to, and Skidmore provided inconsistent responses to these
     Two New York State Police officers, Troopers Duff and Overdorf,
arrived in response to the call for assistance.  Trooper Duff observed a
shotgun in the pickup truck and asked the passenger, later identified as the
defendant, to step out of the cab so that he could remove the shotgun.
Defendant exited the vehicle.  While Trooper Duff was removing the shotgun,
he observed a paper sack, open at the top, which appeared to contain
shredded paper currency.  Officer Duff then asked the other officers to
handcuff Skidmore and defendant.  Defendant was handcuffed and placed into
the rear of a police vehicle.  Skidmore, however, pushed Trooper Overdorf
and escaped into the surrounding woods.  Skidmore surrendered to police
officers the following day.
     Officers Briggs and Colgan of the Bennington Police Department arrived
at the scene to participate in the investigation.  Officer Briggs was
familiar with defendant and approached him.  After Officer Briggs
identified himself, defendant immediately stated, "I'll tell you one thing,
I didn't beat those old people."  There was no further conversation with
defendant until 3:15 a.m. at the Hoosick Falls police barracks when Officer
Briggs read defendant his Miranda rights from a form consisting of seven
parts, each followed by a question asking defendant whether he understood
the preceding part. (FN1) Defendant answered "yes" to each question, and Officer
Briggs recorded each response on the form.  In answering the seventh
question, defendant indicated that he had his rights in mind and wished to
talk with Officer Briggs.  At 3:17 a.m., defendant signed a provision at the
bottom of the form stating that he had been advised of his rights,
understood them, and agreed to waive them.  Defendant asked for a cigarette
and was given a pack.  He indicated that he would not sign a statement.  He
described his participation in the robbery but denied that he had assaulted
the Flanders.  He identified Gary Skidmore as his accomplice.  The
questioning ended approximately forty-five minutes later, after which
defendant was brought to a jail cell and allowed to sleep.
     Approximately four hours later, defendant was questioned by an officer
of the New York State Police Department. (FN2) He was read a version of the
Miranda rights from a New York State Police form.  He was not required to
respond to each part, but he acknowledged verbally that he had been advised
of and understood his rights and that he agreed to waive these rights and
speak with the officer.  Although he refused to sign the form or a written
statement, he again admitted that he had participated in the robbery.  The
interview was concluded at approximately 11:00 a.m.
     The two officers who took statements noted that defendant had been
drinking during the evening, but both concluded that defendant showed no
signs of impairment before or after giving his statements.  After he was
returned to Vermont, defendant filed several pretrial motions to suppress
physical evidence and his own statements.  He entered a conditional guilty
plea to a charge of burglary, reserving the right to appeal the denial of
his suppression motions.
     Defendant first challenges the legality of the initial stop by Officer
Davendonis and the trial court's refusal to suppress evidence obtained from
Skidmore's pickup truck during that stop.  Defendant contends that the
evidence should have been suppressed under the federal and Vermont
Constitutions because there was no probable cause to arrest him or conduct a
search either at the time Officer Davendonis stopped the vehicle or soon
thereafter.  The trial court held that the officer had probable cause to
arrest defendant at the time of the stop, and further concluded that, if
probable cause did not exist initially, there was reasonable suspicion to
warrant an investigatory stop, and that this reasonable suspicion quickly
ripened into probable cause.
     Police officers may conduct a warrantless investigatory stop when
specific and articulable facts, taken together with rational inferences from
those facts, warrant a reasonable belief that a suspect is engaging in
criminal activity.  Terry v. Ohio, 392 U.S. 1, 21-22 (1968); Berkemer v.
McCarty, 468 U.S. 420, 439 (1984); State v. Schmitt, 150 Vt. 503, 507, 554 A.2d 666, 668 (1988).  A warrantless investigatory stop may also be made
based on reasonable suspicion that the person stopped was involved in a
completed felony.  United States v. Hensley, 469 U.S. 221, 229 (1985).  An
investigatory stop must be brief, however, and "any further detention must
be based on consent or probable cause."  State v. Phillips, 140 Vt. 210,
215, 436 A.2d 746, 749  (1981).  In the present case, the BOLs contained
more than ample information to create reasonable suspicion and justify an
investigatory stop.  Officer Davendonis spotted a vehicle which, as stated
in the BOL, had a loud exhaust, a sputtering engine, an oil leak, and two
male occupants.  During the brief questioning following the stop, the
driver identified himself with the same first name as specified in the BOL
and gave inconsistent responses to questions about his route and
destination.  There can be no doubt that the officer had probable cause at
that point to arrest the occupants of the vehicle.  See Beck v. Ohio, 379 U.S. 89, 91 (1964) (probable cause to arrest exists where facts and
circumstances were sufficient to warrant a prudent person to believe that
defendant had committed an offense); accord State v. Paquette, 151 Vt. 631,
635, 563 A.2d 632, 535-36 (1989).
     Defendant complains that the BOL was inadequate because the neighbor
did not confirm visually that the vehicle which returned to the victims'
home was the same vehicle he had seen earlier.  Defendant's argument would
turn suspicion into certainty.  The combination of what Mr. Mears saw and
heard, along with the victims' statements, supported the BOL information and
was sufficient to constitute the "specific and articulable" facts needed to
justify reasonable suspicion.
     Defendant also contends that Officer Davendonis was not entitled to ask
Skidmore to exit his vehicle as part of the stop and that his doing so
constituted a warrantless arrest without probable cause.  Although there is
no bright-line test for distinguishing between a stop and an arrest, it is
useful to look at a number of factors in determining the reasonableness of
an investigative stop, including the time, place, duration, and degree of
intrusiveness of the stop.  United States v. Pelusio, 725 F.2d 161, 165-66
(2d Cir. 1983).  Moreover, "[t]he permissible duration and intrusiveness of
an investigative stop depend on the extent of the law enforcement interest
and the seriousness of the conduct giving rise to a reasonable suspicion of
unlawful activity."  Id. at 165.  For example, we have held previously that
when a police officer has a reasonable suspicion that an individual is
driving under the influence of alcohol, he may order that individual to exit
a vehicle "in order to confirm or negate his suspicions regarding probable
cause to arrest."  State v. Jewett, 148 Vt. 324, 330, 532 A.2d 958, 961
(1986).  Although a police officer's order to exit an automobile is a
further "seizure" beyond the scope of a brief Terry stop, such an order is
within "the realm of legitimate law enforcement conduct where the suspected
criminal activity is DUI."  Id.
     Here, soon after making the stop, the officer requested that defendant
leave his vehicle.  The officer's questions were minimally intrusive.  The
officer made the stop alone at night, had reason to believe the occupants
might be dangerous, and knew the vehicle contained a shotgun.  Where a
police officer has made an initial stop based on a reasonable suspicion
that the occupants have participated in a violent felony and there is a high
likelihood that the occupants might be dangerous, we see no reason to
preclude the officer from taking the protective measure of asking the
occupants to step from the vehicle.  See Pennsylvania v. Mimms, 434 U.S. 106, 110 (1979) ("we have specifically recognized the inordinate risk
confronting an officer as he approaches a person seated in an automobile").
In the context of the initial stop, such a request did not elevate the
detention to the level of an arrest.  The trial court did not err in denying
defendant's motion to suppress evidence. (FN3)
     The remainder of defendant's claims focus on the admissibility of the
oral statements he gave to the Vermont and New York police officers.  At the
outset, we address defendant's claim that the Vermont Constitution requires
the State to prove both the voluntariness of a confession and a waiver of
Miranda rights beyond a reasonable doubt rather than by a preponderance of
the evidence.  We start with the claim that in judging a motion to suppress
the court must find the voluntariness of a confession beyond a reasonable
     As defendant recognizes, federal law is against his position.  In Lego
v. Twomey, 404 U.S. 477 (1972), the United States Supreme Court ruled that
the United States Constitution requires that a confession be shown to be
voluntary only by a preponderance of the evidence.  The Court emphasized
the fundamental distinction between proving the essential elements of a
crime and establishing the voluntariness of a confession.  The former bears
directly on the reliability of a jury's guilt/innocence determination; the
latter is concerned primarily with determining the admissibility of
evidence.  Id. at 486-87.  As the Court stated:
           Since the purpose that a [suppression] hearing is
         designed to serve has nothing whatever to do with
         improving the reliability of jury verdicts, we cannot
         accept the charge that judging the admissibility of a
         confession by a preponderance of the evidence undermines
         the mandate in In re Winship, 397 U.S. 358 (1970). . . .
         Winship went no further than to confirm the fundamental
         right that protects 'the accused against conviction
         except upon proof beyond a reasonable doubt of every
         fact necessary to constitute the crime with which he is
         charged.'  A high standard of proof is necessary, we
         said, to ensure against unjust convictions by giving
         substance to the presumption of innocence.  A guilty
         verdict is not rendered less reliable or less consonant
         with Winship simply because the admissibility of a
         confession is determined by a less stringent standard.

Id. (citations omitted).
     We have followed the standard of proof endorsed by Lego whenever the
issue of voluntariness has arisen.  E.g., State v. Harbaugh, 132 Vt. 569,
576-77, 326 A.2d 821, 826 (1974) (since "the matter here involved is the
admissibility of evidence rather than proof of an essential element of the
crime, the measure of proof required is not proof beyond a reasonable doubt,
but proof by a preponderance of the evidence"); accord State v. Brunell, 150
Vt. 388, 390, 554 A.2d 242, 243 (1988); State v. Breznick, 134 Vt. 261, 265,
356 A.2d 540, 542 (1976); State v. Badger, 141 Vt. 430, 439, 450 A.2d 336,
341 (1982).  Significantly, in Badger, the Court went on to analyze
suppression issues raised under the Vermont Constitution without suggesting
that voluntariness should be judged by a different standard of proof under
Vermont law.  See id. at 450-51, 450 A.2d  at 348.
     We reject defendant's argument that the court must determine
voluntariness beyond a reasonable doubt.  First, we believe that defendant's
interests are adequately protected by our use of the "Massachusetts rule"
whereby voluntariness is first considered by the court in determining the
admissibility of a confession and then is reconsidered by the jury on
whether to rely on the confession.  See State v. Harbaugh, 132 Vt. at 579,
326 A.2d  at 827; V.R.E. 104(a).  The requirement that the jury determine
voluntariness was adopted because reliance on the determination of the judge
alone "contains aspects of harshness inconsistent with the general
administration of criminal law in this jurisdiction" and gives the
determination of the judge "an aura of infallibility which . . . is not
consistent with the general concepts of the right to jury trial."  Id.  The
jury determination of voluntariness is made beyond a reasonable doubt.  See
Commonwealth v. Tavares, 385 Mass. 140, 152, 430 N.E.2d 1198, 1206 (1982).
Because we use the Massachusetts rule, the question is not whether the
voluntariness of a confession should be determined beyond a reasonable
doubt, but only whether voluntariness must additionally be determined by the
judge by that standard.  Whatever the outcome of this appeal, the jury will
continue to determine voluntariness by the higher standard of proof.  We
accept the critical importance that this determination be made accurately,
but remain unconvinced that the use of this standard by the judge is
necessary to that accuracy.  As the United States Supreme Court found in
Lego, "no substantial evidence has accumulated that federal rights have
suffered from determining admissibility by a preponderance of the evidence,"
404 U.S.  at 488.  This is  especially true where the voluntariness of the
confession must be proved to the jury beyond a reasonable doubt.
     Additionally, we find nothing in the Vermont Constitution that suggests
a result different from that in Lego.  Unlike other states, see, e.g., State
v. Phinney, 117 N.H. 145, 146-47, 370 A.2d 1153, 1153-54 (1977), we have not
historically required that the court determine the admissibility of a
confession beyond a reasonable doubt.  Nor have we required this elevated
standard of proof in other contexts beyond proof of the elements of a
criminal case.  We agree with the Court's analysis in Lego that the
voluntariness of the confession is not an element of the offense and that
the standards used in determining the admissibility of evidence do not
relate directly to the reliability of jury verdicts.  See 404 U.S. at 486-
     We turn now to defendant's claim that the State must prove the waiver
of a suspect's Miranda rights beyond a reasonable doubt.  The standard used
at the federal level in judging whether Miranda rights have been waived is
set out in Colorado v. Connelly, 479 U.S. 157 (1986).  Connelly follows Lego
in holding that the waiver need be shown only by a preponderance of the
evidence for generally the same reasons.  Id. at 167-69.  The Court noted
that the "auxiliary protections established in Miranda" should not warrant a
higher standard of proof than that used in establishing the voluntariness of
confessions.  Id. at 169.
     Anticipating Connelly, we have consistently held that a waiver of
Miranda rights must be established only by a preponderance of the evidence.
See, e.g., State v. Breznick, 134 Vt. at 265, 356 A.2d  at 542.  In one
sense, the case for use of an elevated standard of proof is stronger here
because a jury will never be required to determine the validity of a
Miranda waiver.  On the other hand, the issues are further removed from the
elements of the criminal offense, and the Miranda rules are generally
grounded in deterrence of law enforcement misconduct.  On balance, we find
less justification for an elevated standard of review.  We note that a
number of states that require the prosecution to prove the voluntariness of
a confession beyond a reasonable doubt employ a preponderance standard for
judging Miranda waivers.  See, e.g., Light v. State, 547 N.E.2d 1075, 1079
(Ind. 1989); State v. Langill, 567 A.2d 440, 443 (Me. 1989).  We see no
grounds to hold under the Vermont Constitution that a Miranda waiver must be
shown beyond a reasonable doubt.  See State v. Gleason, ___ Vt. ___, ___,
576 A.2d 1246, 1251 (1990) (no reason to conclude that Article 10 of Vermont
Constitution offers greater protection than the Fifth Amendment).
     Defendant's next claim is that his confessions were not voluntary and
their admission violated Chapter I, Article 10, of the Vermont Constitution.
It is settled law that Article 10 prohibits the taking and use of
involuntary confessions.  State v. Badger, 141 Vt. at 450, 450 A.2d  at 348.
Evidence obtained in violation of this provision cannot be admitted at
trial.  Id. at 452-53, 450 A.2d  at 349.  In order to be proven voluntary, a
confession must be "the product of a rational intellect and the unfettered
exercise of free will." State v. Zehner, 142 Vt. 251, 253, 453 A.2d 1126,
1127 (1982).  Accordingly, it may not be induced by "threats, improper
influence, or physical or psychological pressure."  Id.
     The trial court is, of course, the primary judge of the voluntariness
of a confession.  In reviewing the trial court's ruling, our role is to
ensure that the trial court's findings are supported by substantial credible
evidence and are not clearly erroneous.  State v. Stanislaw,     Vt. ___,
___, 573 A.2d 286, 293 (1990).
     Here, the trial court made specific findings concerning the defendant's
physical and mental state at the time he confessed.  The court considered
and rejected defendant's claims that his confessions were involuntary
because he had witnessed an "attempted shooting" of his accomplice and
because he was impaired due to intoxication.   In summary, the court found
	[b]y all indications, the defendant was coherent and
	aware when he gave his statements.  The evidence reveals
	that he showed the same signs of fatigue and fear that
	any person would in such a situation, but there was
	never an indication that his thought processes were so
	impaired as to deprive him of the ability to make the
        important decision as to whether or not he should give a

     On a review of the entire record, we conclude that these findings are
supported by credible evidence and that the confessions were the product of
"a rationale intellect and the unfettered exercise of free will."  Cf. State
v. Clark, 143 Vt. 11, 12-13, 460 A.2d 449, 451 (1983) (trial court findings
not sufficient to establish whether intoxication prevented defendant from
making knowing and intelligent waiver).  The evidence supports the trial
court's findings that  defendant's observation of an officer attempting to
shoot at Gary Skidmore had no effect on defendant's decision to confess.
Further, the court properly found on the evidence that defendant's lack of
sleep did not impair his thought processes.  Defendant's claim of alcohol
impairment was clearly overstated.  He testified that the alcohol gave him a
headache but he "could still communicate and walk."
     In addition, there was no credible evidence that the investigating
officers made any threats or promises to induce the confessions.  The lone
statement attributed to a police officer by defendant was, at best,
ambiguous, and the trial court disbelieved defendant's claim that the
statement was ever made.  We conclude that the evidence supports the court's
findings and they in turn support the decision that the defendant's
confessions were voluntary. (FN4)
     Defendant further claims that the trial court erred in finding that
defendant effected a knowing and intelligent waiver of his Miranda rights
under Vermont law.  The State bears a heavy burden of proving a knowing and
intelligent waiver of Miranda rights, State v. Stanislaw, ___ Vt. at ___,
573 A.2d  at 293, and the trial court must "'indulge in every reasonable
presumption against waiver.'"  State v. Malinowski, 148 Vt. 517, 519, 536 A.2d 921, 923 (1987) (quoting Brewer v. Williams, 430 U.S. 387, 404 (1977)).
On review, however, "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."
Stanislaw,     Vt. at    , 573 A.2d  at 293.
     Defendant contends his waiver was inadequate because:  (1) the forms
did not contain an explicit waiver of the right to counsel; and (2)
defendant believed that an oral statement could not be used against him by
the police.  The first form, used by Officer Briggs, contained two warnings
with respect to the right to counsel.  The first was that defendant had
"the right to talk to a lawyer before any questioning and to have him
present with you during any questioning."  Following the warning, defendant
was asked verbally, "Do you understand?" and he responded, "yup."  The
second warning advised him that a lawyer would be appointed for him if he
could not afford one.  Again, it was followed by "Do you understand?" and
defendant answered, "right."  Following all the warnings was a general
waiver statement as follows:
         I have been advised of my rights and I understand them.
         No threats or promises have been made to me.  Knowing my
         rights, I agree to waive them and talk to you now.

Defendant's signature appears directly under the waiver, followed by a
recording of the time as 3:17.
     The second form, used by Officer Gundrum of the New York State Police,
contained similar warnings about the right to counsel.  It did not, however,
require defendant to respond that he understood each right.  Following the
warnings, it had a general waiver statement:  "I fully understand these
rights, and at this time I agree to give up my rights and make the following
statement." (FN5) Defendant refused to sign this waiver although the trial court
found that he orally agreed to the waiver.
     Defendant's attack on the waiver forms is based on State v. Malinowski,
148 Vt. at 521, 536 A.2d  at 924 (1987), where we held a waiver form to be
ambiguous.  There are some similarities between the form used in Malinowski
and the forms used here.  There are, however, major differences.  The
Malinowski form contained no explicit waiver language; instead, it said,
"Having these rights in mind, do you want to talk to me now?"  Each of the
forms here asked specifically for a waiver or the giving up of the
enumerated rights.  The ambiguity present in Malinowski is not present here.
Thus, contrary to defendant's argument, there was an express waiver of the
right to counsel in both instances in this case.  The fact that the second
waiver was oral, and not in writing, does not make it invalid.  State v.
Breznick, 134 Vt. at 264-65, 356 A.2d  at 542.
     Even if the form contained the ambiguity discussed in Malinowski, that
would not necessarily invalidate the waiver.  Malinowski holds that the
court must go on to evaluate defendant's understanding of the form in light
of his experience, education, background, intelligence and capacity to
understand the warnings and the significance of a waiver.  148 Vt. at 522,
536 A.2d  at 924.  That step, omitted in Malinowski, was performed here.  The
court found that defendant was familiar with Miranda warnings and on
different occasions had waived and invoked his rights.  It found that he had
the reading and writing skills to read and understand the forms and that he
was selective in answering questions, demonstrating that he knew he had the
right to refuse to answer.  As discussed above, the court also found that
defendant suffered no serious impairment due to stress, fatigue, or intoxi-
cation.  The court's rejection of defendant's arguments about the form is
fully supported by the record.
     At the suppression hearing, defendant argued that he thought that the
warnings meant that only statements given in court, and not those given at
the police station, could be used against him.  In this Court, he argues
that the facts show that he thought that oral statements could not be used
against him and that is why he did not make a written statement.  However
the argument is framed, the trial court rejected it because the language of
the warnings was clear and unambiguous and defendant was experienced in
receiving and using Miranda warnings.  The court concluded, "There is
nothing in the evidence to indicate that Mr. Caron was unable to comprehend
the plain meaning of the Miranda warning."  We must uphold the trial court's
conclusion as not clearly erroneous and supported by substantial evidence.
See State v. Stanislaw, ___ Vt. at ___, 573 A.2d  at 293.
     In sum, we conclude that neither of defendant's attacks on his waiver
of Miranda rights is supported by the record.  The finding of waiver must
     Finally, defendant argues that his confessions should have been
suppressed because his waiver of his right to counsel was ineffective under
the Vermont Public Defender Act, 13 V.S.A. {{ 5231-5277.  Section 5234 of
the Public Defender Act 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 a person detained . . . does not have an
         attorney and does not knowingly, voluntarily and
         intelligently waive his right to have an attorney . . .,
         notify the appropriate public defender that he is not
         so represented.

Section 5237 defines the requirements for an effective waiver under the
         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
         familiarity with the English language, and the
         complexity of the crime involved.

     According to defendant, he did not waive his right to counsel "in
writing, or by other record" with respect to either statement as required by
the statute, and this failure requires suppression of the statements given
to the investigating officers.  As discussed above, there were two waivers
in this case.  With respect to the first, which was in writing and was
signed by defendant, his argument is that it does not explicitly waive his
right to counsel.  With respect to the second, his argument is that the
waiver is not in writing.
     With respect to the first statement, the State argues that defendant
never attacked it below.  It is clear that the trial court did not believe
that defendant was challenging the first statement on statutory grounds and
never addressed the issue. We will not review claims raised initially on
appeal unless they amount to plain error. V.R.Cr.P. 52(b); State v.
Schmitt, 150 Vt. at 505, 554 A.2d  at 667.  Although we consider
preservation debatable here, we reach the merits because defendant's claim
can easily be disposed of. (FN6)
     We find nothing in either { 5234 or { 5237 to suggest that a waiver
must be any more explicit to meet the requirements of those statutes than it
must be to comply with Miranda.  The description of the standards for waiver
in { 5234(a)(2) is identical to the description in our cases implementing
Miranda.  See, e.g., State v. Harvey, 145 Vt. 654, 657, 497 A.2d 356, 358
(1985) (waiver must be voluntary, knowing, and intelligent).  In fact, we
have already held in State v. Picknell, 142 Vt. 215, 225, 454 A.2d 711, 715
(1982) that once the court found a waiver of the right to counsel under the
Miranda standards, the provisions of { 5234(a) "were fully complied with."
Section 5237 simply restates part of this standard and adds nothing to
defendant's argument.  Since we have found a valid Miranda waiver for the
statement to the Vermont police officer, there is no violation of {{ 5234 or
     The second statement subject to the suppression motion was made after a
waiver that was not in writing.  The trial court concluded that the oral
waiver given to the New York investigators satisfied the requirements
because the statutory language does not preclude an oral waiver and because
prior case law does not require that a written waiver form be signed by the
defendant.  See, e.g., State v. Breznick, 134 Vt. at 265, 356 A.2d  at 542.
We are unable to agree with the trial court's construction of { 5237.  We
conclude that the statute contemplates more than a police officer's written
memorandum of an oral waiver given by a suspect.
     Although the federal constitution does not require a recorded waiver of
a defendant's Miranda rights, id. at 264-65, 356 A.2d  at 542, the Public
Defender Act imposes additional statutory requirements.  See, e.g., State v.
Nicasio, 136 Vt. 162, 165, 385 A.2d 1096, 1098 (1978) (act requires
notification of public defender if defendant has no attorney and has not
effectively waived the right to one).  The Vermont public defender statute
is taken in large part from the Model Public Defender Act, adopted by the
National Conference of Commissioners on Uniform State Laws in 1970. See
Handbook of the National Conference of Commissioners on Uniform State Laws
267-83 (1970) for the full text of the model act.  Section 5237 of the
statute is essentially identical to { 7 of the Model Act.  Id. at 277.  The
comment to { 7 states:  "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.  The comment contradicts the trial court's rationale that
the statutory mandate that a waiver be "in writing, or by other record" was
not intended to be exclusive.  See also Jandro v. State, 781 P.2d 512, 520
(Wyo. 1989) (construing Wyoming statute, which is also patterned after { 7
of the Model Act, to require more than mere oral waiver).  In support of the
trial court's second rationale -- that our prior case law does not require a
waiver to be signed by the suspect -- the State maintains that the
legislature, in adopting this provision, "recognized that . . . the record
may be established by the law enforcement officer."  However, the provision
states unequivocally that the person detained "may waive in writing, or by
other record, any right provided in this chapter."  We cannot accept that
this language validates a waiver because the officer uses a written form and
signs as a witness to an oral waiver. (FN7) Although the form, along with the
officer's notations, may constitute a "record," it is not one created by the
action of the defendant.  Moreover, we are not convinced that the State's
construction of the statute will prevent the mere absence of a request for
counsel from being construed as a waiver. (FN8) Where, as here, statutory
language is plain and unambiguous, we must enforce the statute according to
its terms.  Vermont Development Credit Corp. v. Kitchel, 149 Vt. 421, 428,
544 A.2d 1165, 1169 (1988). (FN9)
     Although we cannot accept the State's argument that the requirements of
{ 5237 were met in this case, we find other grounds for affirming the denial
of the motion to suppress.  We conclude that the statute does not bind the
extraterritorial conduct of police departments from other jurisdictions.
The Vermont Public Defender Act was adopted to replace the existing system
for assigned counsel with a more effective and less costly statewide
program to provide legal services for indigent criminal defendants.  See
generally Vermont Public Defender Act: Hearings on H. 267 Before the Senate
Judiciary Committee, 1971, Adj. Sess. (April 18, 1971); C. Decker, A Study
of Criminal Defense Services in the State of Vermont with a Design and
Program for Improvement Through Legislation (1971).  The statute, in
essence, guarantees effective assistance of counsel, through Vermont public
defenders, to persons detained by Vermont law enforcement officers for
crimes committed here.  If a suspect is detained in another jurisdiction and
interrogated by police officers from that jurisdiction, he or she is subject
to the statutory protections of that jurisdiction as well as those of the
federal constitution.  See, e.g., State v. Krogness, 238 Or. 135, 138, 388 P.2d 120, 122 (1963) (evidence seized in violation of federal constitution,
by Washington police officers operating within Washington state,
inadmissible in Oregon state court).
     We must construe a statute according to its purpose and the intent of
the Legislature.  See Burlington Elec. Dep't v. Vermont Dep't of Taxes, ___
Vt. ___, ___, 576 A.2d 450, 452 (1990); Hinsdale v. Village of Essex Jct.,
___ Vt. ___, ___, 572 A.2d 925, 928 (1990).  Where possible, we must
construe it to reach a rational result.  Boutin v. Conway, ___ Vt. ___,
___, 572 A.2d 905, 907 (1990).
     The purpose of the defender statute is to supply the advice of a
Vermont public defender to persons who are being investigated for Vermont
crimes, or are charged with such crimes, whenever the person would be
entitled to private counsel.  See 13 V.S.A. { 5233(a)(1).  There is no
indication that the legislature intended to supply a Vermont public defender
to a person detained in another state and being questioned by an officer
from that state about crimes that may have occurred there as well as in
Vermont. (FN10) Nor is it rational to assume that the Vermont legislature wanted
to supersede the judgment of another state's legislature in defining when
lawyers of that state must be supplied to criminal suspects or how the right
to counsel can be waived.  This kind of application of the statute was
clearly outside the contemplation of the legislature, and the statute should
not be construed to cover it.  City of Winooski v. City of Burlington, 1
Vt. L.W. 196, 197 (May 11, 1990).
     Defendant's statement to the New York State Police is not subject to
suppression for violation of the Vermont Public Defender Act.  The motion to
suppress the statement was properly denied.

                                        FOR THE COURT:

                                        Associate Justice

FN1.    The form, entitled "Miranda Warnings," contained the following
     1.  "You have the right to remain silent."
     Do you understand?            Reply:                    .
     2.  "Anything you say can and will be used against you in a court of
     Do you understand?            Reply:                    .
     3.  "You have the right to talk to a lawyer before any questioning
     and to have him present with you during any questioning."
     Do you understand?            Reply:                    .
     4.  "If you cannot afford to hire a lawyer, one will be appointed to
     represent you at public expense before any questioning, if you wish.
     In Vermont, that is called a public defender."
     Do you understand?            Reply:                    .
     5.  "If you decide to answer questions, you may stop the questioning at
     any time."
     Do you understand?            Reply:                    .
     6.  "Do you understand each of these rights I have explained to you?"
                                   Reply:                    .
     7.  "Having these rights in mind, do you want to talk to me now?"
                                   Reply:                    .
     I have been advised of my rights and I understand them.  No threats or
     promises have been made to me.  Knowing my rights, I agree to waive
     them and talk to you now.
                                   Signature:                     .

FN2.    Defendant has included in his printed case a Miranda rights and
waiver form which defendant saw after he gave a statement orally and before
he agreed to the accuracy of the typed version of the statement.  The
evidence indicates that he was originally read his rights from a card and
waived pursuant to the statement on the card.  There are differences between
the waiver language on the card and the language on the form.  Because
defendant's attack on the validity of this waiver is based solely on the
form, our analysis will focus on the waiver language contained in the form.
See note 5, infra.

FN3.    Defendant also asserts that evidence subsequently seized from a
friend's apartment was inadmissible because the affidavit supporting the
search warrant was based on information obtained during the "illegal search
and seizure" of his vehicle.  Since the initial stop and search were
entirely lawful, defendant's "fruit of the poisonous tree" claim is without

FN4.    Defendant insists that the trial court relied improperly on case law
which reflected voluntariness standards set forth under the federal rather
than the Vermont Constitution.  We find little relevant distinction between
state and federal standards in this area.  The argument that the trial
court's decision "clearly rested only upon federal law" is disingenuous.
Much of defendant's argument is an attack on the United States Supreme Court
decision in Colorado v. Connelly, 479 U.S. 157 (1986) (police misconduct is
necessary element of involuntary confession), and his assertion that the
holding does not apply under the Vermont Constitution.  However, since there
is nothing to suggest that the trial court in any way relied upon Connelly's
view of voluntariness doctrine, the decision is irrelevant to our

FN5.    As indicated at note 2, supra, defendant has argued from this form
although it was apparently used after defendant gave an oral statement and
before he gave a written statement.  The card used at the beginning of the
questioning contains waiver language virtually identical to that involved in
State v. Malinowski, without the use of the phrase "I agree to give up my
rights."  Defendant apparently does not see any significance in the
different language.  The trial court appears to have assumed that it was
dealing with language sufficiently similar to that in Malinowski that it
could validate the waiver based on defendant's experience, knowledge, and
understanding.  We also note that defendant had given a waiver in response
to the form used by Officer Briggs only five hours earlier.

FN6.    We assume that, but need not examine the extent to which, Vermont
officers acting within the scope of their duty beyond Vermont State borders
are bound by the Vermont Public Defender Act.  Nor do we reach the question
of whether officers from other jurisdictions, operating within Vermont, must
comply with the Act.

FN7.    In State v. Picknell, this Court found compliance with the public
defender statute even though the waiver was oral and there was no other
record of the waiver.  However, defendant in that case argued only that the
waiver did not comply with { 5234(a)(2), and the Court considered only that
provision.  See 142 Vt. at 224-25, 454 A.2d  at 715.

FN8.    Five other jurisdictions have adopted, in modified forms, statutory
schemes based on the Model Public Defender Act.  See Alaska Stat. {
18.85.010-170 (1986); Idaho Code { 19-851-866 (1987); Ky. Rev. Stat. Ann. {
31.100-250 (1985); N.M. Stat. Ann. { 31-16-1-10 (1984); Wyo. Stat. { 7-6-
101-114 (1987).  Although the Model Act has been in effect in some version
since as early as 1968, there is no reported case law defining what
constitutes a waiver "in writing, or by other record."  The Wyoming
legislature in 1987 repealed the provision in their statute that required a
waiver to be in writing or otherwise recorded.  See Jandro v. State, 781 P.2d 512, 519 (Wyo. 1989).

FN9.    We need not decide in this case what would constitute an "other
record" for purposes of compliance with { 5237.  Certainly, it would include
an audio or video tape recording of an oral waiver.

FN10.   The New York officer who conducted the interrogation indicated that
defendant was being held as a fugitive from justice and was taken from the
interrogation to a New York court for arraignment.  He indicated that in
conducting the questioning he was interested, among other matters, in
whether defendant violated New York gun laws or possessed stolen property in
New York.  The record does not indicate exactly what transpired in New York
or whether charges are pending in that state.  Vermont immediately sought
extradition, and defendant waived extradition proceedings in New York.  He
was returned to Vermont.
     As indicated in note 6, supra, we assume, but do not decide, that a
Vermont officer acting in another state is bound by the Vermont public
Defender Act.