State v. Robinson

 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. 90-549


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 2, Chittenden Circuit

 Michael Robinson                             December Term, 1991


 Alan W. Cook, J.

 William Sorrell, Chittenden County State's Attorney, and Pamela Hall
   Johnson, Deputy State's Attorney, Burlington, for plaintiff-appellee

 E.M. Allen, Defender General, and William A. Nelson, Appellate Attorney,
   Montpelier, for defendant-appellant


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


      DOOLEY, J.   After a trial by jury, the district court convicted
 defendant of lewd and lascivious conduct with a child.  He appeals, arguing
 that a statement he made to the arresting officer, "I never thought this
 would happen again," was improperly admitted under the Vermont Rules of
 Evidence and was involuntarily given in violation of his constitutional
 rights.  He further argues that testimony given by the police officer
 relating statements made to him by the complainant child was improperly
 allowed because the child made the statements after a motive to falsify had
 arisen.  We affirm.
      The charges against defendant centered on defendant's contact with the
 child, who was four years old at the time of the incident and seven years of
 age at trial, while he babysat for the child one night in his apartment.
 The State alleged that defendant fondled the child's penis and had the
 child touch his penis.  Defendant testified at trial that the only touching
 that took place was when the child momentarily touched defendant's penis,
 out of a child's innocent curiosity, and that defendant told the child to
 stop as soon as he was aware of the contact, and sent him to another room.
      Following an investigation that included an interview with the child, a
 Burlington police officer spoke with defendant.  Defendant confirmed that he
 had babysat for the child and the officer asked defendant to accompany him
 to the police station.  There, the officer informed defendant of his rights
 and arrested him.  Defendant spoke over the phone with an attorney, who
 advised him not to discuss the charge, and he declined to answer questions.
 During the officer's routine booking procedure, defendant answered questions
 regarding his address, employment, age and so forth, defendant asked the
 officer if he was going to be jailed and told the officer that he was "sick"
 and that he was an outpatient at a mental health clinic.  The officer
 responded to the defendant's questions.  After the booking inquiries
 resumed, defendant said, not in response to any question, "I didn't think
 anything like this would happen again."
      That statement is the focus of this appeal.  Although defendant
 objected, the trial court allowed the State to introduce this statement as
 an admission.  The court also denied defendant's motion to suppress the
 statement on the ground that it had been given involuntarily.
      We first address the admissibility of the statement to the arresting
 officer under the Vermont Rules of Evidence.  Defendant first argues that
 the statement should have been excluded under V.R.E. 404(b), which states
 that evidence of prior bad acts is "not admissible to prove the character of
 a person in order to show that he acted in conformity therewith," but allows
 such evidence for other purposes.
      It is important at the outset to understand the parties' respective
 positions.  The State argues that the statement was an admission that
 defendant committed the offense for which he is charged.  It is interested
 in the apparent reference to another charge only insofar as the reference
 bolsters its interpretation of the words.  The defendant, on the other hand,
 seeks to exclude the whole statement even if it is an admission to the
 current charge.  He argues that, if interpreted as the State seeks, it is
 also an admission to a prior crime, and that admission is barred under
 V.R.E. 404(b).
      The rule on which defendant relies bars propensity evidence -- that is,
 evidence that is presented in order to convince the jury that it is more
 likely that defendant did the act presently charged because it is similar to
 something he has done in the past.  See State v Hurley, 150 Vt. 165, 168,
 552 A.2d 382, ___ (1988).  The rule provides, however, that prior bad act
 evidence may be admissible for other purposes and sets forth an illustrative
 list of permitted uses.  The list is not exclusive.  See State v. Bruyette,
 3 Vt. L.W. 1, 2 (Jan. 10, 1992) (evidence is admissible for "some other
 legitimate issue in the case").  We have, for example, allowed admission of
 such evidence to show a defendant's sanity or to provide the basis for the
 opinion of an expert witness even though neither of these uses is among the
 list specifically authorized in Rule 404(b).  State v. Percy, 149 Vt. 623,
 641, 548 A.2d 408, ___ (1988).
      The answer to defendant's contention is that the court admitted the
 evidence for a purpose not prohibited by V.R.E. 404(b).  To the extent that
 the statement might have constituted an admission of a prior bad act, it was
 a by-product of an admission to the crime before the court.  There was no
 claim that the prior bad act showed a character trait or that defendant
 acted in conformity with that trait in committing the current crime.
      Defendant emphasizes that the State argued to the court and the jury
 that the statement shows that defendant committed a crime in the past.  The
 State did so, however, only to advance its theory that the words conveyed an
 admission of the act presently charged.  The words made sense as an
 admission to the current crime only if they were made in reference to past
 conduct.
      Defendant also argues that the evidence of the past crime is
 admissible only if the trial court is able to find the existence of the past
 crime by a preponderance of the evidence, a standard he argues is not met
 here.  We seriously doubt whether the State had the burden to prove the
 existence of the past crime at all when the real issue was whether defendant
 admitted committing the crime for which he was charged.  In any event, the
 United States Supreme Court has held that prior bad act evidence that is
 otherwise admissible under Federal Rule 404(b) may be allowed if the jury
 could reasonably find by a preponderance of the evidence that defendant
 committed the prior bad act.  Huddleston v. United States, 485 U.S. 681,
 690 (1988).  We adopted that interpretation of V.R.E. 404(b) in State v.
 Wheel, 155 Vt. 587, 603, 587 A.2d 933, 943 (1990), and its standard is met
 here.  The jury could reasonably conclude that defendant admitted committing
 the crime for which he was charged and, therefore, that he committed a
 similar crime in the past.  The State has no burden to show the details of
 that prior crime.
      In reaching the conclusion that the statement was not barred by Rule
 404(b), we are guided by the decisions of other states that have reached
 such a conclusion under similar or identical evidentiary rules.  See Callis
 v. People, 692 P.2d 1045, 1052 (Colo. 1984); Ingram v. State, 253 Ga. 622,
 638, 323 S.E.2d 801, 816 (1984); Brafford v. State, 516 N.E.2d 45, 47-48
 (Ind. 1987); State v. Morris, 429 So. 2d 111, 121 (La. 1983); Commonwealth
 v. Jackson, 388 Mass. 98, 105, 445 N.E.2d 1033, 1037 (1983); State v.
 Charles, 92 N.C. App. 430, 435-36, 374 S.E.2d 658, 661 (1988); State v.
 Tillman, ___ S.C. ___, ___, 405 S.E.2d 607, 612 (1991).
      Defendant's second argument on this point is that the probative value
 of the statement is substantially outweighed by its prejudicial impact, and,
 therefore, is barred by V.R.E. 403.  See State v. Catsam, 148 Vt. 366, 380,
 534 A.2d 184, 193 (1987) (evidence offered as an exception to general past
 acts prohibition of Rule 404(b) must pass Rule 403 balancing test for
 admissibility, citing State v. Bevins, 146 Vt. 129, 135, 498 A.2d 1035, 1039
 (1985)).  V.R.E. 403 provides, "[a]lthough relevant, evidence may be ex-
 cluded if its probative value is substantially outweighed by the danger of
 unfair prejudice, confusion of the issues, or misleading of the jury . . .
 ."   The rule's balancing test is applied by the trial court in its sound
 discretion, State v. Chenette, 151 Vt. 237, 245, 560 A.2d 365, ___ (1989),
 and we will reverse only for abuse of that discretion.  State v. McElreavy,
 ___ Vt. ___, ___, 595 A.2d 1332, 1335 (1991).
      There are a number of factors in support of defendant's position.  The
 statement is ambiguous.  While the State's interpretation is possible, it is
 also possible that the statement referred to the charge or the arrest and
 not to the commission of the crime.  The probative value is weakened by the
 ambiguity.
      If the State's interpretation is correct, defendant committed a past
 crime similar to that for which he was charged, but he was never charged for
 the prior crime.  See State v. McCarthy, ___ Vt. ___, ___, 589 A.2d 869, 873
 (1991)(evidence of uncharged crime presents "grave danger of prejudice").
 As noted above, the State did not offer proof, other than defendant's
 statement, that the prior crime existed, and defendant denied that he ever
 committed such a crime.  Defendant argues that all these factors make the
 admission of the statement highly prejudicial.
      While defendant's arguments have some force, we conclude that the court
 had the discretion to admit the statement.  First, the nature of the
 ambiguity in the statement affects the balancing in a way that supports
 admissibility.  If the jury finds that the "this" which defendant did not
 think would happen again was the commission of a sexual assault, the
 probative value of the statement is very high.  Correspondingly, the danger
 of unfair prejudice is lowered because the admission of the crime for which
 defendant is charged is far more significant than the admission of the past
 crime.  See State v. Jackson, 351 N.W.2d 352, 356 (Minn. 1984) (where
 statement included admission defendant strangled two women and his two young
 sons, reference to possible killing of his spouse was not inflammatory).  On
 the other hand, if the "this" is not commission of the present crime, it
 also does not refer to commission of a past crime.  Although there is no
 probative value if the statement is interpreted this way, there is only a
 small risk of unfair prejudice.  See Brafford, 516 N.E.2d  at 48 ("vague
 mention" of prior record does not negate admissibility).  This is the type
 of determination between innocent and guilty interpretations of ambiguous
 evidence appropriately resolved by the jury.
      Second, because details of any prior bad act were irrelevant to the
 State's theory of admission, and were not known to the State, there was no
 vivid portrayal by the State to the jury of any past act.  This absence of
 detail reduced the impact of the evidence and its prejudicial effect.  See
 State v. Raymond, 148 Vt. 617, 622-23, 538 A.2d 164, 167 (1987) (V.R.E. Rule
 403 can be used to exclude "lurid details").
      Third, defendant had an effective opportunity to cross-examine the
 officer and respond to the statement.  Defendant showed that he had never
 before been charged as an adult, in Vermont or any other state, with sexual
 misconduct or misconduct with children.  His attorney elicited from the
 officer that police records in Burlington, where defendant had spent nearly
 his entire life, did not indicate that any complaint had ever been filed
 against him for any such misconduct.  He presented a plausible alternative
 interpretation of the statement: he had once been arrested for marijuana
 possession and was referring to that experience.
      Finally, the State had a clear need to use the statement to corroborate
 the testimony of the child, see Catsam, 148 Vt. at 383, 534 A.2d  at 195 (in
 weighing probative value, court must consider State's need for evidence),
 and it was not possible to edit the statement to delete the reference to
 past acts and preserve an understandable reference to the act for which
 defendant was charged.  The conflict could not be avoided.  See Callis v.
 People, 692 P.2d  at 1052 (where possible, reference to past acts should be
 severed from otherwise probative and admissible statement and suppressed).
      The prejudicial effect could have been mitigated further by a limiting
 instruction.  See Catsam, 148 Vt. at 383, 534 A.2d  at 195 (court, in
 properly admitting evidence of prior sexual assault of a child by defendant,
 should instruct jury on limited purpose for admitted evidence and that the
 defendant cannot be convicted of offenses not charged in the information).
 The court, however, invited defendant to recommend a limiting instruction on
 the point and he did not do so.  See Commonwealth v. Gabrielson, 370 Pa.
 Super. 271, 281, 536 A.2d 401, 403-04 (1988) (although limiting instruction
 would have been proper, no per se rule required it in absence of request by
 defendant or objection to its absence).  Moreover, a limiting instruction in
 the circumstances of this case might not have aided the defendant, who was
 more concerned with downplaying the effect of the statement as an admission
 to the current charge than as an admission of past acts.  We find no abuse
 of discretion in admitting the statement without such an instruction.
      Defendant next claims that under the Fifth and Fourteenth Amendments to
 the United States Constitution, and under Article 10 of the Vermont
 Constitution, his statement should have been suppressed as involuntarily
 given.  He argues that the statement was induced in part by his weakened
 mental condition and in part by the continued questioning by the officer
 after he had requested counsel.
      It is the State's burden to show, by a preponderance of the evidence,
 that the defendant confessed voluntarily.  State v. Beckley, ___ Vt. ___,
 ___, 600 A.2d 294, 295 (1991).  The court must examine the statement in the
 light of the totality of the circumstances to determine if it was "`the
 product of [defendant's] rational intellect and unfettered exercise of free
 will.'"  Id. (quoting State v. Zehner, 142 Vt. 251, 253, 453 A.2d 1126, 1127
 (1982)).  We will uphold a trial court's ruling that a confession was given
 voluntarily unless the ruling is unsupported by the evidence or clearly
 erroneous.  Id. at ___, 600 A.2d  at 296.  We find no such error here.
      In Colorado v. Connelly, 479 U.S. 157, 167 (1986), the Supreme Court
 held that "coercive police activity is a necessary predicate to the finding
 that a confession is not 'voluntary' within the meaning of the Due Process
 Clause of the Fourteenth Amendment."  In that case, the Court overturned a
 state court ruling that a confession was given involuntarily, despite no
 coercive police action, because the defendant was mentally ill and incapable
 of validly waiving his right to remain silent.  The Court explained that
 "while mental condition is surely relevant to an individual's susceptibility
 to police coercion, mere examination of the confessant's state of mind can
 never conclude the due process inquiry."  Id. at 165.  Connelly effectively
 overruled our decision in State v. Harvey, 145 Vt. 654, 658, 497 A.2d 356, 358 (1985), to the extent that we relied on the federal constitution to hold
 that statements made by a defendant lacking mental capacity were
 involuntary in the absence of police coercion.
      Although defendant argues that the statement was given involuntarily
 even under Connelly, his main argument is that we should reject the reason-
 ing of Connelly under Chapter I, Article 10 of the Vermont Constitution.  We
 decline to reach the state constitutional argument because defendant failed
 to raise it below.  Although defendant's initial motion to suppress men-
 tioned the Vermont Constitution, the reference was in relation to a
 statement that defendant made before he was in custody.
      Defendant presents two arguments why the statement was involuntary even
 under the standard set forth in Connelly:  there was an element of police
 coercion because the officer knew of defendant's mental condition, unlike in
 Connelly, in which the police had "no indication whatsoever" of respondent's
 mental illness, 479 U.S.  at 161; and the statement was the product of an
 interrogation conducted after defendant invoked his right to counsel and his
 right to remain silent.  With respect to the first argument, we find nothing
 in Connelly to suggest that police coercion is automatically present if the
 officer knows of defendant's mental condition.  The predecessors to Connelly
 on which defendant relies, Blackburn v. Alabama, 361 U.S. 199 (1960), and
 Townsend v. Sain, 372 U.S. 293 (1963), do not support his claim; in both
 cases the police had some knowledge of the arrestee's mental condition and
 exploited it.  There was no evidence in this case that police misconduct
 induced the statement at issue.  The police questioning at the time
 defendant made the statement was limited to routine biographical
 information, not intended to elicit an incriminating statement.  See, e.g.,
 United States v. Dougall, 919 F.2d 932, 935 (5th Cir. 1990) (biographical
 questions which are part of booking procedure and not intended to elicit
 damaging statements are not interrogation for Fifth Amendment purposes).
      Nor does the second argument support a conclusion that the statement
 was involuntary.  Defendant reached a lawyer by telephone, and the lawyer
 told the officer not to question defendant about the offense.  During the
 booking interview, defendant asked whether he would go to jail.  He
 volunteered that he was sick and receiving treatment and expressed concern
 about whether he could obtain treatment in prison.  The officer advised him
 to talk with his mental health counselor and reminded him of the attorney's
 advice "not to say anything."  After the officer returned to his booking
 questions, defendant volunteered the statement in issue.
      The trial court found that defendant's initial question about whether
 he would go to jail was spontaneous and admissible.  It concluded, however,
 that the subsequent dialogue about defendant's mental health was moved along
 by the officer's responses so that it was the functional equivalent of
 interrogation.  Because defendant had not waived his right to counsel before
 this dialogue, the court found it inadmissible under Edwards v. Arizona, 451 U.S. 476, 484-85 (1981).  The court did not suppress the statement here at
 issue, however, because it found the statement was made spontaneously after
 the officer returned to booking questions.
      Defendant's position is that because his statement was made after he
 had invoked his right to counsel and after an Edwards violation, it was
 necessarily involuntary, even if it was made spontaneously.  In this
 argument, he asserts that the situation is comparable to that in Collazo v.
 Estelle, 940 F.2d 411, 421 (9th Cir. 1991), where a reviewing court
 utilized a four factor test in reversing a conviction based in part on a
 confession made by an in-custody suspect following his assertion of the
 right to counsel. (FN1) The situations are not comparable.  The Collazo test
 addresses itself to determining the validity of a waiver of the right to
 counsel and a willingness to be subjected to interrogation following an
 assertion of that right.  Collazo itself, for example, involved a comment by
 the interrogating police officer after the defendant invoked his Sixth
 Amendment rights, that waiting for counsel "might be worse for you."  Id. at
 414.  Utilizing its four-part test, the court found that the improper
 statement clearly induced the defendant's subsequent change of heart and
 willingness to be interrogated and rendered his confession inadmissible.
      Because Collazo, and Edwards, 451 U.S.  at 484-485, on which it is
 based, are limited only to custodial interrogation after a suspect has
 invoked the right to counsel, they have no application to a case where there
 is no interrogation.  We see no reason to expand the holdings of those cases
 to cover a spontaneous volunteered statement even if there had been some
 improper interrogation prior to the statement, as long as the statement is
 unconnected to the interrogation.  Defendant would turn Collazo into a
 blanket prohibition on admission of all communication between himself and
 agents of the state, or into a form of immunization against the use of
 volunteered statements.  The court here made a specific finding that the
 statement was unrelated to the earlier questioning by the officer that had
 approximated interrogation, and that the questioning continued by the
 officer consisted only of routine inquiries permitted after an in-custody
 suspect has invoked the right to counsel.  See United States v. Carmona, 873 F.2d 569, 573 (2nd Cir. 1989); United States v. Dougall, 919 F.2d 932, 935
 (5th Cir. 1990).  The court properly excluded the statements made by
 defendant after his assertion of the right to counsel which it found to be
 products of custodial interrogation but admitted the statement it found to
 be spontaneous and independent of any interrogation.
      Defendant's final claim is that the trial court erred in admitting the
 officer's testimony as to the substance of an investigatory interview in
 which the child had told him that "Michael touched my goober," a statement
 similar to that which the child gave in court.  After the child testified,
 the court allowed the State to question the officer about the child's prior
 statements pursuant to V.R.E. 801(d)(1)(B).  That rule provides in part that
 a statement is not hearsay if it is "consistent with [the witness's]
 testimony and is offered to rebut an express or implied charge . . . of
 recent fabrication or improper influence or motive."  The court determined
 that the evidence was admissible because, in cross-examining the complaining
 witness, defendant's attorney attacked the child's veracity with respect to
 his description of defendant's conduct.  The attorney had attempted to
 impress upon the jury the theory that the child had maintained the story in
 part because of the attention he received from telling it.
      In State v. Roy, 140 Vt. 219, 227, 436 A.2d 1090, 1094 (1981), we
 adopted the substance of Rule 801(d)(1)(B) before the Vermont Rules of
 Evidence were promulgated.  Defendant argues that in Roy we added the
 requirement that the statement be made prior to the time when the supposed
 motive to falsify arose, although this requirement does not appear in the
 wording of the rule.  He further argues that this requirement was not met in
 this case because the motive to falsify was to gain attention and that
 motive arose from the child's interaction with adults prior to the interview
 with the officer.
      The determination of whether to admit evidence of the prior consistent
 statement of a witness is a matter for the court's discretion under Rule
 801.  See United States v. Reed, 887 F.2d 1398, 1405 (11th Cir. 1989)
 (applying identical F.R.E. 801(d)(1)(B)).  The Roy Court took the
 requirements for admission from United States v. Quinto, 582 F.2d 224, 233-
 34 (2d Cir. 1978) where the witness was said to hold a "deeply rooted
 prejudice" against defendant at the time of his statement.  The requirement
 has been invoked in circumstances in which a defendant sought admission of a
 prior exculpatory statement made under the "'powerful motive' of pending
 criminal investigation or indictment."  United States v. Payne, 944 F.2d 1458, 1471 (9th Cir. 1991) (quoting United States v. Miller 874 F.2d 1255,
 1274 (9th Cir. 1989)).  Here, the motive to fabricate offered by defendant
 is highly speculative.  See id. at 1472 (in large part because witness's
 motive to fabricate at time of prior statement was speculative, statement
 was properly admitted).  We find no abuse of the trial court's discretion in
 allowing the testimony here.
      Affirmed.

                                         FOR THE COURT:




                                         Associate Justice



FN1.      The factors considered in Collazo were whether:
      1) there was a break in stream of events sufficient to
      insulate the statement from the effect of the prior
      coercion;
      2) it can be inferred that the coercive practices had a
      continuing effect that touched the subsequent statement;
      3) the passage of time, a change in the location of the
      interrogation, or a change in the identity of the
      interrogators interrupted the effect of the coercion;
      4) the conditions that would have precluded the use of
      the first statement have been removed.
 940 F.2d  at 421.