State v. Beckley

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. 91-018


State of Vermont                             Supreme Court

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

Paul M. Beckley                              September Term, 1991


Paul F. Hudson, J.

Matthew E.C. Pifer and Theresa St. Helaire, Bennington County Deputy State's
  Attorneys, Bennington, for plaintiff-appellant

Mark R. Butterfield of Candon and Butterfield, Rutland, for defendant-
  appellee


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


     DOOLEY, J.   The State brings this interlocutory appeal from an order
of the Bennington District Court suppressing the confession of the
defendant-appellee, Paul M. Beckley, to a number of burglaries.  The
question certified for our review is as follows:

          On a totality of the circumstances did the trial court's
          determination that among other things the interrogating
          officer's promise to inform the State's Attorney about
          the defendant's cooperation rendered the defendant's
          subsequent confession involuntary?

We answer the question in the negative with respect to the oral confession
given by defendant, but further conclude that the fact-finding was in-
sufficient to answer the question with respect to his written confession,
and remand.
     The following facts were found by the trial court:  A Manchester police
officer investigating a number of apparently related burglaries suspected
defendant's involvement.  He left a message with defendant's employer, and a
note in defendant's car, requesting that defendant come down to the police
station to discuss the burglaries.  The note read that "[i]t would be in
[defendant's] best interest to come in . . . ."
     Defendant did go to the police station, where first the officer read
him his Miranda rights.  Defendant indicated he was willing to speak without
an attorney present and signed a written Miranda waiver.  The officer then
told defendant that he would convey defendant's cooperativeness to the
State's Attorney.  In the interrogation that followed, defendant first
denied any wrongdoing, but ultimately admitted committing a number of
offenses, including the burglaries being investigated.  Defendant was then
told by the officer that if defendant's information was "good," the officer
would lodge against him only three of six chargeable offenses, and not ask
the State's Attorney to press for jail time.  Subsequent to these remarks by
the officer, defendant signed a statement that had been typed up from notes
taken by the officer during defendant's oral confession.
     The State argues, first, that the court's findings of fact were
erroneous because the officer did not tell defendant that he would convey
defendant's cooperativeness to the State's Attorney until after defendant
began his oral confession.  We are generally reluctant to resolve challenges
to courts' pretrial fact-finding in interlocutory appeals because of the
possibility that positions on relevant facts will change at trial.  See
State v. Dubois, 150 Vt. 600, 603, 556 A.2d 86, 88 (1988).  Furthermore,
the factual dispute here is outside the scope of the certified question.  We
recognize, however, that our review is not necessarily limited to the
particular legal question certified to us, In re. W.H., 144 Vt. 595, 600,
481 A.2d 22, 26 (1984), and that the certified question provides a
"'landmark, not a boundary,'" and so we will address other issues when
necessary.  Id., (quoting State v. Carpenter, 138 Vt. 140, 146, 412 A.2d 285, 289 (1980)).  It is unnecessary here to resolve the factual dispute
because we conclude that regardless of the timing of the particular state-
ment by the officer, it alone was not enough to render the defendant's
confession involuntary.
     Whether true or false, a confession given involuntarily is inadmissible
in a criminal trial.  State v. Zehner, 142 Vt. 251, 253, 453 A.2d 1126, 1127
(1982).  It is the state's burden to show, by a preponderance of the evi-
dence, that the accused confessed voluntarily.  State v. Caron, ___ Vt.
___, ___, 586 A.2d 1127, 1133 (1990).  A confession is voluntary only if
"the product of [defendant's] rational intellect and . . . unfettered
exercise of free will."  Zehner, 142 Vt. at 253, 453 A.2d  at 1127 (citing
Malloy v. Hogan, 378 U.S. 1, 8 (1964)).  It is settled law that a confession
is inadmissible as involuntary if "obtained by any direct or implied pro-
mises, however slight."  Bram v. United States, 168 U.S. 532, 543 (1897).
In order to make the ultimate determination of voluntariness, a court must
look at the confession in the light of the "totality of the circumstances."
State v. Stanislaw, 153 Vt. 517, 532, 573 A.2d 286, 295 (1990).
     We have never ruled directly on whether a law enforcement agent's offer
to convey the fact of a suspect's cooperativeness to the prosecutor is such
a promise that would render the suspect's subsequent confession involuntary.
But we agree with the numerous federal courts and state supreme courts that
have held that, alone, such a statement does not.  See, e.g., Williams v.
Johnson, 845 F.2d 906, 909 (11th Cir. 1988); United States v. Fraction, 795 F.2d 12, 14 (3d Cir. 1986), and cases cited therein; Commonwealth v.
Williams, 388 Mass. 846, 855, 448 N.E.2d 1114, 1121 (1983).  In this
context, a statement by a police officer that would taint a confession "is
not a general statement about the value of cooperation but a promise that
cooperation by the defendant will aid the defense or result in [leniency]."
Commonwealth v. Williams, 388 Mass. at 855, 448 N.E.2d  at 1121.  The
officer's statement that he would convey defendant's cooperativeness to the
State's Attorney was insufficient by itself to make a subsequent confession
involuntary.
     The trial court found that the officer did more than promise to convey
defendant's cooperation.  There were other relevant statements made by the
officer to the defendant -- that if the defendant's facts were "good," the
officer would not charge three of the admitted offenses, and that the
officer would not recommend jail time.  We agree with the trial court that,
in the totality of the circumstances, a confession induced by a promise by a
law enforcement agent to lessen charges or seek lighter punishment is
involuntary.  See State v. Rhiner, 352 N.W.2d 258, 264 (Iowa 1984)
(confession given after officer told defendant his failure to cooperate
might result in additional charges was involuntary); State v. Strain, 779 P.2d 221, 226 (Utah 1989) (if induced by promise that only second- rather
than first-degree murder would be charged, confession was involuntary).  The
problem with the court's determination that these statements tainted
defendant's confession in its entirety, however, is the timing of the
critical statements.  Neither party disputes the court's finding that they
were made after the oral confession.
     In order to find a confession involuntary in this context, we must find
both that a promise was made and that the promise was a factor inducing the
confession.  See State v. Hensley, 137 Ariz. 80, 87, 669 P.2d 58, 65
(1983); People v. Conte, 421 Mich. 704, 741, 365 N.W.2d 648, 663 (1984)
(setting up two-prong test for voluntariness determination).  We cannot find
that promises made by the officer after defendant's oral confession induced
that confession even though they preceded the signing of the typed state-
ment.  See United States v. Brandon, 467 F.2d 1008, 1011 (9th Cir. 1972)
(promise of release on own recognizance could not have induced defendant's
confession, which preceded it); Rowe v. State, 421 So. 2d 1352, 1355 (Ala.
Crim. App. 1982) (since defendant had already completed oral confession,
offer by police could not have induced subsequent taped and written
confessions); Swanier v. State, 473 So. 2d 180, 187 (Miss. 1985) (assurances
made to defendant could not render his subsequent confession involuntary as
defendant had already made an inculpatory statement to his grandfather, who
was a police captain).
     We will uphold a trial court's ruling on the voluntariness of a
confession unless that conclusion is unsupported by the evidence or is
clearly erroneous.  See Stanislaw, 153 Vt. at 532, 573 A.2d  at 295.  We
find that the record here does not support the suppression of defendant's
oral confession.  The general statement that the officer would convey
defendant's cooperation to the prosecutor is insufficient to support
suppression of the oral confession.  The remaining statements came after the
oral confession and could not have induced it.  We therefore reverse as to
the oral confession.
     Our conclusion on the oral confession does not necessarily determine
the issue of the written confession.  The critical promises preceded this
confession and could be found to have induced it.  Reducing the oral
confession to a writing signed by defendant improves the quality of the
State's evidence against defendant.  The jury could find that defendant, in
signing the document, acted in a more deliberative fashion than when he gave
an oral statement.  The possibility that the officer's assurances may have
induced defendant's signature should not prevent the State from using
defendant's oral confession.  See State v. Breznick, 134 Vt. 261, 265, 356 A.2d 540, 542 (1976) (refusal to sign waiver of rights form or written
confession does not alone render waiver of rights involuntary).  However, if
the signature is tainted by the promises, the document itself should not be
given to the jury to bring into its deliberations.  See State v. Mims, 204
Ill. App. 3d 87, 93, 561 N.E.2d 1101, 1106 (1990) (although testimony
regarding substance of confession was validly admitted, typed confession
should not have been admitted where defendant had refused to sign it).  We
are concerned by the "undue weight that jurors may accord the written word,
especially when they must rely on their memories alone when considering the
oral testimony."  Id.
     We cannot find, however, that the trial court recognized the critical
difference between the written and oral confessions.  Since it suppressed
both confessions, it never determined whether the impermissible promises
caused defendant to sign the written confession.  We remand for this
finding.
     Reversed in part, and remanded.
                                        FOR THE COURT:




                                        Associate Justice