State v. Parizo

STATE_V_PARIZO.91-264; 163 Vt 103; 655 A.2d 716

[Filed 23-Dec-1994]

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. 91-264


State of Vermont                                 Supreme Court

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

Charles D. Parizo                                March Term, 1994


Edward J. Cashman, J.


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

Charles S. Martin and James Teixteira, Law clerk (On the Brief), of Martin &
 Paolini, Barre, for defendant-appellant 

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

     GIBSON, J.     Defendant Charles Parizo challenges his conviction for
attempted murder, alleging that he had a constitutional right to counsel at a
preindictment lineup; that the Vermont public defender statute required the
State to provide him with counsel at the lineup; that the nontestimonial
identification order requiring his presence at the lineup did not conform to
law; and that the court committed reversible error in failing to instruct the
jury on a lesser-

 

included charge of aggravated assault.(FN1) We affirm. 

     On October 8, 1986, a parking garage attendant in Burlington was shot by
a man he and others were pursuing following a purse-snatching incident. On
September 29, 1989, defendant was served with a nontestimonial identification
order to appear for a lineup and voice identification in connection with the
shooting.  See V.R.Cr.P. 41.1 (setting forth procedures for obtaining such
order).  Defendant was incarcerated on an unrelated charge at the time.  He
attempted to secure an attorney to represent him at the lineup, but was
unable to do so.  Although the police routinely allow attorneys to be present
at such lineups, defendant did not repeat his request for counsel at the time
of his appearance, and none was present on his behalf.  Three witnesses
identified defendant, who was then charged with attempted murder.  Defendant
moved to suppress testimony obtained as a result of the lineup, but the court
denied the motion.  Subsequently, defendant was convicted by a jury, and this
appeal followed. 

      Defendant contends that Chapter I, Article 10 of the Vermont
Constitution entitled him to counsel at the preindictment lineup.  That
provision states, in relevant part, "[t]hat in all prosecutions for criminal
offenses, a person hath a right to be heard by himself and his counsel."  Vt.
Const. ch. I, art. 10.  In denying defendant's motion to suppress, the trial
court stated, "Like its federal counterpart, the Vermont Constitution's right
to counsel is premised on there being a `criminal prosecution.'"  We agree
that a preindictment lineup is not the equivalent of a criminal prosecution
and does not trigger a right to counsel under the Vermont Constitution. 

 

     At the time of the lineup, defendant had not been arrested for or
charged with any offense connected with the crime that was being
investigated. Reasonable grounds supporting a nontestimonial identification
order need not amount to the probable cause necessary to justify an arrest. 
V.R.Cr.P. 41.1(c)(2).  Under the federal constitution, the right to counsel
only attaches at or after the time adversary judicial proceedings have been
initiated -- whether by way of formal charges, preliminary hearing,
indictment, information or arraignment.  See Kirby v. Illinois, 406 U.S. 682,
688-89 (1972) (plurality opinion).  Nevertheless, defendant urges us to
conclude that protections under the Vermont Constitution are broader than
those afforded by the federal constitution.  Defendant points to the words,
"a person hath a right to be heard by himself and his counsel."  Vt. Const.
ch. I, art. 10. In focusing on these words, however, defendant ignores the
preceding phrase in the same sentence: "in all prosecutions."  Id. (emphasis
added).  At the time of the lineup, no prosecution had yet commenced. 

     Defendant cites to jurisdictions that have held that their state
constitutions entitle a defendant to counsel at a preindictment lineup.  See,
e.g., Blue v. State, 558 P.2d 636, 640-41 (Alaska 1977); People v.
Bustamante, 634 P.2d 927, 935-36, 177 Cal. Rptr. 576, 585 (1981).  We have
followed the United States Supreme Court, however, in holding that the right
to counsel attaches "upon formal charge, preliminary hearing, indictment,
information or arraignment, because these mark the beginnings of a criminal
proceeding."  State v. Smith, 140 Vt. 247, 252-53, 437 A.2d 1093, 1095
(1981).  The majority of jurisdictions are in accord.  Bustamante, 634 P.2d 
at 939, 177 Cal. Rptr.  at 588 (Richardson, J., dissenting) (thirty-seven
states have adopted Kirby rule); see, e.g., Campbell v. State, 426 S.E.2d 45,
46 (Ga. Ct. App. 1992); People v. Williams, 614 N.E.2d 7, 10 (Ill. App. Ct.
1991); Parsley v. State, 557 N.E.2d 1331, 1334 (Ind. 1990); State v. Ronnebaum, 449 N.W.2d 722, 724 (Minn.
1990); People v. Hawkins, 435 N.E.2d 376, 382, 450 N.Y.S.2d 159, 165 (N.Y.
1982); State v. Mills, 582 N.E.2d 972, 984-85 (Ohio 1992); Commonwealth v.
Rishel, 582 A.2d 662, 665-66 (Pa. Super. Ct. 1990). 

     The dividing line between an investigatory proceeding and a "critical
stage" of a criminal proceeding, when the right to counsel adheres, see mith,
140 Vt. at 252, 437 A.2d  at 1095, is the point at which "the government has
committed itself to prosecute, and . . . a defendant finds himself faced with
the prosecutorial forces of organized society, and immersed in the
intricacies of substantive and procedural criminal law."  Kirby, 406 U.S.  at
689.  We have followed United States v. Wade, 388 U.S. 218, 227-28 (1967), in
holding that the taking of nontestimonial evidence in the form of
fingerprints, blood samples and dental impressions is not a critical stage
requiring notice to defendant's counsel.  State v. Howe, 136 Vt. 53, 63, 386 A.2d 1125, 1131 (1978); see also State v. Kennison, 149 Vt. 643, 647, 546 A.2d 190, 193 (1987) (taking of blood sample pursuant to ex parte
post-arraignment nontestimonial order, without giving notice to defense
counsel or opportunity to be heard on application, did not violate
defendant's right to counsel under Vermont Constitution).  We hold that a
preindictment lineup is not a critical stage of the proceedings, and that
defendant's right to counsel under the Vermont Constitution was not violated.

     Defendant also contends that Vermont's public defender statutes give him
a right to counsel at a preindictment identification lineup, an issue that
was raised at hearing by the trial court on its own motion.  The statutes
provide, in relevant part: 

               A needy person who is being detained by a law
          enforcement officer without charge or judicial process, or .
          . . is 

 

          being detained under a conviction of a serious crime, is
          entitled: (1) To be represented by an attorney to the same
          extent as a person having his own counsel . . . . 

13 V.S.A.  5231.

               A needy person who is entitled to be
           represented by an attorney under section 5231 of this title
           is entitled: (1) To be counseled and defended at all stages
           of the matter beginning with the earliest time when a person
           providing his own counsel would be entitled to be
           represented by an attorney . . . . 

3 V.S.A.  5233(a).  It is clear on their face that these statutes provide
no greater right to counsel to a needy person than to any other individual. 
The fact that defendant was serving a sentence for an unrelated offense at
the time of the lineup gives him no additional rights.  Presence of counsel
for defendant at his preindictment lineup was not required by statute. 

     Defendant next claims that the nontestimonial order to appear in the
lineup was irregular because the following paragraph, which incorporated a
requirement of V.R.Cr.P. 41.1(h)(6), was crossed out: 

          If you file a written request with me within three
          days after receipt of this order, I will make any reasonable
          modification of the time and place of appearance, including
          an order that any nontestimonial identification procedure
          other than a lineup be conducted at your place of residence.

The cross-out was unexplained.  Defendant contends that the deletion deprived
him of the opportunity to request a postponement of the lineup, and that the
identifications should have been suppressed.  We agree with the trial court,
however, that the deletion does not compel suppression.  A court issuing a
nontestimonial identification order is permitted, on request of the person
named in the order, to change the time and place of the appearance "whenever
it appears reasonable under the circumstances to do so."  Id. 41.1(e).  A
delay in defendant's 

 

lineup might have put it beyond the statute of limitations for the crime
with which defendant eventually was charged, but that factor, standing
alone, would not have justified postponing the lineup. The trial court
found that defendant had failed to present a basis for postponement had he
sought one.  The record reveals no ground for delay, and absent a showing
of prejudice by defendant, reversal is not required.  Cf. State v. Jones,
160 Vt. 440, 446, 631 A.2d 840, 845 (1993) (to established reversible error
under V.R.Cr.P. 16, defendant must show both violation of rule and
resulting prejudice). 

     Defendant's claim that the State violated V.R.Cr.P. 16.1(a)(2) in
failing to notify his attorney of the lineup is meritless.  The rule governs
lineups and other identification procedures pursuant to court order following
a defendant's initial appearance before a judicial officer.  Reporter's
Notes, V.R.Cr.P. 16.1.  The lineup in this case was prior to any appearance
before a judicial officer and the rule does not apply. 

     Finally, defendant claims the denial of counsel's request for an
instruction on the lesser-included offense of aggravated assault was
reversible error.  Defendant failed to object after the court's charge was
given to the jury, and makes no plain error argument.  Therefore, this claim
is waived on appeal, and we shall not address it.  State v. Grace, 160 Vt.
623, 625 (1993) (mem.);  State v. Wheelock, 158 Vt. 302, 306, 609 A.2d 972,
975 (1992); V.R.Cr.P. 30. 

     Affirmed. 



                                   FOR THE COURT:





                                   _______________________________________

                                   Associate Justice

--------------------------------------------------------------------------------
                                Footnotes

FN1.  Although the concurring opinion contends that the first two issues were
 not argued by defendant before the trial court, that court nevertheless 
 ruled on both issues in its suppression order.  The parties have fully 
 briefed and argued the issues on appeal.  We therefore address them herein.


--------------------------------------------------------------------------------
                                Concurring

 

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. 91-264


State of Vermont                          Supreme Court

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

Charles D. Parizo                         March Term, 1994


Edward J. Cashman, J.

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

Charles S. Martin and James Teixteira, Law clerk (On the Brief), of Martin &
 Paolini, Barre, for defendant-appellant 

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


     MORSE, J., concurring.   I concur, but do not reach the merits of the
first two issues because, in my view, they were not preserved for our
consideration.  The Vermont constitutional claim was mentioned in the title
of defendant's memorandum of law in support of his motion to dismiss, but not
argued in the trial court.  Defendant did not argue reliance on the Public
Defender Statute even though invited to do so by the trial court.  I believe
we should wait until those issues are preserved before deciding their merits.
Otherwise, issues not deemed essential or important enough to pursue by the
parties may be unilaterally injected for review by the trial court.  Issues
of plain error, not of first impression, should be raised by the court sua
sponte. 



                                             ______________________

                                             Associate Justice