State v. Stenson

State v. Stensong (98-043); 169 Vt. 590; 738 A.2d 567

[Filed 24-Jun-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-043

                              APRIL TERM, 1999


State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	District Court of Vermont,
                                       }	Unit No. 3, Caledonia Circuit
Ryan Stenson	                       }
                                       }	DOCKET NO. 325-4-97 Cacr


             In the above-entitled cause, the Clerk will enter:


       Defendant appeals from his convictions for driving under the influence
  of alcohol (DUI) and  for retail theft.  He seeks to have the convictions
  reversed, arguing that: (1) the arresting officer  violated Vermont Rule of
  Criminal Procedure 3(a)(5) by questioning defendant at the police 
  barracks, (2)  the police should not have questioned defendant without an
  attorney present when  there had already been an initial consultation with
  an attorney, and (3) he did not knowingly and  intelligently waive his
  constitutional right to counsel at trial.  We affirm.

       Defendant argues that his conviction should be reversed because the
  arresting officer went  beyond the limited scope of a DUI arrest, as
  defined by Vermont Rule of Criminal Procedure  3(a)(5), by questioning
  defendant at the police barracks.  In State v. Forcier we held that, where 
  a defendant was interrogated upon being stopped for a breath test, the
  statements made by  defendant during the interrogation violated Vermont
  Rule of Criminal Procedure 3(a)(5), which  limited the purpose of the stop
  to obtaining a sample of breath or blood.  See 162 Vt. 71, 77, 643 A.2d 1200, 1203 (1994).  Our holding in that case rested entirely on the
  legislative intent and the  plain meaning of the language of Rule 3(a)(5):
  detention for DUI can serve only "the limited  purpose of obtaining a
  sample of breath or blood."  Id. at 75, 642 A.2d  at 1201.  Since our 
  decision in that case, the Legislature has amended Rule 3(a)(5) to strike
  this precise language.  See 1997, No. 117 (Adj. Sess.) § 30.  Therefore
  defendant's argument on this basis necessarily  fails.

       Defendant also argues that the waiver of his Miranda rights that he
  executed before the  interrogation is invalid because the police questioned
  defendant without an attorney present after  he had already had an initial
  consultation with an attorney.  This argument is similarly without  merit. 
  It is true that a defendant who has invoked a constitutional right to an
  attorney may not  be further interrogated without the defendant's attorney
  being present.  See Edwards v. Arizona,  451 U.S. 477, 484-85 (1981)
  (defendant who invokes the Fifth Amendment right to counsel  during
  custodial interrogation may not be subjected to further interrogation until
  counsel is made  available to defendant).  The right to speak to an
  attorney provided by 23 V.S.A. § 1202(c),  however, is not grounded in
  either the Vermont or United States Constitution, but only in the  statute
  itself.  See State v. Nemkovich, ___ Vt. ___, ___, 712 A.2d 899, 901 (1998) 
  (constitutional protections available in criminal proceedings do not attach
  to statutory right to  counsel under 23 V.S.A. S 1202(c); right to advice
  of counsel created in Miranda does not apply  because decision to take
  breath test is not critical stage of prosecution and because evidence
  sought  is physical rather than testimonial).  Requesting an attorney under
  23 V.S.A. 1202(c) is not in  itself equivalent to invoking the
  constitutional right to an attorney, which is the right to which the 
  Edwards rule applies.

 

       Our holding in State v. Garvey, 157 Vt. 105, 107, 595 A.2d 267, 268
  (1991), out of which  the right provided by 23 V.S.A. § 1202(c) arose,
  makes clear that the right to have an attorney  contacted before deciding
  to take a breath test stems from the unique circumstances associated  with
  the DUI stop.  The purpose of affording a right to contact counsel in this
  situation is distinct  from the constitutional right to an attorney under
  the Fifth Amendment to the United States  Constitution and Article Ten of
  the Vermont Constitution.  Therefore, the fact that defendant  exercised
  his statutory right to contact an attorney before taking the breath test
  did not affect the  validity of the waiver of the right to counsel that he
  signed prior to being questioned by police. 
 
       Finally, defendant argues that his conviction should be reversed
  because he did not  knowingly and intelligently waive his right to counsel. 
  Although defendant seeks to characterize  this as a question of the
  validity of his waiver, it is apparent from his conduct, discussed below, 
  that defendant was entirely capable of obtaining an attorney and was using
  the representation issue  as a tactic to delay the proceedings.  Thus,
  while the record is somewhat sparse on the topic of  the waiver,
  defendant's conduct makes clear that the conflict was about defendant's
  disregard for  the court process rather than any lack of understanding of
  his right to an attorney or the means  by which to obtain one.

       Defendant initially applied for a public defender on April 21, 1997,
  but was denied as  ineligible because his income was too high.  A calendar
  call was set for June 9, 1997.  Defendant  represented himself at the
  calendar call, though he told the court that he wanted to reapply for a 
  public defender and that, if he were again found ineligible, he would then
  work out something  with a private attorney (Mr. Benning).  The court
  concluded that defendant was still ineligible for  a public defender
  because his income had actually risen in the meantime.  By this time, the
  jury  drawing was scheduled for the next day, and defendant requested a
  continuance to allow his  attorney to acquaint himself with the case. The
  court denied defendant's request, pointing out that  defendant had not
  taken any steps in the interim to secure counsel other than reapplying for
  a  public defender, and defendant must have known he would be found
  ineligible because his income  had increased since the time of his last
  application.  The June 10 jury drawing was continued on  June 11,
  rescheduled for July 8, and rescheduled again on July 9 for August 13.

       Defendant's attorney, Mr. Benning, appeared at the jury drawing
  scheduled for August 13,  1997, but defendant did not.  Mr. Benning
  explained to the court that, even though he had  discussed the date of the
  jury drawing with defendant and believed defendant had received notice  of
  the jury drawing from the court, defendant nonetheless had chosen to be out
  of state on that  day.  Mr. Benning's subsequent request to withdraw as
  counsel was granted, and an arrest warrant  was issued for defendant.

       Defendant appeared before the court on August 25, 1997 after being
  arrested for failure to  appear at the August 13 jury drawing.  The court
  advised defendant that jury drawing was now  set for the September 16 and
  told defendant:


     [I]f you want a lawyer to help you out, you have between now and 
     then to get one.  It's up to you.  There's not going to be any more 
     continuances.  So if the lawyer comes in, I guess he or she is going 
     to have to be ready to hit the ground in this case.

  Later on in the proceedings, the court explained defendant's right to an
  attorney: 

     You're representing yourself today.  I understand that you had a 
     lawyer at one point.  You're not eligible for a public defender, but 
     I need to make sure you know you're entitled to have a lawyer at 

 

     your own expense and that lawyer might be able to see a problem 
     with the State's case that you might not see, and a lawyer can give 
     you advice about the rules and the law that applies here and without 
     that advice you are at a disadvantage.  Do you understand that?  

     Defendant: Yes.  

     The court: Do you want to proceed and represent yourself anyway? 
 
     Defendant: Yes.

       At trial, defendant appeared pro se and was convicted of driving under
  the influence.

       A defendant's waiver of the right to counsel must be knowing and
  intelligent.  See Davis  v. United States, 512 U.S. 452, 457 (1994) (right
  to counsel recognized in Miranda is sufficiently  important that it
  requires special protection of knowing and intelligent waiver standard). 
  This  requires the trial court to conduct an inquiry into the nature of a
  defendant's understanding of the  rights he is waiving.  The trial court
  should seek to uncover a defendant's "experience, motives,  and
  understanding of what he is undertaking" and provide "a clear explanation
  of the adverse  consequences of pro se representation."  State v. Merrill,
  155 Vt. 422, 425, 584 A.2d 1129, 1131  (1990).

       The above cases, however, deal with situations where there is a valid
  question about  whether a defendant understood that there was a right to
  counsel.  This was not the situation faced  by the court in the instant
  case.  Defendant demonstrated that he knew he had a right to counsel  and
  he expressed his desire to be represented by an attorney, but was unwilling
  to pay for it.   Thus, it was not a situation where the court needed to
  provide the defendant with a lengthy and  detailed explanation of his
  rights or to carefully probe his understanding.  See id. at 425-26, 584 A.2d  at 1131 (while some defendants may need more thorough explanation of
  trade-offs in order  to understand consequences of waiver, other defendants
  may indicate through their statements and  conduct that "in-depth inquiry
  or extensive advice is not necessary in that particular case to protect 
  the constitutional rights of the unrepresented defendant").

       In assessing whether defendant executed a valid waiver, we look to the
  totality of the  circumstances.  See id. at 427, 584 A.2d 1132.  In this
  case, defendant attempted twice to obtain  a public defender, successfully
  obtained private counsel (until counsel withdrew due to defendant's 
  failure to make a scheduled court appearance), and received the benefit of
  the trial court's  explanation of his right to counsel.  Furthermore, at
  the sentencing hearing, defendant's wife  explained that defendant felt
  that "with legal representation . . . he might have been able to  challenge
  what had happened, but that defendant "chose to uphold our commitment to
  the bank  instead of getting a lawyer for the trial."  Defendant's actions
  indicated that he wanted counsel  and understood his right to counsel, but
  made a conscious choice based on his financial situation  to represent
  himself.  No further explanation by the court would have changed this
  situation.

       The fact that the trial court refused to grant a continuance to allow
  defendant to obtain  counsel is immaterial to the assessment of defendant's
  waiver in this case.  The denial of a motion  to continue will not be
  reversed absent a clear abuse of discretion.   See State v. Hicks, ___ Vt. 
  ___, ___, 711 A.2d 660, 662 (1998) (mem).  Here, defendant manifested a
  general disregard for  the court process and the trial court concluded that
  defendant did not make a serious effort to  obtain counsel, despite the
  fact that he had the time and ability to do so.  There was therefore no 
  abuse of discretion.
 
  

       Affirmed.	



                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice