State v. Marallo

State v. Marallo (2001-204); 175 Vt. 469; 817 A.2d 1271

[Filed 30-Dec-2002]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2001-204

                             NOVEMBER TERM, 2002



  State of Vermont	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	District Court of Vermont,
                                       }	Unit No. 2, Rutland Circuit
  Eric J. Marallo	               }
                                       }	DOCKET NO. 1468-10-98 Rdcr

                                                Trial Judge: Paul F. Hudson

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

       ¶  1.  Defendant, Eric Marallo, appeals his conviction for felony
  murder in Vermont District Court, Rutland Circuit.  Defendant alleges that
  the trial court erred in admitting a blood sample gathered under a
  non-testimonial identification order (NTO) because his rights under Miranda
  v. Arizona, 384 U.S. 436 (1966), and 13 V.S.A. § 5231, Vermont's Public
  Defender Act, were violated during the period preceding the order's
  execution.  While the trial court upheld a motion to suppress statements
  made by defendant during the state police interrogation held September 14,
  1998, it denied a motion to suppress the results of testing done on blood
  obtained from defendant on the same night.  The court held that the
  execution of the NTO did not result in prejudice to defendant.  The court
  further held that it was a judicial proceeding independent of the
  interrogation and not a critical stage at which the right to counsel was
  implicated.  We affirm.
   
       ¶  2.  The body of Dwayne Bernier was discovered on the floor of his
  tattoo parlor in East Wallingford, Vermont, on the morning of November 23,
  1997 .  He had been robbed and stabbed to death.  In addition to the blood
  of Bernier, stains found at the scene included blood of another individual. 
  On September 14, 1998, acting on a tip from an informant, state police
  officers applied for two search warrants.  They also applied for and
  received an NTO intended to secure a sample of defendant's blood.  That
  evening, the officers brought defendant to their Rutland barracks for
  questioning.  During the interview, defendant was shown the NTO permitting
  a sample of his blood to be drawn.  He was informed that a judge was coming
  to review the NTO, but defendant consented to the sampling prior to the
  judge's arrival, and signed a consent card.  Upon her arrival, Judge
  Corsones amended the NTO, changing the time and date that the samples could
  be taken.  After re-

 

  signing the order, defendant was served with the NTO, and an EMT took the
  blood sample.  Defendant was not advised of his Miranda rights or his
  rights under the state's Public Defender Act at the time of the interview,
  and no counsel was present for him.  The trial court granted defendant's
  motion to suppress the statements made to the state police that night
  because he was subjected to a custodial interrogation without the benefit
  of Miranda warnings.  However, after observing that defendant failed to
  demonstrate prejudice resulting from the execution of the NTO, the trial
  court denied defendant's motion to suppress the results of the blood test
  also conducted that evening.  We review motions to suppress de novo.  State
  v. Pierce, ___ Vt. ___, ___, 787 A.2d 1284, 1286 (2001).   

       ¶  3.  Defendant renews the argument made below that he was entitled
  to counsel at the time of the custodial interrogation, and that the right
  to counsel applies to the execution of the NTO as well.  When dealing with
  distinct statutory and constitutional rights, implicated by the same course
  of events, courts should independently analyze the application of those
  rights.  See, e.g. State v. Nemkovich, 168 Vt. 8, 10, 712 A.2d 899, 900
  (1998) (waiver of Miranda rights and waiver of statutory implied consent
  rights independently analyzed).  Even if defendant's rights under Miranda
  and the Public Defender Act were violated by the state police when they
  interrogated him, that violation does not taint the execution of the NTO. 

       ¶  4.  The warnings associated with Miranda v. Arizona, 384 U.S. 436
  (1966), must be given when a suspect has been " 'taken into custody or
  otherwise deprived of his freedom of action in any significant way.' "
  State v. Howe, 136 Vt. 53, 58, 386 A.2d 1125, 1128 (1978) (quoting Miranda
  384 U.S. at 444).  Critical to the Miranda warnings is the reminder that a
  suspect has the right to an attorney.  Both this Court and the United
  States Supreme Court, however, have held that the taking of non-testimonial
  evidence, such as blood samples or dental impressions, are not critical
  stages requiring notice to a defendant's counsel or triggering the right to
  counsel.  United States v. Wade, 388 U.S. 218, 227-28 (1967) (denial of the
  right to counsel at the taking of fingerprints, blood samples, clothing and
  hair present a minimal threat to a defendant's right to a fair trial);
  Howe, 136 Vt. at 63, 386 A.2d  at 1131 (procedures establishing right of
  state to take blood samples, dental impressions and fingerprints are
  non-critical stages).
   
       ¶  5.  During the evening of September 14, 1998, there were two
  distinct procedures at issue.  The set of rights at issue during the
  interrogation of defendant - those protected by Miranda and the Public
  Defender Act - may justify the exclusion of statements defendant made
  during that interrogation without the advice of counsel.  The second
  procedure at issue - the execution of the NTO collecting a blood sample
  from defendant - does not trigger the same rights, nor may those rights be
  bootstrapped onto concurrent procedures.  The court must employ a separate
  analysis in dealing with distinct procedures and determining whether
  evidence obtained via the NTO may be admitted.  In Wade, the Court noted
  that "there is minimal risk that . . . counsel's absence at such stages
  might derogate from . . . [the] right to a fair trial."  388 U.S.  at 228. 
  No substantive challenge 

 

  has been made to the order.  Regardless of whether counsel was present, it
  would have issued and the sample would have been taken.  Since defendant
  had no right to counsel with respect to the execution of the NTO, and in
  any event, suffered no prejudice because of the absence of counsel, there
  is no grounds to suppress the evidence gained through the NTO.

       Affirmed.



                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.)
                                       Specially Assigned