State v. Pontbriand
Annotate this Case
State v. Pontbriand (2003-537); 178 Vt. 120; 878 A.2d 227
2005 VT 20
[Filed 18-Feb-2005]
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.
2005 VT 20
No. 2003-537
State of Vermont Supreme Court
On Appeal from
v. District Court of Vermont,
Unit No. 2, Chittenden Circuit
Shawn Pontbriand June Term, 2004
Ben W. Joseph, J.
Robert Simpson, Chittenden County State's Attorney, and Pamela Hall
Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellant.
Matthew F. Valerio, Defender General, and Henry Hinton, Appellate Attorney,
Montpelier, for Defendant-Appellee.
PRESENT: Amestoy, C.J., (FN1) Dooley, Johnson, Skoglund and Reiber, JJ., and
C.J. Allen (Ret.), (FN2) Specially Assigned
¶ 1. SKOGLUND, J. The State appeals a trial court order
suppressing statements defendant Shawn Pontbriand made to law enforcement
officers before his arrest. The trial court found that Pontbriand was in
police custody at the time the statements were made, and that the officers
improperly reinitiated questioning after Pontbriand invoked his right to
counsel. We reverse.
¶ 2. In early May 2002, the Chittenden Unit for Special
Investigations began investigating Pontbriand's relationship with the minor
daughters of his girlfriend, T.N. During this investigation, T.N.
contacted the police after Pontbriand sent her an e-mail in which he
admitted to having an inappropriate sexual relationship with one of the
girls. The following day, Pontbriand collapsed and was transported to
Fletcher Allen Hospital, where he was diagnosed initially with dehydration
and later with cancer.
¶ 3. State Police Corporal James Claremont and Detective Sergeant
Jennifer Morrison of the Burlington Police Department came to Fletcher
Allen to interview Pontbriand the morning he was hospitalized. When they
arrived, he was in bed and a medical technician was performing diagnostic
tests on him. After the technician left the room, they introduced
themselves as detectives who investigate sexual offenses. They brought a
printed copy of the incriminating e-mail Pontbriand had sent to his
girlfriend and held the copy so that Pontbriand could see it. Corporal
Claremont told Pontbriand they were sure he knew why they had come. At
that point, Pontbriand indicated that he wanted to talk to a lawyer.
¶ 4. Detective Sergeant Morrison testified that she immediately
replied by saying that they would respect that, but explained to Pontbriand
that this was his opportunity to tell his side of the story and that they
were not going to come back again.
¶ 5. At the suppression hearing, the State submitted a compact
disc recording of the hospital conversation, on which Pontbriand is heard
to say he wanted to take care of the problem, and that he wanted to solve
it. Corporal Claremont repeated that he was not under arrest, and that he
did not have to talk to them. After more conversation in which Pontbriand
stated that he did not want to run from the problem, Detective Sergeant
Morrison again told him that his cooperation had to be voluntary if they
were going to continue talking, and that they would not force him to talk.
Both officers made clear that they could not promise not to arrest him.
¶ 6. The trial court found that Pontbriand informed the
investigating officers "he wanted to talk to them and that he would do so
without speaking to a lawyer."
¶ 7. Corporal Claremont then began to ask him questions about the
alleged abuse, and Pontbriand made incriminating statements in response.
At the close of the interview, the investigating officers informed him that
he was under arrest. Based on his statements and other evidence,
Pontbriand was charged with aggravated sexual assault and lewd and
lascivious conduct with a child.
¶ 8. Pontbriand moved to suppress the statements he made to police,
alleging (1) that he was in police custody at the time of questioning and
that the investigating officers were therefore barred from reinitiating
interrogation after he requested a lawyer, and (2) that his statements were
coerced and therefore inadmissible. The trial court granted his motion to
suppress, concluding that Pontbriand was in custody for purposes of
Miranda, that the police failed to give the warnings required by Miranda,
and, therefore, that any statements Pontbriand made could not be used as
evidence against him at trial. The State then filed this interlocutory
appeal.
¶ 9. On appeal, the State contends that the trial court erred when
it found that Pontbriand was in police custody at the time of questioning,
rendering his statements inadmissible under Miranda v. Arizona, 384 U.S. 436 (1966). We agree.
¶ 10. Under Miranda, as currently applied, the police must stop
questioning a suspect who is in custody after he or she requests an
attorney. State v. Trombley, 147 Vt. 371, 374, 518 A.2d 20, 23 (1986)
(quoting Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)). No such
requirement exists, however, for suspects who are not in custody. See
McNeil v. Wisconsin, 501 U.S. 171, 181-82 (1991) (suspect cannot
preemptively invoke Miranda rights by requesting counsel before custody is
established); State v. Garbutt, 173 Vt. 277, 282, 790 A.2d 444, 448 (2001)
(noting that Miranda warnings are not required for suspects not in
custody). A defendant seeking to suppress statements under this rule has
the burden of proving that he or she was in police custody when the
incriminating statements were made. State v. LeClaire, 2003 VT 4, ¶ 15,
175 Vt. 52, 819 A.2d 719.
¶ 11. The essential question in determining whether a defendant was
in custody for Miranda purposes "is simply whether there is a formal arrest
or restraint on freedom of movement of the degree associated with a formal
arrest." Id. ¶ 16 (internal quotations omitted). The U.S. Supreme Court
has made clear that under this standard,
a noncustodial situation is not converted to one in which Miranda
applies simply because . . . in the absence of any formal arrest
or restraint on freedom of movement, the questioning took place in
a "coercive environment." Any interview of one suspected of a
crime by a police officer will have coercive aspects to it, simply
by virtue of the fact that the police officer is part of a law
enforcement system which may ultimately cause the suspect to be
charged with a crime. But police officers are not required to
administer Miranda warnings to [suspects who are not in custody].
Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam). To determine
whether a suspect is in custody, courts should look for "situations
approximating 'incommunicado interrogation of individuals in a
police-dominated atmosphere,' " State v. Willis, 145 Vt. 459, 475, 494 A.2d 108, 117 (1985) (quoting Miranda, 384 U.S. at 445), and must consider "the
totality of the circumstances to determine if a reasonable person would
believe he or she were free to leave or to refuse to answer police
questioning," id. (emphasis added). The suspect's subjective belief as to
his or her custody status is irrelevant in this determination. Garbutt,
173 Vt. at 282, 790 A.2d at 448. The beliefs or intentions of the
investigating officers conducting the interview are relevant only if
communicated to the suspect, and only to the extent they might cause a
reasonable person to believe he or she is in custody. Id.
¶ 12. On appeal of a motion to suppress, we accept the trial court's
underlying factual findings so long as they are not clearly erroneous, but
review conclusions of law de novo. State v. Lawrence, 2003 VT 68, ¶¶ 8-9,
175 Vt. 600, 834 A.2d 10 (mem.). Therefore, the trial court's findings of
fact regarding the course of the interview receive deference, but its
ultimate legal determination that the totality of the circumstances would
have led a reasonable person to believe that he or she was in custody is
reviewed de novo. The U.S. Supreme Court has explained that in
determining whether a person was in custody for Miranda purposes, "[t]wo
discrete inquiries are essential . . . first, what were the circumstances
surrounding the interrogation; and second, given those circumstances, would
a reasonable person have felt he or she was not at liberty to terminate the
interrogation and leave." Thompson v. Keohane, 516 U.S. 99, 112 (1995)
(footnotes omitted) (examining suppression of testimony on Miranda grounds
in the context of a federal habeas corpus claim). The Court identified the
second inquiry as a " 'mixed question of law and fact' qualifying for
independent review." Id. at 113. We recently employed this standard of
review in the Miranda context in State v. Beer, 2004 VT 99, ¶¶ 24-27, 15
Vt. L. Wk. 309, 864 A.2d 643 (2004).
¶ 13. In concluding that Pontbriand was in custody, the trial court
relied on the following findings: Pontbriand was hospitalized; Pontbriand
could see the incriminating e-mail he sent to T.N.; the investigating
officers told Pontbriand that they were aware of the situation; and the
investigating officers' physical positions during the interview. As
explained below, the totality of the circumstances surrounding Pontbriand's
questioning does not support a finding that he was in police custody at any
point before he was arrested at the close of the interview.
¶ 14. As a preliminary matter, we note that despite the trial
court's apparent reliance on the fact that Pontbriand was "sick in a
hospital bed" during the interview, any difficulty he might have had
leaving his hospital room as a result of his illness is not determinative
of the custody inquiry. Custodial interrogation is the questioning of a
suspect where the suspect "is taken into custody or otherwise deprived of
his freedom by the authorities in any significant way." Miranda, 384 U.S. at 478 (emphasis added). Federal appellate courts and a substantial
majority of state courts have found that custody is not established merely
because a suspect is unable to leave the hospital due to his or her medical
condition. See, e.g., United States v. Robertson, 19 F.3d 1318, 1321 (10th
Cir. 1994) (hospitalized suspect not in custody where officers did not
restrict his freedom of movement through physical restraint or display of
authority); United States v. Martin, 781 F.2d 671, 673 (9th Cir. 1985)
(hospitalized suspect not in custody where police were not responsible for
hospitalization and did not unnecessarily extend it); State v. Tucker, 557 A.2d 270, 272 (N.H. 1989) (following the majority of state and federal
authority in finding that "the restraint contemplated by Miranda is that
interference with the defendant's freedom which is imposed by the police"
(emphasis added)); Commonwealth v. Ellis, 549 A.2d 1323, 1333 (Pa. Super.
Ct. 1988) (holding that appellant was not in custody for Miranda purposes
where police officer questioned him while he awaited treatment in hospital
emergency room). We follow the majority approach and hold that the
restraint on freedom of movement incumbent in hospitalization does not, on
its own, constitute custody for Miranda purposes. Thus, we may consider
Pontbriand's illness and medical confinement only to the extent that, as
part of the totality of the circumstances surrounding the interview, they
would impact a reasonable person's belief that he or she was actually in
police custody, unable to leave or refuse to answer police questioning.
¶ 15. In holding that Pontbriand was in custody when the questioning
occurred, the trial court determined that he was interrogated in a
"police-dominated atmosphere." In the four cases consolidated in Miranda,
police placed suspects under arrest, transported them to police stations,
and questioned them in isolation for hours or, in some cases, days without
informing them of their constitutional rights to remain silent and to be
represented by counsel. See 384 U.S. at 491, 493-94, 497. The Miranda
Court was deeply troubled by this apparently common practice of conducting
"incommunicado interrogation . . . in a police-dominated atmosphere," where
the "interrogation environment is created for no purpose other than to
subjugate the individual to the will of his examiner." Id. at 445, 457.
The Court held that, although statements made under these conditions might
not qualify as involuntary in traditional terms, the "Fifth Amendment
privilege . . . serves to protect persons in all settings in which their
freedom of action is curtailed in any significant way from being compelled
to incriminate themselves." Id. at 457, 467.
¶ 16. Thus, for purposes of determining whether a suspect was in
custody, a "police-dominated atmosphere" results when law enforcement
officers take action to fetter the suspect's freedom of movement during the
interrogation. Courts have found that a suspect was in custody where
objective evidence showed that the police questioned the suspect in an
enclosed space and isolated the suspect from others for an extended time.
See, e.g., State v. Bridges, 2003 ME 103, ¶¶ 27, 33-36, 829 A.2d 247
(holding that suspect was in custody where police officers isolated her for
hours in a small fire-station bedroom with closed doors and drawn shades,
hidden from public view). Here, however, although the investigating
officers appear to have been alone with Pontbriand for some time, there is
no indication that they shut the door or otherwise barred entry to the
hospital room during questioning. In fact, medical technicians were
present in the room when the investigating officers arrived, and at least
once again during the interview, suggesting that the officers took no
affirmative steps to isolate Pontbriand. Thus, the presence of medical
personnel during the interview and the absence of any evidence that the
investigating officers attempted to prevent others from entering the
hospital room undermine the trial court's conclusion that the officers
created a "police-dominated atmosphere."
¶ 17. The trial court also found that Corporal Claremont and
Detective Sergeant Morrison stood over Pontbriand and questioned him while
he lay in bed, and held that this contributed to creating a
police-dominated atmosphere. The position of the questioner(s) relative to
the suspect is often important in a Miranda custody determination because
it might substantially alter a suspect's perception of his or her freedom
to leave. See, e.g., People v. Minjarez, 81 P.3d 348, 356 (Colo. 2003)
(factoring suspect's isolation in small room with two police officers
blocking access to the door into custody determination). Here, however,
the record contains nothing to support the court's finding that the
investigating officers stood over Pontbriand while they talked with him.
The only evidence in the record regarding their positions in the room came
from the investigating officers themselves, with Detective Sergeant
Morrison testifying that she and Corporal Claremont were seated during the
interview, and that Pontbriand's path to the door was clear at all times.
The court's finding was clearly erroneous. Therefore, we do not credit the
trial court's reliance on it in concluding that the positioning of the
investigating officers within the room would have created an atmosphere so
police-dominated that a reasonable person would believe he or she was not
free to leave.
¶ 18. In addition, in finding that Pontbriand was in custody, the
trial court found that Pontbriand could not have believed he was still free
to leave after he saw that the police had a print-out of the e-mail he sent
to T.N., and they told him they already knew everything about the
situation. The investigating officers undoubtedly made it clear to
Pontbriand that they thought he had committed a crime, but this is not
enough to establish custody for Miranda purposes. See Stansbury v.
California, 511 U.S. 318, 325 (1994) (per curiam) ("Even a clear statement
from an officer that the person under interrogation is a prime suspect is
not, in itself, dispositive of the custody issue, for some suspects are
free to come and go until the police decide to make an arrest."). In
Mathiason, police told a suspect under interrogation that they thought he
was involved in a burglary, and falsely informed him that they had
recovered his fingerprints at the crime scene. Mathiason, 429 U.S. at 493.
Despite this display of highly incriminating and completely fabricated
evidence, the U.S. Supreme Court held that custody had not been
established. Id. at 495. The print-out of Pontbriand's e-mail to T.N. and
the investigating officers' statements that they knew what had happened and
could not promise not to arrest him put Pontbriand on notice that the
police thought he was guilty and he might face arrest at some point in the
future. These actions did not, however, constitute evidence so
overwhelming that a reasonable person in Pontbriand's position would
believe that he or she was no longer free to end the conversation.
¶ 19. In the first few minutes of the interview, the investigating
officers told Pontbriand multiple times that he was not under arrest, he
was not required to talk to them, and he had to participate willingly for
the conversation to go forward. The trial court found that the
investigating officers intended to arrest Pontbriand, that they lied to him
when they told him otherwise, and that "[i]t does not matter that the
police told him that he was not under arrest." We disagree. Although
these types of statements are not dispositive on their own, see Brunell,
150 Vt. at 392, 554 A.2d at 244 (concluding that repeated assertions by
police that suspect was not under arrest did not outweigh host of other
factors, including fact that police told suspect's mother, within earshot
of suspect, that suspect "had" to go to police station), courts making
Miranda custody determinations routinely take them into consideration when
deciding if an atmosphere is police-dominated. See, e.g., Mathiason, 429 U.S. at 495 (observing that suspect was "immediately informed that he was
not under arrest"); Bridges, 2003 ME 103, ¶ 28 (noting that statement
that one is free to leave is important but not dispositive). Although
Pontbriand testified that he thought the officers were lying when they told
him he was not under arrest, his subjective belief as to the investigating
officers' intent is irrelevant. Garbutt, 173 Vt. at 282, 790 A.2d at 448.
The manner in which the officers communicated their intentions to
Pontbriand-telling him that he was not under arrest, he had to participate
willingly, and they could not promise not to arrest him-cuts against the
conclusion that a reasonable person in Pontbriand's position would not
believe "he or she were free to leave or to refuse to answer police
questioning." Willis, 145 Vt. at 475, 494 A.2d at 117.
¶ 20. Pontbriand was interviewed by two non-uniformed law
enforcement officers who do not appear to have taken any affirmative steps
to isolate him from others. Although it is suggested that Pontbriand could
see that the officers had incriminating evidence, and they told him that
they knew everything about what he had done, they also informed him
multiple times that he was not under arrest and that he did not have to
talk to them. The officers may well have had enough evidence to arrest
Pontbriand before they interviewed him, and may even have gone to the
hospital with the intention of arresting him. For the purposes of this
inquiry, however, their unarticulated intentions are irrelevant. Looking
at the totality of the circumstances, the facts found by the trial court
illustrate that Pontbriand was not in police custody during the interview,
and we so hold. Accordingly, Miranda is inapplicable here, and the police
were not obliged to stop questioning Pontbriand when he indicated he wished
to speak with a lawyer.
¶ 21. Though not addressed by the trial court, Pontbriand's motion
to suppress also contended that even if the investigating officers did not
violate his rights under Miranda, his statements were given involuntarily
and are therefore inadmissible. A confession or inculpatory statement is
involuntary if coercive governmental conduct played a significant role in
inducing the statement. On the record developed by the trial court,
however, it is evident that Pontbriand's statements were voluntary.
¶ 22. In addition to the Fifth Amendment's prohibition against
self-incrimination, the Due Process Clause of the Fourteenth Amendment
prevents admission of involuntary statements into evidence, regardless of
the defendant's custodial situation. Dickerson v. United States, 530 U.S. 428, 433 (2000). Thus, a court may not admit statements that were given
involuntarily, regardless of whether Miranda warnings were administered or
even necessary. See id. at 444 (requiring voluntariness inquiry even after
Miranda warnings administered); State v. Badger, 141 Vt. 430, 449-50, 450 A.2d 336, 347-48 (1982) (observing that in addition to any federal
protections, involuntary statements are inadmissible under Vt. Const. ch.
I, art. 10). When a defendant challenges a confession or inculpatory
statement, the prosecution must establish by a preponderance of the
evidence that the confession or statement was made voluntarily, Lego v.
Twomey, 404 U.S. 477, 489 (1972); People v. Gennings, 808 P.2d 839, 843
(Colo. 1991), and that defendant knowingly waived the Fifth Amendment
privilege, Brunell, 150 Vt. at 390, 554 A.2d at 243. It is, however,
"generally recognized that the police may use some psychological tactics in
eliciting a statement from a suspect." State v. Bacon, 163 Vt. 279, 293,
658 A.2d 54, 64 (1995) (internal quotation omitted). Even where such
tactics have an impact on a suspect's decision to talk to the police, the
resulting statements are voluntary so long as they reflect "a product of
the suspect's own balancing of competing considerations." Id. at 294, 658 A.2d at 64 (internal quotations omitted). Thus, the ultimate inquiry is
whether, under the totality of the circumstances surrounding a confession,
the suspect's will was overborne by the police. Dickerson, 530 U.S. at
434.
¶ 23. Pontbriand claims that the police subjected him to
psychological coercion when they indicated they knew about his suspected
crime, suggested it would be better for everyone involved if he "got
everything out in the open," and encouraged him to put his fears aside and
think about the other people involved. The State emphasizes that these
comments came after the officers told Pontbriand that they worked for a
special unit that investigated sexual offenses; that he was not under
arrest; that he was not required to talk to them; and that "[w]e are cops .
. . and sometimes people go to jail, so we want to make sure that you want
to talk to us."
¶ 24. "[C]oercion can be mental as well as physical, and the blood
of the accused is not the only hallmark of an unconstitutional
inquisition." Blackburn v. Alabama, 361 U.S. 199, 206 (1960). If the will
of the suspect is overborne and his capacity for self-determination
critically impaired, his confession cannot be used against him. In Arizona
v. Fulminante, 499 U.S. 279 (1991), a leading case on assessing the
voluntariness of incriminating statements, the defendant was a suspect in
the killing of his stepdaughter. While serving an unrelated sentence for
possession of a firearm by a felon, Fulminante was befriended by a paid
F.B.I. informant who had been instructed to get information from Fulminante
about the killing. Apparently Fulminante was receiving "tough treatment"
from other inmates as an alleged child murderer and the informant offered
to protect Fulminante from physical recriminations in prison, but only if
Fulminante told him what happened. He did. The U.S. Supreme Court found
the question of whether Fulminante's confession was coerced "a close one,"
but held "[i]t was fear of physical violence, absent protection from his
friend (and Government agent) Sarivola, which motivated Fulminante to
confess," so that his "will was overborne in such a way as to render his
confession the product of coercion." 499 U.S. at 287-88.
¶ 25. In Gennings, the trial court suppressed statements of
Gennings, who was charged with aggravated incest, finding that the
polygraph examiner conducted the post-examination interview in a
psychologically coercive manner. 808 P.2d at 846. The polygraph examiner
admitted that she informed the defendant that he had been deceptive on the
examination and then used a "soft technique" by conveying a supportive
attitude toward his predicament and telling him that he would feel better
if he talked to her about the problem. Id. The so-called "soft
technique," the examiner acknowledged, was utilized in order to obtain a
truthful admission from the defendant. On appeal, the Supreme Court of
Colorado reversed, finding that it could not, with any assurance, find that
the polygraph examiner's conduct played so significant a role in
overbearing the defendant's will as to have caused the defendant's
statement to be constitutionally involuntary. Id. at 846-47.
¶ 26. The Supreme Court of Colorado applied the factors developed
in Gennings in People v. Medina, 25 P.3d 1216 (Colo. 2001), where the trial
court suppressed statements made by a defendant charged with child abuse
resulting in serious bodily injury. The supreme court affirmed, holding
that the interrogating detective's repeated threats to have the child taken
from both parents, unless the defendant confessed to shaking the child, had
a significant role in inducing his confession, especially because the
defendant was ill and suicidal when he made his statements. Id. at
1220-21, 1226.
¶ 27. Pontbriand's situation differs from those confronting Medina
and Fulminante in that Pontbriand's inquisitors used significantly
different techniques. Neither the conduct of the investigating officers
nor the circumstances under which the interview took place subjected
Pontbriand to the sort of psychological pressure that courts view as
impermissibly coercive. In the absence of a threatened adverse
consequence-like the threat of physical harm or repercussions against
family members-for refusing to answer questions, Pontbriand's decision to
continue the interview was a "product of [his] own balancing of competing
considerations." Bacon, 163 Vt. at 294, 658 A.2d at 64 (quotations
omitted).
¶ 28. We are not the first court to consider the type of
interrogation practices challenged here. In several cases, courts have
determined that police statements to a suspect suggesting he or she has one
last chance to talk are not conclusive evidence of coercive questioning.
See United States v. Gamez, 301 F.3d 1138, 1144 (9th Cir. 2002) (concluding
that police statements that "it would 'behoove' " suspect to tell what he
knew and that "this was his 'last chance' to come forward" did not amount
to coercion); People v. Wickham, 53 P.3d 691, 696 (Colo. Ct. App. 2002)
(holding that police statement that "defendant had one last chance to
respond to the questions" was not coercive); State v. Chung, 519 A.2d 1175,
1183-84 (Conn. 1987) (characterizing police statements that "it may be your
first chance and your last chance to straighten it out" and "I don't know
that you'll have the opportunity to do it again" as not coercive where no
promises or threats were made); State v. Hough, 571 N.W.2d 578, 581 (Minn.
Ct. App.) (determining that police statements that it was in suspect's
"best interest" to talk and that "interview would be his only chance to
tell his side of the story" were not promises or misrepresentations and
were not coercion), rev'd on other grounds, 585 N.W.2d 393 (Minn. 1998).
In a few cases, courts have found such statements to be a factor in
establishing a coercive atmosphere, but in each case the surrounding
circumstances have been more extreme than presented here. See, e.g.,
Collazo v. Estelle, 940 F.2d 411, 414, 416 (9th Cir. 1991) (finding
coercion where police stated "[t]his is your last chance to talk to us,"
and implied that talking to a lawyer would make things worse for defendant
and might lead to his arrest for murder); Medina, 25 P.3d at 1225 (finding
statement that suspect had one last chance to help himself was part of
coercive environment where police also threatened state would take custody
of his child if he was silent).
¶ 29. Pontbriand cites State v. Cox, 147 Vt. 421, 519 A.2d 1144
(1986), for the proposition that police officers exercise unlawful coercion
when they tell a suspect that he or she will have only one opportunity to
speak with them. In Cox, an inmate being interviewed as part of a
presentence investigation asked to consult with counsel first, and was told
that if he refused to proceed immediately, the interview would be
terminated and the interviewer would not come back to talk to him again.
(FN3) Id. at 422, 519 A.2d at 1145. The Court found that statements
given in this context were involuntary because the "defendant was presented
with two choices: (1) to await [arrival of counsel] and forfeit the
interview, or (2) to proceed with the interview without additional advice."
Id. at 425, 519 A.2d at 1147. Although superficially similar to the
present case, Cox is readily distinguishable on two related grounds.
First, the defendant in Cox was in prison awaiting sentencing when the
interview was conducted, a factor courts weigh in evaluating the
voluntariness of statements in presentence investigation reports. Id.
Second, because it was a presentence investigation interview, the defendant
in Cox could reasonably have feared that the judge would dispense with the
interview altogether and proceed with sentencing without the benefit of his
statement. See V.R.Cr.P. 32(c)(1)(C) (allowing judge to dispense with
presentence investigation report where defendant refuses to participate in
interview). Thus, Cox's failure to speak immediately could have adversely
affected him at sentencing. Here, by comparison, Pontbriand had not yet
been charged with a crime when he was interviewed. A person in his
position could reasonably have anticipated that, even if the police
declined to question him again, he would still have the opportunity to
present his side of the story in court.
¶ 30. We conclude that Detective Sergeant Morrison's statement that
this was Pontbriand's opportunity to talk to the police and that they would
not come back to talk again is not enough, absent any other evidence of
coercive interrogation tactics, to make Pontbriand's further participation
in the conversation involuntary.
¶ 31. Pontbriand's statements were obtained during brief,
daytime questioning conducted by two law enforcement officers in a
semi-public hospital room, unmarked by any of the traditional indicia of
coercion. There was a legitimate purpose in their questioning, no
perceptible unfairness, and little risk of injustice in the interrogation.
Here, the totality of the circumstances surrounding the interview does not
suggest an atmosphere so coercive as to overbear Pontbriand's free will.
Corporal Claremont and Detective Sergeant Morrison plainly wanted a
statement and worked to convince Pontbriand that confessing was the right
thing to do, but in the context of police questioning "persuasion is not
coercion," People v. Matheny, 46 P.3d 453, 467 (Colo. 2002), and
Pontbriand's decision to talk was ultimately his own, perhaps the result of
a commendable qualm of conscience. Accordingly, we find that his
statements were voluntary and are therefore properly admissible at trial.
Reversed.
FOR THE COURT:
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Dissenting
¶ 32. JOHNSON, J., dissenting. Regardless of whether or not
Pontbriand was in police custody, I cannot agree with the majority that he
made his statements voluntarily, and I therefore respectfully dissent.
¶ 33. In a relatively recent decision upholding the constitutional
basis of Miranda, the U.S. Supreme Court recounted a brief history of the
law governing the admission of confessions. Dickerson v. United States,
530 U.S. 428, 432-34 (2000). There, the Court observed that the policy of
excluding coerced confessions has venerable roots in the English common
law, where courts recognized that " 'a confession forced from the mind by
the flattery of hope, or by the torture of fear, comes in so questionable a
shape . . . that no credit ought to be given to it; and therefore it is
rejected[.]' " Id. at 433 (quoting King v. Warickshall, 168 Eng. Rep. 234,
235 (K.B. 1783)). In the United States, that policy has evolved into a
doctrine-based in the Fifth and Fourteenth Amendments-that excludes
involuntary statements made to police officers. Id. Until Miranda, the
Court continued to base its decisions excluding coerced confessions
primarily on notions of due process, and it has not abandoned the
voluntariness doctrine as a distinct body of law even as its focus has
shifted to questions of police custody during suspect interrogation. 530 U.S. at 434 (citing Malloy v. Hogan, 378 U.S. 1 (1964)).
¶ 34. In Miranda, the Court confronted the deeply troubling practice
of "incommunicado interrogation of individuals in a police-dominated
atmosphere," Miranda v. Arizona, 384 U.S. 436, 445 (1966), where officers
created an interview environment designed "to subjugate the individual to
the will of his examiner," id. at 457; accord State v. Garbutt, 173 Vt.
277, 282, 790 A.2d 444, 448 (2001). The Court went on to hold that police
must advise suspects of their rights to silence and counsel before
interrogating them in a custodial setting. Miranda, 384 U.S. at 479. The
decision did not, however, eviscerate the older doctrine excluding
involuntary statements made in noncustodial contexts, and concluded that
the Fifth Amendment "serves to protect persons in all settings in which
their freedom of action is curtailed in any significant way from being
compelled to incriminate themselves." Id. at 467; accord State v. Badger,
141 Vt. 430, 449-50, 450 A.2d 336, 347-48 (1982). In subsequent years, the
test of voluntariness has evolved into an inquiry that examines whether the
totality of the circumstances surrounding a confession suggests that the
police overbore the suspect's will. Dickerson, 530 U.S. at 434.
¶ 35. The totality of the circumstances approach recognizes the
synergistic nature of coercive interrogations. The combination of many
subtle police tactics often results in a coercive atmosphere that is
obscured when the context is broken down to its constituent parts. For
this reason, involuntary confession cases are highly fact-specific, and
include situations, such as this one, where the police did not beat or
physically harm the suspect, but instead subjected him to tactical
psychological coercion. See Arizona v. Fulminante, 499 U.S. 279, 287-88
(1991) (explaining that coercive police conduct includes not only physical
abuse or threats but also subtle forms of psychological coercion). In
Dickerson the Court recognized that "custodial police interrogation, by its
very nature, isolates and pressures the individual . . .[e]ven without
employing brutality, the 'third degree' or [other] specific stratagems, . .
. [it] exacts a heavy toll on individual liberty and trades on the weakness
of individuals." 530 U.S. at 435 (internal quotations omitted). The same
concerns arise in noncustodial interrogations where the totality of the
circumstances indicate that police have created an atmosphere designed to
exploit an individual's weaknesses. People v. Gennings, 808 P.2d 839, 844
(Colo. 1991).
¶ 36. As the phrase suggests, many factors can come together to
create a totality of circumstances sufficient to overbear a suspect's will.
In some cases, one particular circumstance may so offend our basic notion
of a free and uncoerced confession that it alone renders a suspect's
statements involuntary. In other cases, no single factor is enough to
overbear an individual's will, but the aggregate effect of many subtle,
exploitative techniques is a coercive environment powerful enough to elicit
an involuntary confession. To aid in evaluating the myriad considerations
relevant to the totality of the circumstances inquiry, the Colorado Supreme
Court has developed a list of factors, including:
(1) whether the defendant was in custody; (2) whether the
defendant was free to leave; (3) whether the defendant was aware
of the situation; (4) whether the police read Miranda rights to
the defendant; (5) whether the defendant understood and waived
Miranda rights; (6) whether the defendant had an opportunity to
confer with counsel or anyone else prior to or during the
interrogation; (7) whether the statement was made during the
interrogation or volunteered later; (8) whether the police
threatened defendant or promised anything directly or impliedly;
(9) the method or style of the interrogation; (10) the defendant's
mental and physical condition just prior to the interrogation;
(11) the length of the interrogation; (12) the location of the
interrogation; and (13) the physical conditions of the location
where the interrogation occurred.
People v. Medina, 25 P.3d 1216, 1222-23 (Colo. 2001) (citing Gennings, 808
P.2d at 844). This list is not exclusive, nor is it weighted toward any
particular factor, and a given case may not implicate all of the factors
listed. Gennings, 808 P.2d at 844. It is, however, a useful rubric to
guide our evaluation of the voluntariness of Pontbriand's statements in
this case. In conducting this evaluation, it is critical to remember that
the State ultimately bears the burden of proving, by a preponderance of the
evidence, that Pontbriand's statements were not the product of undue
coercion. State v. Brunell, 150 Vt. 388, 390, 554 A.2d 242, 243 (1988).
¶ 37. Looking to the factors identified in Medina, it is significant
that the police chose to interview Pontbriand as he lay in a hospital
emergency room bed receiving medical treatment. Medina, 25 P.3d at
1222-23. He had undergone a series of diagnostic tests just before the
questioning began and was, in this sense, confined to the room with police
officers, who made it clear that they knew he had committed a crime. While
the majority focuses on the physical circumstances of the hospital
setting-discussing the impact of the restraints on Pontbriand's movement,
describing the officers' relative location in the room, and characterizing
their posture near the bed-the more salient concern here is Pontbriand's
mental and emotional condition. He was sick and vulnerable, and in such a
state he was particularly susceptible to manipulation and intimidation.
Dizzy, suffering from dehydration, and later diagnosed with cancer,
Pontbriand was in no position to make a major life decision. The officers
gained a considerable psychological advantage under these circumstances,
and, regardless of intent, their tactics plainly set the stage for a
coercive interrogation. See id. (looking to the defendant's mental and
physical condition, awareness of the situation, and the location,
conditions, and tactics of interrogation).
¶ 38. Within this already coercive context, the officers visibly
displayed a printed copy of the incriminating communication that Pontbriand
had sent to his girlfriend, see Gennings, 808 P.2d at 843-44 ("Coercive
police conduct includes not only physical abuse or threats . . . but also
subtle forms of psychological coercion."), and told him it would be better
for everyone involved if he got everything out in the open. After
Pontbriand said he was afraid to talk, Corporal Claremont told him to
"[p]ut [his] fears aside for a minute and then think about the other people
involved . . . . And really, the only way to help that situation . . . is
to be completely open about it." He went on to suggest that he and his
partner were "the kinder, gentler police," and told Pontbriand that it was
"much better that we talk to you than if you just marched into a police
station with people who don't have special training of this type." See
Hutto v. Ross, 429 U.S. 28, 30 (1976) (per curiam) (excluding statements
"extracted by any sort of threats or violence, [or] obtained by any direct
or implied promises, however slight" (internal quotations omitted)).
¶ 39. The officers made certain to inform Pontbriand that he was
not under arrest, and therefore they felt free to avoid advising him of his
Miranda rights. While such advice may not have been constitutionally
mandated in this case, courts have treated the omission of these simple
warnings as evidence of a coercive interrogation environment. See Edwards
v. State, 973 P.2d 41, 49 (Wyo. 1999) (listing the absence of Miranda
warnings among components of a coercive interrogation); accord Medina, 25 P.3d at 1222-23. Indeed the officers here not only chose to forego
Miranda, but when Pontbriand asked to speak to a lawyer Officer Morrison
responded by saying, "We'll respect that and I just want to let you know
that this is your opportunity to give us your side of the story because we
are not going to come back again." Faced with the possibility of losing
the chance to present police with a competing version of the facts,
Pontbriand relinquished his right to counsel and reluctantly began to make
a series of incriminating statements. Despite the majority's attempts to
distinguish the case law, in similar circumstances we have held that such
tactics amount to unconstitutional coercion. See State v. Cox, 147 Vt.
421, 425, 519 A.2d 1144, 1147 (1986) (suppressing statements where the
"defendant was presented with two choices: (1) to await [the arrival of
counsel] and forfeit the interview, or (2) to proceed with the interview
without additional advice"); accord Collazo v. Estelle, 940 F.2d 411, 414,
416 (9th Cir. 1991).
¶ 40. After evaluating the facts of this case against the policy
supporting the U.S. Supreme Court's historical rejection of coerced
statements and the factors identified in Medina, I believe the State has
failed to demonstrate that the trial court erred in excluding the
statements Pontbriand made to police confirming the substance of his
earlier e-mail. See Gennings, 808 P.2d at 844 ("[T]he deliberate
exploitation of a person's weakness by psychological intimidation can . . .
constitute a form of governmental coercion that renders a statement
involuntary."). In this case, the totality of the
circumstances-Pontbriand's illness and confinement in the hospital, the
display of the incriminating message, the failure to advise him of his
rights to silence and counsel, and the officers' decision to continue
questioning after the request for counsel-created a coercive atmosphere
sufficient to make his statements involuntary.
¶ 41. The decision to pursue a coercive interrogation strategy in
this case is particularly unsettling because the police already had
possession of Pontbriand's electronic confession, making his statements
from the hospital bed largely redundant. In such circumstances, the better
course would have been to simply advise Pontbriand of his constitutional
rights, and ask him if he wanted to make any additional statements.
Because I do not believe that the State has demonstrated that the chosen
strategy, one based on the subtle manipulation and psychological
intimidation of a person who is demonstrably ill, passes constitutional
muster, I respectfully dissent. I am authorized to state that Justice
Dooley joins this dissent.
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. Chief Justice Amestoy sat for oral argument but did not participate in
this decision.
FN2. Retired Chief Justice Allen reviewed the tape of oral argument and the
briefing, and participates in this decision.
FN3. In Cox, the defendant asked to speak not with his attorney, but with
an investigator assigned to assist him by the public defender's office.
The Court determined that in the context of a presentence investigation
interview, the distinction was irrelevant for the purpose of Fifth
Amendment analysis, and treated the defendant's request as a request for
counsel. Cox, 147 Vt. at 424-25, 519 A.2d at 1146.
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