Wednesday, February 23, 2011

Miranda Algebra

State v. Barron, 2011 VT 2

Custody + Interrogation + No Miranda + No Waiver + Remedy = Successful Miranda Challenge. 
Or for the high school calculus student preparing for those AP tests next month: C + I + -M + -W + R = M (which can be restated as C + I +R = 2M +W and for some strange reason eventually reduces to -32.  Go figure!) 

Anyway, the SCOV’s latest word on constitutional criminal procedure is a reminder of the many ducks a defendant must queue up before a Miranda violation becomes a viable claim on appeal and how a missing integer can spoil the claim. 

Here, the defendant appealed a jury trial conviction for sexual assault on a minor.  The police arrived at the defendant’s home after complaints of a domestic disturbance between him and his wife.  They arrested the defendant for violating probation and charged him with disorderly conduct. (For those keeping score at home, we now have CUSTODY).  

On the way to the sheriff’s office, the defendant took it upon himself to explain the situation.  According to him, his wife was trying to get him arrested in order to have a sexual affair with the fifteen-year-old minor who lived with them.  At the station, the defendant noted the same in an affidavit. (WAIVER!  WAIVER!). 

A few days later, the court assigned a public defender. (COUNSEL ASSIGNED).  Then, a few days after that, a detective met the defendant at the jailhouse (CUSTODY) to discuss the allegations he had made against his wife. (INTERROGATION).  No Miranda warnings, no waiver, no counsel present . . . the works.  Defendant talked for forty-five minutes. 

The formula here is near perfect: CUSTODY + INTERROGATION + NO MIRANDA + NO WAIVER+ NO COUNSEL.  We’ll call this “Interview One.”

When the detective met with the defendant’s wife, and then met with the minor, he heard a different story, implicating the defendant in the whole sad mess.  That very same day, the defendant called the detective to offer up “more information concerning his wife.”  As the defendant had been released on the other charges, (NO CUSTODY!) the detective drove out to meet him.  The detective wore civilian clothes and drove an unmarked cruiser; the defendant voluntarily got into the car to talk. 

Here the formula looks wrong: NO CUSTODY + INTERROGATION? + NO MIRANDA + NO WAIVER + NO COUNSEL.  Here, during “Interview Two,” the defendant also made the unfortunate admissions that served as the basis for two charges of sexual assault on a minor.

Defendant’s claims on appeal are numerous: the trial court should have excluded his Interview One admissions (Miranda, Right to Counsel), the trial court should have excluded his Interview Two admissions (Miranda, Right to Counsel, Fruit of the Poisonous Tree based on Interview One), and the habitual offender statute should not apply to these charges.

We’ll start with Interview One.  According to the trial court, the defendant was not “in custody,” because he was being questioned on a wholly separate matter—his complaint about his wife.  SCOV rearranges the argument: actually, the issue is whether an interrogation occurred, given the State’s claim that the officer asked about a completely different issue.  The line of questioning wouldn’t change the fact of defendant’s obvious detention.  Nonetheless, SCOV disagreed with the trial court that this line of questioning was unlikely to illicit an incriminating response, because it required him to discuss the conduct for which he was initially charged.  In other words, C+ I + -M + -W = Miranda Violation! . . . but what’s the remedy?  Suppressing these statements doesn’t get the defendant very far because he did not say much to incriminate himself.

As for Interview Two, the defendant faced the inverse problem.  Here, the defendant may have been interrogated, but he voluntarily entered the detective’s vehicle—after calling the detective to come over—and the detective told him that he was free to leave at any time.  No custody; so no formula.  Therefore, the defendant’s last chance is to cash in any leftover remedy he can get from Interview One via the Fruit of the Poisonous Tree doctrine. 

According to SCOV, however, Interview One’s poisonous tree looks a little more like an over-pruned poisonous topiary, and it most certainly is not bearing any fruit.  At the outset, you should note, dear reader, that “fruit”-based exclusions premised on Miranda violations are brought to you by the Vermont Constitution—the U.S. Supreme Court has turned its nose upon Miranda fruit.  And for those at home who have never met our friend, Wong Sun, (and thus completely missed my bad puns,) “fruit of the poisonous tree” is the expression used to describe evidence which is later acquired by taking advantage of illegally-obtained evidence.  In this case, the defendant claimed that the police never would have garnered the incriminating statements from Interview Two, if they hadn’t known the information they gathered from illegal Interview One.

But along comes the garden shears also known as the Independent Source Rule: if the officers would have acquired the evidence anyway (“by means sufficiently distinguishable to be purged of the primary taint”), no exclusion.  SCOV says that—quite frankly—the defendant was himself the independent source.  After all, he insisted on giving the written statement in which he accused his wife, hence requiring the deputies to report the suspected sex with a minor to DCF, hence requiring interviews with the minor, which finally led the minor to implicate the defendant.  Furthermore, a considerable amount of time—twenty days—had also passed between Interview One and Interview Two, and nothing attenuates a chain of causation like the passage of time.  Regardless of the illegality of Interview One, the defendant could not stretch the exclusion remedy to Interview Two as well.

As for the lack of counsel at Interview One, the defendant was charged with disorderly conduct and a probation violation, and the court appointed counsel for those charges at the time of the questioning.  Technically, the detective violated the defendant’s Sixth Amendment rights by neither obtaining counsel nor seeking a waiver . . . but again, where’s the remedy?  If Interview Two can’t be considered the poisonous fruit of Interview One for Miranda purposes, there’s no fruit for Sixth Amendment purposes either, says SCOV.

As for Interview Two itself, SCOV reiterates that the right to counsel is offense-specific.  Without formal adversarial proceedings pending on the sexual assault charges, which were unrelated to the charges for which the defendant did have counsel, the defendant did not have a right to counsel at Interview Two. 
The defendant’s final argument—that he should not have been charged as a habitual offender—became an opportunity for SCOV to clarify the rule of lenity and the saving clause.  The defendant claimed that one of the three convictions used to tally his three strikes would no longer be a crime under the current statute, because consensual sex between an eighteen-year-old and a fifteen-year-old is now legal.  Under the saving clause, if an amendment to the law would reduce the punishment for an offense, the lesser punishment applies, unless the punishment is imposed prior to the date of the amendment.  SCOV says that the habitual offender statute punishment was not rendered prior to the amendment of the statutory rape law, and further, the amendment did not reduce the punishment, but redefined the crime.

Defense counsel should take special note of SCOV’s Footnote Three.  Apparently the defendant cited both the Vermont and U.S. Constitutions for his right to counsel arguments and relied on federal cases for those arguments, but did not argue that the Vermont Constitution is more protective or would dictate a different result.  SCOV seems to suggest that they might have considered such an argument, if only the defendant had made it.  As Frederick Douglas said, “power concedes nothing without a demand.”  So perhaps if one asks, one shall receive.  Q.E.D.

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