Sunday, May 8, 2016

Coerced or Compliant?

State v. Reynolds, 2016 VT 43

By Andrew Delaney

This is an interlocutory appeal. An interlocutory appeal happens when there’s a trial court ruling that will have a big impact on a case and it’s a big enough question for the SCOV to weigh in during the middle of things. That’s grossly oversimplified, but, hey, that’s kinda what we do here.

Mr. Reynolds “is charged with four felony counts of lewd and lascivious conduct with a child and one felony count of aggravated sexual assault on a victim younger than thirteen.” At the time of the charged conduct, defendant was sixty seven; the alleged victim, his neighbor Z.Z., was seven.

Defendant filed a motion to suppress his statements made to the police, arguing that they “were the product of police coercion and thus taken in violation of his constitutional rights.” The trial court granted the motion after a hearing. 

A police detective contacted defendant and asked him to come down to the station to talk about a neighborhood complaint. Defendant said he’d help if the detective came to his house instead. The detective showed up in street clothes with a DCF worker. The detective asked to record defendant’s statement. Defendant agreed, though he seemed confused about the word “statement.”

The interview started with the detective asking about defendant’s relationship with his neighbors and their kids. The detective didn’t tell defendant that he was a person of interest or answer defendant’s questions about why the detective was there.

After a few minutes, the questioning got a little more pointed. The detective told defendant that Z.Z. had “talked about touching each other's privates.” Defendant indicated confusion. According to the trial court, the detective asked questions with “numerous confession-driven techniques, the most important of which was a suggestion that few or no legal repercussions would follow if defendant admitted to a mistaken touch.” The trial court further found that the interrogation was of an “accusatory, antagonistic, and unyielding nature.”

Eventually, defendant adopted the detective’s view of what happened, saying, “It just happened. . . . Like you said.” He answered all the follow-up questions with yes or no answers. At the hearing, defendant testified that he was having a panic attack and he thought the only way to make it all stop was to “confess.” He “believed the detective was promising him treatment, not jail, as long as he said that the touching was a mistake.”

The trial court concluded that the “State failed to prove by a preponderance of the evidence that defendant confessed voluntarily,” and suppressed the confession. There were a series of promises that if defendant admitted to the alleged conduct, defendant would get treatment, not jail time. The “detective led defendant to believe that this was his last opportunity to strike a deal, . . . refused to disclose the reason for the interrogation before it began, and he did not remind defendant of his right to terminate the interview at any time.” Based on all this and the overbearing nature of the interview—including defendant’s stammering and apparent inability to process the allegations well—the court found the confession involuntary. The trail court also found defendant’s testimony far more credible than the detective’s.

The trial court didn’t find it necessary to consider the panic attack because the State’s technique failed to consider defendant’s fundamental constitutional rights even without a special vulnerability. The trial court further concluded that “the circumstances showed that the challenged statements more likely resulted from defendant's resignation to a barrage of false promises and other tactics than from a sudden will to admit wrongdoing.”

The State appeals.

First, the State argues that no threats were made. It contends that defendant decided on his own to tell the truth. The State points out that defendant acknowledged during the hearing he admitted that he told the truth during the interview.

The SCOV notes that it’s the State’s burden to establish “by a preponderance of the evidence that the confession or statement was made voluntarily.” The doesn’t mean that law enforcement can’t use coercive tactics as long as the suspect has a chance to balance out competing considerations.

On appeal, the SCOV’s job is to figure out whether “under the totality of the circumstances, the confession was obtained in a manner consistent with the Constitution.” Things that go into this determination include the defendant’s youth, education, intelligence, credibility, demeanor, prior experience in the legal system, and familiarity with Miranda, as well as the length and circumstances of the interrogation.

The SCOV notes that it hasn’t been entirely clear or consistent on whether “voluntariness” is a factual or legal question. Because the trial court went with the federal version—which is clearly on the side of it being a legal determination—the SCOV decides to go with them apples. While the SCOV gives some deference to facts as found by the trial court, it can do whatever it wants on the “ultimate question” as to whether the confession comports with due process.

The SCOV agrees “with the trial court that the totality of the circumstances here shows that ‘coercive governmental conduct played a significant role in inducing’ defendant's confession.” The SCOV’s conclusion is based on the detective’s inappropriate promises of leniency and his misrepresentation of his authority. The SCOV opines that while some of his other techniques alone wouldn’t necessarily be a big issue—it was the promises and misrepresentations here that enhanced those techniques.

The government can’t make promises to get a confession. That’s been the rule since the 1800s, though it’s been backed off a bit from a complete prohibition. It’s still a big factor to consider.

The SCOV has made distinctions between promises and predictions. Whether a promise has been made is determined from a reasonable defendant’s perspective. If an officer says, for example, that he’ll tell the state’s attorney that the defendant was cooperative, that’s a prediction, not a promise.

In this case, however, the detective made promises. The SCOV points to several of the detective’s statements that taken as a whole imply that the detective would be able to help defendant fix everything and get into treatment so long as he adopted an it-was-all-a-mistake narrative.

The SCOV agrees with the trial court that “the effect of these promises was enhanced by the other techniques used by the detective, techniques that standing alone are not necessarily problematic.” This includes the detective’s pandering to defendant’s good reputation in the community; pretending to be defendant’s ally; and reminding defendant that they were at his house and not the police station. The detective never told defendant he could terminate the interview at any time, and he gave defendant a clear “last-chance” impression

The State argues that this is like a case where police officers went to a defendant’s hospital room and confronted the defendant with an incriminating email he’d sent to his girlfriend. Though there are some similarities, the SCOV points out that in that case, the police officers said things like “we’re cops” and “sometimes people go to jail.”

The SCOV is not swayed by the State’s comparisons. The SCOV reasons that the totality of the circumstances here is significantly different than in the other case. The fact that there was also a “last-chance” statement is but one piece of the puzzle for the SCOV. The promises that were made in this case were enhanced by the last-chance assertion. In the other case, it was reasonable for the defendant not to take the last-chance assertion as a ‘fess-up-or-else ultimatum.

The State also cites a civil commitment case with a confession. There, the State points out that “the defendant was intellectually disabled; the interrogation lasted four hours and occurred at the police station; and the detective told the defendant that the interview was ‘private’ and ‘you're not in trouble anyways.’” “Whoa,” says the State, “That was way worse and y’all let that one go.”

The SCOV sidesteps this one with a that’s-civil-commitment-and-clear-and-convincing-and-we-just-reviewed-for-clear-error slide. The SCOV notes that while the questioning techniques in the other case were found by the trial court to be “persistent” and “sophisticated,” there wasn’t any trickery or improper promises of leniency. There, the SCOV was looking at the weight of the evidence in a civil commitment proceeding and the reliability of the defendant’s confession. Accordingly, the SCOV isn’t persuaded by the that-case-was-worse pitch.

The State asserts that the defendant twice admitted during the hearing that he was honest during the interview and this means he wasn’t coerced. The SCOV disagrees. The point of suppressing involuntary statements is their unreliability and the likelihood that they’d be fabricated in hopes of leniency. Even if the statement is true (and the SCOV isn’t saying that), it still needs to be voluntary to be admissible.

The State also takes issue with the trial court’s the-defendant-was-more-credible-than-defendant finding. The SCOV don’t care. That’s not central to the voluntariness analysis. The SCOV has done the analysis from the point of a reasonable person in the defendant’s shoes and concluded that improper promises were made.

The State’s final argument is that the trial court should have given permission for the State to have an expert examine the defendant (the State filed a motion making that request and the trial court didn’t decide it). The trial court instead had the suppression hearing and no expert testimony was taken from either side.

Without making a decision whether the motion should’ve been granted, the SCOV reasons that the trial court made an objective assessment of the voluntariness of the confession without taking into account any special circumstances specific to defendant. So that’s that. We’re not going down that rabbit hole.

The SCOV affirms the trial court’s suppression of defendant’s confession.

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