2013 VT 71


State v. Sullivan (2012-134)
 
2013 VT 71
 
[Filed 23-Aug-2031]
 
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 by email at: JUD.Reporter@state.vt.us or by
mail at: 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.
 
 

2013 VT 71

 

No. 2012-134

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Windsor Unit,


 


Criminal Division


 


 


Corrina Sullivan


January Term, 2013


 


 


 


 


M.
  Patricia Zimmerman, J.


 

David J. Cahill, Windsor County Deputy State’s Attorney,
White River Junction, for 
  Plaintiff-Appellee. 
 
Matthew F. Valerio, Defender General, Rebecca Turner,
Appellate Defender, and Erick Tobias,
  Law Clerk (On the Brief), Montpelier, and Daniel S.
Stevens of Marsicovetere Law Group, PC,
  White River Junction, for Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and
Robinson, JJ.
 
 
¶ 1.            
ROBINSON, J.   Defendant Corinna Sullivan seeks
reversal of her conviction for driving under the influence of alcohol (DUI) on
the ground that the trial court erred in denying her motion to suppress various
statements and evidence obtained during or as a result of an encounter between
her and police officers in her apartment.  We affirm.  
¶ 2.            
The facts as found by the trial court and
supported by sufficient evidence are as follows.  On a cold January night,
a Department of Corrections (DOC) officer was traveling in his vehicle down
Christian Street in the Town of Hartford when he encountered defendant walking
up the road about 100 feet from a motor vehicle stuck in a snow bank.  The
back half of the vehicle was encroaching on the traveled roadway, and both the
rear reverse lights and dash lights were on.  The DOC officer offered
defendant a ride home.  
¶ 3.            
During the brief trip, defendant identified
herself and told the DOC officer that she had driven off the road because she
was upset by a fight with her boyfriend.  The DOC officer dropped her off
at an apartment less than a mile away and reported the vehicle to the Hartford
Police Department.  
¶ 4.            
Officer Muldoon responded, arriving at the
vehicle within six to ten minutes.  He found documents in the vehicle
listing defendant’s name and address.  The DOC officer, who had returned
to the scene, told Officer Muldoon that he had driven defendant home.  
¶ 5.            
Officer Muldoon drove to defendant’s apartment and knocked on the
door.  Defendant’s grandmother answered.  After Officer Muldoon asked
to speak with defendant, grandmother invited him in and called for defendant to
come out of her room.
¶ 6.            
Defendant responded evasively to the first questions Officer Muldoon
asked her about what had happened that night, avoiding eye contact and leaning
against a wall.  Her speech was neither clear nor articulate.  From
eight-to-ten feet away from defendant, Officer Muldoon detected a slight odor
of alcohol.  He explained to her that he was conducting an investigation
and they could proceed in “one of two ways.”
¶ 7.            
Officer Muldoon asked if defendant had anything to drink that
night.  Defendant looked down and did not respond, and Officer Muldoon
said he would take her response as a “yes.”  Officer
Muldoon then asked defendant to step out of the apartment to perform
standard field sobriety tests.  
¶ 8.            
At that point the grandmother began asking Officer Muldoon questions
about DUI processing.  He told the grandmother if defendant refused the
evidentiary breath test she would lose her license for refusing.  The
grandmother then talked with defendant about the situation.  In the course
of that conversation, defendant mentioned an eleven-year-old conviction for
DUI.  
¶ 9.            
Defendant’s friend then arrived at the apartment and joined the
conversation between defendant and the grandmother.  Defendant, the
grandmother, and the friend discussed removing the car from the snow
bank.  Defendant was crying and upset because she had crashed the car.  The
three of them continued to talk amongst themselves, occasionally engaging
Officer Muldoon.  Meanwhile, Officer Muldoon waited for backup to arrive
before taking further steps.  
¶ 10.        
At one point, defendant told Officer Muldoon that she would not submit to
a blood test.  He replied that a field sobriety and breath test would
clear up any questions about a DUI.  Both the grandmother and friend tried
to persuade defendant to take the field sobriety tests, but she continued to
refuse.  Officer Muldoon attempted to clarify whether defendant was
refusing to take the tests but she said nothing in response.  He asked
again if she had anything to drink that night, and she replied, “not for a
while.”
¶ 11.        
At that point, Sergeant Vail from the Hartford Police Department arrived
at the apartment.  In response to his questioning, defendant told Sergeant
Vail that she had had “probably three beers.”  Sergeant Vail again
requested she submit to the preliminary breath test (PBT), but she refused. 
The officers then formally arrested defendant on suspicion of DUI and
transported her to the Hartford Police Department for DUI processing.  At
the station, she was read her Miranda rights and consented to an
evidentiary test.  Miranda v. Arizona, 384 U.S. 436 (1966).  The
period from Officer Muldoon’s arrival to defendant’s formal arrest lasted about
seventeen minutes.  
¶ 12.        
The evidentiary breath test taken at the station yielded a blood-alcohol
concentration of 0.246, well above the legal limit.  Defendant was charged
with DUI, second offense, pursuant to 23 V.S.A. § 1201(a)(2). 
Defendant filed a motion to suppress all evidence obtained after the Hartford
Police encountered defendant at her apartment on the ground that the evidence
derived from an unlawful seizure, and a motion to dismiss on the ground of the
insufficient evidence that would result from suppression.  In the
alternative, defendant sought suppression of the statements regarding her
alcohol consumption that she made prior to her formal arrest.  After a
hearing, the trial court denied defendant’s motions in a written order.  
¶ 13.        
The trial court rejected defendant’s argument that Officer Muldoon did
not have reasonable suspicion to investigate her for DUI.  The court
concluded that evidence of the single-car accident, defendant’s leaving her
car, defendant’s evasive answers and suspicious demeanor when police first
encountered her, and Officer Muldoon’s detection of the slight odor of alcohol
taken all together were sufficient to justify the officer’s reasonable
suspicion that defendant had committed DUI.  Considering the totality of
the circumstances, the trial court rejected defendant’s contentions that her
statements were involuntary and were the product of an unwarned custodial
interrogation.  The court explained that defendant was interviewed in her
own home, that her grandmother and subsequently her friend were present
throughout, that most of the conversation during the seventeen-minute encounter
was between defendant and her grandmother and friend, rather than defendant and
police officers, and that defendant showed she was able to make her own
decisions, holding firm on her refusal to take a field sobriety test despite encouragement
from her grandmother, her friend, and law enforcement.  Finally,
concluding that there was no formal or de facto arrest at the time Officer
Muldoon told defendant he was investigating a crime (relating to the car in the
snow bank) and could proceed in “one of two ways,” the court rejected
defendant’s argument that she was effectively arrested at that time without
probable cause. 
¶ 14.        
Defendant subsequently entered a conditional guilty plea pursuant to
V.R.Cr.P. 11(a)(2), preserving her right to appeal all issues.  On appeal,
defendant raises the same arguments as she did in her motion to suppress.
¶ 15.        
A motion to suppress involves a mixed question of law and fact.  State
v. Simoneau, 2003 VT 83, ¶ 14, 176 Vt. 15, 833 A.2d 1280.  We will not
disturb a trial court’s findings of fact unless they are unsupported by the
evidence or are clearly erroneous.  State v. Sutphin, 159 Vt. 9,
11, 614 A.2d 792, 793 (1992).  We review questions of law de novo.  State
v. Mara, 2009 VT 96A, ¶ 6, 186 Vt. 389, 987 A.2d 939.
I.
¶ 16.        
We begin with defendant’s contention that Officer Muldoon seized her
without reasonable suspicion.  Defendant argues that Officer Muldoon
seized defendant almost immediately upon his arrival at her apartment.  At
that time, all the officer knew was that an upset driver had slid her car off a
snow-covered road into a snow bank—a commonplace winter occurrence in
Vermont—and that she had left the rear and dash lights on—likely to help other
drivers see the car.  These facts, defendant argues, do not give rise to a
reasonable suspicion to support Officer Muldoon’s seizure of her.
¶ 17.        
We have long recognized that “[a] brief detention, its scope reasonably
related to the justification for the stop and inquiry, is permitted in order to
investigate the circumstances that provoke suspicion.”  State v.
Chapman, 173 Vt. 400, 402, 800 A.2d 446, 449 (2002) (quotation
omitted).  We described in State v. McGuigan the evolving
circumstances that arise in police-citizen encounters, particularly in the DUI
context:
[An
investigatory] detention may begin with a consensual encounter between the
police and a citizen . . . or with the investigatory stop
of a suspect.  Under either circumstance, if the officer can point to factors
indicating that a suspect has been involved in wrongdoing—[such as,] driving
under the influence of alcohol—the initial encounter can escalate, with each
inquiry by the officer leading to further evidence justifying further
restraints on defendant’s freedom until probable cause exists to arrest
defendant . . . for DUI.  
 
2008 VT 111, ¶ 8, 184 Vt.
441, 965 A.2d 511 (quotation and alterations omitted).  
¶ 18.        
An investigatory detention must be supported by reasonable suspicion of
criminal activity.  State v. Bruno, 157 Vt. 6, 11, 595 A.2d 272,
275 (1991).  A reasonable suspicion requires something less than evidence
sufficient to prove guilt by a preponderance of the evidence, but “must be more
than an inchoate and unparticularized suspicion or hunch.”  State v.
Warner, 172 Vt. 552, 554, 773 A.2d 273, 275 (2001) (mem.).  Whether an
officer’s suspicions of criminal activity are reasonable is determined from the
totality of the circumstances.  Id.  No one factor or specific
combination of factors is determinative.  
¶ 19.        
In this case, we need not determine precisely when Officer Muldoon’s
encounter with defendant became an investigatory detention.  The moment is
not critical because we conclude, based on the trial court’s findings, that the
trial court did not err in concluding that Officer Muldoon had a sufficient
basis to support his reasonable suspicion immediately following his first
exchange with defendant.  The basis existed before the statement that he
could proceed “one of two ways,” which marks the earliest arguable transition
to an investigatory detention.
¶ 20.        
Before even arriving at defendant’s home, Officer Muldoon knew that
defendant had left a car in a snow bank with a portion of the car protruding
into the road, with the gearshift in reverse, and the dash and reverse lights
illuminated.  Cf. State v. Willette, 142 Vt. 78, 80-81, 451 A.2d
821, 822 (1982) (permitting officers to use circumstantial evidence about
condition of vehicle—abandoned car facing wrong direction on highway with flat
tire and without emergency lights flashing—to support reasonable suspicion of
impairment).
¶ 21.        
 Immediately upon meeting defendant, Officer Muldoon asked her
about what was going on, and defendant replied “nothing.”  The trial court
reasonably concluded that, under the circumstances, Officer Muldoon was correct
in treating this answer as evasive.  See People v. Hibbert, 813
N.Y.S.2d 443, 444 (App. Div. 2006) (factoring defendant’s evasive and
untruthful responses to police officers’ inquiries as supporting reasonable
suspicion); United States v. Smith, 594 F.3d 530, 541 (6th Cir. 2010)
(considering evasive, nonresponsive, and vague answers to officer’s questioning
were additional bases supporting reasonable suspicion that defendant had
committed, was committing, or was about to commit crime).  
¶ 22.        
In addition, Officer Muldoon detected a slight odor of alcohol and
observed other signs of impairment.  We have repeatedly held that the
smell of alcohol emanating from a person is a factor that can support an
officer’s reasonable suspicion in the context of a
totality-of-the-circumstances assessment.  See State v. Young, 2010
VT 97, ¶ 21, 189 Vt. 37, 12 A.3d 510 (strong odor of alcohol and slurred
speech); State v. Santimore, 2009 VT 104, ¶ 8, 186 Vt. 638, 987
A.2d 332 (mem.) (odor of alcohol and watery and bloodshot eyes); Mara,
2009 VT 96A, ¶ 12 (odor of alcohol, admission to drinking, and watery and
bloodshot eyes).  When Officer Muldoon initially spoke to defendant, she was
leaning against a wall.  Cf. Bruno v. Iowa Dep’t of Transp.,
603 N.W.2d 596, 599 (Iowa 1999) (difficulty pronouncing numbers, exhibiting
unsteady balance, leaning against the squad car for support, smelling of
alcohol and fact of minor accident sufficient to support request for
evidentiary test).  Defendant’s speech was neither clear nor
articulate.  See State v. Freeman, 2004 VT 56, ¶¶ 8-9, 177 Vt.
478, 857 A.2d 295 (mem.) (affirming reasonable suspicion determination based on
odor of alcohol, watery and bloodshot eyes, and speech that was very slightly
slurred).  We need not decide whether any of these factors alone could
support reasonable suspicion; taken together, this evidence supports the trial
court’s finding of reasonable suspicion sufficient to warrant an investigatory
detention of defendant.
II.
¶ 23.        
We next turn to defendant’s argument that without even a reasonable
suspicion of criminal activity, let alone the necessary probable cause, the
officers placed defendant under de facto arrest by the time the police officer
told her that if she refused to provide a preliminary breath test or perform
field sobriety tests, she would be arrested.  She argues that the
following actions communicated to her that she was not free to end the encounter:
the “one-of-two-ways” statement, with its implicit threat of arrest; the
accusations of criminal activity; the officers’ pointed and repeated questions,
language and tone; and their request to speak with defendant outside.  
¶ 24.        
There is no bright-line rule differentiating an investigatory detention
from a de facto arrest.  Chapman, 173 Vt. at 403, 800 A.2d at
449.  An investigatory detention “employs the least intrusive means
reasonably available to verify or dispel the officer’s suspicion in a short
period of time.”  Id. at 402-03, 800 A.2d at 449 (quotation
omitted).  When such a seizure becomes too intrusive to be considered an
investigatory detention, the encounter escalates into the functional equivalent
of a formal arrest, or de facto arrest, and must be supported by probable
cause.  Id. at 403, 800 A.2d at 449.  Whether an encounter is
classified as an investigatory detention or a de facto arrest “depends on the
reasonableness of the . . . intrusion under the totality of the
circumstances.”  Posr v. Doherty, 944 F.2d 91, 98 (2d Cir. 1991).
¶ 25.        
Factors we have considered in determining whether the degree of
restraint is too intrusive to be considered an investigatory detention include:
the
amount of force used by police, the need for such force, the extent to which
the individual’s freedom of movement was restrained, . . . the
number of agents involved, whether the target of the stop was suspected of
being armed, the duration of the stop, and the physical treatment of the
suspect . . . . 
 
Chapman, 173 Vt. at 403,
800 A.2d at 449 (alterations omitted) (quoting United States v. Perea,
986 F.2d 633, 645 (2d Cir. 1993)).  The inquiry balances the degree of
intrusion—in length and scope—against the justification.  State v. Ford,
2007 VT 107, ¶ 6, 182 Vt. 421, 940 A.2d 687.  
¶ 26.        
On the record before us, we conclude that the trial court did not err in
concluding that the seizure did not escalate to a de facto arrest prior to
defendant’s formal arrest, and that the nature and scope of the officers’
intrusion did not exceed the justification for the investigative
detention.  Officer Muldoon neither used force nor physically restrained
defendant prior to the actual arrest.  In fact, defendant remained in the
house and freely roamed around despite Officer Muldoon’s requests to move the
investigation outside and for defendant submit to a PBT.  See State v.
Pontbriand, 2005 VT 20, ¶ 16, 178 Vt. 120, 878 A.2d 227 (for purposes
of determining whether suspect was in custody, “ ‘police-dominated
atmosphere’ results when law enforcement officers take action to fetter the
suspect’s freedom of movement during interrogation”); cf. Chapman, 173
Vt. at 404-07, 800 A.2d at 450-52 (fact that officers drew weapons in absence
of any evidence of danger supported conclusion that investigative detention
turned into a de facto arrest).  Additionally, the majority of the
encounter occurred in the presence of a single officer, and the number of
officers never exceeded two.  See Pontbriand, 2005 VT 20, ¶ 16
(finding defendant was not in custody despite being questioned in hospital bed
by two officers).  Defendant was not alone with the officers; at all times
she had at least as many friends or family members by her side as the number of
officers in the room.  In the absence of the use of force or an
overwhelming police presence, and in light of defendant’s presence in her home
with family and friends and defendant’s ability to move without restriction, we
conclude that defendant was not placed under de facto arrest at any time prior
to the actual arrest.*
III.
¶ 27.        
Next, defendant argues that the trial court erred in refusing to
suppress her statements because Officer Muldoon did not advise her of her Miranda
rights.  384 U.S. 436.  Defendant argues that she was essentially “in
custody” at the time police officers asked her how much she had drunk that
night, and that police accordingly should have advised her of her rights. 
Defendant points to the “one-of-two-ways” statement, Officer Muldoon’s
statement that he would treat her silence in response to his question about
whether she had been drinking as a “yes,” his statements suggesting he believed
her guilty of a crime, the fact that he never told her she was free to
terminate the interview, the fact that she was in her home and accordingly
could not simply exit the situation, and her lack of consent to the
interrogation as factors supporting her claim that she was in custody. 
The trial court denied defendant’s motion, concluding that she was not in
custody at the time she made the statements.  
¶ 28.        
In Miranda v. Arizona, the U.S. Supreme Court held that police
officers must advise suspects of their right to remain silent and to have an attorney
present before engaging in a custodial interrogation.  384 U.S. 436,
444-45 (1966).  However, officers are not required to provide Miranda
warnings for suspects that are not in custody.  State v. Garbutt,
173 Vt. 277, 282, 790 A.2d 444, 448 (2001).  A suspect must be subject to
“custodial interrogation”—“questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise deprived of his freedom
of action in any significant way”—for Miranda to be triggered.  Miranda,
384 U.S. at 444.  Whether police action rises to the level of a custodial
interrogation requires “an objective inquiry based on the totality of the
circumstances.”  State v. Willis, 145 Vt. 459, 475, 494 A.2d 108,
117 (1985).
¶ 29.        
The central question in determining whether a suspect is in custody for
purposes of delivering Miranda warnings “is simply whether there is a
formal arrest or restraint on freedom of movement of the degree associated with
a formal arrest.”  Pontbriand, 2005 VT 20, ¶ 11 (quotation
omitted).  In State v. Muntean, we discussed several factors
identified by the U.S. Supreme Court as pertinent to this inquiry, including:
(1) the location of the questioning; (2) the questioning officer’s belief of
the suspect’s guilt, if that belief is communicated to the suspect; (3) whether
the suspect came to the interview voluntarily; and (4) whether a reasonable
person would have felt free to leave.  2010 VT 88, ¶ 19, 189 Vt. 50,
12 A.3d 518.  In addition, we listed other relevant factors:
[T]he
extent to which the suspect was confronted with evidence of guilt; whether and
to what degree the suspect’s freedom of movement was restrained; whether the
police used deceptive techniques in conducting the interview; the degree to
which the suspect was isolated from the outside world; the duration of the
interview; whether the police officers were armed; and the number of police
officers present during the interview. 
 
Id.  More recently, in
State v. Tran, we emphasized that the most important factor is whether
police told the defendant that he or she was free to leave.  2012 VT 104,
¶ 14, 192 Vt. ___, ___ A.3d ___. 
¶ 30.        
This was not an interview at a police station, nor even in a police
cruiser.  See id. (considering fact that two police officers
questioned defendant for an hour in closed police car supported conclusion that
questioning amounted to custodial interrogation in concert with other factors);
Muntean, 2010 VT 88, ¶ 24 (concluding questioning amounted to
custodial interrogation where questioning occurred in secure section of police
barracks).  Instead, the interview took place in defendant’s own home,
under circumstances that did not resemble the sort of “police-dominated
atmosphere” that typically supports a finding of custody.  
¶ 31.        
Police did not restrict defendant’s movements within her home, and, when
defendant declined the officer’s invitation to step outside, he did not force
her to go.  Cf. State v. Fleurie, 2008 VT 118, ¶¶ 4-5, 8, 185
Vt. 29, 968 A.2d 326 (noting trial court’s conclusion that police interrogation
of defendant in his home became custodial where, among other things, police did
not allow defendant to move around within his home or to get cigarette). 
¶ 32.        
The officers made no effort to isolate defendant from others; as noted
above, the number of friends and family members in defendant’s apartment
outnumbered the number of police officers.  See, e.g., Tran, 2012
VT 104, ¶ 19 (finding custody where police officers questioned defendant
in police cruiser outside of his home, thereby separating him from familiar
setting of his home and family); Pontbriand, 2005 VT 20, ¶ 16
(concluding defendant was not in custody when questioned by police in his
hospital bed where door was open and medical personnel entered and exited
freely throughout interview).
¶ 33.        
As to whether defendant was subject to interrogation, the “questioning”
itself was quite limited.  During much of the seventeen minute encounter,
defendant talked with her the grandmother and friend, Officer Muldoon waited
for assistance, and the police officers attempted to cajole defendant to submit
to field sobriety tests or an evidentiary test.  The actual “questioning”
was limited to a handful of questions over the course of that period about when
and how much defendant had drunk.  There is no evidence that the officers
used deceptive techniques or harangued defendant with these questions.
¶ 34.        
The officers did tell defendant their reasons for suspecting that she
had been driving under the influence, but they did not repeatedly confront her
with evidence of her guilt in a way that would suggest she was not free to
leave.  Cf. Tran, 2012 VT 104, ¶¶ 15-16 (determining officers’
questioning of defendant over course of hour, confronting him with evidence of
his guilt, created custodial atmosphere).  
¶ 35.        
Although police did not specifically advise defendant that she was free
to terminate the interview, we nevertheless conclude that considering the
totality of the circumstances defendant was not in custody when she made the
statements she seeks to suppress, and that the trial court did not err in
denying defendant’s motion to suppress based on a failure to provide Miranda
warnings.
IV.
¶ 36.        
Finally, defendant claims that her incriminating statements about
drinking were not voluntary and their admission would violate Chapter I,
Article 10 of the Vermont Constitution.  She argues that Officer Muldoon
crossed the line of illegal coercion early in the questioning when he said that
he interpreted her silence in response to a question as a “yes.”  In
addition to highlighting her emotionally fragile state at the time as a result
of a fight with her boyfriend and her car accident, defendant points to the
same array of factors that underlie her other arguments—the “one-of-two-ways”
comment, the fact that police did not inform her that she was free to terminate
the encounter, the allegedly custodial context, the “I’ll take that as a yes”
statement, and the absence of Miranda warnings, to support her claim.
¶ 37.        
We have held that Article 10 prohibits the taking and using of
involuntary statements.  State v. Caron, 155 Vt. 492, 504, 586 A.2d
1127, 1134 (1990).  When a defendant challenges the admissibility of a
statement under this provision, the prosecution must prove by a preponderance
of the evidence that the statements were voluntary, that is, that they were
“the product of a rational intellect and the unfettered exercise of free
will.”  Id. at 505, 586 A.2d at 1134 (quotation omitted).
 Accordingly, they may not be induced by “threats, improper influence, or
physical or psychological pressure.”  Id. (quotation omitted).
 A confession or inculpatory statement is involuntary “if coercive
governmental conduct played a significant role in inducing the
statement.”  Pontbriand, 2005 VT 20, ¶ 21.  Officers may
use some psychological tactics in eliciting statements from a suspect; however,
the ultimate inquiry into voluntariness is “whether, under the totality of the
circumstances . . . , the suspect’s will was overborne by the police.”  Id.
¶ 22.  
¶ 38.        
We have previously suggested that the voluntariness of a statement for
the purposes of the Vermont Constitution is a question of fact, that the trial
court is the primary judge of voluntariness, and that we will affirm as long as
the trial court’s findings are supported by substantial credible evidence and
are not clearly erroneous.  Caron, 155 Vt. at 505, 586 A.2d at
1134-35.  On the other hand, more recently, in a related context, this
Court held that a trial court’s conclusion concerning the voluntariness of
consent to search for purposes of a Fourth Amendment analysis is subject to de
novo review on appeal, with deference to the trial court’s underlying findings
of fact, but not its ultimate determination regarding whether consent was
voluntary.  State v. Weisler, 2011 VT 96, ¶ 26, 190 Vt. 344, 35
A.3d 970.  In discussing the standard of review concerning the
voluntariness of a consent to search, this Court noted that the standard
of review governing the voluntariness of confessions under the U.S.
Constitution is generally de novo.  Id. ¶ 12.   
¶ 39.        
We need not decide today whether a finding of “voluntariness” for the
purposes of Article 10 is subject to the deferential review ordinarily afforded
to trial courts’ factual findings, or whether it represents a legal conclusion
subject to de novo review.  Under either approach, we affirm.  
¶ 40.        
Under a deferential standard of review of an essentially factual
determination, we conclude that the evidence before the trial court was
sufficient to support its finding.  The trial court here concluded that
the events in the apartment demonstrated that defendant was making her own
decisions about whether to take the breath test and field sobriety tests
regardless of any statements the officer made or any pressure imposed upon her
by her grandmother and friend, and that her will was not overborne. Defendant’s
freedom to move around was not restricted, she was in her own home surrounded
by her own intimates, and she demonstrated by her persistent refusal to take
either a field sobriety test or an evidentiary test that she was fully capable
of holding firm against perceived pressure from the officers.
¶ 41.        
In arguing that her consent was involuntary, defendant focuses in
particular on two separate comments made by police during the encounter—Officer
Muldoon’s “one-of-two-ways” statement and his statement that he was taking her
silence as an admission to drinking.  We do not endorse either statement,
but, in the context of this case, they were not so coercive as to overwhelm the
substantial evidence supporting the trial court’s conclusion.  Moreover,
defendant did not make the statements about her alcohol consumption in response
to either of these remarks.  She made the main admission she seeks to
suppress, that she has consumed “probably three beers,” well after both of
these comments in response to a question from a different officer, and after
reaffirming her refusal to undergo field sobriety testing or an evidentiary
test.  The trial court’s conclusion as to voluntariness was supported by
sufficient evidence.
¶ 42.        
By the same token, reviewing under a de novo standard whether the
circumstances support the legal conclusion that defendant’s statements were
voluntary, we likewise affirm.  Considering the totality of the
circumstances, as reflected in the trial court’s well-supported factual
findings, we conclude that “coercive governmental conduct [did not] play[] a
significant role in inducing the statement.”  Pontbriand, 2005 VT
20, ¶ 21.  
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 
 





*  To the extent
that the issue of whether there was probable cause to arrest at the time of the
formal arrest arose during oral argument, this argument was not raised by
defendant and was not briefed to this court by either party.  Although we
retain the discretion to take up issues raised at oral argument, we usually do
not, and we decline to do so here, particularly where defendant never raised
the issue to this Court.  See TD Banknorth, N.A. v. Dep’t of Taxes,
2008 VT 120, ¶ 33, 185 Vt. 45, 967 A.2d 1148 (“We will not address
arguments raised for the first time at oral argument
. . . .”).  But see State v. Pitts, 174 Vt. 21, 26,
800 A.2d 481, 485 (2002) (addressing defendant’s claim, raised for the first
time at oral argument, that information did not properly charge her, preventing
her adequate preparation).



