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@vermont.gov 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.


                                          2019 VT 19

                                         No. 2017-307

State of Vermont                                              Supreme Court

                                                              On Appeal from
   v.                                                         Superior Court, Windham Unit,
                                                              Criminal Division

Robin O’Neill                                                 December Term, 2018


Katherine A. Hayes, J.

David Tartter, Deputy State’s Attorney, Montpelier, for Plaintiff-Appellee.

Matthew Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for
 Defendant-Appellant.


PRESENT: Reiber, C.J., Skoglund, Robinson and Eaton, JJ., and Howard, Supr. J. (Ret.),
         Specially Assigned


        ¶ 1.    ROBINSON, J.       Defendant Robin O’Neill appeals from a jury conviction for

aggravated murder of her ex-fiancé and his son. She argues that the evidence was insufficient to

support the conviction; that her statements to police should have been suppressed because they

were the product of custodial interrogation without an attorney after she invoked her right to one;

and that those statements should have been suppressed because the police coerced her into

making them, depriving her of due process. We hold that the evidence sufficiently and fairly

supports the conviction; and that the statements defendant seeks to suppress were not made in

response to police interrogation, and were not the product of police coercion, and thus were

properly admitted. Accordingly, we affirm.
       ¶ 2.    The evidence at trial, viewed in the light most favorable to the State, reflected the

following. Defendant and Steven Lott began a relationship in early 2014. She subsequently

moved into his house, and they got engaged that July.

       ¶ 3.    In September 2014, Steven’s neighbor and friend, who lived part-time in

California, returned to Vermont. Steven began spending a lot of time at her house, which upset

defendant. Throughout that fall, defendant and Steven argued about their relationship and about

Steven’s relationship with neighbor. Defendant considered moving out of the house.

       ¶ 4.    That October, defendant threatened and physically hurt Steven, and when Steven

would visit neighbor, defendant would at times follow him. Defendant wrote in her diary on

October 27, “I got pretty drunk. S down to [neighbor’s]. I knocked on dr; not let in. Listened

window – basement. S said I threatened to kill him.” Defendant’s diary reflected that on

October 25 she discussed with Steven that she “had hit him on [the] head with firewood.”

Neighbor testified that around late October, Steven came to her house and seemed unfocused and

distressed; she thought at the time he might have a head injury. After neighbor touched Steven’s

head to see if he was injured, she heard tapping on the storm door, and when they called out to

ask who it was, they heard a female voice speak but could not make out the words. Neighbor

testified that Steven opened the door, then quickly slammed it. Neighbor heard a car drive away.

Around that time, defendant told one of Steven’s friends that she had gone down to neighbor’s

house and stood under a window, listening to Steven and neighbor talking. Defendant said she

heard neighbor tell Steven that he needed “to get rid of her.”

       ¶ 5.    In early November, defendant told her friend Mike that her engagement with

Steven was off.

       ¶ 6.    In the late afternoon of Saturday, November 15, Steven went to neighbor’s house

to fix her vacuum and remained there for several hours. While he was there, their friend Rob



                                                 2
dropped by neighbor’s house and visited.        Rob testified that while he was there, he saw

defendant drive past the house six times.

       ¶ 7.    Sometime that same Saturday, Steven hit defendant, causing bruises to her

shoulder, legs, arm, head, and buttocks. Late that night, Steven went to neighbor’s house.

Neighbor and her daughter testified that he appeared disheveled and scared. He said he had been

in bed arguing with defendant when she rolled over and reached for a drawer in her bedside

table. He leapt up, grabbed clothes, and fled. Neighbor’s daughter asked what was in the

bedside table, and Steven replied, “I don’t know, and I didn’t want to find out.”

       ¶ 8.    On Sunday, November 16, witnesses who were driving by neighbor’s house saw

defendant walking around behind the house, then saw Steven drive quickly up to it. Around that

time, Steven told defendant he wanted her out of the house.

       ¶ 9.    On Tuesday, November 18, defendant told a number of people that Steven had hit

her. In response, her coworker urged her to report it. Defendant responded that she wasn’t

“going to do that, because it was never going to happen again.” Defendant then angrily told her

coworker about Steven’s sexual failings and the resulting impact on their relationship. Later,

when defendant told an acquaintance about the assault, she also told the acquaintance that Steven

had said he should have married neighbor. Defendant also told the acquaintance that she planned

to move out of the house.

       ¶ 10.   In the afternoon of Tuesday, November 18, defendant began to drink. When

Steven’s friend Morgan came over in the late afternoon, he found Steven, his son Jamis, and

defendant sitting and talking in the kitchen area. Morgan testified that defendant told him she

was not with Steven anymore, tried to kiss him, and asked if he wanted to have sex. He

declined, and defendant went upstairs. Morgan said it sounded like she started breaking things.

He did not see any guns in the kitchen area, although this was not surprising as he knew that

Steven kept his guns upstairs.

                                                 3
       ¶ 11.   At around 7:00 or 7:30 that evening, neighbor received three calls. Each time, the

caller said nothing and hung up. Caller ID showed that one of the calls was from Steven’s

house; the other two numbers were blocked.

       ¶ 12.   At 7:54, defendant called an acquaintance, Kristina, but did not say anything, then

hung up. Kristina called back and someone picked up the phone but did not speak.

       ¶ 13.   At 8:01, defendant called her sister and told her that Steven had hit her, and that

she might be going to stay at a friend’s house. She sounded stressed, rushed, and a little

embarrassed, but not intoxicated. While they were speaking, defendant got another call, so her

sister hung up and waited.

       ¶ 14.   The other caller was Kristina. Kristina asked if Steven was there. Defendant

laughed and said no. They had a confused conversation, then defendant said she was on the

phone with her sister and hung up. At 8:26, defendant called Kristina again; they had another

brief and confused conversation in which defendant apologized for not being able to speak

earlier because her sister was on the line. They hung up, and then at 8:38 defendant called back

again and they had the exact same conversation.

       ¶ 15.   At 8:48, defendant called her friend Mike. She asked him to take her dog, and

when he asked what the problem was, she said, “I just shot Steve and Jamis.” She went on, “I

did it, I really did it. I just shot Steve and Jamis dead.” Mike asked where they were, and she

said, “Steve’s by my feet in a pool of blood and Jamis is under the table in his own pool of

blood.” Mike testified that defendant sounded as though she had been drinking. When they

hung up, he called the police.

       ¶ 16.   Defendant’s sister called her back at 8:58. Defendant picked up and said, “I shot

them, I think they’re dead, there’s blood, there’s so much blood. And I don’t know how I

managed.” Her sister asked her why she did it, and defendant said in a sad, confused voice, “I

don’t know.” At that point, she heard police and the call ended.

                                                4
       ¶ 17.   When police arrived on the scene, they called defendant out of the house. She

came out, walking unsteadily on her feet.

       ¶ 18.   A trooper testified that defendant smelled of alcohol, her eyes were bloodshot and

glassy, her speech was slurred, and she was at times hyperventilating and “in hysterics.” A

preliminary breath test taken at 9:56 showed that defendant’s blood-alcohol content was 0.233.

       ¶ 19.   Once placed in the police cruiser, where a video camera recorded the activity in

the back seat, defendant told an officer, “maybe you should shoot me” and he replied, “we’re not

going to do that.” She then said, “I’ve actually done this just the other night which is what I have

pictures of, of Steve beating the holy crap out of me.” The officer responded that he was going

to pin her handcuffs so they would not tighten up on her. She continued, “Yeah, yeah ya

understand the reason I shot the motherfucker oops wait a minute, nope, I didn’t say anything, I

didn’t say anything, I hear a female voice.” She then asked, “Would you have somebody

here? . . . A, a like um what do you call them? . . . A person who defends people who have had

the crap beat out of them and then.”

       ¶ 20.   Defendant then said, “I could have used another drink before this,” and asked if

the officer could get the red wine and cigarettes from the house. He said, “I don’t know, I can

ask. Would you like me to ask for you?” and then inquired several times more if she wanted him

to ask for her. She said yes, that would be nice because she was being arrested for murder. The

officer then left defendant in the cruiser. She continued to talk to herself, saying “you killed the

motherfucker . . . but he’s dead, dead as a board, he put you through amazing amounts of hell,

hell, hell, hell, and hell again, he made you so, he tried terribly to make you nuts.” She reflected

some awareness that a camera in the cruiser was recording her statements: At one point, she said

“of course they’re recording anything I say in this car, I shouldn’t talk to myself at all.” When

the officer returned, he told defendant he had asked about “that glass of wine” and “they said not



                                                 5
right now.” Defendant did not appear to respond to him, but instead muttered “not exactly a

killer,” then began to hyperventilate, sob, and express disbelief at what was happening.

       ¶ 21.   Soon thereafter, an officer got in the car and drove her to the police station.

During the drive, defendant spoke to herself at length about the events of that night. She

expressed disbelief, saying things like, “The one I loved the most? I killed Jamis? I killed you?

Yeah ah no, no, no, no, no, couldn’t possibly happen.” She said, “Jamis was my absolute

favorite of you three boys and I shot him, you think, or that’s what you’re saying I did?” She

also periodically addressed her dog and her friend Mike, turning to talk to them as though they

were there. She asked the officers to shoot her several times, and at one point, she seemed to

suggest that the officers were taking her into the woods to kill her, saying, “if we’re riding off

into the middle of the woods in the middle of everywhere and you’re going to shoot me that

would be very nice thank you. I hope so, just make sure you get me in the head first, please.”

       ¶ 22.   Throughout the drive, the officer said nothing to defendant except when she asked

where they were going and he replied they were going to his office in West Brattleboro.

       ¶ 23.   Once they reached the police station, an officer put defendant, handcuffed, in a

processing room. He told her that if she needed anything, he would be nearby. Defendant asked,

“well how about another bottle of red wine and a pack of cigarettes?” The officer responded,

“I’ll make the request for you,” and left.

       ¶ 24.   In the processing room, defendant continued to talk to herself, and these

statements were also recorded. She spoke to herself and to Steven. She pointed to the ground

and asked, “Steven . . . was that you there? . . . You motherfucker . . . . You’re presumably dead,

although I think, of all awful things, I think I got Jamis better.” At one point, an officer came in

and asked if defendant had been calling him, and she clarified that she was talking to Steven,

“whom I’m—I’m sure accused of having killed.” She occasionally spoke to officers—as when

an officer came in to help her get a tissue and she asked if they were going to let her pee in her

                                                 6
pants like “a TV thing,” and the officer told her, “I can assure you this is not TV.” When the

officer told her he would be around if she needed anything, defendant replied “can you just kind

of dial back a couple of hours?” to which the officer said, “I wish I could.” She then said, “if

you could get me the loaded nine-millimeter . . . then we can end it all.” The officer said he

would be in the other room if she needed him and left.

       ¶ 25.   Later, when a detective came in to check on her, she said, “my so-called diary and

my computer could shed a whole lot of light on this.” He said “okay” and told her he wanted to

“come in and chat with [her] in a little bit.” He told her he had been asked to talk with her about

what had happened, and she replied she didn’t know and didn’t remember anything except being

“on the phone with a friend, standing over bodies with lots and lots of blood going.” She then

kept repeating that she didn’t know how it happened. She asked again for a public defender,

saying, “I’ve just given you motive,” and the detective said he would be back to talk with her in

a couple minutes and left.

       ¶ 26.   As officers periodically came in to check on her, she repeatedly asked for a public

defender, to which the officers responded by telling her they would be with her in a little bit.

       ¶ 27.   The evidence showed that Jamis was shot three times in the head and Steven was

shot twelve times—seven times in the head and upper neck; once in the chest; and four times in

the groin. Jamis was shot from multiple angles less than a few feet but more than a few inches

away. Steven was likely shot from more than three or four feet away. Police found a total of

fifteen nine-millimeter cartridge cases on the scene, ten of which a laboratory test showed as

having been fired from the nine-millimeter gun found on the scene—the test was inconclusive as

to the rest. The bullet fragments found on the scene could not be conclusively matched to a gun.

DNA tests were done on the three guns found on the scene; a swab from the nine-millimeter

handgun showed DNA consistent with defendant’s and Steven’s and a possible third person’s; a

swab from the second gun showed DNA that was almost certainly Steven’s but none that

                                                 7
matched defendant’s; and a swab from the third gun showed nothing. Fingerprint examinations

of the guns revealed nothing, although this was not unusual. Steven’s son Brenton testified that

Steven kept the nine-millimeter gun in his bedroom. A box of nine-millimeter bullets was found

in a nightstand in an upstairs bedroom; it was made to hold twenty bullets, but fifteen were

missing.

       ¶ 28.   Defendant owned a gun and people had seen her shoot it in a field.

       ¶ 29.   While the crime scene was very bloody, there was no blood on defendant. No

blood was found on defendant’s clothing or the guns in the house. In the home, police found

blood spatter on the floors, walls, and the light hanging above the dining-room table. An officer

testified that, given the blood at the crime scene, he expected the shooter to have bloody clothes

and shoes. Likewise, defendant’s expert witness testified that he would have expected both

forward and backward spatter from Steven’s and Jamis’s wounds, some of which would likely

have gotten on the shooter—although an expert witness for the State testified that, generally,

there is more spatter in the direction the bullet traveled, and about twenty-six percent of the time

a shot yields no back spatter.

       ¶ 30.   An expert witness testifying for defendant said that the kinds of shell casings

found at the scene could indicate that more than one gun had been used. He also noted that there

were two ladders leaned up against the house, which could have allowed someone to get into the

upper floor of the house and come down the stairs to shoot Steven and Jamis.

       ¶ 31.   The jury convicted defendant. After trial, defendant moved for a judgment of

acquittal and for a new trial. The court denied these motions.

       ¶ 32.   On appeal, defendant argues that the evidence was insufficient to support the

conviction; that her statements to police in the cruiser and the processing room should have been

suppressed because they were the product of custodial interrogation after she had invoked her

right to an attorney; and that those statements should have been suppressed because the police

                                                 8
coerced her into making them, depriving her of due process. We will address each argument in

turn.

                                    I. Sufficiency of Evidence

        ¶ 33.   Defendant argues that the evidence was insufficient to support her conviction.

She contends that none of the State’s evidence conclusively establishes her guilt, and thus the

jurors relied on impermissible speculation in convicting her.       She argues that her extreme

intoxication at the time was inconsistent with the shooter’s accurate aim, evidenced by the fact

that all fifteen of the shots fired hit Steven and Jamis. She also argues that the fact that she had

no blood on her or the clothes she was wearing that day was inconsistent with the bloody crime

scene. She contends that there were important gaps in the State’s evidence—including that the

State should have attempted to determine the identity of the third person whose DNA was found

on the nine-millimeter gun—and in particular it should have determined if it matched the DNA

of Morgan or another identified individual, both of whom were at or near the house that evening.

She argues that in the absence of conclusive forensic evidence, the State’s case hinges entirely on

her opportunity and motive. She argues that the State has offered no evidence that she had any

motive to kill Jamis, and its argument that she killed Steven out of jealousy and frustration with

their relationship relies on reductive stereotypes about women. The crux of the State’s case, she

argues, is the happenstance that she was home at the time of the murders—but even this is

insufficient to show she was the killer, when the house was unlocked and people frequently came

and went from it.

        ¶ 34.   Applying an appropriately deferential standard of review, we conclude that the

State presented sufficient evidence from which a jury could find each of the required elements of

aggravated murder.

        ¶ 35.   In considering a sufficiency-of-the-evidence challenge, this Court reviews the

evidence in the light most favorable to the State, excluding any modifying evidence, to

                                                 9
“determine whether that evidence sufficiently and fairly supports a finding of guilt beyond a

reasonable doubt.” State v. Brochu, 2008 VT 21, ¶ 21, 183 Vt. 269, 949 A.2d 1035 (quotation

omitted).   Where a defendant argues that the State’s evidence is insufficient because it is

susceptible to multiple interpretations, not all of which point toward guilt, this Court must

determine whether the State’s theory of the evidence could fairly support the conviction. State v.

Godfrey, 2010 VT 29, ¶ 13, 187 Vt. 495, 996 A.2d 237; see also State v. Warner, 151 Vt. 469,

472, 560 A.2d 385, 387 (1989) (“[T]he State is not required to exclude every reasonable

hypothesis of innocence in proving a case with circumstantial evidence.”). The fact that the

evidence was “circumstantial . . . does not mean that the evidence was insufficient. As we have

noted, many crimes occur without eyewitnesses or other direct evidence, and the State is allowed

to rely exclusively on circumstantial evidence in proving its case.” Godfrey, 2010 VT 29, ¶ 18.

“So long as the jury by way of a process of rational inference could conclude beyond a

reasonable doubt that defendant committed the acts . . . charged, we will not disturb the jury’s

verdict.” Id. (quotation omitted).

       ¶ 36.   We conclude that the evidence fairly and reasonably supported defendant’s

conviction for aggravated murder, which required the State to prove that defendant unlawfully

caused the deaths of Steven and Jamis, with the intention to kill or do great bodily harm, or with

a wanton disregard for the likelihood that her actions might cause their deaths. 13 V.S.A. § 2301

(defining murder); id. § 2311(a)(3) (defining aggravated murder to include commission of two

murders at same time); State v. Baird, 2017 VT 78, ¶ 4, 205 Vt. 364, 175 A.3d 493 (noting

mental states required for second-degree murder are intent to kill, intent to do great bodily harm,

or wanton disregard for human life).

       ¶ 37.   There was ample evidence that defendant unlawfully caused Steven’s and Jamis’s

deaths. On the night Steven and Jamis were murdered, defendant called her friend and told him,

“I just shot Steve and Jamis.” She then called her sister and said, “I shot them, I think they’re

                                                10
dead, there’s blood, there’s so much blood.” While in police custody, she talked to herself about

having killed them.1 For instance, she mentioned Steven beating her, then said, “ya understand

the reason I shot the motherfucker oops wait a minute, nope, I didn’t say anything.” Later, she

reflected that “I got Jamis better.” There was no evidence that anyone else was in the home at

the time of the murders. Defendant’s DNA was found on the nine-millimeter gun that fired the

shots that killed Steve and Jamis. The guns in the home, including the one used for the murders,

were stored on the upper floor where defendant, who was upstairs that evening, would have had

easy access to them, while a third party likely would not. While in police custody, defendant

asked for the “loaded nine-millimeter,” showing she was familiar with the murder weapon.

While no blood was found on defendant, no blood was found on the murder weapon, either—

suggesting, as the State’s expert indicated was possible, that there was no back spatter on the

shooter. And although she was drunk, it is not improbable that defendant was able to fire all

fifteen shots into Steven and Jamis, given that they were shot from no more than a few feet away.

        ¶ 38.   Moreover, there was sufficient evidence from which a jury could conclude that

defendant caused Steven’s death with intent to kill or do great bodily harm, or at the very least

with wanton disregard for risk to his life. The evidence fairly supported the State’s theory at trial

that defendant intended to kill Steven because she was angry that he had broken off their

engagement, was inflamed by his relationship with neighbor, and was upset that he had beaten

her. Her diary—which she told officers would “shed a whole lot of light on this”—showed that

she was angry at Steven and may have stalked and physically hurt him in the month leading up to

the murders. Her diary entry reflecting that she had previously told Steven she would kill him,

and her statements to police that she shot him because he abused her, strongly support an

inference that she intended to kill him. The evidence that Steven was shot twelve times, while

        1
           We address the arguments in the order they were raised by defendant, but the analysis
in this section reflects our conclusion, set forth more fully below, that the trial court did not err in
declining to suppress various statements defendant made while in police custody.
                                                   11
Jamis was shot only three, supports the State’s theory that the killer was someone who was

primarily motivated to kill Steven, as defendant was—she reflected in the cruiser that she had a

reason to kill Steven, but she was shocked that she had killed Jamis. Finally, the fact that Jamis

was hit only in the head, while Steven was hit not just in the head, neck, and chest but also four

times in the groin, fits with the State’s theory that defendant killed Steven out of frustration with

their failed romantic and sexual relationship and rage at his perceived infidelity.

       ¶ 39.   Likewise, there was sufficient evidence for a jury to conclude that defendant

caused Jamis’s death with intent to kill or do great bodily harm, or at the very least with wanton

disregard for risk to his life. The fact that Jamis died by three shots to the head at close range

from multiple angles indicates his death was no accident but was rather intentional. See Brochu,

2008 VT 21, ¶ 33 (holding that given evidence that killer inflicted multiple wounds on decedent,

killing “was unquestionably intentional”).

       ¶ 40.   In sum, defendant’s repeated confessions, her opportunity and motive, and the

forensic evidence tying her to the murder weapon were sufficient for a jury to conclude beyond a

reasonable doubt that she killed Steven and Jamis.

                           II. Custodial Interrogation Without Counsel

       ¶ 41.   Defendant next argues that her statements to police in the cruiser after she

requested a lawyer and in the processing room were the product of custodial interrogation

without counsel after she had invoked her right to an attorney, and thus their admission violated

her rights under the Fifth Amendment of the U.S. Constitution, Article 10 of the Vermont

Constitution, Vermont’s Public Defender Act, and the Due Process Clause of the Fourteenth

Amendment.2 She argues that she invoked her right to counsel soon after police took her into


       2
         Because defendant does not argue that the suppression analysis differs under Article 10
or the Public Defender Act from under the U.S. Constitution, we do not separately analyze these
claims. The protections that the Fifth Amendment and Article 10 provide against self-
incrimination are coextensive. State v. Hieu Tran, 2012 VT 104, ¶ 11 n.1, 193 Vt. 148, 71 A.3d
                                              12
custody, and that the police’s subsequent questions and comments qualified as interrogation

because the police knew or should have known their conduct was reasonably likely to elicit an

incriminating response from her.

       ¶ 42.   Prior to trial, defendant moved to suppress all of her statements made to police on

November 18 after she requested a public defender.3 She argued that the officers used tactics

that were tantamount to custodial interrogation because they were designed to keep her talking

while she was in the cruiser and processing room. Because she made the statements in response

to this custodial interrogation without the benefit of counsel after she had invoked her right to an

attorney, she argues they should be suppressed. After a hearing, the court held that, while her

statements in the cruiser and while alone in the processing room were made voluntarily and not

in response to any conduct or questioning by the police, later statements she made in response to

questioning (which are not at issue in this appeal) were in response to custodial interrogation,

and this questioning violated her rights to counsel under the U.S. Constitution and the Public

Defender Act. Accordingly, the court held the statements in the cruiser and processing room

were admissible, but suppressed the later statements made during formal questioning.

       ¶ 43.   We review the trial court’s decision on a motion to suppress using “a two-step

analysis. We defer to the trial court’s factual findings and will affirm them unless clearly

erroneous.” Hieu Tran, 2012 VT 104, ¶ 10 (citation omitted). The underlying question of



1201. We have adopted the protections of Miranda, but “have not gone further and found a
violation of the Miranda principles in circumstances where the United States Supreme Court has
not done so.” State v. Rheaume, 2004 VT 35, ¶ 15, 176 Vt. 413, 853 A.2d 1259. Likewise,
“[t]he [Public Defender Act] does not establish a set of substantive rights in addition to the
Miranda right to have counsel present at questioning.” State v. Robitaille, 2011 VT 135, ¶ 14,
191 Vt. 91, 38 A.3d 52 (quotation and alteration omitted).
       3
          While there is some question as to when defendant first invoked her right to a public
defender, we do not resolve this question because we hold that none of the statements she now
seeks to suppress were made in the context of custodial interrogation, and thus her right to a
public defender had not yet attached. See Robitaille, 2011 VT 135, ¶ 18 (explaining right to
counsel attaches when person is subjected to custodial interrogation).
                                               13
whether defendant was subjected to custodial interrogation is a legal one, and our review is

plenary and nondeferential. Id. We determine whether a suspect was subject to interrogation by

assessing the totality of the circumstances. Rheaume, 2004 VT 35, ¶ 12.

       ¶ 44.   We hold that the trial court properly denied suppression of defendant’s statements

in the police cruiser and processing room prior to the commencement of formal questioning.

When she made the statements, defendant was in custody, and partway through the statements,

she invoked her right to counsel—but police at no point did or said anything reasonably likely to

elicit incriminating statements, meaning the statements were not the product of custodial

interrogation. Because suppression is only warranted as a remedy for custodial interrogation in

violation of the rights articulated in Miranda, it is not warranted under these circumstances. We

therefore affirm.

       ¶ 45.   If a person in custody invokes the right to an attorney, interrogation must stop and

any subsequent statements the person makes in response to custodial interrogation must be

suppressed.    Miranda v. Arizona, 384 U.S. 436, 467-68, 473-74 (1966).            “Interrogation”

encompasses all “words or actions . . . that the police should know are reasonably likely to elicit

an incriminating response.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980). A defendant’s

statement to police need only be suppressed if it was the product of custodial interrogation.

Miranda, 384 U.S. at 478. Thus, even where a defendant invoked the right to counsel but later

made incriminating statements in no way elicited by state actors, the statements are admissible.

Edwards v. Arizona, 451 U.S. 477, 484-85 (1981) (holding defendant must not be interrogated

after invoking right to counsel unless defendant “initiates further communication, exchanges, or

conversations with the police”); State v. Yoh, 2006 VT 49A, ¶ 13, 180 Vt. 317, 910 A.2d 853

(holding defendant’s statements after invoking right to counsel were admissible where defendant

made statements on his own initiative). Defendant’s invocations of the right to counsel, and the



                                                14
fact that the officers did not advise her of her Miranda rights during the relevant period, are not

dispositive if the police did not actually interrogate her. Robitaille, 2011 VT 135, ¶ 18.

       ¶ 46.   The police did not interrogate defendant during the time she made the statements

she now seeks to suppress. Neither the fact that she was in custody, nor the officer’s mundane

interactions with her, suggest interrogation. State v. Webster, 2017 VT 98, ¶ 11, __ Vt. __, 179

A.3d 149 (holding where defendant in custody talked with officer and “made several apologies

and incriminating statements before he was subjected to interrogation . . . those statements

were . . . outside the scope of Miranda’s protections”). The simple fact that she was in custody

when making the statements does not mean she made them in response to custodial interrogation.

While we recognize the “often intimidating and suggestive atmosphere inherent in police

custody,” custody alone does not constitute interrogation; there must be a “ ‘measure of

compulsion above and beyond that inherent in custody itself’ ” to rise to that level. In re J.E.G.,

144 Vt. 309, 313, 476 A.2d 130, 132 (1984) (quoting Innis, 446 U.S. at 300). In State v. Karov,

we considered whether Miranda allowed the admission of statements a defendant made in the

presence of police driving him to the barracks in a cruiser. 170 Vt. 650, 756 A.2d 1236 (2000)

(mem.). The defendant was accused of, among other things, aggravated domestic assault on his

ex-wife, and he had not yet received Miranda warnings. “He made comments to the police to the

effect of ‘I admit she got thumped last night’ and ‘a higher power told me to do it.’ ” Id. at 653,

756 A.2d at 1240. We held that, while the defendant was in custody at the time, because there

was no evidence that the police did anything to elicit the comments, the comments were not

made in response to custodial interrogation and thus were properly admitted. Id. at 654, 756

A.2d at 1240. Likewise here, although the atmosphere in the cruiser and processing room may

have been “intimidating and suggestive,” that is insufficient to warrant finding custodial

interrogation because the officers said and did nothing to elicit the defendant’s statements. In re

J.E.G., 144 Vt. at 313, 476 A.2d at 132. She made many of them without an officer even in the

                                                15
car or room with her; and those that she did make in officers’ presence were not in apparent

response to anything they said or did but rather were part of her self-reflective monologue.

       ¶ 47.     The officers’ brief responses to defendant’s questions, their offers of water and

tissues, their statements that they would be with her soon, and even their conversations with

defendant about getting her red wine and cigarettes were not interrogation.           This casual

conversation was not reasonably likely to elicit an incriminating response and was thus not

interrogation.    State v. FitzGerald, 165 Vt. 343, 345, 683 A.2d 10, 13 (1996) (holding

“incriminating statement made in the course of casual conversation is not the product of

interrogation”). In FitzGerald, the defendant sought to suppress a statement he had made to an

officer while the officer was transporting him. The defendant inquired where his friend, who he

had been with shortly before murdering his wife, was. When the officer replied, “He’s in Texas,

why?” the defendant said, “That’s good, he had nothing to do with it.” Id. at 345, 683 A.2d at

12. Based on the totality of the circumstances, we held that the officer’s question of “why?” was

not interrogation because the defendant had initiated a casual conversation with the officer; the

officer responded to the defendant’s question with an ordinary figure of speech; and there was no

evidence the officer “knew or should have known that his words were likely to elicit an

incriminating response.” Id. at 345-46, 683 A.2d at 13.

       ¶ 48.     The totality of the circumstances here shows the statements defendant made while

in the police cruiser and processing room were likewise not made in response to any statement or

action by police. There is no indication that the police did anything that was reasonably likely to

elicit defendant’s statements. Before defendant made her first apparent confession—referring to

Steven beating her and then saying “ya understand the reason I shot the motherfucker”—the

officers had just asked her routine questions, including asking if she was ok and if there was

anyone else in the house; given her routine instructions, such as to put her hands behind her back

to be handcuffed; and told her they would not shoot her when she suggested they should.

                                                16
Likewise, throughout the evening, the officers said little to defendant except to answer her

questions, such as when she asked the trooper where they were going, and he said they were

going to his office in West Brattleboro, or when officers at the station helped her get water and

tissues, or told her they would be with her soon. These brief and routine interactions, and the

reassurance that the police would not shoot her, were not reasonably likely to elicit incriminating

statements.

       ¶ 49.   While the officers did, as defendant says, “repeatedly re-initiate[] contact” with

her, as when they talked with her on several occasions about her desire for more wine and

cigarettes, it was not reasonably likely that these questions would elicit an incriminating

response, nor did they appear to have that effect. Although defendant argues that the officers

talked to her as part of a calculated plan to keep her talking, it does not appear that defendant

needed any encouragement to keep talking to herself, nor did the officers provide much. Instead,

defendant’s conversations with the officers appear to have been brief distractions from her

ongoing monologue that evening: her sometimes-incriminating patter to herself after speaking

with the officers was generally similar to her patter to herself beforehand, and the officers’

questions were not related to the substance of that patter. Lacking any apparent causal nexus

between the officers’ brief conversations with her and her subsequent statements, some of which

were incriminating (as when she told an officer she would like wine, he left, and then she said to

herself “you killed the motherfucker . . . he’s dead, dead as a board, he put you through amazing

amounts of hell”), we cannot find these conversations amounted to interrogation.

       ¶ 50.   We need not and do not decide whether holding someone in custody without

questioning them for an extended period of time may under some circumstances be tantamount

to custodial interrogation on the basis that the circumstances are likely to lead a suspect to make

incriminating statements. We conclude that this is not such a case. The elapsed time between

defendant’s initial arrest and the formal questioning was around two and a half hours. That

                                                17
includes the time she spent sitting in the police cruiser while officers secured the scene, as well

as the time to transport her to the police barracks and prepare to interrogate her. The officers left

her alone in safe environments and checked on her periodically. Even if an extended period of

non-questioning could be tantamount to custodial interrogation, the circumstances of this case

would not rise to that level.

                           III. Voluntariness of Defendant’s Statements

       ¶ 51.   Finally, defendant argues that her statements to police should have been

suppressed because they were the result of impermissible coercion by the police that deprived

her of due process. She argues that she was intoxicated to the point of thinking someone was

coming to kill her dog and the police were taking her to the woods to kill her, and that her dog

and Steven were in the car with her; she experienced the trauma of seeing her ex-fiancé and son

dead in her home; she received no Miranda warnings; and she was detained incommunicado

despite her many requests for counsel. She contends that the totality of these circumstances

overpowered her will, making her statements involuntary and thus inadmissible under the Due

Process Clause of the Fourteenth Amendment.

       ¶ 52.   Prior to trial, defendant moved to suppress her statements on similar grounds.

The court held that all of her statements that night in the cruiser and processing room, up until

the point formal questioning commenced, were voluntary because they were not the product of

improper police coercion, and were thus presumptively admissible.

       ¶ 53.   The applicable law is well settled. When a defendant challenges the admission of

“a confession or inculpatory statement, the prosecution must establish by a preponderance of the

evidence that the confession or statement was made voluntarily.” State v. Reynolds, 2016 VT

43, ¶ 12, 201 Vt. 574, 145 A.3d 1256 (quotation omitted). A “statement is involuntary if

coercive governmental conduct played a significant role in inducing” it. State v. Pontbriand,

2005 VT 20, ¶ 21, 178 Vt. 120, 878 A.2d 227. Involuntary confessions must be excluded from

                                                 18
evidence.   Yoh, 2006 VT 49A, ¶ 11.         Suppression in this context is a remedy for police

misconduct. Colorado v. Connelly, 479 U.S. 157, 163 (1986) (explaining Due Process Clause

prohibits “certain interrogation techniques, either in isolation or as applied to the unique

characteristics of a particular suspect, [that] are so offensive to a civilized system of justice that

they must be condemned” (quotation omitted)).

       ¶ 54.   We consider the totality of the circumstances in determining whether a defendant

made a statement voluntarily, Reynolds, 2016 VT 43, ¶ 13, paying attention to factors including

the defendant’s access to a lawyer and whether Miranda warnings were given, Procunier v.

Atchley, 400 U.S. 446, 453-54 (1971), as well as the length of detention and nature of police

questioning and treatment of the defendant.        See Pontbriand, 2005 VT 20, ¶ 21 (holding

statement made to officers during daytime, in semi-public space, in response to brief questioning

by two officers was voluntary). The defendant’s characteristics are also highly relevant to

determining whether police acted appropriately, and “as interrogators have turned to more subtle

forms of psychological persuasion, courts have found the mental condition of the defendant a

more significant factor in the voluntariness calculus.” Connelly, 479 U.S. at 164 (quotation

omitted).   But the court’s awareness that police may use “subtle forms of psychological

persuasion” does not alone “justify a conclusion that a defendant’s mental condition, by itself

and apart from its relation to official coercion, should ever dispose of the inquiry into

constitutional voluntariness.” Id. (quotation omitted).4

       ¶ 55.   We review a trial court’s determination as to voluntariness without deference, as

the U.S. Supreme Court has made clear that voluntariness is a legal question. Reynolds, 2016

VT 43, ¶ 14.


       4
          As the U.S. Supreme Court put it, a defendant’s mental state can never alone justify
suppression because it would enforce no constitutional guarantees—unless “we were to establish
a brand new constitutional right—the right of a criminal defendant to confess to [a] crime only
when totally rational and properly motivated.” Id. at 166.
                                               19
          ¶ 56.   With these considerations in mind, we conclude that defendant’s statements in the

cruiser and processing room were voluntary. Her vulnerability, while relevant to the totality

analysis, did not itself render her statements involuntary. The record does not support the

suggestion that the police improperly took advantage of her vulnerability or in any way coerced

her statements, including by holding her for two and a half hours without a lawyer.

          ¶ 57.   We recognize that given her highly intoxicated and emotional state, we must be

particularly attuned to the possibility that defendant’s inculpatory statements were the product of

subtle coercion. See In re Sanborn, 545 A.2d 726, 732 (N.H. 1988) (holding defendant’s

“mental state may be highly significant in determining whether any given police conduct was

overbearing in its effect,” but “proof that a confession or admission was the product of a

defendant’s mental derangement or mental deficiency is no basis to exclude the confession or

admission from evidence”). For example, where officers persistently questioned a suspect who

had attempted suicide by taking a large quantity of Xanax before his arrest, and was falling in

and out of consciousness during the interview to the extent that officers had to keep waking him

up, the court found the questioning coercive. United States v. Taylor, 745 F.3d 15, 25 (2d Cir.

2014). But where a “drug-addled” defendant was arrested and told the arresting officer that he

“wanted to testify to something” and, when the officer told him he could write it down, he wrote

a confession, the court found no coercion. United States v. Díaz-Rosado, 857 F.3d 116, 122 (1st

Cir. 2017).

          ¶ 58.   Here, officers had done little more than handcuff defendant and take her to the

cruiser when she made her first inculpatory statement, “ya understand the reason I shot the

motherfucker oops wait a minute, nope, I didn’t say anything, I didn’t say anything.” As where

the “drug-addled” defendant made a voluntary confession, police did nothing to coerce

defendant’s statements, and thus suppression is not appropriate even despite her intoxication.

See id.

                                                 20
       ¶ 59.      While defendant argues her detention without a lawyer was coercive state action,

as we have previously held, “ ‘custody alone has never been enough in itself to demonstrate a

coerced confession.’ ” State v. Weisler, 2011 VT 96, ¶ 39, 190 Vt. 344, 35 A.3d 970 (quoting

United States v. Watson, 423 U.S. 411, 424 (1976)). Moreover, a defendant does not have an

immediate right to counsel upon arrest, and failure by police to immediately furnish counsel is

not necessarily coercive. See Miranda, 384 U.S. at 474 (holding police do not violate Fifth

Amendment right against self-incrimination if they do “not provide counsel during a reasonable

period of time in which investigation in the field is carried out,” if they refrain from

interrogation).

       ¶ 60.      Even where a defendant is emotionally unstable and held for several hours at a

police station without a lawyer, we have not found custody to be so coercive as to make a

suspect’s statements involuntary. In State v. Smith, the mentally ill murder suspect was held in a

small room at a police station, in the presence of several officers, “for a number of hours” after

requesting counsel because his attorney could not be located. 140 Vt. 247, 254, 437 A.2d 1093,

1096 (1981). During that time, he said, “Jesus Christ, you’d think I’d killed the President of the

United States.” Id. We held there was no evidence he “was cajoled or tricked into speaking” but

rather that, from the evidence, it appeared his statement was voluntarily made and “not the result

of coercive police practices.” Id. at 256, 437 A.2d at 1097.

       ¶ 61.      As in Smith, defendant was emotionally unstable; she was in custody for hours;

and she had requested counsel but was not able to speak to an attorney. While prolonged

incommunicado detention could in certain circumstances overbear a suspect’s will, we do not

find that two and a half hours of detention, during which officers gave defendant water and

tissues and allowed her to use the restroom, were coercive. Given that this was a double-

homicide case in which, as the State argues, officers needed time to familiarize themselves with

the facts before questioning defendant, the delay here was not so excessive as to render

                                                 21
defendant’s statements involuntary. Thus, as in Smith, we conclude that police did not coerce

defendant into speaking, and do not suppress her statements as involuntary.

       Affirmed.

                                              FOR THE COURT:



                                              Associate Justice




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