2011 VT 135


State v. Robitaille (2010-078)
 
2011 VT 135
 
[Filed 15-Dec-2011]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions, Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801 of any errors in order that
corrections may be made before this opinion goes to press.
 
 

2011 VT 135

 

No. 2010-078

 

State of Vermont


Supreme Court


 


 


 


On Appeal from


     v.


District Court of Vermont,


 


Unit No. 3, Franklin Circuit


 


 


Jeremy Robitaille


March Term, 2011


 


 


 


 


A.
  Gregory Rainville, J.


 

William H. Sorrell, Attorney General, and David Tartter,
Assistant Attorney General,
  Montpelier, for Plaintiff-Appellee.
 
Matthew F. Valerio, Defender General, and Anna Saxman,
Deputy Defender General,
  Montpelier, for
Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and
Burgess, JJ.
 
 
¶ 1.            
SKOGLUND, J.  Defendant appeals from his conditional guilty
plea to assault and robbery, arguing that the trial court erred in denying his
motion to suppress.  Defendant maintains that statements he made to police
were taken in violation of his rights under the Public Defender Act (PDA), 13
V.S.A. § 5234(a), and the Vermont Constitution.  He also asserts that he
did not knowingly, intelligently, and voluntarily waive his Miranda
rights.  We affirm. 
¶ 2.            
In denying defendant’s motion to suppress, the trial court made the
following findings.  Defendant was arrested in Burlington following an
assault and robbery at the Enosburg Pharmacy.  Sergeant Paul Morits of the
Franklin County Sherriff’s Office met defendant at the police station and
informed defendant of his Miranda rights.  Defendant invoked his
right to remain silent and his right to counsel, and all conversation between
Morits and defendant ceased.  Morits did not contact a public defender
immediately thereafter, and defendant did not ask for an attorney by
name.  
¶ 3.            
While arrangements were being made to transfer defendant to a
correctional facility, Morits conversed with another police officer about a
third officer’s pregnancy.   Defendant was a few feet away, but none
of the conversation was directed at or concerned defendant.  Shortly
thereafter, defendant asked Morits if defendant’s girlfriend had been
arrested.  Morits responded that she had been released, and resumed his
conversation with the other officer.  A few minutes later, defendant asked
if anyone else was going to be arrested.  Morits stated that he was
looking at several other people.  Defendant next asked about someone named
Elvin Sweet.  Morits informed defendant that he had spoken with Sweet and
that Sweet denied knowing defendant. 
¶ 4.            
Defendant then asked Morits what kind of deal he could get.  Morits
told defendant that he could not make any deals, but that the State’s Attorney
might be more inclined to make a deal if defendant cooperated.  Defendant
waited another minute and said, “OK, I’ll talk to you.”  Morits again
informed defendant of his Miranda rights and asked defendant if he
wanted a lawyer present.  Defendant stated that he did not.  Morits
provided defendant with a written waiver form.  Morits also read a portion
of the form out loud to defendant, including the following:  
I’ve
been advised of my rights and understand them.  No threats or promises
have been made to me.  I understand that I am waiving my rights to be
represented by a lawyer, to talk with the lawyer before questioning and to have
a lawyer present during questioning.  Knowing my rights, I agree to waive
them and talk to you now.  
 
Defendant signed the waiver form
and provided a statement to police.[1] 
Fifteen minutes elapsed between the time defendant first invoked his rights and
the time that he waived them.  
¶ 5.            
Based on these and other findings, the court denied defendant’s motion
to suppress.  The court first found that defendant voluntarily, knowingly,
and intelligently waived his Miranda rights prior to making any
statements to police.  It also rejected defendant’s assertion that the
deputy’s failure to provide him with an attorney immediately upon detention
required the suppression of his statement under the PDA, regardless of whether
defendant subsequently waived his right to an attorney.  
¶ 6.            
As the court explained, the statutory language of the PDA required
police to contact an attorney at “the commencement of detention” if the accused
did not have an attorney and did not effectively waive his right to one. 
13 V.S.A. § 5234(a)(2);  State v. Nicasio,
136 Vt. 162, 165, 385 A.2d 1096, 1099 (1978), overruled on other grounds by
State v. Savo, 139 Vt. 644, 433 A.2d 292 (1981).  The court found
that detention had commenced in this case as defendant had been arrested for a
serious crime and he was awaiting transportation to a detention facility. 

¶ 7.            
Once triggered, the PDA placed an affirmative duty upon the officer to
“notify the appropriate public defender” if “the person detained or charged
does not have an attorney and does not knowingly, voluntarily and intelligently
waive his or her rights to have an attorney when detained or charged.”  13
V.S.A. § 5234(a)(2).  It was undisputed that the
deputy here did not contact or attempt to contact a public defender on
defendant’s behalf after defendant invoked his right to remain silent. 
The primary issue before the court, then, was whether the deputy’s failure to
contact a public defender during the fifteen minutes between when defendant
invoked his right to an attorney and when he subsequently waived that right
violated the PDA.
¶ 8.            
In conducting its analysis, the court looked to the purpose of the PDA,
which is to address Miranda’s concern for bad faith interrogation of
individuals accused of a crime without the presence of counsel.  The court
found no evidence of bad faith here, noting that the brief delay was
attributable to arranging transportation for defendant.  The court also
found no legal support for the proposition that a non-indigent defendant would
have the right to consult an attorney before deciding whether to waive his or
her right to an attorney.  In other words, it rejected the suggestion that
once the right to counsel was invoked, it could never be waived unless counsel
was first provided to the defendant.  See Edwards v. Arizona, 451
U.S. 477, 485-86 (1981) (upholding validity of defendant’s waiver of counsel
where defendant had initially invoked right to counsel, and later waived it,
all without the assistance of counsel).  The court thus concluded that the
circumstances presented here did not warrant suppression of defendant’s
statements.  Defendant entered a conditional guilty plea, and this appeal
followed.  
¶ 9.            
We begin with defendant’s assertion that the police violated his right
to counsel under the PDA and Chapter I, Article 10 of the Vermont Constitution
by failing to notify a public defender immediately upon his detention. 
Implicit in defendant’s argument is the notion that he was entitled to consult
with counsel before deciding to waive his rights.  We review the trial
court’s factual findings for clear error, and its conclusions of law de novo.
 State v. Pontbriand, 2005 VT 20, ¶ 12, 178 Vt. 120, 878 A.2d 227.  As discussed below, we find no
error.  

 
¶ 10.         The
PDA provides in relevant part: 
 
(a) If a person who is being detained by a law enforcement officer without
charge or judicial process, or who is charged with having committed . . . a
serious crime, is not represented by an attorney under conditions in which a
person having his or her own counsel would be entitled to be so represented,
the law enforcement officer . . . shall:  
 
 
(1) Clearly inform him or her of the right of a person to be represented by an
attorney and of a needy person to be represented at public expense; and
 
 
(2) If the person detained or charged does not have an attorney and does not
knowingly, voluntarily and intelligently waive his or her right to have an
attorney when detained or charged, notify the appropriate public defender that
he or she is not so represented.  This shall be done upon commencement of
detention, formal charge, or post-conviction proceeding, as the case may
be.   
 
13 V.S.A. § 5234(a)(1)-(2) (emphasis added); see also id. § 5235
(providing that law enforcement officer who determines that person is entitled
to be represented by an attorney at public expense must “promptly” notify
appropriate public defender).  
¶
11.        
Defendant argues that under the plain language of the statute, Morits
was obligated to contact a public defender for him either at the moment that he
was detained or at the moment that he invoked his right to counsel.  He
asserts that because this requirement was not satisfied, his statements must be
suppressed.  
¶
12.        
We reject defendant’s interpretation of the statute.  As we have
often repeated, “[t]he bedrock rule of statutory construction is to determine
and give effect to the intent of the Legislature.”  Delta Psi
Fraternity v. City of Burlington, 2008 VT 129, ¶ 7, 185 Vt. 129, 969 A.2d
54 (quotation omitted).  We have recognized that legislative “intent is
most truly derived from a consideration of not only the particular statutory
language, but from the entire enactment, its reason, purpose and consequences.”
 Id. (quotation omitted).  
¶
13.        
We do not read the words “upon commencement of detention” to impose an
obligation on law enforcement officers to contact a public defender at the
exact moment a defendant is arrested or detained, or at the very instant that
the right to counsel is invoked.  See id. (noting that if “literal
meaning of the words is inconsistent with [legislative] intent, the intent must
prevail” and that “such inconsistency occurs if applying the ‘precise wording’
of a statute produces results which are manifestly unjust, absurd, unreasonable
or unintended, or conflicts with other expressions of legislative intent”
(citations omitted)).  Indeed, we rejected this approach in State v.
Picknell, 142 Vt. 215, 225, 454 A.2d 711, 715 (1982).  To require
suppression under such circumstances, regardless of whether the defendant was
subjected to custodial interrogation, would lead to absurd results and would
not serve the purposes of the PDA.  As discussed below, the PDA addresses
the concerns identified by the United States Supreme Court in Miranda v.
Arizona, 384 U.S. 436 (1966), with respect to custodial interrogation, and
these concerns are not implicated by the simple fact that fifteen minutes
elapsed between defendant’s invocation of his right to counsel and his waiver
of that right.  We need not determine precisely when counsel must be
contacted.  We hold only that under the circumstances here where defendant
has been arrested and is awaiting transportation to a corrections facility, the
failure to contact a public defender within fifteen minutes does not warrant
suppression.  
¶
14.        
In reaching our conclusion, we are guided by the policies underlying Miranda
and subsequent cases.  Nicasio, 136 Vt. at 166, 385
A.2d at 1099.  As we have recognized, § 5234(a) of the PDA “recognizes
Miranda’s concern for bad faith interrogation of individuals accused of
a crime without the presence of counsel, and reflects this state’s policy of
securing for those individuals an immediate right to counsel.”  State
v. Provost, 2005 VT 134, ¶ 7, 179 Vt. 337, 896 A.2d
55.  The PDA does not “establish[] a set
of substantive rights in addition to the Miranda right to have counsel
present at questioning.”  Id.  Nor does it provide any
“greater right to counsel to a needy person than to any other individual.” 
Id. ¶ 8 (quotation omitted).  
¶ 15.         The
Supreme Court’s decision in Miranda, and by extension, the provisions of
the PDA on which defendant relies, protect an individual’s right against
self-incrimination.  See Vt. Const. ch. I, art. 10
(stating that person accused of crime cannot “be compelled to give evidence
against oneself”); U.S. Const. amend. V (providing
that “[n]o person . . . shall be compelled in any Criminal Case to be a witness
against himself”).  The Miranda Court recognized that
“incommunicado interrogation of individuals in a police-dominated atmosphere”
jeopardized this right.  384 U.S. at 445. 
Thus, it barred the use of any statements stemming from “custodial
interrogation” unless the prosecution demonstrated “the use of procedural
safeguards effective to secure the privilege against self-incrimination.” 
Id. at 444.  This includes a requirement
that, prior to any custodial interrogation, police advise a “putative defendant
that he has the right to remain silent and also the right to the presence of an
attorney.”  Edwards, 451 U.S. at 481-82.   

¶
16.        
The United States Supreme Court has held that when an accused invokes
his right to counsel, he or she cannot be further interrogated by police until
counsel has been made available, “unless the accused himself initiates
further communication, exchanges, or conversations with the police.”  Id.
at 484-85 (emphasis added).  The waiver of the right to counsel must be
voluntary, knowing, and intelligent.  Id. at
483-84.  This rule applies equally under the PDA.  Provost,
2005 VT 134, ¶ 7 (“A waiver of the right to counsel under Miranda also
serves as a valid waiver of counsel under [13 V.S.A.] § 5234(a).”); see
also State v. Yoh, 2006 VT 49A, ¶ 13, 180 Vt. 317, 910 A.2d 853
(recognizing that a suspect can reinitiate a conversation with police
notwithstanding earlier invocation of right to counsel); 13 V.S.A. § 5237
(recognizing that defendant can waive the right to counsel).  
¶ 17.         As
referenced above, the Miranda Court was concerned about “custodial
interrogation.”  384 U.S. at 444.  The Court
recognized that “[t]he circumstances surrounding in-custody interrogation can
operate very quickly to overbear the will” of someone who has merely been
informed that he has the “right to remain silent.”  Id.
at 469.  Thus, it found that “the right to have counsel present at
the interrogation is indispensible to the protection of the Fifth Amendment
privilege.”  Id.  
¶
18.        
This does not mean, however, that “each police station must have a
‘station house lawyer’ present at all times to advise prisoners.”  Id. at 474.  Rather, the Court explained that:
if
police propose to interrogate a person they must make known to him that he is
entitled to a lawyer and that if he cannot afford one, a lawyer will be
provided for him prior to any interrogation.  If authorities conclude that
they will not provide counsel during a reasonable period of time in which
investigation in the field is carried out, they may refrain from doing so
without violating the person’s Fifth Amendment privilege so long as they do not
question him during that time.  
 
Id. 
This is consistent with the Edwards Court’s recognition that “[t]he
Fifth Amendment right identified in Miranda is the right to have counsel
present at any custodial interrogation,” and that even where a defendant
invokes the right to counsel, there is no infringement of that right absent
interrogation by police.  451 U.S. at 485-86. 
This Court has similarly recognized that “[t]he safeguards of Miranda
attach whenever a person in custody is subjected to interrogation.”  State v. FitzGerald, 165 Vt. 343, 345, 683 A.2d 10, 13
(1996).  
¶ 19.         We
found the absence of any “custodial interrogation” significant in deciding if
suppression was warranted for an alleged violation of the PDA in Picknell,
142 Vt. at 225, 454 A.2d at 715.  In that case, the defendant was arrested
and transported to the police station.  No interrogation occurred until approximately
thirty minutes later, at which time the defendant was read his Miranda
rights.  The defendant waived his rights and was then interrogated by
police. 
¶ 20.         The
defendant later argued that his statements must be suppressed because the police
failed to obtain a waiver of his right to an attorney “at the precise moment
he was arrested” as required by 13 V.S.A. § 5234.  Id. at 223, 454 A.2d at 714.  We found that the defendant relied on
a narrow interpretation of the phrase “commencement of detention” by insisting
that the officers should have obtained an immediate waiver prior to
transporting him to the police station.  According to the defendant, the
failure to obtain a timely waiver meant that, at the time of interrogation
thirty minutes later, the officers remained obligated to contact his
attorney.  The defendant reasoned that, because noncompliance with 13
V.S.A. § 5234(a)(2) required suppression of statements obtained as a
result of such noncompliance, the statements he made at the police station were
inadmissible.  
¶ 21.         We
rejected this argument.  In reaching our conclusion, we looked to the
purpose of the PDA and the holding of Miranda.  “The flaw in
defendant’s argument,” we explained, was “that it ignore[d]
the fact that no custodial interrogation took place from the time he was
arrested until the time he was issued his Miranda rights.”  Id.
at 225, 454 A.2d at 715.  “Had statements been
obtained during this interim period,” we continued, “they would have been
inadmissible, since both Miranda and 13 V.S.A. § 5234(a) would have been
violated.”  Id.  When the defendant was advised of his Miranda
rights, however, he knowingly, voluntarily, and intelligently waived
them.  We reasoned that “[o]nce the right to counsel was waived, the
provisions of 13 V.S.A. § 5234(a) were fully complied with.”  Id. 
Because we found ample evidence to support the trial court’s finding of waiver,
we upheld the denial of the defendant’s motion to suppress.  
¶
22.        
We reach a similar conclusion here.  As in Picknell,
defendant here was not subject to any custodial interrogation in the fifteen
minutes between the time he invoked his right to counsel and the time that he
waived that right.  Defendant was warned of his rights, and as discussed
below, he voluntarily waived them prior to any custodial interrogation. 
The requirements of the statute were satisfied.  
¶
23.        
We reject defendant’s implied assertion that he had the right to the
advice of an attorney before making the voluntary decision to waive.  No
such right exists under Miranda, and the PDA provides no “greater right
to counsel to a needy person than to any other individual.”  Provost, 2005 VT 134, ¶ 8 (quotation omitted). 
See, e.g., Edwards, 451 U.S. at 484-85; Moran v. Burbine, 475
U.S. 412, 422 (1986) (upholding validity of waiver of right to counsel,
notwithstanding fact that attorney was attempting to reach defendant by
telephone, recognizing that while information provided by attorney “would have
been useful to [the defendant]; perhaps even it might have affected his
decision to confess,” the Court has “never read the Constitution to require
that the police supply a suspect with a flow of information to help him
calibrate his self-interest in deciding whether to speak or stand by his
rights”).  As the Moran Court made clear,
[o]nce
it is determined that a suspect’s decision not to rely on his rights was
uncoerced, that he at all times knew he could stand mute and request a lawyer,
and that he was aware of the State’s intention to use his statements to secure
a conviction, the analysis is complete and the waiver is valid as a matter of
law.  
 
Id. at 422-23.  
¶
24.        
The cases cited by defendant do not persuade us otherwise. 
Defendant cites several out-of-state cases for the proposition that police “may
not delay the notification of counsel.”  These cases are inapposite as
they involve factually distinct situations and statutory provisions.  See,
e.g., State v. Stoddard, 537 A.2d 446, 452 (Conn. 1988) (holding,
contrary to federal law under Miranda, that due process clause in state
constitution required police to promptly inform suspect whom they were holding
for custodial interrogation of timely efforts by his counsel to render legal
assistance); State v. Ababa, 65 P.3d 156, 162 (Hawaii 2003) (suppression
warranted under state law making it unlawful for police officer to
“unreasonably refuse or fail to make a reasonable effort” to contact counsel
upon request where police officer made no effort to contact attorney for detainee
for three-and-a-half hours after request made); City of Lakewood v.
Waselenchuk, 641 N.E.2d 767, 769-70 (Ohio Ct. App. 1994) (concluding that
blood alcohol results should be suppressed where individual was denied her
statutory right to communicate with counsel prior to taking an evidentiary
breathalyzer test); State v. Dunn, 28 P.3d 789, 791-92 (Wash. Ct. App.
2001) (considering whether preprinted form adequately advised defendant of
right to counsel “as soon as feasible” as required by state rule).  We are
equally unpersuaded by the DUI cases cited by defendant, which involve a
different statutory right to counsel than that at issue here.  See State
v. Nemkovich, 168 Vt. 8, 11, 712 A.2d 899, 901 (1998) (stating that right
to counsel under the implied consent statute and rights secured under Miranda
“serve different purposes and operate independently of one another”).  
¶
25.        
To the extent that we used the word “immediate” in describing the
statutory right to counsel under the PDA, this language must be taken in its
proper context.  We held in Nicasio, 136 Vt. at 166, 385 A.2d at
1099, that the right to counsel under the PDA cannot await an assessment of
financial need by a police officer.  As we explained, “[t]o require the
enforcement officer, often completely ignorant of the case except for the
warrant in his hand, to determine on the spot the financial need of a
respondent or its absence, and to honor his right to have an attorney notified
only if he finds indigency, would subvert the whole purpose of the
statute.”  Id.    We summarized Nicasio’s
holding in State v. Duff, as reflecting “the state’s policy to secure
for the person detained an immediate right to communicate with counsel
concerning the impending proceedings against him.”  136
Vt. 537, 539, 394 A.2d 1145, 1146 (1978).  By this, we plainly
meant that the notification of counsel cannot await a determination of
financial need.  It is equally clear from our holding in Picknell
that we have not interpreted the term “commencement of detention” to mean that
counsel must be provided to a defendant at the precise moment of arrest.  
¶ 26.         Finally,
defendant argues that the trial court erroneously required him to prove that
the officer delayed contacting an attorney in bad faith.  He also asserts
that the court committed clear error in finding that the delay was caused by
arranging transportation for defendant.  Having found no violation of the
statute through the fifteen minute delay, resolution of these issues is
immaterial.  We note, however, that the court did not require defendant to
prove bad faith.  Instead, it simply observed that there was no evidence
that the officer was engaging in gamesmanship by not contacting an attorney
within fifteen minutes, thereby distinguishing this case from others where
motions to suppress were granted.  See, e.g., State v. Christmas,
2009 VT 75, ¶¶ 12-13, 186 Vt. 244, 980 A.2d 790 (affirming suppression of
confession where police detective engaged in actions that he should have known
“were reasonably likely to elicit an incriminating response” from defendant who
had invoked his right to silence).  Given that, at its core, the PDA is
designed to address “Miranda’s concern for bad faith interrogation of
individuals accused of a crime without the presence of counsel,” Provost,
2005 VT 134, ¶ 7, the absence of bad faith was not a wholly irrelevant
consideration.  
¶ 27.         We
turn next to defendant’s assertion that the State failed to prove that he
knowingly, voluntarily, and intelligently waived his right to counsel. 
Defendant complains that the State introduced only his signed written waiver in
support of its position.  Defendant also asserts that the trial court
erroneously shifted the burden of proof to him, and that it failed to consider
factors necessary to find a knowing and intelligent waiver.[2]  
¶ 28.         The
State was required to prove by a preponderance of the evidence that defendant’s
waiver was voluntary, and that it constituted “a knowing and intelligent
relinquishment or abandonment of a known right or privilege, a matter which
depends in each case upon the particular facts and circumstances surrounding
that case, including the background, experience, and conduct of the accused.” 
Edwards, 451 U.S. at 482 (citation omitted); State v. Ives, 162
Vt. 131, 134, 648 A.2d 129, 131 (1994) (identifying State’s burden of proof);
see also 13 V.S.A. § 5237 (providing that waiver of rights is valid if court
finds that defendant “acted with full awareness of his rights and of the
consequences of a waiver and if the waiver is otherwise according to law” and
that “court shall consider such factors as the person’s age, education, and
familiarity with the English language, and the complexity of the crime
involved”).  On review, we accord “great deference to the trial court’s
findings under the totality of the circumstances approach,” mindful that it is
the exclusive role of the trial court to weigh the evidence and assess the
credibility of witnesses.  Ives, 162 Vt. at 135, 648
A.2d at 131.  The court’s findings will stand unless clearly
erroneous.  Id.  
¶ 29.         In
his motion to suppress, defendant cited the totality-of-the-circumstances
standard but did not argue that he lacked the capacity to understand the
warnings given, the nature of his rights, or the consequences of waiving those
rights.  Defendant did not testify to this effect at the motion
hearing.  Instead, defendant’s argument appeared to focus on whether his
statements were voluntary.  In his proposed findings, defendant asserted
that Morits had induced him to speak by stating that the State’s Attorney might
be more inclined to make a deal with someone who cooperated.  Defendant
argued that this was “certainly a compelling inducement to a drug addict who
ha[d] recently received a large quantity of narcotics and would certainly
experience an excruciating withdrawal in jail.”  
¶ 30.         The
trial court rejected defendant’s position.  It found that defendant
repeatedly initiated a conversation with Morits, seeking to discuss the
investigation, and that Morits in no way influenced defendant’s decision to do
so.  The court found no evidence to show that defendant had signed the
waiver involuntarily or that his statements were the product of psychological
manipulation.  Nor did it find any evidence to show that defendant waived
his rights without sufficient knowledge of what he was waiving.  Thus,
based on the totality of the circumstances, the court found that defendant’s
statements to police were voluntarily given after he waived his Miranda
rights.  
¶ 31.         In
reaching its conclusion, the court did not shift the burden of proof to
defendant, as defendant suggests.  The court simply weighed the evidence
before it, and noted that defendant had produced no evidence to contradict the
plain and unequivocal averments in his signed written waiver.  As set
forth above, the record shows that defendant was twice informed of his Miranda
rights.  On the second occasion, he was provided with a written waiver
form, a portion of which was read out loud to him.  Defendant signed this
waiver, explicitly acknowledging that he had been advised of his rights and
understood them; he had not been threatened nor had any promises been made to
him; he understood that he was waiving his right to be represented by a lawyer,
to talk with the lawyer before questioning, and to have a lawyer present during
questioning; and knowing his rights, he agreed to waive them and to speak to
police.  He repeated on an audiorecording that he had been advised of his
rights, and that he agreed to speak to Morits without a lawyer present. 
There is ample evidence to support the court’s decision that the waiver was
valid.  
¶
32.        
Defendant faults the trial court for not making findings as to his age,
and other factors, in assessing the totality of the circumstances.  He
also complains that the court did not explicitly account for his consumption of
drugs prior to his arrest.  These arguments were not preserved.  See Progressive
Ins. Co. v. Brown, 2008 VT 103, ¶ 8, 184 Vt. 388, 966 A.2d 666 (explaining
that to preserve argument, party must raise it with “specificity and clarity”
before trial court (quotation omitted)).  As stated above, although
defendant cited the totality of the circumstances test in his motion to
suppress, he made no specific argument regarding its components.  He never
suggested that he did not understand Morits’ explanation of his rights or the
plain terms of the written waiver that he signed.  He did not testify to
this effect.  In fact, defendant signed a written statement that
explicitly provided otherwise.  
¶
33.        
The only reference to drugs in the motion to suppress was made in
connection with defendant’s assertion that the officer had induced him to
speak, i.e., that his decision to waive was not voluntary.  The trial
court specifically rejected the notion that Morits had induced defendant to
speak.  This appears to have been the key issue before the court with
respect to the validity of the waiver.  As in State v. Olson, we
find the court’s discussion sufficient here, particularly given that defendant
signed a written waiver attesting to his awareness of his rights and the
consequences of waiving them.  See 153 Vt. 226, 232, 571 A.2d 619, 623
(1989) (upholding trial court’s determination that waiver was knowing,
intelligent, and voluntary where court’s findings focused on key issue being
litigated, notwithstanding fact that no evidence was presented and no findings
were made on all possible “totality of the circumstances” factors); see also North
Carolina v. Butler, 441 U.S. 369, 373 (1979) (stating that “[a]n express
written or oral statement of waiver of . . . the right to counsel is usually
strong proof of the validity of that waiver”); and cf. State v. Mumley,
2009 VT 48, ¶¶ 15-16, 186 Vt. 52, 978 A.2d 6 (reversing suppression decision in
case without signed written waiver where waiver itself was vague and defendant
did not have opportunity to read full waiver form, and trial court reached its
conclusion by stating that it “assumed” that defendant possessed requisite
experience, education, background, and intelligence to understand nature of his
rights and consequences of waiving them); see also Olson, 153 Vt. at
232, 571 A.2d at 623 (distinguishing State v. Malinowski, 148 Vt. 517,
536 A.2d 921 (1987), where Court reversed order granting motion to suppress due
to inadequate findings, stating that the waiver at issue in Malinowski
was “arguably vague, and defendant’s understanding of the waiver was
questionable”).  None of the factors at issue in Mumley or Malinowski
are present here.  Defendant presented no evidence, or argument, to rebut
the affirmative statements in his signed waiver and to show that he failed to
understand his rights or the consequences of waiving them.  The court did
not err in crediting the State’s evidence.  
¶
34.        
We note, moreover, that while defendant testified that he had just
finishing using six “Oxycontin 60s” when he was arrested, he stated that he was
“awake” when the police officer was talking to him and “functional.”  His
verbal exchanges with Morits illustrate this point as well, including his
desire to make a deal after learning that one of his friends, who allegedly
drove defendant to and from the pharmacy, had denied knowing him. 
Defendant also testified that he sought to make a deal to prevent his
girlfriend from getting into trouble.  See State v. Haskins, 178
S.E.2d 610, 615 (N.C. 1971) (holding that court did not err in failing to
specifically address whether defendant was under influence of drugs at time of
waiver where court’s decision “implicitly carr[ied] the finding that [the
defendant’s] understanding and intelligence were not so adversely affected as
to make him unconscious of the meaning of his words” and noting that any error
would be harmless given that defendant’s verbal exchanges with police officers
showed that he was in “full possession of his faculties and [had] a keen
understanding of his predicament”).  The record here supports the court’s
finding that defendant voluntarily, knowingly, and intelligently waived his
rights.
Affirmed. 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1]
 This interview was audiotaped, and on the tape, defendant reiterated that
he had been advised of his rights, and that he agreed to speak to Morits
without a lawyer present.  


[2] 
Defendant also asserts that the waiver was invalid because he was denied his right
to counsel, and that his confession was not voluntary as it was a product of
the violation of his right to counsel.  Having found no violation of
defendant’s right to counsel, we reject these arguments.  



