Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.


                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2010-210

                                       JANUARY TERM, 2011

 State of Vermont                                      }    APPEALED FROM:
                                                       }
    v.                                                 }    District Court of Vermont,
                                                       }    Unit No. 3, Washington Circuit
                                                       }
 Robert Gilman                                         }    DOCKET NO. 952-8-09 Wncr

                                                            Trial Judge: Brian J. Grearson

                          In the above-entitled cause, the Clerk will enter:

        Defendant appeals from a judgment of conviction of DUI and related counts. He
contends the trial court’s denial of a motion to suppress was based on erroneous findings. We
agree in part, and therefore reverse and remand for further proceedings

        The following is a summary of the evidence adduced at the hearing on defendant’s
motion to suppress and at the subsequent court trial. In the early morning hours of July 18, 2009,
a police officer observed a vehicle traveling well in excess of the posted speed limit on Route 12
in the Town of Berlin. The officer activated his siren and blue lights and attempted to stop the
vehicle, which increased speed. During the ensuing pursuit the officer observed the vehicle cross
the center line several times and at one point was able to observe the driver—a young male—
when the vehicle spun around so that it faced the police cruiser. The officer eventually reported
the vehicle’s license plate number to dispatch and discontinued the chase. Dispatch was able to
locate the identity and address of the vehicle’s owner, and several officers arrived at the location
shortly thereafter, where they observed the vehicle involved in the pursuit parked in the
driveway.

        An officer knocked on the front door and spoke with defendant’s mother through the
screen, informing her that they were trying to locate a young male—possibly her son—involved
in a recent high-speed pursuit. When told that defendant was upstairs sleeping, the officers
asked his mother if they could enter and if she could have defendant come down and speak with
them. What occurred thereafter was the subject of conflicting testimony at the suppression
hearing and trial. The officers testified that they were given permission to enter; that defendant’s
mother then shouted upstairs to defendant that the police wished to speak with him; and that he
eventually appeared, whereupon the officers recognized him from the pursuit and observed clear
signs of intoxication. Defendant was arrested and later administered a blood alcohol test, which
registered .206 BAC.

      Defendant’s mother testified that she did not give the police permission to enter, and that
when she returned from speaking to her son the police had entered into the kitchen area on their
own. She further testified that the police told her if defendant did not come down they would go
up and get him. She recalled that defendant initially refused to come down, and “I told him that
if he didn’t come down then [the police] had said they were going to come and get him.”
Defendant’s girlfriend, who was present, also recalled defendant’s mother “telling [defendant]
that he needed to come downstairs because the cops were there, and if he didn’t come downstairs
they were coming in to get him.”

        Defendant moved to suppress the DUI evidence on the ground that the police entry into
the home was nonconsensual and that he was coerced into appearing. Defendant claimed that
his mother “never gave [the police] permission to come into her house and Defendant came
down stairs only because the police made it clear that if he did not come down on [his] own, they
would go get him.” The court denied the motion, acknowledging the conflicting testimony about
the police entry but finding that “[t]he credible evidence is that the police entered the home with
[defendant’s mother’s] consent” and waited for defendant to appear. The court did not
specifically address defendant’s corollary claim that he was coerced into appearing by the
officers’ threat to come up and “get him.”

        The case proceeded to trial, where defendant moved to reconsider the court’s denial of
the suppression motion. In its order denying the motion to reconsider, the court reviewed the
evidence adduced at trial and concluded that defendant had not presented any material new
evidence. As to whether defendant’s appearance was coerced, the court found that although
defendant’s mother “testified in both hearings that the police told her if he did not come down
they would go up and get him . . . [she] did not testify in either proceeding that she told the
defendant that if he did not come down stairs the police would come up and get him.”
(Emphasis added.) In the absence of such evidence, the court found defendant’s “subjective
belief that he had no choice but to come down stairs” to be insufficient to prove coercion. Thus,
the court concluded that defendant had adduced no new material evidence on the question
“whether the police had permission to be in the home and whether the defendant was coerced
into coming down the stairs.”

       In reviewing the trial court’s rulings, we apply a mixed standard of review, upholding its
findings of fact unless clearly erroneous, while evaluating its legal conclusions de novo. State v.
Arrington, 2010 VT 87, ¶7.∗ Evaluating the credibility of witnesses “falls within the exclusive
province of the trial court,” and “we defer to the trier of fact’s decision to credit a particular
witness or piece of evidence.” Id. ¶ 9 (quotations omitted).

        Applying this standard, we find no basis to disturb the court’s finding that the police
entry into the home was consensual. The evidence on this point was conflicting, and the court’s
decision to credit the officers’ testimony was well within its discretion and was not clearly
erroneous.

       The trial court’s conclusion that defendant’s appearance was voluntary and not coerced is
another matter. As noted, the court’s conclusion was based, in substantial part, on its finding that

       ∗
         The State asserts that the defendant has appealed solely from the court’s initial ruling
on the motion to suppress, but defendant’s notice of appeal and briefing show plainly that he has
challenged both the initial denial and the subsequent denial of the motion to reconsider.

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although defendant’s mother testified that the police had threatened to “go up and get him” if he
did not come down, there was no testimony that she had communicated this threat to defendant.
The record, quoted earlier, reveals precisely to the contrary; defendant’s mother testified that she
conveyed the officer’s threat to defendant, and defendant’s girlfriend corroborated her testimony.
The evidence thus plainly contradicts the court’s finding, which must be deemed clearly
erroneous. That finding, moreover, patently informed the court’s conclusion that defendant was
not coerced into appearing before the police. Therefore, the error cannot be deemed harmless.

        It may be that the trial court would ultimately find the officers’ testimony specifically
denying any threat of force to be more credible than the testimony of defendant’s mother and
girlfriend, but it made no such finding, and therefore the matter must be remanded to the trial
court to address the issue.

       Reversed and remanded.

                                           BY THE COURT:


                                           _______________________________________
                                           Paul L. Reiber, Chief Justice

                                           _______________________________________
                                           Denise R. Johnson, Associate Justice

                                           _______________________________________
                                           Marilyn S. Skoglund, Associate Justice




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