¶ 1. Following a jury trial in Franklin District Court, defendant was convicted of sexual assault on a minor. Subsequently, the court also adjudged him guilty of being a habitual offender. Defendant makes the following three arguments on appeal from these convictions: (1) he was subjected to interrogation while in custody without a
Miranda
waiver and this violation tainted his subsequent confession; (2) his right to counsel was violated; and (3) the habitual offender statute does not include a decriminalized conviction. We affirm the convictions and conclude that: (1) the law enforcement officer’s initial interview of defendant on July 11 violated the requirements of
Miranda v. Arizona,
¶ 2. We first present the facts related to defendant’s motion to suppress and right to counsel claims, which are not in dispute. On July 5, 2007, defendant and his wife were involved in an altercation, and two Franklin County deputy sheriffs were dispatched in response. As a result of this domestic disturbance, defendant was found to be in violation of probation 1 and was charged with disorderly conduct. Defendant was consequently placed in custody. On July 8, the court assigned a public defender to represent him.
¶ 3. While being transported from his home to the sheriffs office on the day of the incident, defendant voluntarily stated that his wife wanted him arrested so that she could have a sexual affair with A.M., a fifteen-year-old female who resided with them. Once at the sheriffs office, defendant wrote an affidavit describing the events surrounding the altercation for which he had been arrested. Defendant noted in the affidavit that his wifе was having a sexual relationship with A.M., and he further claimed that his wife and A.M. had threatened to have him “locked up” if he ever said anything about their relations.
¶ 4. A detective was assigned to investigate defendant’s allegations about his wife. On July 11, 2007, the detective interviewed defendant about this complaint at the Chittenden Correctional Center, where defendant was incarcerated based on his violation of probation. The detective spoke with defendant in the superintendent’s office, and defendant appeared happy to discuss
¶ 5. Following his interview with defendant, the detective met separately with both A.M. and defendant’s wife on July 16, 2007. A.M. confirmed that she had had sexual relations with defendant’s wife, but in her initial interview, she denied having relations with defendant. Defendant’s wife was charged with sexual assault, and A.M. was taken into the custody of the Department for Children and Families (DCF). The detective re-interviewed A.M. on August 1, 2007, and during this interview, A.M. stated that she had had sexual cоntact with defendant as well as with his wife.
¶ 6. Also on August 1, defendant called and left a message for the detective stating that he had more information concerning his wife. By this time, defendant had been released from prison and was residing with his mother. The detective arranged a meeting with defendant on August 2, 2007, near defendant’s mother’s house, and defendant was waiting for the detective when he arrived. The detective wore civilian clothes and was driving an unmarked police cruiser. Defendant voluntarily entered the detective’s vehicle, and the detective used a hidden recorder to document the interview.
¶ 7. The August 2 interviеw began with a discussion of the problems defendant was having with his wife. The detective then steered the conversation to a discussion of defendant’s complaint against his wife and introduced A.M.’s claim that she had had sexual relations with defendant. In the course of this discussion, defendant made admissions that he had participated in “threesomes” with his wife and A.M. and had once had sexual intercourse with A.M.
¶ 8. On August 6, 2007, defendant received a citation to appear in court in connection with his alleged sexual activity with A.M. The following day, the State filed an information charging defendant with two counts of sexual assault on a minоr under 13 V.S.A. § 3252(c).
¶ 9. Before the trial on the sexual assault charges, defendant submitted two motions to exclude evidence related to his interviews with the detective. Defendant first argued that his admissions to the detective on August 2 were inadmissible because they did not result from a valid waiver of Miranda rights. In his second motion, defendant claimed that all of the post-arrest questioning to which he was subjected violated his right to counsel. He further argued that the July 11 interview violated Miranda because he was not informed of his rights, and he claimed that the subsequent accusations by A.M. and his wife were “fruits” of the July 11 interrogation.
¶ 10. After hearings on April 15, 2008, and May 6, 2008, the trial сourt denied both defendant’s motions to exclude evidence. The court felt that defendant’s right to counsel had not been violated because it found that he had not been interviewed as a suspect in a matter for which counsel had been appointed, but rather, as a complainant in an unrelated matter. Furthermore, the court determined defendant’s
Miranda
rights had not been violated by the July 11 interview because defendant was not questioned as a suspect, but “as a complainant in a wholly separate matter,” and was, therefore, not in custody for
Miranda
purposes. The court similarly found no violation of
Miranda
during the August 2 interview because defendant
¶ 11. A motion to suppress evidence presents a mixed question of fact and law.
State v. Bauder,
¶ 12. On appeal, defendant first argues that the trial court erred in denying his motion to exclude the statements he made to law enforcement officers without a Miranda waiver. Defendant claims that he was wrongly subjected to interrogation while in custody without Miranda warnings or a waiver of those warnings, a violation that tаinted the subsequent confession which formed the basis of his sexual assault conviction. We will address the July 11 and August 2 interviews separately in assessing the merits of defendant’s Miranda argument.
¶ 13. In
Miranda,
the United States Supreme Court held that, before being subjected to custodial interrogation, criminal suspects must be advised of their rights to remain silent and to have an attorney present for questioning.
¶ 14. First, we consider whether a Miranda warning was required at the July 11 interview with defendant. The trial court found that on July 11 defendant was not being questioned as a suspect “but as a complainant in a wholly separate matter” and was therefore not “in custody” for Miranda purposes. Defendant argues that this finding was unsupported because the record shows the detective asked defendant about events related to his defense to the disorderly conduct charge and violation of probation for which he was in custody.
¶ 15. Although the court held that defendant was not in custody, its rationale fits better with a holding that there was no interrogation because defendant was giving a statemеnt as a complainant “in a wholly separate matter.” Thus, the court appears to have relied on the holding of
Rhode Island v. Innis,
¶ 16. It is clear that defendant introduced the subject of his wife’s sexual activity with A.M. as a defense to the violation of probation and the disorderly conduct charge made against him. He claimed that the “threatening behavior” for which he was charged, see 13 V.S.A. § 1026(1), was invented by his wife and
¶ 17. We turn next to the August 2 interview. We conclude that no
Miranda
violation occurred as a result of this interrogation. As discussed above,
Miranda
warnings are required only after a person is taken into “custody” or his freedom has otherwise been significantly limited.
Oregon v. Elstad,
¶ 18. Having found a Miranda violation in the July interview, we must address the remedy. Defendant argues that the proper remedy is to suppress all statements he made at or after the July interview, including the admissions to his sexual activity with A.M. Defendant claims that his statements in the July 11 interview led in an “unbroken line” to his confession and his conviction for sexual assault. He argues that the admissions wеre the “fruit of the poisonous tree.” The trial court did not reach this argument because it did not find an initial Miranda violation. Defendant urges us to suppress the admissions or remand the case to the trial court for a “fruit of the poisonous tree” analysis. We conclude that defendant’s subsequent confession was not “fruit” of the July 11 Miranda violation and that a remand on this point is unnecessary.
¶ 19. The “fruit of the poisonous tree” doctrine is derived from
Wong Sun v. United States,
Article 10 of the Vermont Constitution prohibits compelling a person “to giveevidence against oneself.” . . . [T]he Article 10 privilege against self-incrimination and that contained in the Fifth Amendment are synonymous. Consistent with this view, we have held that evidence gathered in violation of the prophylactic rules established in Miranda is also a violation of Article 10.
¶ 20. The
Wong Sun
doctrine has an exception for evidence that “has been discoverеd by means wholly independent of any constitutional violation.”
Nix v. Williams,
We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.
¶21. Conducting a “fruit of the poisonous tree analysis,” defеndant argues that the August 2 interview and confession “flowed precisely” from statements that he made in the July 11 interview and should have been suppressed. We disagree. The above passage from
Wong Sun
indicates the “but for” analysis that defendant would have us conduct is not conclusive.
Wong Sun
requires a more careful analysis to ensure that we are not excluding more evidence than is necessary to enforce the deterrent purpose of the exclusionary rule. See 3 W. LaFave, et al., Criminal Procedure § 9.3(b), at 420-21 (3d ed. 2007);
State v. Phillips,
¶ 22. In reaching our conclusion, we first note the numerous steps in defendant’s “but for” analysis. It starts with the viеw that if defendant had exercised his Miranda rights and refused to speak, the detective would not have interviewed defendant’s wife and A.M. with respect to their sexual conduct. Then, we must find that if A.M. had not been interviewed the first time, the second interview in which she accused defendant would not have taken place. Finally, we must hold that if A.M. had not accused defendant, he would not have confessed when the detective met him on August 2. We have strong doubts that the many steps could ever show that defendant’s August 2 confession would not have occurred but for the July 11 interview. In any event, the analysis fails the requirements of Wong Sun fruit of the poisonous tree in two respects.
¶ 23. First,
Wong Sun
does not require exclusion if the evidence is from a source “sufficiently distinguishable to be purged of the primary taint.”
¶24. Second,
Wong Sun
does not require exclusion if the causal connection has “become so attenuated as to dissipate the taint.”
¶25. For a number of reasons, we conclude that the holding in
Smith
applies to this case. Here, the time interval between the tainted statement and the confession is
¶ 26. Defendant relies heavily on
State v. Badger
in arguing that there was a close enough connection here.
¶27. In addressing these factors in
Badger,
this Court determined that the second confession was “unquestionably a product of the initial confession,” because the interrogation that resulted in the second confession “focused completely upon correcting inaccuracies in the first confession.”
Id.
at 440,
¶ 28. We conclude that the facts of
Badger
are so different that the decision is unhelpful to defendant in this case. None of the factors we rely upon above to hold that the connection between defendant’s first interview and his second was too attenuated for defendant to prevail were present in
Badger.
As we noted in
Badger,
the first confession there was induced by a “blatant abuse” of
Miranda. Id.
at 441,
¶ 29. Defendant’s next argument is that the trial court erred in concluding that defendant’s Sixth Amendment
3
right
¶ 30. A right to counsel exists under the Sixth Amendment, commencing when the State formally initiates adversarial proceedings against a defendant.
Brewer v. Williams,
¶ 31. As we discussed abovе, however, defendant must establish that the August 2 confession was the fruit of the poisonous tree of the July 11 Sixth Amendment violation. See
Nix,
¶ 32. We now turn to defendant’s Sixth Amendment right to counsel at the August 2 interview. Defendant argues that his right to counsel was violated on August 2 because the detective deliberately elicited incriminating information from him without making counsel available. See
Brewer,
¶ 33. The critical precedent is
Texas v. Cobb.
In
Cobb,
the United States Supreme Court considered a situation in which the defendant had been indicted for burglary and was later interviewed without counsel about the disappearance of a mother and child that occurred at the same time as the
¶ 34. Deciding this case solely under federal law, Cobb represents a complete answer to defendant’s argument because the evidence he wants to suppress — his confession to sexual assault — relates to a crime for whiсh he had not yet been charged and for which he had no Sixth Amendment right. Thus, even if defendant was questioned in the August interview about his alleged disorderly conduct and his allegation that his wife and A.M. complained against him so they could engage in sexual activity unhindered by him, that violation of the Sixth Amendment provides him no help in his claim that his confession to a different crime must be suppressed. This is necessarily the holding under Cobb because the crimes in that case arose from the same facts, and a confession to one crime necessarily involved a confession to the other. The reasoning is explained exactly in Thompson v. State:
Thus, if the right to counsel has attached as to a charged offense, and the police interrogate the defendant in the absence of his counsel about matters that the police knew or should have known might elicit incriminating evidence pertaining to the pending charges, the Sixth Amendment right to counsel has been violated and such evidence is “inadmissible at the trial of those charges.” But if, during that same interrogation, the police elicit incriminating evidence pertaining to criminal conduct that is not yet the subject of a formal charge, the Sixth Amendment right to counsel has not yet attached as to that offense, and therefore any such evidence is admissible against the defendant at the trial on the then-uncharged offense.
¶ 35. There is no question that disorderly conduct and sexual assault are separate offenses. Thus, defendant’s Sixth Amendment right did not prevent the detective from questioning him about the alleged sexual assault before charging him with that offense. Whatever may have
¶ 36. Defendant’s final argument is that the habitual offender statute he was convicted under should not be interpreted to allow the State to rely on a conviction for an offense that has been subsequently decriminalized. The trial court found defendant guilty of being a habitual offender in violation of 13 V.S.A. § 11 based on the finding that defendant had been convicted of three felonies before the earliest possible date of the offense in the current case. One of the felonies the court included in determining defendant’s guilt under the habitual offender statute was a conviction in 1989 for sexual assault in violation of 13 V.S.A. § 3252(3). Defendant claims this conviction resulted when defendant, then under age nineteen, had consensual sex with his then-fifteen-year-old girlfriend. Defendant argues that because, under the current version of 13 V.S.A. § 3252, consensual sex between an eighteen-year-old and a fifteen-year-old is not a crime, it was error for the trial court to rely upon this conviction to sentence him as a habitual offеnder. Defendant claims the change in 13 V.S.A. § 3252 “essentially removed the crime from the body of felonies” and that, under the rule of lenity and 1 V.S.A. § 214(c), this Court should decide the habitual offender issue in defendant’s favor. We disagree with defendant’s arguments.
¶ 37. Both defendant and the State rely on Vermont’s “saving clause” statute, 1 V.S.A. § 214(c), to make their habitual offender arguments. See
State v. Matthews,
¶ 38. There are two reasons for our conclusion. The first is that § 214(c) operates as defendant suggests only if the sentence is not imposed “prior to the date of the amendment.” The sentence at issue here was imposed prior to the date of the amendment. See 2005, No. 192 (Adj. Sess.), § 10 (amending 13 V.S.A. § 3252). The second reason comes from the holding in
Matthews,
a case in which the defendant was charged under a statute that was repealed before the case came to trial. There, we specifically stated that “[u]nder a saving clause or statute the statutory rights and penalties are determined by the statute in effect at the time of the occurrence of the facts and may be enforced after repeal if the underlying facts are proved.”
Affirmed.
Notes
Defendant was on probation under a sentence imposed by the Chittenden District Court. The violation of probation was filed in that county and is not before the Court.
“Child” is defined as “an individual under the age of majority.” 33 V.S.A. § 4912(1).
Before the trial court, defendant cited the right to counsel in Chapter I, Article 10 of the Vermont Constitution but speсifically relied only on federal eases. In this Court, defendant argued that the interviews violated “his right to counsel under the Sixth Amendment, Article 10 of the Vermont Constitution and the public defender act, 13 V.S.A. § 5237.” The cite to § 5237 was apparently to point out that
defendant never made a waiver of counsel that complied with the statute. Although there was a reference to the Vermont Constitution, there was no assertion that Article 10 would produce a different result from the Sixth Amendment, and defendant relied exclusively on Sixth Amendment cases. Under these circumstances, we do not analyze the unsupported claim under Article 10. See
State v. Forty,