Lead Opinion
Defendant Gordon Hunt was charged with first degree murder in Barre City on April 19, 1982. He was subsequently convicted of the charge following a jury trial in Lamoille Superior Court. He appeals his conviction to this Court. We affirm.
In the late afternoon of the day of the murder, Peter Sophos was found shot to death in his first-floor apartment in Barre. The police were called at approximately 4:30 p.m., and various policemen, investigators and personnel from the state’s attorney’s office began interviewing people at the scene in order to identify them and determine what happened.
The defendant, who was 19 years old, lived with his father in a second-floor apartment, directly above the victim. From an initial conversation with the police it became apparent that he had been home during the period in which the police believed Sophos had been killed, but he denied hearing or seeing anything unusual.
Around 5:30 p.m. a police officer began to investigate the second-floor hallway for evidence. He noticed a broken padlock casing on the attic door. Believing that the lock might have been broken that day in connection with the murder, the officer climbed the stairs to inspect the third-floor area. The attic was dimly lit so he went back downstairs to obtain a flashlight.
During this initial search of the attic defendant followed the police officer and informed him that the attic was “private property,” and he “shouldn’t go up there.” When the officer returned with the flashlight, and a second police officer to help search thе attic, defendant again attempted to accompany them; however, the officers told him firmly to remain downstairs.
At about 6:00 p.m. the officers discovered a rifle behind a cabinet in a space large enough to hide a person. They did not touch the rifle, but one of them stayed with it while the other went
Meanwhile, defendant returned to his apartment. He put on his jacket and opened the window in order to jump to a roof five feet below and flee. Before he could accomplish this, however, a police officer knocked on his door, and seeing him in his jacket, with the window open, asked where he was going. Defendant responded that he was going to the store, and the officer asked if he would “stick around” for a little while. He agreed to do so.
Ten minutes later, three officers knocked on defendant’s door and asked if he would mind going down to the station so he could be asked some “routine questions.” He agreed to go. At this point, defendant was one of two suspects. Although the police intended to obtain statements from a number of people they had spoken to at the apartment building, defendant was the first person asked to go to the station because of “his unnatural curiousity at the crime scene . . . [and] his presence in the building at the time of the murder.”
At the station, defendant was taken into an office and read his Miranda rights, which he waived. Before waiving his rights, he asked if he was under arrest, and was told he was not. He was thеn questioned a short time about his knowledge of the victim and the murder, and asked to give a fingerprint sample; he did so. One of the three officers then asked how he could have been in his apartment at the time of the murder, not sleeping or watching television, and not have heard a gunshot. Defendant requested to be left alone with this officer and, before the officer said a word, he confessed to the killing.
After the initial confession, defendant gave taped statements to the police: a more detailed and lengthy explanation of what had occurred, that he had voluntarily accompanied the officers to the police station with the understanding that he was free to leave, and that he was freely making the statements. After the initial confession, he requested to see his father, and was told he could do so at a later time.
During the taped interview, defendant provided the officers with other evidence, including the spent cartridge case which he had thrown out at the station. He also took a breath test which showed that he had no alcohol in his blood, and he submitted to a polygraph test. Finally, he dictated a second statement to the police officers, which was signed by him and notarized.
Defendant makes the following claims of error on appeal:
I. The Vermont Supreme Court acted without jurisdiction, and in violation of defendant’s due process rights, when it ordered the venue of the case changed;
II. The Chittenden County assistant judges acted improperly when they rejected the plea agreement;
III. The Lamoille County assistant judges should have been disqualified from participation in the case;
IV. Defendant’s Fourth and Fourteenth Amendment rights under the United States Constitution, and Article Eleven rights under the Vеrmont Constitution, were violated by a warrantless search and seizure done without probable cause or exigent circumstances;
V. Defendant’s confession was improperly admitted into evidence;
VI. The State improperly impeached defendant with evidence that defendant failed to make exculpatory claims at the time of his confession;
VII. The trial court allowed impermissible character evidence.
I.
A complicated string of events led to defendant’s first claim of error. When the original plea agreement was rejected by the Chit
Defendant argues that the Lamoille Superior Court was without jurisdiction to hear the case because the Supreme Court lacked authority to order a change of venue to the Lamoille court. The question is a novel one. It requires us to determine whether the supervisory authority of the Supreme Court encompasses directing a change of venue to prevent a failure of justice. There is, of course, clear statutory authority in the judicial branch to accomplish a change of venue. V.R.Cr.P. 21; 13 V.S.A. § 4631. Ordinarily, the exercise of that power rests with the superior court as expressly provided by law. See State v. Truman,
Such a situation is both extraordinary and unusual, but was true in this case. Under these circumstances, the inherent power and constitutional command to provide a judicial environment free from the taint of allegations of impropriety is so basic a responsibility of the judiciary that, rather than have the proceedings go forward under circumstances already compromised, the authority of the Supreme Court had to be, and properly was, exercised to bring the case back into a trial alignment consistent with the responsibilities of the judiciary to provide a fair, unbiased and judicious tribunal. See Vermont Constitution Ch. II, § 30; 4 V.S.A. § 2(b). The exercise of judicial authority was unusual, called forth by unusual, indeed, hopefully unique, circumstances. The prosecution of defendant needed to go forward in a setting where his guilt or innocence could be determined by a court free from all contact with past disputes among the attorneys and judges. This was accomplished by removal to Lamoille County and by the assignment of Judge Bryan, who was completely untainted by the unusual series of events which had taken place in this case prior to that time. Although in hindsight it might have been preferable for this Court to have dealt with this situation in another way, this Court’s order was reasonable, not draconian, and consistent with the high purposes of the judicial system. Cf. State v. Fields,
Defendant also argues that the Supreme Court order changing venue, rendered without notice to defendant, violated his constitutional right to due process of law. It is a general rule that error will not require reversal unless it is prejudicial to the defendant, depriving him of a fair trial. See State v. Hohman,
Defendant argues that he was harmed by the venue change in a number of ways, including: (1) the change to Lamoille County resulted in a less urbanized and less educated jury pool; (2) Judge Morse, the Chittenden presiding judge, was preferable since he was familiar with the facts and legal issues involved; (3) Judge Morse had also previously found crucial evidence to be admissible only by a narrow margin so that, if the objection was raised again, he might rule in defendant’s favor; and (4) because the Chittenden presiding judge had earlier indicated approval of the plea agreement’s minimum sentence of ten years, he was predisposed to give defendant a minimum sentence of ten years or approve a new plea agreement if one were reached. These concerns are highly speculative at best, and we cannot agree that they demonstrate undue prejudice to defendant in this case.
It is significant that defendant does not claim that the change in venue deprived him of a fair trial. Rather, defendant argues that the venue change was detrimental to his defense strategy as indicated above. This will not, alone, establish prejudice sufficient to require reversal, as defendant failed to show that his “ ‘right to a complete, fair and adequate trial [was] jeopardized.’ ” State v. Ahearn,
Defendant has failed to demonstrate prejudice resulting from the change of venue; therefore, even if there was error, it was harmless and reversal on this issue is not required. See State v. Hamlin,
II.
In his second claim on appeal, defendant questions the propriety of the Chittenden County assistant judges’ rejection of the plea agreement. Insofar as this Court considered this same issue previоusly in State v. Hunt,
It is a well established rule
that a decision in a case by a court of last resort is the law of the case on the points presented throughout all subsequent proceedings therein, and no question then necessarily involved and decided will be reconsidered by the Court in the same case on a state of facts not different in legal effect.
Barclay v. Wetmore & Morse Granite Co.,
We note that this challenge includes claims with regard to the propriety of the rejection of the plea agreement not made during defendant’s interlocutory appeal. This Court has a “ ‘well-established policy of avoiding piecemeal appeals.’ ” In re Pyramid Co.,
III.
Defendant next argues that the Lamoille County assistant judges should have been disqualified from participation in the case because they failed to repudiate alleged ethical misconduct undertaken on their behalf. Defendant alleges that the president of the AJA acted improperly by communicating with the Attorney General with regard to thе association’s interest in State v. Hunt,
The Code of Judicial Conduct, A.0.10, Canon 3(C)(1), provides that a “judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned . . . .” Such disqualification is required “whenever a doubt of impartiality would exist in the mind of a reasonable, disinterested observer.” Richard v. Richard,
The AJA is an informal professional and political organization, originally formed for educational purposes. All assistant judges of the state automatically qualify for membership, and attendance at meetings appears to be optional. It would be illogical to hold that the Lamoille assistant judges should have been disqualified simply because the president of their association, without their knowledge or approval, acted in an allegedly unethical manner with respect to the case.
On appeal in this context, this Court will only review the actions of the trial court for an abuse of discretion. Id. at 287,
IV.
Defendant next argues that the police search of the attic and seizure of the murder weapon violated his rights under the Vermont and United States Constitutions. Defendant contends (1) that he had a legitimate expectation of privacy in the attic, (2) that no exigent circumstances existed to justify the warrаntless search, (3) that the warrantless seizure of the rifle was not lawful, and (.4) that the rifle and defendant’s confessions should have been suppressed as the direct products of the illegal search.
In support of these contentions, defendant cites our recent decision in State v. Wood,
In this case, the confession was not a fruit of the search of the attic. On the evidence presented there is no indication that the search or discovery of the gun produced defendant’s confession. Although defendant was asked by the police for his fingerprints in order to determine if they matched those they expected to find on the gun, his initial confession was given only after a police officer questioned the veracity of defendant’s explanation that he was in his apartment at the time of the murder but did not hear anything. The officer asked him how he could “be in [his] apartment at 1:00, awake, not watching TV and not háve heard a gun shot?” We cannot say that but for the illegal search and seizure of the gun, defendant would not have confessed to the murder. See Segura v. United States,
Since the gun was a direct fruit of the search, its admission into еvidence may have been improper should the search be
V.
Defendant next argues that his confessions should have been suppressed because: (1) they were the fruit оf an illegal seizure of defendant; (2) his consent to accompany the police officers to the police station was involuntary; and (3) his confessions were in violation of his right to silence and right to counsel; and (4) the trial court used a legally errroneous standard of proof to determine that his confession was voluntary and not in derogation of his rights to counsel and privilege against self-incrimination.
A.
First, defendant claims that he was illegally seized when, lacking probable cause to arrest him, the police asked him to accompany them to the police station, without also informing him that he had no duty to go. Defendant concedes in his brief, however, that under the federal constitution it is clear that the failure to inform a defendant that he or she could withhold cоnsent to accompany the police is not sufficient to establish the existence of illegal coercion. See United States v. Watson,
Defendant has fully addressed in his brief how his rights under the Vermont Constitution might differ from those given him under the United States Constitution; however, he failed to do so in his motions and memoranda at trial. Although defendant cited Article Eleven in the introductory paragraph of his pretrial and trial court memoranda, the memoranda failed to discuss the Vermont Constitution in any respect. Understandably, the trial court’s ruling on the motion to suppress did not address defendant’s state constitutional issue.
We have repeatedly held that “it is the duty of the advocate to raise state constitutional issues, where appropriate, at the trial level . . . .” State v. Jewett,
Therefore, we follow our decision in State v. Maguire,
B.
Defendant next contends that, given the totality of the circumstances, his consent to accompany the police to the station
In this case, two police officers with a third nearby, in a manner neither threatening nor compelling, asked defendant if he would mind going to the police station to answer some questions. Defendant asked why they wanted him to go with them, and one of the officers answered “we’d like to ask you some routine questions.” Defendant then responded that he did not mind accompanying them. Defendant went to the station in a police cruiser but without being handcuffed, and there is no evidence that the police touched him in any way; once inside the station, defendant was read his Miranda rights and he asked if he was under arrest. The police informed him that he was not under arrest. Defendant waived his Miranda rights and sometime thereafter confessed to the murder.
On the facts of this case we conclude that no seizure of defendant occurred when he voluntarily accompanied the police to the station for questioning. Defendant was not seized simply by the fact that the officers asked him to join them for questioning. See Immigration & Naturalization Service v. Delgato,
C.
Defendant next argues that requests he made to see his father constituted an assertion of his rights to decline questioning and to counsel, and that confessions obtained as a result of the continued questioning should have been suppressed. The trial court found that on a number of occasions after his initial confession defendant requested to see his father. He was told he could see him at a later time, which was in fact subsequently arranged while he was in the station detention cell.
The trial court also found that the defendant knowingly and intelligently waived his Miranda rights. We cаnnot find, as defendant would have us do, that defendant’s request to see his father was an assertion of his rights to remain silent or to an attorney.
Defendant’s request to speak with his father was not a per se request to remain silent. There is nothing inherent in the request for a parent by the nearly 19 year-old defendant that requires us to find that it constitutes an expression of his right to remain silent. See Fare v. Michael C.,
We also find that defendant’s request to see his father was not an invocation of his right to an attorney. In Miranda v. Arizona,
The rule enunciated in Miranda
was basеd on [the United States Supreme] Court’s perception that the lawyer occupies a critical position in our legal system because of his unique ability to protect the Fifth Amendment rights of a client undergoing custodial interrogation. Because of this special ability of the lawyer to help the client preserve his Fifth Amendment rights once the client becomes enmeshed in the adversary process, the Court found that “the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system” established by the Court.
Fare v. Michael C.,
A parent who is not a lawyer and who is not trained in the law “is not in a position to offer the type of legal assistance necessary to protect the Fifth Amendment rights of an accused undergoing custodial interrogation . . . .” Id. at 722. We “cannot transmute the relationship between [the parent and an adult child] into the
D.
Defendant next argues that the trial court erred by employing an inappropriate standard of proof at the pretrial suppression hearing. The trial court used a “preponderance of the evidence” standard to determine the admissibility of defendant’s confession. We note that defendant raises this issue for the first time on appeal. Nowhere in the proceeding below did defendant challenge the standard employed to determine whether there was a valid waiver of his right to counsel. This Court has repeatedly held that, “[w]here alleged error is not raised before the trial court, this Court will not ordinarily address it unless the circumstances indicate a plain error has occurred.” State v. Paquette,
VI.
We consider next defendant’s claim that his due process rights were violated by the cross-examination of Dr. Woodruff’s testimony concerning a “trance state” defendant said he was in at the time of the shooting. He argues further that the State improperly impeached the defense witness with evidence that defendant failed to give an exculpatory explanation during his confession. In addition, he urges us to find that in his closing statement to the jury the prosecutor argued improperly that the only evidence of the trance was defendant’s statements to the
Defendant relies principally upon Doyle v. Ohio, 426 U.S. 610 (1976), and Wainwright v. Greenfield,
In this case, defendant did not eventually invoke his right to remain silent, but he chose to speak to the police and confess to the killing. Thus, the prosecutor did not penalize defendant for exercising his Fifth Amendment rights; he never asserted those rights. “Once a defendant decides to speak, [his] failure to speak in exculpation cannot be explained away as a responce to Miranda warnings.” State v. Kane,
A defendant cannot have it both ways. If he talks, what he says or omits is to be judged on its merits or demerits, and not on some artificial standard that only the part that helps him can be later referred to. This was not a case where the government commented upon ... a prior exercise of rights.*501 The government asked the jury to mеasure what the defendant said when he had no rights because he had voluntarily waived them.
Vitali v. United States,
We find that the prosecutor’s comments were proper attacks on the credibility of defendant’s assertion to the psychiatrist that he was in a trance at the time of the killing, and were not impermissible comments on post-arrest silence. See State v. Squires,
VII.
Defendant’s final argument is that the trial court allowed inadmissible character evidence when it permitted the State to contest the issue of insanity with evidence of prior bad acts. The prosecution, on rebuttal, introduced evidence that defendant committed various unrelated crimes and engaged in. other bad acts in order to disprove defendant’s claim of insanity by establishing that he had an “antisocial personality disorder.”
It is well established in Vermont that “[i]n matters of trial conduct and evidentiary rulings the trial court has wide discretion.” State v. Richards,
In State v. Smith,
In this case, defendant claimed he was suffering from a borderline personality which prevented him from being able to form the necessary intent for the crime charged. By doing so, defendant оpened the door to a broad inquiry into his mental condition. Accordingly, the prosecution countered defendant’s claim with expert testimony that he was suffering from a mental condition known as “antisocial personality disorder.” In explaining how he
Affirmed.
Notes
We note that the doctrine of harmless error does not apply when the error is jurisdictional. Soucy v. Soucy Motors, Inc.,
We recognize that a defendant may have an interest to be tried in the locality where the offense occurred; however, by moving for a change of venue from Washington County to Chittenden County, defendant waived this right. See Commonwealth v. Aldoupolis,
In construing Chapter I, Article Eleven of the Vermont Constitution we rely on Fourth Amendment precedents merely for guidance, but we do not consider ourselves bound by those decisions. See Michigan v. Long,
Defendant argues that the United States Supreme Court opinion Dunaway v. New York,
Dissenting Opinion
Specially Assigned, dissenting. Under the circumstances of this case, the Supreme Court acted without jurisdiction when it ordered a change of venue from Chittenden to Lamoille County. As a result the Lamoille Superior Court lacked the power to hear the matter of State v. Hunt. For this reason, I respectfully dissent.
In considering the defendant’s first claim of error, that the Vermont Supreme Court acted without jurisdiction, the majority opinion frames the question as being “whether the supervisory authority of the Supreme Court encompasses directing a change of venue to prevent a failure of justice.” This is not the issue. The question presented is whether the Supreme Court, under the auspices of its superintending powers, may, on its own motion, assume jurisdiction over a matter not pending before it without providing notice and an opportunity to be heard to the litigants. Before addressing the issue of the Supreme Court’s power to change venue in this matter, it must first be determined whether the Vermont Supreme Court had the power to even consider the case of State v. Hunt, Chittenden Superior Court Docket No. S-1-83CnCr.
I agree with the majority that the Supreme Court has superintending powers. What I cannot agree with is the exercise of these powers under the circumstances presented in this case. The fact that the Supreme Court has superintending control over inferior courts does not by itself mean that they have original jurisdiction over matters pending in those courts. The doors of supervisory jurisdiction open only when certain conditions are met. The law annotations and cases on the subject fail to reveal a single сase where a higher tribunal exercised its supervisory powers on its own motion. See Annotation, Superintending Control Over Inferior Tribunals,
I, in dissent, believe that the Vermont Supreme Court did not have the power to consider the case and, therefore, acted without jurisdiction when it ordered a change of venue from Chittenden to Lamoille County. Since an order of a court without jurisdiction is void as lacking any basis in law, Soucy v. Soucy Motors, Inc.,
The majority opinion holds that the Supreme Court’s failure to afford the defendant due process when it ordered a change of venue may have been a violation of his constitutional rights, but that it was harmless error. Since the error was not in changing venue, but rather was in exercising jurisdiction in the first instance, the doctrine of harmless error does not apply. See Soucy,
For the reasons stated herein, I would reverse and remand the case for trial before the Chittenden Superior Court.