*1
¶ Dooley, of whether defend- presents This case the issue J. any point during police custody D. Muntean was ant William incriminating he made various during interview which a was in trial court concluded defendant statements. The that, interview and because custody during the entire during or at warnings point before had not received Miranda interview, suppressed. incriminating the statements must be the trial court’s interlocutory contesting appeal filed an The State affirm. granted appeal decision. We charged aggravated 2. Defendant is with two counts of sexual 3253(a)(9). § pursuant During assault to 13 the course of V.S.A. discovery, suppress defendant filed a motion to statements that he during January police. made a 2009 interview with the state alleged Defendant the interview was custodial and that the detective failed to administer interrogating warnings obtaining incriminating holding before statements. After hearing, the trial court found the facts. following 3. In an opened December the Vermont State Police investigation allegations sexually defendant had abused his daughters they recently when were children and that he had more sexually grandsons. investigating molested his two detective daughters, interviewed both defendant’s adult who disclosed to him that sexually they defendant had abused them when were children, grandsons, and his minor who stated that defendant had engaged against January recent acts of sexual abuse them. On 2, 2008, the telephoned detective defendant and told him that he like to him speak would with at the Rutland state barracks on the following day. The detective did not mention to defendant interview, what he wanted to talk agreed about. Defendant to the which was at a time that arranged accommodated defendant’s schedule.
¶4. The day, next defendant arrived at the for barracks parked interview. Police cruisers were in the rear of the building, but visible to defendant as he drove into the lot. parking barracks’ Upon arriving, he entered the lobby through public entrance and waited there for the detective. The detective entered the lobby and invited defendant him accompany part to a of the barracks that has controlled agreed, access. Defendant and the detective him escorted into the secured of the part building. The plain detective wore clothes and a on badge his belt and did not a gun have on his person.
¶ 5. The hallway detective escorted defendant down a approxi- mately room, small, forty fifty length feet to the polygraph windowless room located off the main hallway. When entered room, polygraph detective instructed defendant to sit *4 if polygraph chair and asked he would mind if the detective object. closed door. Defendant did not The detective closed the door, left, which was located to his behind defendant and and then sat across small table from him. The detective did not block defendant’s access to the door. the detective told questions, asking preliminary 6. After a few and that daughters to spoken that he had defendant’s
defendant if he had an He asked defendant had been made. allegation an that he Defendant indicated allegation. nature of the idea of the tell the detective what did, if he could but when asked stated, “I was, then said “no.” Defendant allegation defendant re- you.” I can’t tell The detective lawyer co-sign. to need a However, the you.” I it’s to “Okay. up That’s fine. mean sponded, did not the interview. stop detective allegations to disclose the 7. Defendant asked the detective told him that made him. The detective against that had been and that he wanted to obtain inappropriate touching involved this, stated, story. hearing of the Upon defendant’s side — understand, know, “Yeah, me, I mean I watch TV you excuse I lawyer.” to without a you’re supposed say anything not [choice],” that defendant your “It’s and said responded, detective charges pending against and that no were was not under arrest for confirmation that he was him. defendant asked When “No, no, I arrest, you came here. replied, under the detective on own free will.” Defendant you your asked to come. You’re here that he understood. indicated recently that he 8. The detective then told defendant had Defendant ac- grandsons
interviewed defendant’s minor as well. grandchildren an awareness of the interview with his knowledged with them. The detective anything happened but denied that had then said: mean,
Bill, I I I know it’s true and boys. talked to the I I things happen understand understand certain I are in life people, things to understand that there And I’m not you Okay? that sometimes can’t control. just you through I’m that. trying judge. trying help mean, later, stated, “But, I A time the detective this is what short now, have right allegations have in front of us and the right made, denied you’ve again and I mean done it.” Defendant been grandsons, his to which the having engaged improper acts with replied: detective mean,
No, got I I I’ve four different you but know did. you. your I I can see the look people, plus can see now, everything you’re thinking right I can face. see *5 did, I you know that okay? question The is how I help do that, you past you know?
¶ 9. At this point, the detective confronted defendant with more details concerning allegations that he had inappropriately touched his daughters and asked defendant to admit responsibility. Instead of admitting any to inappropriate activity, defendant replied: “You haven’t given myme rights yet. Do I need rights me, now? is said against you What know?” The detective con- firmed, “everything you say we’re going to be using, yes.” Defendant responded, you “aren’t supposed to tell me first?” The detective answered:
You’re not under arrest .... We’re trying to do an interview here. You’re going home today, okay? That’s certain, all right. What happens after that that’s not is, for certain. But question you do try just to shoot court, for it with the or you try do to explain yourself. ¶ 10. Shortly statement, after this there was a disruption in the hallway, prompting the detective to briefly step outside the polygraph room to quiet the noise. When the reentered, detective defendant proclaimed, said, I “Like I don’t know what I should tell you without lawyer.” The explained detective to defendant that, “that’s up you,” to and that the detective could not advise him as to what he should say without a lawyer. Defendant then directly asked if he needed a lawyer. The again him, detective told “I can’t advise you yes or no. I’m not say. allowed to You’re here your volition, on fine, own which is and I appreciate you coming in. You’ve already admitted to some things you did.” Before time, this defendant had admitted that he had “touched” his daughters, but not to any specific acts. He steadfastly denied inappropriate conduct grandchildren with his and claimed he felt judged by the detective.
¶ 11. continued, The interview and defendant admitted to certain specific acts of inappropriate conduct with his daughters, but denied others. The “Gee, detective responded, that’s not com- pletely true either.” The detective then shifted back to the allegations made by grandchildren. defendant’s When confronted with additional evidence provided by his grandchildren, defendant again mentioned an attorney, “I stating, guess I don’t need lawyer,” and adding that he did not have the money for one. mean, detective replied, “I that’s all up you.” to In response to an court, the detective told counsel if he went having about inquiry defendant, you.” can that for provide “The State regard- defendant’s statements proceeded, 12. As the interview remained consis- daughters his conduct with his scope ing touching his tent, deny inappropriately ever and he continued asserted, “I you know did again the detective grandsons. When stated, ‘You your grandsons],” touch [inappropriately Just, you’re my I not on you got hope I I know me. know did. him. judging that the detective was and reasserted his belief jury” ‘Yeah, well, boys.” I talked to the because agreed, The detective defendant, the and further denial pressing, After even further *6 face, I can added, your “I the look in and see detective can see this, face, shame, I know it’s in or the or all guilt your the boys.” hard to talk about the
¶ conclusion, detective cited defendant At the interview’s the of sexual assault on charges aggravated to in court to face appear citation, to the defendant submitted the receiving a minor. After He then left the barracks. taking fingerprints photographs. of course of during 14. The detective did not raise his voice the Furthermore, for the except the interview. he remained seated he went to the door to address the distur- brief interval when and, interview, period end of the a of hallway bance a availability the room to check on the time when he left to take. willingness test that defendant had indicated polygraph At was left alone the room. no During period, this or the interview did the detective advise during time before defendant of his Miranda Similarly, during at no time rights. that he free to interview did the detective inform defendant during he wished. And at no time the interview leave whenever interview, room, or request did defendant to cease the leave total, In the interview lasted for any person. to contact other hour. approximately one motion to granted suppress, 15. The trial court defendant’s indicated that
concluding totality of the circumstances there- custody during the interview and defendant was administer warnings ren- fore the detective’s failure to In particular, defendant made. dered inadmissible the statements to tell on the fact that the detective failed the trial court focused the interview or leave at defendant that he was free to terminate time, confronted with evi- immediately that defendant was crime, and that defend- he committed a serious suggesting dence ant was told the detective “knew” he had committed the factors, The court found that all of crimes. these when combined — small, physical setting with the the interview windowless polygraph room within a secured area barracks suggested that defendant was for the duration of interlocutory the interview. The State filed an appeal this Court.
¶ 16. The State contends that
the interview at the state
custodial,
barracks
very
was not
or that at the
least only
part
custodial,
of the interview was
and that
the trial court
therefore improperly suppressed all of defendant’s statements
from the interview. As the State’s argument
premised
is
on
Arizona,
Miranda v.
(1966),
58 Miranda, has Supreme the United States Court 18. Since a is in determining suspect for when
provided guidance
“inherently
is
custody. Interrogation
certain custodial situations
(1989)
195,
coercive,”
202
Eagan,
(quotation
Duckworth v.
492 U.S.
omitted),
by
are created
either formal
and custodial situations
Oregon
other similar restraint on freedom to move.
arrest or some
(1977)
curiam);
Mathiason,
492,
v.
(per
v.
429
494-95
State
U.S.
52,
LeClaire,
4, 16,
A.2d 719. In determin
2003
175 Vt.
819
VT
custody,
a
is in
a court must consider
ing
suspect
whether
“objective
interrogation,” Stansbury
circumstances of the
v.
Garbutt,
277,
318,
(1994);
California, 511
323
State v.
173 Vt.
U.S.
282,
444,
(2001),
they suggest
A.2d
and decide whether
a
790
448
of the
associated with
degree
“restraint on freedom of movement
(1983)
Beheler,
1121, 1125
a formal arrest.”
v.
463 U.S.
California
omitted);
Pontbriand,
20, 11,
v.
2005
178 Vt.
(quotation
State
VT
omitted).
120,
(quotation
inquiry
59
factors,
courts have considered additional
such as whether the
told the
suspect that he was free to terminate the interview
leave;
at
point
suspect
the extent
to which the
confronted with evidence of guilt;
degree
whether and to what
the
restrained;
suspect’s freedom of movement was
whether the police
deceptive
interview;
used
techniques
conducting
degree
the
suspect
world;
to which the
from
was isolated
the outside
interview;
armed;
duration of the
whether the
officers were
and the
of police
present
number
officers
during
interview.
See,
(9th
1073,
e.g.,
Craighead,
United States v.
539 F.3d
1084
Cir.
2008)
four
(considering
particular
factors relevant to that
case for
purpose
determining
custodial);
whether
interview was
(8th
2002)
Axsom,
496,
United States v.
289 F.3d
500
(listing
Cir.
six
nonexhaustive indicia of
custody); United States v.
(9th
Butler,
1094,
2001)
249 F.3d
1099
Cir.
(reciting various
objective circumstances
custody inquiry).
relevant to
There is no
exhaustive list of criteria that can
in making
be considered
determination,
particular
nor is there one
factor that must
Rather,
be considered in every case.
the court must assess the
totality
conclude,
of the relevant circumstances and
given those
circumstances, whether a
would have felt free
Keohane,
terminate the interview and
Thompson
leave. See
v.
(1995);
Willis,
516
112
U.S.
accord
¶ 20. Our review of the trial court’s custody determination is
First,
thus twofold.
we must review the trial
findings
court’s
fact as to the circumstances of the interview.
Thompson,
U.S.
112; Pontbriand,
at
2005 VT
12. We will
such
accept
findings
unless
are clearly
112;
erroneous.
throughout barracks, interview at the the trial court (1) primarily focused on the following findings uncontested of fact: point the detective at no told defendant that he was free to leave (2) time; at any defendant was immediately confronted with (3) crime; the detective indicated to of a serious guilt evidence of (4) guilt; that he was certain of defendant’s *9 small, room polygraph in windowless took a place interview The trial court part police in the secured of the barracks. located custody weighing against factors a considered a number of also arrived at determination, the fact that defendant importantly most acknowledged voluntarily, that the detective police barracks freedom voluntarily, there and that defendant’s that defendant was restricted, “directly” nor was he to move about the room was other or to leave the room. person denied access to contact erroneous, findings clearly that these are not conclude We ¶ 116, by Oney, them. 2009 VT thus we are bound See ¶ fact, the trial court’s of considering findings 22. After correctly that the court determined that defendant was conclude totality in for the duration of the interview. The of police custody in that a objective the relevant circumstances the case indicates liberty would not have felt at to terminate the reasonable and leave. interview First, setting supports of the interview a physical Alvarado, v. 541
finding
police custody.
Yarborough
of
See
U.S.
(2004)
652,
fact
that
at
(citing
665
defendant was interviewed
in
police
“weighting]
station as a circumstance
favor of
view
custody”);
in
v.
2009 MT
Lacey,
that
State
[defendant]
(fact
police
61 (noting importance physical place characteristics of where Evans, State v. determination); in making custody interview occurs (S.C. 2003) 407, 410 (affirming 582 S.E.2d trial court’s analysis partially relied on fact that interview was conducted station). back office of
¶24. Here, although
defendant arrived at the
bar
arrived,
voluntarily,
racks
once he
he was escorted to a secure
Rogers,
part
building by
of the
the detective. See
N.W.2d
(noting
that defendant was taken to secure area of
small,
room,
station for questioning). He was led to a
windowless
he
which
was told was a
room.” Defendant was
“polygraph
id.
polygraph
instructed to sit
chair.
fact
(emphasizing
See
that defendant was escorted to
room and sat
polygraph
examination chair for
than
questioned).
more
two hours while
door,
detective closed the
albeit with defendant’s permission,
physically
isolating
two of them from the rest of the station.
(Tenn. 2009)
See Dailey,
S.W.3d
(noting
*10
defendant’s “movements were restrained to the extent that he was
door,
in
placed
the back corner of a small room with one
[and]
closed”); Pontbriand,
20,
door was
2005
12 (distinguishing
VT
case from
in
previous
part
ground
case
on
that door was
cf.
open);
103, ¶33,
Bridges,
2003
ME
¶ 25. Compounding the coercive nature of the physical setting is the fact that the detective did not tell defendant that he 62 courts have he so desired. Numerous
was free to leave whenever determining whether a significant held that such disclosure terminate a liberty police have felt at to would Chee, See, 1114 v. 514 F.3d e.g., interview. United States 2008) (10th custody, part defendant not (finding Cir. leave); Burket v. 208 Angelone, told he was free to because he was (4th 2000) was told (emphasizing that defendant F.3d 197 Cir. time”); any at not under arrest and was “free leave he was 2009) (Fla. State, (noting that Rigterink v. So. 3d find that a reasonable likely court “is far less appellate if the have believed that he or she was would strictly him or her that the interview was specifically informed — voluntary continually and that he or she was and remained time”), any grounds by to leave at rev’d on other Florida v. free (2010) (mem.) (reversing 130 S. Ct. Rigterink,_U.S._, adequacy and case to state court based on remanding supreme told that he would warning). Although defendant was that to the “today” leave and was reminded he had come voluntarily, indicating such communications short of stop barracks instance, that time. For leaving defendant could leave “today” could mean that defendant would be released twelve Similarly, the fact that one to the station goes hours. voluntarily necessarily does not mean that he or she can also voluntarily, point leave for “at some the words and conduct of the interrogating may officers transform that which once was a noncustodial, ‘voluntary’ interrogation.” event into a custodial Rigterink, So. 3d at 244.
¶26.
Brunell,
foregoing
was
in State v.
point
emphasized
554 A.2d
a case in which the defendant
Vt.
station,
to the
told that he did not have to
go
invited
but
showed,
or in custody.
he was
under arrest
The facts
however,
went,
if
go
night,
the defendant
he had to
*11
subjected
once he reached
he
to a
police
lengthy
station
was
in
interrogation
being present.1
a small office without others
We
the trial court’s conclusion that under
those circum-
affirmed
stances a reasonable
would not feel free to refuse to
by
distinguish
emphasizing
support
1 The dissent seeks to
Brunell
the facts that
Post,
If,
ignoring
its conclusion and
the facts that do not.
as the dissent
states,
go
police
the facts were that the defendant was told that he “had to
to the
night,”
represents
application
a routine
of settled
But
station
Brunell
law. Id.
dissent,
emphasized
as Justice Peck
in
the facts were:
and, therefore,
submit
to questioning
the defendant was in
for Miranda purposes. Id. at
392,
to come to the
if
bring
but
did come he would
them
police
back home after the interview at the
station.”
police repeatedly
defendant,
parents’
assured
both at his
home
barracks,
presence,
any
and later at the
might
that his
answers he
give
response
questions,
purely
choose to
voluntary,
that he
wished,
could terminate the interview at
time he
and thereafter
home,
was,
would
regardless
be returned to his
inas
fact he
of his
admissions, and that he was not under arrest.
Brunell,
(Peck, J.,
150 Vt. at
dissenting) (quoting
that he was free to terminate the interview v. Oney, this case from State police custody 2009 another VT Oney, In recently by case decided this Court. the defendant voluntarily police officer to the station to be accompanied police recently interviewed about a series of fires that had been set — station, at the defendant without arriving the area. After received having warnings spoke with two setting officers an interview room and admitted to three fires. affirming In the trial court’s conclusion that the defendant was not statements, incriminating when he made these emphasized finding the trial court’s that “the officers very made it clear that free at any [the to leave defendant] omitted). Here, time.” Id. contrast, by 16 the detec- (quotations expressly tive never indicated that defendant was free to termi- nate the interview and at will. leave
¶28. The detective’s conduct toward defendant during
the interview also
a conclusion that
supports
defendant was
noted,
police custody. As the trial court
defendant was confronted
“almost immediately,
continuing
and
throughout
interrogation”
Butler,
guilt
with evidence of
of a serious crime. See
249 F.3d at
(listing
1099
“extent to which the
was confronted with
[defendant]
guilt”
evidence of
factors
among
indicating custody). Near the
interview,
start
the detective indicated that defendant’s
daughters
grandsons
had independently alleged that defend
ant had
A
sexually
abused them.
would not feel
at liberty
to terminate a
after being
interview
confronted
evidence,
with such
as a “reasonable person understands that the
police ordinarily will not set free a
when
suspect
there is evidence
strongly suggesting that the
is
of a
guilty
serious crime.”
Pitts,
v.
(Fla.
2006)
State
936 So. 2d
Dist.
App.
Ct.
omitted);
People Minjarez,
v.
(quotations
accord
81 P.3d
(Colo. 2003) (fact that interrogating officer confronted defendant
test).
him
against
custody totality
with evidence
is relevant to
In
Hohman, we observed that “where there is
it
probable cause
is
presumed
job
will do their
and arrest.” 136
at Vt.
474-75,
not be used in the future. Id. language
directed that
this
494 A.2d at
omitted).
(quotation
of Hohman has
language
nothing
This criticism of the
controlling
do with the distinction the
case drew
this case or with the
validity of the decision.
Here,
¶29. during The fact that the interview defendant was accused of committing serious crime and confronted with a. evidence of guilt relating his to a serious crime again distinguishes Oney. Oney, the officers represented to the this case from In defendant that the crimes under investigation were all misdemean ors, although defendant was ultimately charged with two misde meanors felony. and one emphasized We that for “misdemeanors officer, committed not in presence the of an typically the only issue a citation and Oney, 2009 suspect.” do not arrest ¶ Thus, VT 15. a person reasonable in the defendant’s situation in Oney expect would not to be arrested and detained by Here, the end of the interview. defendant was questioned about felonious conduct: the sexual abuse of his two minor grandsons and two of daughters his when they were Therefore, in Oney, children. unlike reasonable — defendant’s shoes after having been confronted with evidence guilt for a serious crime and told the detective that he was — convinced of guilt defendant’s not though would have felt as he remained free to leave. See Rigterink, So. 3d at 252 (concluding that liberty would not feel at to leave after murder). being confronted with evidence fingerprint relating to a where, here, This is particularly true as the defendant has him.3 against made allegations to at least some of confessed ¶ (“We once a acknowledge that Oney, See VT act, this fact is a serious criminal committing confesses to suspect However, severity of the crime in this evaluation. significant attribute to this factor.” weight to affects the confessed (citation omitted)). State, was not in arguing that defendant 30. The relies on interview,
custody during primarily Pontbriand, case, In enforcement that two law VT hospital he was bed officers interviewed the defendant while girlfriend’s daughter. on his alleged about an sexual assault of an email the defendant sent to copy officers had with them a inappropriate he admitted to an sexual girlfriend which knew what daughter. They with the said relationship not to arrest him. held that promise and could not We happened overwhelming evidence so actions did not . . . constitute “[t]hese would position that a reasonable person [the defendant’s or no free to end the conversation.” longer believe that he she was Pontbriand, 2005 VT 31. Pontbriand can from the instant case. distinguished be We Pontbriand, here,
would under the fact agree daughters that the detective believed the detective told defendant — not alone establish grandsons would *14 Here, however, factor to the custody. only pointing it is one objec- and the of the presence interrogation, totality of custodial that de- surrounding tive circumstances the interview indicates in police custody Specifically, fendant was for the entire interview. interview, combined the fact physical setting of the when with that was not told he could choose to leave defendant that. desired, immediately whenever he so was confronted with evidence crime, him in that implicating repeatedly a serious and was told crime, guilty strongly the detective “knew” that he was of the “only admitted that he had ‘touched’ his The dissent claims that defendant ¶ Post, and, therefore, Apparently, daughters” did not confess to a crime. 48. ambiguous that the term “touched” is and could have referred to dissent believes parts body finding point The trial court’s on the of the like the face or shoulder. touching daughters’ vaginas (except for one was that “while defendant denied his Andrea) daughter touching recognize their breasts.” time with his he admitted We daughters’ although that these were more limited than the accusations admissions vaginas fingers that inserted his into their and had intercourse with — constitute confessions to serious crimes. Defendant did admit them still innocuous, only touching. noncriminal
suggests that a person reasonable defendant’s shoes would not have felt free to away. terminate the interview and walk While we every caution that case analyzed must be on its individual facts circumstances, precedents and and light, must be viewed we observe the circumstances of this case make it closer to Hohman, those in Brunell and where we found custody, than to Pontbriand, Oney where we did not.
¶ In summary, 32. we find that because defendant’s freedom of movement was degree curtailed to the of formal arrest for interview, see Berkemer v. McCarty, 468 U.S. effectively the entire (1984), reasonable defendant’s situation would not have felt free to discontinue questioning, obligated detective was to recite warnings before start- so, ing the interview. As he failed to do the trial court correctly suppressed defendant’s statements.
Affirmed. Reiber, C.J., dissenting. The issue before the Court today is whether defendant “in custody” was within meaning of the Fifth Amendment an during interview with which he made incriminating statements. The majority holds that defendant was in custody at the time he made the statements issue. If defendant was in in custody, fact the Fifth Amendment requires these statements suppressed be at trial because defendant had not been read his Miranda warnings. is, Because present case my opinion, factually indistinguishable from State v. Oney, VT 187 Vt. 989 A.2d lays which out the “in scope of custody” under our current jurisprudence, I respectfully dissent.
¶ 34. In determining whether the detective in this case violated defendant’s Fifth rights, Amendment question central whether the defendant was in custody at the time of the confession. Id. 10. Defendant does not claim the trial court’s findings Thus, of fact are erroneous. the sole concerns the issue conclusion, trial court’s legal ultimate the totality of the circumstances would have led a to believe that he or she in custody. This legal conclusion is reviewed de Pontbriand, novo. 20, 12, 2005 VT 178 Vt. 878 A.2d *15 ¶ 35. in Our decision Oney explicitly delineates what it means to “in custody” as it applies to Miranda warnings, but was
be decided five months after the trial court’s decision here on appeal. trial the Oney, upheld ruling In this Court the court’s incriminating at the time he made custody defendant was not statements, therefore, any incriminating and statements were disputed: The facts there were not officer admissible. the defendant at a store and asked about approached convenience evening; that had been set that the officer asked the three fires talk, go police department defendant if he to the to and he would agreed put bicycle to do so. The officer defendant’s sitting car and drove the defendant to the station with defendant station, sat, in the After the defendant entering front seat. unrestrained, in an unlocked interview room. The defendant was officers, interviewed two who said that he was there of his own will, go free and he could time. The defendant admitted to said, the three fires that after “I setting evening which he still ¶ think I a lawyer Oney, should have here.” 2009 VT 4. No given, answer was but our decision noted that the defendant ¶4. directly lawyer. never Id. requested Subsequently, fires, officers said had tapes surveillance three other to confessed them as well. Near the end of the interview, leave, the defendant stated that he wanted to but one said, yet,” of the officers not done his prevented We’re departure. eventually Id. The defendant was cited and then permitted depart.
¶ appeal, 36. On the defendant in Oney argued that after he fires, sooner, setting confessed to the first three if not he was custody, and as he was given any warnings, never confessions were inadmissible. He that he argued deprived small, his freedom of action because “a reasonable in a station, windowless room at the after having confessed to crimes, leave, three would not believe that he was free to despite contrary.” officer’s statements to the Id. 12. We held otherwise.
¶ 37. stated that We noncustodial situation does not become “[a] automatically custodial because the interviewee has confessed to a crime.” Id. 14. We therefore held that fact bare defendant had thought confessed to what he three were misde- meanors “would not necessarily lead a reasonable defendant’s circumstances to believe that he was not free leave.” Id. ultimately We concluded the defendant was not in because the officers told him repeatedly that he leave, coercive, was free to the questioning was not he was *16 ¶ unrestrained, and he had access to an unlocked door. Id. 16. As observed, the defendant in Oney was not of deprived his “in freedom of action a significant way.” Id. (quotation marks omitted).
¶ In the case we consider it today, is difficult to see how the trial court here would have arrived at the same conclusion had the Oney decision already issued. It that appears within four minutes starting the interview defendant touching admitted two of his daughters adult when they were children. majority attempts distinguish (1) from Oney present the on grounds: case two detective here never explicitly told defendant he was free to interview; (2) terminate the and defendant was accused of com- ¶¶ mitting Ante, a “serious crime.” 29. Neither is persuasive. notes, 39. As the majority the detective here told defendant arrest, he was not under that he was going go home that day, and that he was there of his own free will. Because the explicitly detective never told defendant he could anytime, leave however, majority concludes that Oney is distinguishable. This is form over substance. The detective’s statements effectively informed defendant he was free to leave. Although the detective did not explicitly say, “you time,” are free to any leave at this is a distinction without a difference. assurances, The detective’s together, taken would have led a reasonable defendant’s position to believe that he or she was free to terminate the interview and leave. Furthermore, the two cases by majority cited for the
proposition that a voluntary
may
interview
transform into a
custodial interrogation are inapposite.
Brunell,
See State v.
150 Vt.
(1988);
As the
this Court has
Hohman
language implied
to the extent
that we look to the
subjective
regard
defendant’s
state of mind with
to whether he
Willis,
474-75,
believed himself free to leave.
¶ 42. The majority distinguishable also asserts this case is Oney from because defendant was accused of a committing recognized suspect “serious crime.” We have that “once a con- act, committing fesses to a serious criminal this fact is significant in this evaluation.” Oney, 2009 VT 14. The defendant in Oney fires, setting confessed six which the told him were (four felonies), charged misdemeanors of which were later as we held a “mere confession to what defendant believed be three misdemeanors would not a necessarily lead reasonable person defendant’s circumstances to believe that he was not free to leave.” Id. Here, 15.4 defendant was accused of sexual abuse, majority and the assumes that a reasonable person defendant’s shoes would feel free to leave if accused of committing such a “sérious crime.”
¶ 43. Notably, majority conflates mere accusations with confessions. Defendant only admitted that he had “touched” his daughters and adamantly denied the allegations involving his grandchildren. Thus, the logic Oney, that a defendant who has confessed to a crime would leave, assume that he is not free to Moreover, does not apply. there is little reason to believe that a accused of abuse would feel any less free sexual to leave than accused of setting multiple fires.
¶ 44. The majority also makes much of the fact that defendant
interrogated
“small,
station in a
windowless
polygraph room within a secured area in the police barracks.”
¶¶
Ante,
15, 21, 24.
Oney, this
As we stated
and of itself is
¶¶
meaningless.
2009 VT
16. It
is the combination of
id.,
factors that is important, see
and the United States Supreme
previously
Court has
being
stated that
interviewed
station is not enough to make an interview custodial.
Oregon
See
Mathiason,
v.
(1977)
curiam)
(“[P]olice
429 U.S.
(per
*18
officers are not required to administer Miranda warnings to
everyone
they question.
whom
Nor is the
of
requirement
warnings
to be imposed simply because the questioning
place
takes
in the
house,
station
or because
questioned
person is one whom the
Thus,
police suspect.”).
the question is one of
degree
of
oppression a
would feel under
the circum-
stances.
Lancto,
In
(1990),
155 Vt.
defendant was scene, found on near an accident with a head injury. The defendant claimed the injury head was from a fight, Oney setting officers told the defendant the fires were setting actually charged misdemeanors. He confessed to six fires and with two misdemeanors and four felonies. him The officer then directed lying. accused trooper and the questioned where he to sit in the cruiser the defendant with the interrogation, along made in this defendant. Statements observations, charge driving to a under ultimately officer’s led Id. influence, found this situation to be noncustodial. and we here are no more at 450. The circumstances 582 A.2d noncustodial interrogation than the found to be oppressive Lando. Here, to the interview and was defendant drove himself closed, locked, and in a small room with the door but seated only not blocked. The interview lasted his access to the door was of a allegations Defendant was confronted with about one hour. crime, and plain-clothes badge it was officer with but him that there of his own free weapon, without a who told he was not under arrest. will and that he was an erosion of the limits on majority’s opinion 46. The reflects Brunell, in Hohman and cases that were expressed in a interrogation police- intended to curtail incommunicado Ultimately, to formal arrest. atmosphere amounting dominated Oney indistinguishable compels this case is from the same grounds majority distinguishes result. The on which the those I unpersuasive. Accordingly, respectfully cases are dissent. joins I Burgess am authorized to state that Justice this dissent. VT
In re M.G. and K.G. [13 1084] A.3d No. 09-381 C.J., Dooley, Reiber, Johnson, Skoglund Burgess, Present: JJ.
Opinion Filed November