State v. Brunelle

534 A.2d 198, 148 Vt. 347, 1987 Vt. LEXIS 513

• Court: Supreme Court of Vermont
• Decided: August 14, 1987
• Docket: 85-072
• Status: Published

Opinions

Gibson, J.

Defendant was convicted of one count of operating a motor vehicle while under the influence of intoxicating liquor (DUI) with death resulting, and a second count of DUI with injury resulting.¹ Prosecution arose out of a two-car head-on collision in March of 1984 in which one person was killed and another seriously injured. Defendant, the driver of one of the vehicles, was transported by ambulance to Springfield Hospital where the investigating officer obtained a blood sample and statements from him without advising him of his right to counsel and his right to remain silent. 23 V.S.A. § 1202; Miranda v. Arizona, 384 U.S. 436 (1966).

Defendant moved to suppress the results of the blood-alcohol-content (BAC) test, as well as all statements made by him at the Springfield Hospital. Pursuant to a stipulation of the parties, the trial court granted defendant’s motion by an order entered June 5, 1984.

In January of 1985, the State gave notice of its intent to use the BAC test to impeach defendant if he testified at trial. Defendant then filed a motion in limine in which he sought to have the BAC test results suppressed for all purposes. The court denied defendant’s motion and ruled that if, during his testimony, defendant denied on direct or cross-examination that he had been under the influence of intoxicating liquor, the State could then introduce the BAC test results to impeach him as a witness.

Defendant did not testify at trial, and a jury found him guilty on both counts. Defendant’s motion for a new trial was denied, and he subsequently appealed to this Court. We reverse. Although federal cases are discussed herein, we base our decision exclusively on the provisions of the Vermont Constitution. See Michigan v. Long, 463 U.S. 1032, 1041 (1983).

The questions presented to this Court are (1) whether the self-incrimination² or due process³ clauses of the Vermont Constitution prohibit previously suppressed evidence from being introduced for any purpose, and (2) whether previously suppressed evidence may be used to impeach or rebut testimony given by a defendant-witness on direct or cross-examination. These questions in turn raise the issue of whether Vermont should adopt the doctrines set forth by the United States Supreme Court in Harris v. New York, 401 U.S. 222 (1971), and United States v. Havens, 446 U.S. 620 (1980).

I.

Harris established that evidence obtained in violation of Miranda v. Arizona, 384 U.S. 436, could be used to impeach the testimony of a defendant-witness given on direct examination. Harris, 401 U.S. at 224-25. Prior to Harris, the long-standing and widely accepted rule was that unlawfully obtained evidence could never be used for impeachment purposes. Agnello v. United States, 269 U.S. 20, 33-35 (1925); see Harris, 401 U.S. at 231 n.4 (Brennan, J., dissenting); Dershowitz & Ely, Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority, 80 Yale L.J. 1198, 1208, 1215 (1971). Defendant maintains that this Court should adopt a rule similar to the one established in Agnello.

In affirming the conviction in Harris, the United States Supreme Court relied on Walder v. United States, 347 U.S. 62 (1954). In Walder, the issue on appeal was whether the defendant’s assertion on direct examination that he had never possessed any narcotics opened the door, solely for purposes of impeachment, to the introduction of evidence unlawfully seized in connection with a prior, unrelated charge against him that had been dismissed two years earlier. Id. at 64. Justice Frankfurter, writing for the majority, held that such impeachment was permitted:

It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths.

Id. at 65. The Court distinguished defendant Walder’s situation from that of the defendant in Agnello, where the defendant had been asked for the first time on cross-examination whether he had ever seen narcotics and, following his denial, was impeached with suppressed evidence seized in connection with the case then being tried. Id. at 66. The Harris Court, relying on Walder, reasoned that “[e]very criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury.” Harris, 401 U.S. at 225.

Nine years later, the Harris doctrine was extended to allow impeachment based on testimony first elicited on cross-examination. In United States v. Havens, 446 U.S. 620, the Court held that “a defendant’s statements made in response to proper cross-examination reasonably suggested by the defendant’s direct examination are subject to otherwise proper impeachment ... by evidence that has been illegally obtained . . . .” Id. at 627-28.

This case raises the Harris-Havens issue for the first time under the Vermont Constitution. Defendant argues that the federal rule should not be adopted because it is a radical departure from the previously established rule of Agnello and chills a defendant’s right to testify. The State contends that the federal rule should be adopted by this Court because only the defendant’s ability freely to commit perjury is hindered, not the right to testify. Thus, we consider two competing interests: (1) preservation of the right to testify freely, and (2) deterrence of perjury.

A state, as a matter of its own law in determining constitutional rights, may impose higher standards for police activity than those imposed by the United States Supreme Court under the federal constitution. Oregon v. Hass, 420 U.S. 714, 719 (1975); see also Ker v. California, 374 U.S. 23, 34 (1963) (states are not precluded from developing their own rules governing arrests, searches and seizures, provided those rules do not violate the constitutional proscription against unreasonable searches and seizures and the evidence so seized is not admissible against a person having standing to complain). Although we have held that the term “laws of the land” in Chapter I, Article 10 of the Vermont Constitution is synonymous with the term “due process of law” in the United States Constitution, State v. Messier, 145 Vt. 622, 627, 497 A.2d 740, 743 (1985); see State v. Stimpson, 78 Vt. 124, 132-33, 62 A. 14, 17 (1905); Quimby v. Hazen, 54 Vt. 132, 139 (1881), we also note that, as final interpreter of the Vermont Constitution, this Court has final say on what process is due in any given situation.

This Court has previously rejected a claim that because of its different language, the Vermont Constitution’s self-incrimination clause is broader than its federal counterpart. State v. Brean, 136 Vt. 147, 151, 385 A.2d 1085, 1088 (1978). In Brean, the defendant contested his conviction for drunk driving, arguing that Vermont’s self-incrimination clause is broader than the federal provision because it uses the word “evidence” rather than “witness,” which appears in the federal provision.⁴ Id. We stated that “[b]oth this Court and the United States Supreme Court have recognized that the various state and federal constitutional provisions relating to self-incrimination, although using slightly variant phraseology, have a common origin and a similar purpose.” Id. (citing Schmerber v. California, 384 U.S. 757, 761 n.6 (1966); State v. Pierce, 120 Vt. 373, 378, 141 A.2d 419, 422-23 (1958)).

We have also held that certain other provisions in the Vermont Constitution provide rights similar to those in the United States Constitution. See State v. Dorn, 145 Vt. 606, 619, 496 A.2d 451, 458 (1985) (particularity of descriptions in search warrants); State v. Sprague, 144 Vt. 385, 390 n.2, 479 A.2d 128, 131 n.2 (1984) (similar rights under the confrontation clause).

Nevertheless, this Court has also on occasion found that the Vermont Constitution affords greater rights than the federal constitution, which acts as a threshold for state-granted rights. See In re E.T.C., 141 Vt. 375, 378, 449 A.2d 937, 939 (1982) (Chapter I, Article 10 requires that stricter criteria than are present under federal Fifth and Sixth Amendment Miranda rights must be met before a juvenile may waive right against self-incrimination and right to counsel); State v. Ludlow Supermarkets, Inc., 141 Vt. 261, 268, 448 A.2d 791, 794-95 (1982) (Sunday closing law found to violate Chapter I, Article 7 prohibition against preferential legislation, a provision more stringent than the federal constitutional standard which requires only a rational justification); State v. Becker, 130 Vt. 153, 154, 287 A.2d 580, 581 (1972) (Chapter I, Article 10 gives right to trial by jury in misdemeanors as well as felonies).

The due process clause of the Fourteenth Amendment⁵ guarantees every defendant the right to testify in his own defense. In re Oliver, 333 U.S. 257, 273 (1948). Implicitly contained in the right to due process in the federal constitution,⁶ the opportunity to testify on one’s own behalf⁷ was deemed so essential to the people of Vermont by the framers of our constitution that they stated it explicitly in Article 10:

That in all prosecutions for criminal offenses, a person hath a right to be heard by himself and his counsel ....

Vt. Const, ch. I, art. 10.

Article 10 goes on to provide that no person may be justly deprived of his liberty “except by the laws of the land,” a phrase that, as noted earlier, has been interpreted in Vermont to be synonymous with “due process of law.”⁸ See, e.g., Quimby v. Hazen, 54 Vt. at 139. Heretofore, only one dimension of the phrase “a person hath a right to be heard by himself and his counsel” has been construed, i.e., that of conferring a right to representation by counsel similar to the federal Sixth Amendment right. See, e.g., State v. Rushford, 127 Vt. 105, 108-09, 241 A.2d 306, 308-09 (1968); In re Moses, 122 Vt. 36, 41-43, 163 A.2d 868, 872-73 (1960). Today, we note that this phrase in Article 10 also explicitly includes the right to testify on one’s own behalf.

We believe that admission of previously suppressed evidence to impeach credibility implicates a defendant’s constitutional right to testify in his own defense. The defendant must choose between not testifying, and thus foregoing the opportunity to present his account of the incident, or testifying, and running the risk of being impeached with illegally obtained evidence. Despite the fact that a defendant may still elect to testify, the risk of admission of previously suppressed evidence to impeach credibility produces a chilling effect on the exercise of that right, and, as a result, acts as “a penalty imposed by courts for exercising a constitutional privilege.” Griffin v. California, 380 U.S. 609, 614 (1965).

In addition to the concern that a defendant be assured an unfettered opportunity to testify on his own behalf, this Court is also concerned that a criminal defendant be given a fair trial. In State v. Begins, 147 Vt. 295, 299, 514 A.2d 719, 722 (1986), we held that the testimony of a probationer at a probation revocation hearing held prior to the disposition of related criminal charges is inadmissible against probationer during the subsequent criminal proceedings. We also held, however, that evidence derived from testimony at the earlier proceeding may be used for rebuttal or impeachment purposes if testimony on direct examination at the criminal trial clearly contradicts testimony made at the probation revocation hearing. Id. at 299-300, 514 A.2d at 722-23.

Seeking to balance these concerns, we therefore hold that previously suppressed evidence is unavailable to the State for impeachment purposes except when it is clear that the defendant has testified during direct examination in a manner contradictory to the suppressed evidence. In today’s holding, we recognize that the due process clause of the Vermont Constitution gives a defendant greater rights than are afforded under Havens, where suppressed evidence may be used to impeach a defendant’s testimony first made on cross-examination. We believe this rule will achieve a fair balance between defendant’s right to testify on his or her own behalf and the State’s interest in preventing perjury. To permit the use of suppressed evidence to impeach testimony first brought out on cross-examination would upset this balance and impose an untenable chilling effect on defendant’s right to testify, in violation of Chapter I, Article 10 of the Vermont Constitution. The rule we have adopted will preclude the State from misusing inadmissible evidence while at the same time it will prohibit a defendant from using to his or her advantage the State’s inability to rebut clearly suspect testimony.

There is a qualification, however, to the application of this rule. Because our holding today limits impeachment of a criminal defendant in certain respects, we find it necessary to harmonize this holding with the rule contained in V.R.E. 611(b).⁹ The Vermont cross-examination rule, which is similar to the English rule, limits the scope of cross-examination of a party-witness only in terms of materiality. It is based on the philosophy “that when a witness testifies, he should present all the facts unrestricted by technical rules of evidence. Court and counsel are relieved of the duty of determining when questions are within the proper scope of cross-examination and when they are without.” Carlson, Cross-Examination of the Accused, 52 Cornell L. Q. 705, 706 (1967); see also Rich v. Chadwick, 139 Vt. 508, 509, 430 A.2d 1280, 1281 (1981) (when witness is a party, scope of cross-examination is limited only by materiality).

We believe, in line with our discussion above, that V.R.E. 611(b) must be limited where the prosecution seeks to impeach a criminal defendant by the use of suppressed evidence bearing directly on the crime charged. Cross-examination, normally limited under Rule 611(b) only by materiality, is hereafter restricted for prosecutors who cross-examine a criminal defendant. Only where a defendant has testified on direct examination to facts contradicted by previously suppressed evidence bearing directly on the crime charged may the prosecution use such evidence to impeach the defendant on cross-examination. With respect to collateral matters,¹⁰ however, where defendant testifies on direct or cross-examination to facts not bearing directly on the crime for which he or she is on trial, it remains within the discretion of the trial court whether suppressed evidence that relates only to such collateral matters, and not to the crime charged, may be admitted for impeachment purposes. See State v. Gilman, 145 Vt. 84, 87, 483 A.2d 598, 599 (1984); State v. Howe, 136 Vt. 53, 65, 386 A.2d 1125, 1132 (1978); State v. Berard, 132 Vt. 138, 146, 315 A.2d 501, 507-08 (1974); McCormick on Evidence § 47, at 100 n.58 (1972). This approach is consistent with the rule governing impeachment of a criminal defendant by evidence of a prior crime, where “[a]n especially severe possibility of prejudice exists when the crime to be introduced for impeachment is similar to or the same as the crime for which the defendant is accused.” State v. Gardner, 139 Vt. 456, 460-61, 433 A.2d 249, 251 (1981). So, too, when the court permits evidence not directly bearing on the crime charged to be used to impeach, we believe it is easier for the jury to evaluate whether the defendant is a truth-teller without prejudging the defendant’s guilt. Thus, impeachment through suppressed evidence going to collateral matters shall not be subject to this limitation of V.R.E. 611(b) and shall be left in the discretion of the trial court.¹¹

II.

We address briefly two other issues raised by the State. The State argues that the defendant may not raise due process or self-incrimination issues on appeal in the absence of any testimony or offers of proof at trial, citing Luce v. United States, 469 U.S. 38 (1984). The State’s reliance on Luce is misplaced. In Luce, the United States Supreme Court distinguished the facts in that case, where a federal court’s preliminary ruling on a question not reaching constitutional dimensions was held not to be reviewable, from its earlier cases, Brooks v. Tennessee, 406 U.S. 605 (1972), and New Jersey v. Portash, 440 U.S. 450 (1979), where the Court reviewed constitutional challenges to state court rulings which acted to discourage defendants from testifying. Luce, 469 U.S. at 42-43. Thus, Luce is not controlling because, in contrast to the case at bar, it did not involve constitutionally suppressed evidence. See Portash, 440 U.S. at 456 (federal law does not require defendant to take the witness stand in order to raise his Fifth Amendment privilege against compulsory self-incrimination); Brooks, 406 U.S. at 606, 612 (Tennessee’s requirement that criminal defendant “desiring to testify shall do so before any other testimony for the defense is heard by the court trying the case” violates defendant’s Fifth Amendment privilege against compulsory self-incrimination).

Second, the State argues that because the BAC test results were obtained in violation of a statutory provision not rising to constitutional dimensions, the admission of the evidence does not trigger constitutional safeguards. We need not discuss this issue further in light of our holding, other than to note that the admission of suppressed evidence, taken in violation of a statutory provision, does reach constitutional dimensions when it interferes with a defendant’s right to testify in his own defense or with his right against self-incrimination, as provided in Chapter I, Article 10 of the Vermont Constitution.

Reversed and remanded.

1 In each count, defendant was convicted under 23 V.S.A. §§ 1201(a)(2) (DUI) and 1210(b) (DUI, death or injury resulting) (current version at 23 V.S.A. § 1210(e) (DUI, death resulting) and (f) (DUI, injury resulting); 1983, No. 134 (Adj. Sess.), § 3).

2 “[N]o person can] be compelled to give evidence against himself . . . .” Vt. Const, ch. I, art. 10.

3 “[N]or can any person be justly deprived of his liberty, except by the laws of the land, or the judgment of his peers . . . .” Vt. Const, ch. I, art. 10.

4 The United States Constitution states, “nor shall [any person] be compelled in any Criminal Case to be a witness against himself. . . .” U.S. Const, amend. V.

5 “[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . .” U.S. Const, amend. XIV.

6 See Faretta v. California, 422 U.S. 806, 819 n.15 (1975) (“This court has often recognized the constitutional stature of rights that, though not literally expressed in the document, are essential to due process of law in a fair adversary process. It is now accepted, for example, that an accused has a right ... to testify on his own behalf, see Harris v. New York, 401 U. S. 222, 225; Brooks v. Tennessee, 406 U. S. 605, 612; cf. Ferguson v. Georgia, 365 U. S. 570 . . . .”).

7 The important role of this right in a just legal system was recognized even in antiquity:

If judgment’s given before both sides are heard,

The judgment may be just, but not the judge.

Seneca, Medea, 198.

8 Different states have interpreted the same constitutional clause differently under their own constitutions. For example, Section 8 of Article 1 of the Virginia Constitution — which served as a model for many of the early state constitutions, including those of Vermont and Vermont’s more immediate model, Pennsylvania — is a criminal rights clause that contains much of Vermont’s Article 10 language verbatim. Virginia’s Section 8 does not, however, include the phrase that every person “hath a right to be heard by himself and by counsel,” which appears in Pennsylvania’s Section 9 and Vermont’s Article 10. Hence, in Virginia, a right to counsel has been found under the “law of the land” clause of Section 8. Stonebreaker v. Smyth, 187 Va. 250, 256-57, 46 S.E.2d 406, 409-10 (1948). The due process right in Virginia, however, is found under a specific “due process of law” clause, Article 1, Section 11, which does not exist in the constitutions of Vermont and Pennsylvania. In Vermont and Pennsylvania, a right to due process has been found to be implied in the “law[s] of the land” clause. Vt. Const, ch. I, art. 10; Pa. Const, art. 1, § 9. This Court must interpret the Vermont Constitution in light of the document’s distinct provisions and history.

9 V.R.E. 611(b) provides: “Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness, except that when the witness is a party, the scope of cross-examination includes any matter of consequence to the determination of the action.”

10 Collateral facts are those “outside the controversy, or . . . not directly connected with the principal matter or issue in dispute.” Black’s Law Dictionary 237 (5th ed. 1979). See Note, State v. Durepo: Toward A Principled Maine Version Of The Impeachment Exception To The Exclusionary Rule, 37 Me. L. Rev. 383, 408 n.112 (1985). Contrasting the facts of Walder with those of Harris may be helpful in demarcating the difference between collateral evidence and noncollateral evidence. In Walder, the collateral evidence used to impeach the defendant related to an investigation which occurred two years before the pending criminal charge; in Harris, the evidence used to impeach the defendant related to the crime with which the defendant was then charged. See Dershowitz & Ely, Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority, 80 Yale L. J. at 1216.

11 Although we base our holding on the right to testify in Article 10 of the Vermont Constitution, we recognize that impeachment with suppressed evidence also implicates Article 10’s privilege against self-incrimination. Today we create a limited exception to State v. Badger, 141 Vt. 430, 452-53, 450 A.2d 336, 349 (1982), which held that “[ejvidence obtained in violation of the Vermont Constitution, or as the result of a violation, cannot be admitted at trial as a matter of state law.” In so modifying Badger, we do not diminish our concern that the use of “[e]vidence obtained in violation of the Vermont Constitution” be severely limited. In this case the evidence in question was obtained in violation of certain Miranda warnings. We note that while the requirements of Miranda have been consistently implemented by this Court, see, e.g., State v. Trombley, 147 Vt. 371, 374-77, 518 A.2d 20, 23-24 (1986); State v. Anderkin, 145 Vt. 240, 244-45, 487 A.2d 142, 144 (1984); State v. Killary, 133 Vt. 604, 606, 349 A.2d 216, 217 (1975), this Court has never explicitly addressed whether Miranda’s warnings are also required under the Vermont Constitution. See In re E. T. C., 141 Vt. at 378, 449 A.2d at 939. We take this opportunity today to note expressly: evidence obtained in violation of Miranda is also in violation of the privilege against self-incrimination in Article 10 of the Vermont Constitution.