State v. Cleary

641 A.2d 102, 161 Vt. 403, 1994 Vt. LEXIS 22

• Court: Supreme Court of Vermont
• Decided: February 28, 1994
• Docket: 91-569
• Status: Published

Opinions

Morse, J.

Defendant pled guilty to charges of unlawful trespass, simple assault, and attempted sexual assault. He now appeals the order declaring him competent to stand trial on grounds that the judge making that ruling had a conflict of interest. He additionally appeals the denial of his motion to suppress his confession on the ground that he waived his Miranda rights. We affirm.

Defendant forced his way into a home in Wolcott, struggled with the occupant, held her at gun point, and fled. About an hour later, an investigator from the Lamoille state’s attorney’s office and a sergeant from the Lamoille sheriff’s department stopped defendant as he was driving his truck in Wolcott because he fit the general description of the assailant. The sergeant read defendant his Miranda rights twice, and defendant signed a statement purporting to waive those rights. Defendant then confessed, admitting that he had entered the victim’s house and accosted her, and that he had intended to rape her. At arraignment, Judge Fisher asked defendant if she had ever represented him as his public defender, and defendant’s attorney responded that “he doesn’t think so.” Judge Fisher presided at a subsequent competency hearing and, after two days of testimony, found defendant competent to stand trial. Shortly thereafter, based on discovery of a 1983 docket sheet indicating that Judge Fisher had been assigned to represent him on a misdemeanor unlawful trespass charge, defendant moved for her recusal and requested her to strike the competency order. Judge Fisher recused herself from future proceedings, but declined to strike her competency order, stating that she had not recollected representing defendant when she heard and decided the competency issue.

Later, Judge Meaker heard and denied defendant’s motion to suppress the statements given to the investigator on grounds that defendant had not intelligently and voluntarily waived his Miranda rights. Thereafter, defendant pled nolo contendere to the three charges under V.R.Cr.P. 11(a)(2), reserving the right to appeal the competency determination, the denial of the motion to strike the competency determination based on Judge Fisher’s 1983 representation of defendant, and the denial of the Miranda waiver suppression motion.

Defendant’s claim that Judge Fisher should have struck the competency order when she discovered, after issuing the order, that she had represented defendant in 1983 is not cause for reversal. Canon 3C(l)(a) of the Code of Judicial Conduct, A.O. 10, states:

A judge should disqualify [herself] in a proceeding in which ... [she] has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.

Judge Fisher stated plainly that she had “no recollection of any prior representation, at the time of hearing and deciding the competency issue, or at the present time.” Defendant has made no showing that the judge’s recollection was faulty or that her former representation actually caused bias or prejudice against him in the present case. See Cliche v. Fair, 145 Vt. 258, 262, 487 A.2d 145, 148 (1984) (one seeking judicial disqualification must clearly and affirmatively show bias or prejudice). Defendant was alerted to the issue ahead of time and made no objection. When he did object, defendant did not show any reason why a motion to recuse was not forthcoming before the competency issue was resolved. Nor did he show any actual harm. Under these circumstances, it would have been prejudicial to the State and the orderly and efficient functioning of court proceedings for Judge Fisher to have vacated her competency ruling.

Defendant next argues that Judge Meaker’s finding that defendant sufficiently understood the consequences of waiving his Miranda rights was erroneous. He bases this contention solely on the uncontradicted testimony of the expert witness, a psychiatrist, who stated that defendant, who is mildly retarded, lacked the mental ability to understand the consequences of a waiver. Waiver and defendant’s competence to waive rights are legal, not psychological, concepts, and the judge, not an expert witness, is the ultimate decision maker on these issues. On appeal, “the trial court’s findings [on waiver] must stand if they are supported by substantial credible evidence and are not clearly erroneous.” State v. Malinowski, 148 Vt. 517, 520, 536 A.2d 921, 923 (1987).

Moreover, the expert witness was not the sole basis for the court’s determination. Rather, a waiver analysis requires a “‘totality-of-the-circumstances approach,”’ which

permits — indeed, it mandates — inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the [defendant’s] age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.

Id. (quoting Fare v. Michael C., 442 U.S. 707, 725 (1979)). Defendant’s mental retardation does not by itself require a finding that he was unable to understand his rights. See Dunkins v. Thigpen, 854 F.2d 394, 399-400 (11th Cir. 1988) (high mild range of retardation); Segerstrom v. State, 783 S.W.2d 847, 850 (Ark. 1990) (IQ of 77 and mental age of six years and four months); State v. Toste, 504 A.2d 1036, 1041 (Conn. 1986) (fairly low IQ, operating at sixth- or seventh-grade level); People v. Williams, 465 N.E.2d 327, 328-29, 476 N.Y.S.2d 788, 789-90 (1984) (borderline mentally retarded); State v. Parsons, 381 S.E.2d 246, 249-50 (W. Va. 1989) (IQ of 75, borderline intelligence). Rather, it is simply another circumstance, albeit a highly significant one, to be considered among all the others. Suppression of evidence is warranted only if defendant’s impairment is shown to have interfered with his ability to exercise his rights in the particular circumstances of the interrogation. See State v. Austin, 155 Vt. 531, 537, 586 A.2d 545, 548 (1990) (suppression not warranted when defendant proved that he had a hearing impairment but not that the impairment “in any way intervened to taint the fruits of his interrogation”).

At the beginning of the suppression hearing, the State asked the court to take judicial notice of Judge Fisher’s findings and order on defendant’s competence to stand trial. Defendant’s counsel stated that she did not object, nor did she ultimately appeal the substance of Judge Fisher’s ruling. Judge Fisher’s findings provide the context necessary for understanding defendant’s background. Judge Fisher noted that defendant had four prior encounters with the criminal justice system: unlawful trespass in 1983, second-degree arson in 1987, second-degree arson again in 1988, and attempted sexual assault and unlawful trespass in 1989. All these charges were ultimately dismissed. Judge Fisher noted that Judge Kilburn had previously found defendant incompetent to stand trial on the two arson charges.

Judge Fisher found that defendant had attended school through the eleventh grade and had limited ability to read, write, and do mathematics. He had also participated in programs for mentally retarded adults and continued to actively work with two counsellors. She stated that defendant, “in spite of his intellectual limitations, has the ability to learn and puts his learning to practical use.” For example, defendant had operated his own logging business for seven years. He purchased and maintained equipment for the business and had negotiated bank loans, timber contracts, and truck transportation for his timber. He had also demonstrated an ability to farm and had run a beef cattle operation while its owner was hospitalized. Defendant possessed other practical skills: he had a driver’s license, maintained a vehicle, was knowledgeable about how it worked, and purchased parts for it.

Judge Fisher found that defendant’s capacity to learn extended to the legal system, that his understanding of the court adversarial process had improved since 1988 when he was found incompetent. In particular, she found that he was better able to comprehend those concepts he had previously encountered— his fifth and sixth amendment rights, the function of his defense counsel, the role of the prosecutor, and that his actions had criminal consequence.

The expert at the suppression hearing before Judge Meaker, Dr. Robert Linder, had evaluated defendant several times in connection with the prior charges. He stated that defendant had an IQ of 65, which translated into a mental age between ten and twelve, and only a limited ability to read and write. Dr. Linder testified that defendant had difficulty thinking abstractly and anticipating future events, which, the doctor concluded, would limit his ability to comprehend the language of the Miranda warnings. He conceded, however, that the Miranda language was partly concrete and partly abstract and that defendant could understand much of the language, for example, that he did not have to talk to the police, that he could speak with an attorney if he wished, and that he could stop answering questions whenever he chose.

Dr. Linder further testified that defendant might have difficulty understanding the legal impact of exercising his rights. The court questioned him extensively on the level of abstraction at which defendant could understand consequences, and Dr. Linder stated this would depend on the complexity of the factual situation. Under cross-examination, he conceded that defendant had undergone a learning process through his prior contacts with the police and court system — defendant had previously been questioned in the arson and sexual assault investigations — and that he understood more now than he had on those prior occasions, for example, that he knew the prosecutor sought to put him in jail and that he could be punished for what he had done. Finally, on cross-examination, Dr. Linder further conceded that defendant could understand some of the more abstract legal concepts, if on a somewhat rudimentary level:

State: Wouldn’t it be fair to say that, at the very least, he would know that [his statements could be] “used against [him]” means that he could end up in court — in this room as he has been on numerous previous occasions and that he could end up in jail punished, as he puts it?

Expert: I guess the answer — That’s a lot of different conditions, but I guess to the degree that he can think about this in his more simple terms, yes.

Thus, Dr. Linder’s testimony was at best equivocal on what defendant could understand about waiver. He certainly established that there were limits to defendant’s understanding, but his testimony nevertheless showed defendant understood that he was in an adversarial process, understood the basic mechanics of waiver, and was capable of better extrapolating some consequences of his actions based on prior contacts with the legal system.

In this case, the trial court considered the expert testimony but also took additional testimony from a number of other witnesses, including defendant himself. Citing Malinowski, the court noted that it must look at the totality of the circumstances in determining that defendant voluntarily, knowingly and intelligently waived his Miranda rights. It also noted that there was no standardized testing capable of determining with certainty that defendant had the capacity to “understand something” of legal significance and acknowledged that its decision was somewhat “a subjective judgment call.” The court added:

I must say at the outset that in this case [the test] is not an easy [one] to apply . . . because we have a defendant who has a slight mental retardation, and that complicates the matter.

The court then weighed defendant’s intelligence, along with his age, employment, education, and background. It also noted defendant’s responses in the courtroom:

The Court has observed the defendant in the course of his own testimony. He would respond quickly to questions when he understood the question and knew what the answer was. There were some questions he didn’t understand. That’s not to suggest it was his fault. This legal process is probably mystifying to most people who have not been in it before to some extent.

The court also noted previous instances when defendant had been exposed to the Miranda issue: first, in connection with an arson investigation in 1987 when defendant had waived his Miranda rights, and again, in connection with a sexual assault investigation in 1989, when he invoked his Miranda rights. The court reviewed the transcript of a taped interview with defendant concerning the 1987 arson investigation. It determined from this lengthy interview that defendant was able to understand the questions and to give appropriate answers. The court also inferred from this interview that defendant could appreciate the consequences of his conduct.

This evidence is particularly relevant in light of Dr. Linder’s observations that defendant had learned from his prior interactions with the police and court system. In addition, numerous cases recognize that a mentally retarded defendant’s prior experience with Miranda rights is a key factor in establishing defendant’s capacity to comprehend them. See Hatley v. State, 709 S.W.2d 812, 816 (Ark. 1986) (mildly retarded sixteen-year-old found to understand rights which he had “heard . . . over and over again” in last five years and which he indicated he understood); State v. Fincher, 305 S.E.2d 685, 697 (N.C. 1983) (retarded defendant’s prior experiences with criminal justice system was “an important consideration in determining whether an inculpatory statement was made voluntarily and under standingly”).

In sum, the expert’s evidence on waiver was somewhat equivocal and, in any case, not dispositive. The court’s determination was supported by credible evidence. State v. Wall, 137 Vt. 482, 486, 408 A.2d 632, 635 (1979) (ruling wall not be overturned even if there are inconsistencies in evidence or even substantial evidence to contrary). Moreover, the court weighed all of the evidence, not just that of the expert, and its decision clearly fell within the scope of its discretion.

The dissent, however, proposes that a different waiver standard be used for mentally retarded defendants. In addition to understanding the language used by the officers in explaining Miranda rights and what a waiver means, a mentally retarded suspect has not waived Miranda rights unless the prosecution proves that the suspect understood “the significance of the rights . . . and the immediate and ultimate consequences of a waiver of those rights.” In addition, the dissent would require a “context-specific inquiry into the defendant’s cognitive limitations and how these limitations affect the defendant’s understanding of the language used to obtain a waiver of rights and the abstract concepts underlying both the rights and the waiver of those rights.”

This standard obviously imposes a more rigorous inquiry than that presently required in deciding whether a mentally retarded defendant waived Miranda rights. Despite conducting a full inquiry into some of the issues raised by the dissent’s standard, the trial court’s findings in this case would not satisfy the amplified standard. Indeed, the very definitions of the standard virtually insure that it generally could not be met by mentally retarded defendants. The standard would suppress virtually all self-incriminating statements provided by mentally retarded defendants regardless of the need for, or reliability of, that evidence.

We do not believe, given the present state of the mental health and social service professions, that administration of the dissent’s test would be practical, nor, given the present state of the law, that administration of such a test is necessary to protect the rights of the accused. Indeed, the more stringent elements of the dissent’s proposed test have been rejected elsewhere. For example, the United States Supreme Court has held that a defendant’s limited awareness of possible adverse consequences resulting from statements made to the police does not render a Miranda waiver involuntary. Oregon v. Elstad, 470 U.S. 298, 316 (1985). The Court reiterated that

we have not held that the sine qua non for a knowing and voluntary waiver of the right to remain silent is a full and complete appreciation of all of the consequences flowing from the nature and the quality of the evidence in the case.

Id. at 317. To waive a right, a person need not have a thorough understanding of the potential legal consequences flowing from it. Few defendants would have this level of understanding, and factors other than intelligence — anxiety, temperament, feelings of guilt — could limit the capacity of others to fully appreciate the consequences of waiving their rights.

Although defendant’s counsel argued that legal concepts were simply too difficult for a mentally retarded person to understand, she underscored a different problem when she argued:

Any lawyer who practices public defense law and gets DWI phone calls in the middle of the night is accustomed to the situation where ... you say to the defendant: Don’t answer any questions. [And the defendant will answer], Oh I already told him that.... Now, if normal defendants of normal intelligence when asked, “Haven’t you ever heard of the Fifth Amendment?” will say, “Well, I thought I had to talk to him because he was the police officer . . . Even college graduates do that all the time to the frustration of the defense bar. Someone with Donald Cleary’s deficits clearly has even more trouble comprehending what it means.... The stupidity of the average criminal defendant sometimes gets to be . . . rather frustrating ... for the defense bar and, I’m sure, for the court.

The purpose of the Miranda warnings is just that — to warn the unwary, those with little contact with the criminal justice system, from acting blindly or impulsively, to speak without first being told about their options. In terms of this goal, a person with defendant’s level of intelligence, but with some experience ■with the legal process, stands a fair chance of remaining silent or asking for a lawyer because the suspect “knows” it is a good idea, albeit without knowing why.

Given the relatively limited Miranda goal — that “the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored,” Miranda v. Arizona, 384 U.S. 436, 467 (1966) — a concrete understanding of a right’s meaning and the effect of waiving it is all that is required.

If intelligent knowledge in the Miranda context means anything, it means the ability to understand the very words used in the warnings. It need not mean the ability to understand far-reaching legal and strategic effects of waiving one’s rights, or to appreciate how widely or deeply an interrogation may probe, or to withstand the influence of stress or fancy; but to waive rights intelligently and knowingly, one must at least understand basically what those rights encompass and minimally what their waiver will entail.

People v. Bernasco, 562 N.E.2d 958, 964 (Ill. 1990); see also State v. Knights, 482 A.2d 436, 441 (Me. 1984) (affirming mentally retarded defendant’s waiver because trial court could reasonably infer from his responses that he “understood that he was in an adversarial situation and that the authorities could not compel him to talk”).

Defendant here demonstrated significant understanding of the waiver process. He himself testified that he knew he did not have to answer questions and that he could speak with an attorney if he wished. Even his expert witness concluded that he knew the meaning of the waiver words. Defendant had considerable prior experience with the legal system, understood that it was an adversarial process and realized that he could go to jail. He had demonstrated that he could and did learn legal concepts. He had previously exercised his right not to speak to police and to have an attorney represent him. This evidence was more than sufficient to establish a knowing and intelligent waiver.

Although we do not agree with the dissent’s test, we agree with State v. Flower, 539 A.2d 1284, 1287 (N. J. Super. Ct. Law Div. 1987), cited by the dissent, that because persons with diminished mental capacity hold a protected status in our society, courts must determine that “the administering of constitutional rights was more than a mere perfunctory procedure.” The ultimate safeguard against perfunctory procedure in protecting the rights of persons of lower intelligence is a probing inquiry. Our task is to review the record of the court to determine if it scrutinized all the important factors — the nature of the defendant, the conditions of the interrogation, and the circumstances of the waiver, including the language and tactics of the police and the resources available to the accused.

The trial court in the present case exhibited thoroughness and care. Adding more formalism to the proceeding will not insure the kind of scrutiny that justice demands in these cases. The court took a hard look at the facts and made findings that were far from perfunctory. The court’s palpable sense of the reality of the situation convinces us that justice was achieved in this case.

Finally, the dissent also asserts that “where the police were aware of defendant’s mental limitations, courts must also carefully consider whether the confession was voluntary,” and faults the trial court because “[v]irtually no inquiry was made as to whether this confession was voluntary.” The issue of voluntariness was not raised below or on appeal nor are there facts in the record to indicate that plain error may have occurred. Nothing more was required of the trial court.

There is no entirely satisfactory way to balance the rights and needs of defendants with lower intelligence against society’s interest in seeking to provide workable measures for providing justice. The problems of mentally retarded persons who come in contact with the legal system are complex; addressing these problems fully will require comprehensive and multi-disciplinary approaches. This Court cannot in this opinion effectively overhaul major parts of the legal and social services systems. See, e.g., In re D.C., 159 Vt. 314, 319-21, 618 A.2d 1325, 1328-29 (1992) (insufficient resources exist to provide individual programs for mentally retarded new offenders). Our context-specific decisionmaking process does not lend itself to fashioning such sweeping changes.

For our part, we believe that judges can and should be educated to better understand defendants with special needs. Nevertheless, the Miranda rules should apply equally to all defendants, not just to those who demonstrate sufficient sophistication about the hows and whys of their procedures to meet the dissent’s standard.

Affirmed.