NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
2016 VT 43
No. 2015-146
State of Vermont Supreme Court
On Appeal from v. Superior Court, Bennington Unit, Criminal Division
Leo Reynolds September Term, 2015
William D. Cohen, J.
Christina Rainville, Bennington County Chief Deputy State’s Attorney, Bennington, for Plaintiff-Appellant.
Timothy M. Andrews and David F. Silver of Barr, Sternberg, Moss, Lawrence, Silver & Munson, P.C., Bennington, for Defendant-Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. REIBER, C.J. In this interlocutory appeal, the State challenges the trial court’s
suppression of defendant’s pre-arrest confession to police. The State argues that the court erred
in concluding that the confession was involuntarily made. We affirm.
¶ 2. Defendant is charged with four felony counts of lewd and lascivious conduct with
a child and one felony count of aggravated sexual assault on a victim younger than thirteen.
Defendant was sixty-seven years old at the time of the charged conduct, and the alleged victim,
defendant’s neighbor Z.Z., was seven years old. Defendant filed a motion to suppress in October
2014, arguing that the incriminating statements he made were the product of police coercion and
thus taken in violation of his constitutional rights. ¶ 3. Following a hearing, the court granted defendant’s motion. It made numerous
findings, including the following. In late December 2013, a police detective contacted defendant
and asked if he would come to the station to discuss a neighborhood complaint. Defendant
agreed to help if the detective would come to his house instead. The detective arrived in
plainclothes with no visible weapon. He was accompanied by a caseworker from the
Department for Children and Families. After introducing themselves, the detective asked
defendant if he could record his statement electronically. Defendant consented, although he
exhibited some confusion about the word “statement.” The detective did not conspicuously
display his recording device during the interview.
¶ 4. The detective began by asking defendant about his relationship with his neighbors
and their children. The detective did not immediately inform defendant that he was a person-of-
interest in a criminal investigation, or answer defendant’s questions about why he was there.
Defendant responded to the detective’s question about his neighbors, and about the layout of his
home. Defendant seemed confused but relaxed during this line of questioning.
¶ 5. After about four minutes, the detective disclosed the general reason for his
questions. He told defendant that Z.Z. had “talked about some inappropriateness that went on.”
Defendant was audibly taken aback. Defendant agreed with the detective that Z.Z. was not the
type of child who would make things up or try to get someone in trouble. When defendant
continued to indicate no understanding of where the conversation was headed, the detective
stated that Z.Z. had “talked about touching each other’s privates.”
¶ 6. Defendant indicated that he was having trouble processing the conversation. The
detective continued with his questioning. The court found that the detective’s questions featured
numerous confession-driven techniques, the most important of which was a suggestion that few
or no legal repercussions would follow if defendant admitted to a mistaken touch. The court
2 found the overall tone of the exchange to be one of intense suspicion, and it indicated that the
audiotape fully captured the interrogation’s accusatory, antagonistic, and unyielding nature.
¶ 7. After half an hour of talking to the detective, defendant admitted to
inappropriately touching Z.Z. Defendant told the detective that “It just happened. . . . Like you
said.” He then answered yes or no to the detective’s targeted follow-up questions. The court
found that defendant offered almost no details of his own. The court was not persuaded by the
detective’s attempt at the hearing to validate the approach he had taken.
¶ 8. Defendant testified that, during the interview, he was suffering from a panic
attack that prevented him from thinking clearly about the allegations. He indicated that his goal
was to get out of the immediate, stressful situation. According to defendant, he confessed
because he believed it was the only way to end the interrogation, and he believed the detective
was promising him treatment, not jail, as long as he said that the touching was a mistake. The
court found defendant considerably more credible than the detective.
¶ 9. Based on these and other findings, the court concluded that the State failed to
prove by a preponderance of the evidence that defendant confessed voluntarily. See
State v. Robinson, 158 Vt. 286, 294, 611 A.2d 852, 856 (1992) (identifying State’s burden of
proof), abrogated on other grounds by State v. Carter, 164 Vt. 545, 550, 674 A.2d 1258, 1262
(1996); see also State v. Pontbriand, 2005 VT 20, ¶ 21, 178 Vt. 120, 878 A.2d 227 (explaining
that State must show that “coercive governmental conduct” did not “play[] a significant role in
inducing the statement”). The court determined that the detective’s seven unrelenting
questioning strategies and other enhancing circumstances played a significant role in inducing
defendant’s confession. Most importantly, the court found that the detective made a series of
promises that if defendant would admit to a mistaken or accidental touch, he would not face
criminal sanctions, and defendant testified that this played a significant role in his confession.
The detective also periodically portrayed himself as defendant’s ally; pandered to defendant’s
3 good reputation in the community; and reminded defendant that they were in his home and not
the police station. The court found that defendant had limited experience with law enforcement
and that it was reasonable for him to believe that the detective was promising him treatment but
no jail time if he capitulated to the “mistake” paradigm. The court further concluded that the
coercive atmosphere was enhanced because the detective led defendant to believe that this was
his last opportunity to strike a deal, the detective refused to disclose the reason for the
interrogation before it began, and he did not remind defendant of his right to terminate the
interview at any time. Considering these techniques in conjunction with defendant’s stammering
and other signs that he was not processing the allegations well, the court concluded that the
overbearing nature of the interview became unmistakable.
¶ 10. The court found it unnecessary to consider defendant’s claim that he was having a
panic attack during the interview because the State failed to show that its technique was
sufficiently protective of defendant’s fundamental constitutional rights, even absent a special
vulnerability. According to the court, the circumstances showed that the challenged statements
more likely resulted from defendant’s resignation to a barrage of false promises and other tactics
than from a sudden will to admit wrongdoing. The court thus concluded that the State failed to
prove that defendant’s confession was “the product of a rational intellect and the unfettered
exercise of free will.” State v. Sullivan, 2013 VT 71, ¶ 37, 194 Vt. 361, 80 A.3d 67 (quotation
omitted). Accordingly, it granted defendant’s motion to suppress. The State appealed.
¶ 11. The State argues that the court erred as a matter of law in finding the confession
involuntary. It contends that there were no threats made to defendant, and that defendant
decided on his own to tell the truth. It challenges the court’s finding that defendant was credible
and its conclusion that his will was overborne. According to the State, the evidence shows that:
defendant lied to the court repeatedly; after he confessed, he continued to admit some things and
deny others; and he acknowledged at the hearing, without coercion, that he told the truth during
4 the interview. The State cites other cases where we have found confessions voluntary, and
argues that we should reach the same result here.1
¶ 12. As reflected above, “[w]hen a defendant challenges a confession or inculpatory
statement, the prosecution must establish by a preponderance of the evidence that the confession
or statement was made voluntarily.” Pontbriand, 2005 VT 20, ¶ 22. A voluntary statement is
one that is “the product of a rational intellect and the unfettered exercise of free will.” Sullivan,
2013 VT 71, ¶ 37 (quotation omitted). We recognize that “the police may use some
psychological tactics in eliciting a statement from a suspect,” and “[e]ven where such tactics
have an impact on a suspect’s decision to talk to the police, the resulting statements are voluntary
so long as they reflect a product of the suspect’s own balancing of competing considerations.”
Pontbriand, 2005 VT 20, ¶ 22 (quotations omitted). “A confession or inculpatory statement is
involuntary if coercive governmental conduct played a significant role in inducing the
statement.” Id. ¶ 21.
¶ 13. On review, we must determine if, “under the totality of the circumstances, the
confession was obtained in a manner consistent with the Constitution.” Miller v. Fenton, 474
U.S. 104, 117 (1985). The Supreme Court has stated that “both the characteristics of the accused
and the details of the interrogation” are relevant in assessing “the totality of all the surrounding
circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973) (citations omitted). With
respect to the former, the Court cited as examples, the youth of the accused, his or her lack of
education, or low intelligence. Id. The Court has also recognized that “assessments of
credibility and demeanor are not crucial to the proper resolution of the ultimate issue of
‘voluntariness.’ ” Miller, 474 U.S. at 117. Nonetheless, there are “subsidiary questions, such as
1 The State also suggests that the court misstated the test for voluntariness by finding that the detective’s technique “was not sufficiently protective of defendant’s fundamental constitutional rights.” We find it evident that the court applied the appropriate legal standard, but in any event, as we are reviewing the court’s legal conclusion de novo, any error is harmless. 5 the length and circumstances of the interrogation, the defendant’s prior experience with the legal
process, and familiarity with the Miranda warnings, [that] often require the resolution of
conflicting testimony of police and defendant.” Id.
¶ 14. We have issued conflicting statements about whether “voluntariness” is a question
of fact or law. See, e.g., Sullivan, 2013 VT 71, ¶ 38 (recognizing that this Court has “previously
suggested that voluntariness of statement for purposes of Vermont Constitution is question of
fact,” but has also recognized that “voluntariness of confessions under U.S. Constitution is
question of law”). The trial court here based its decision on the federal constitution and thus, we
employ the well-established standard of review employed by the federal courts. “Without
exception, the Court’s confession cases hold that the ultimate issue of ‘voluntariness’ is a legal
question . . . .” Miller, 474 U.S. at 109; see also State v. Weisler, 2011 VT 96, ¶ 12, 190 Vt. 344,
35 A.3d 970 (recognizing that standard of review governing the voluntariness of confessions is
“generally de novo” and citing cases). We defer to the historical facts as found by the trial
court,2 but we review de novo “the ultimate issue” of “whether the State has obtained the
confession in a manner that comports with due process.” Miller, 474 U.S. at 110.
¶ 15. We agree with the trial court that the totality of the circumstances here shows that
“coercive governmental conduct played a significant role in inducing” defendant’s confession.
Pontbriand, 2005 VT 20, ¶ 21. Our conclusion is based on the detective’s inappropriate
promises of leniency, coupled with the detective’s misrepresentation of his authority. The other
techniques employed by the detective would not necessarily be problematic but they become
significant here because they enhanced the effectiveness of the two key factors identified above.
2 We note that our standard for reviewing findings of fact based on the audiotape of the interview is the same as for other findings. See In re M.K., 2015 VT 8, ¶ 15 n.*, 198 Vt. 233, 114 A.3d 107 (noting that while Supreme Court had viewed a video as part of the record of the proceedings below, standard for reviewing findings regarding video was same as with other evidence presented in case, and Court would not make appellate findings based on its viewing of video). 6 ¶ 16. The Supreme Court stated long ago that “a confession is inadmissible as
involuntary if obtained by any direct or imposed promises, however slight.” Bram v. United
States, 168 U.S. 532, 542-43 (1897), quoted in State v. Roberts, 160 Vt. 385, 388, 631 A.2d 835,
837 (1993). As numerous courts have recognized, “[t]he Bram test has not been interpreted as a
per se proscription against promises made during interrogation, and the test has been tempered
by subsequent holdings that, depending on the totality of the circumstances, certain
representations will not render a confession involuntary.” Hawkins v. Lynaugh, 844 F.2d 1132,
1140 (5th Cir. 1988) (quotation omitted); see also State v. Pillar, 820 A.2d 1, 13 (N.J. Super.
2003) (“[W]hat had once been considered virtually a per se rule that promises or suggestions of
leniency made to a defendant in the absence of counsel render any subsequent confession
involuntary has evolved into a totality of the circumstances test in which any promises or threats
by police officers are simply one factor to be considered.” (citations omitted)). In assessing the
effect of a promise under the totality of the circumstances, relevant factors include “the nature of
the promise, the context in which the promise was made, the characteristics of the individual
defendant, whether the defendant was informed of his rights, and whether counsel was present.”
Pillar, 820 A.2d at 13-14 (quotation and additional citations omitted).
¶ 17. We have distinguished promises from mere predictions. See, e.g., Hawkins, 844
F.2d at 1139 (“A promise is not the same thing as a prediction about future events beyond the
parties’ control or regarded as inevitable.” (quotation omitted)). Unlike predictions,
“[p]romises . . . convey the expectation of a benefit that the officer has, in the defendant’s eyes,
the power either to grant or withhold.” Roberts, 160 Vt. at 389, 631 A.2d at 830. In determining
if a promise has been made, we view statements “from the defendant’s, not the interrogator’s
perspective, applying a reasonableness standard.” Pillar, 820 A.2d at 14 (quotation and brackets
omitted). The “question is whether or not the promise likely would lead to a false confession.”
Herrera v. State, 194 S.W.3d 656, 660 (Tex. App. 2006); see also State v. Gard, 358 N.W.2d
7 463, 468 (Minn. App. 1984) (concluding that officer made oral representations that could
reasonably be construed as promises to induce a confession, and that under totality of
circumstances, “respondent could reasonably have believed that his statements would not be
used against him if he agreed to talk to the deputy”).
¶ 18. We have held that an “officer’s statement that he would convey the defendant’s
cooperativeness to the State’s attorney” was a prediction, not a promise, and that it was
insufficient by itself to make the defendant’s subsequent confession involuntary. State v.
Beckley, 157 Vt. 446, 449, 600 A.2d 294, 296 (1991). In reaching our conclusion, we observed
that although general statements about the value of cooperation do not taint a confession, “a
promise that cooperation by the defendant will aid the defense or result in leniency” would. Id.
(quotation and brackets omitted). We recognized that, “in the totality of the circumstances, a
confession induced by a promise by a law enforcement agent to lessen charges or seek lighter
punishment is involuntary.” Id.
¶ 19. In Roberts, we held that an officer who told a defendant that his statement might
result in reduced bail was making a “mere prediction[] regarding the value of cooperation,”
which was “not sufficiently coercive to render a subsequent confession involuntary.” 160 Vt. at
388-89, 631 A.2d at 837. We considered it significant that “[t]he officer did not personally
promise to provide any benefit to defendant, other than to convey the fact of defendant’s
cooperation to the judge and indicate that the judge might consider when setting bail, that
defendant had given a statement.” Id. at 389, 631 A.2d at 838. There were also no findings to
suggest that the defendant “perceived the officer as having the authority to directly provide him
with any benefit.” Id. Thus, in the absence of any promise, we concluded that the officer’s
statement did not render the defendant’s confession involuntary. Id.; see also State v. Bacon,
163 Vt. 279, 294, 658 A.2d 54, 64-65 (1995) (concluding that officers’ suggestions that
defendant’s limited role in murder or absence of premeditation might reduce offense or sentence
8 was a prediction, which is rarely viewed as sufficiently coercive to render confession
involuntary, and noting that statement did not appear to have had much effect on defendant).
¶ 20. The statements made by the officer in this case differ from the predictions
discussed above. These statements included the following:
“[M]istakes happen. Curiosity sometimes gets the best of us, okay? . . . That I can understand and that I can deal with.”
“We can solve a mistake.”
“[M]istakes can be forgiven.”
“I’ve dealt with guys who’ve made mistakes. We can deal with a mistake. I can help you with a mistake. I can’t help you with the other. We’re done with the other.
These statements implied that the defendant’s cooperation would “result in leniency,” the precise
type of promise we identified as inappropriate in Beckley, 157 Vt. at 449, 600 A.2d at 296. But
see Hawkins, 844 F.2d at 1140 (concluding that although officer’s promise of “help” to
defendant might arguably be heard to mean that defendant would receive counseling in lieu of
imprisonment, officer made no direct promise of leniency, and at most implied lenient treatment,
and “indirect promises do not have the potency of direct promises”). Compare People v. Conte,
365 N.W.2d 648, 663 (Mich. 1984) (stating that a “promise need not be express, as subtle
intimations can convey as much as express statements,” and concluding that “there is no room
for a distinction between tacit and express understandings” (quotation and brackets omitted)).
The detective implied that defendant would face treatment or complete absolution if he
confirmed the “mistake” theory while signaling that harsher consequences would follow a
determination that he intentionally touched the child. He told defendant:
“The only way to deal with it is to talk so that I can get you the help that you need, or somebody you can talk to figure out why it happened, because I don’t want it to happen to somebody else.”
“[Mistakes] can be forgiven and easily taken care of, but . . . I can only help you if you want to help yourself . . . . it’s like being a
9 drug addict or an alcoholic. If you don’t want to help yourself, I can’t help you.”
The officer also told defendant: “I could have took [sic] a different direction, but because I think
it was a mistake, and you are a good person, and you made a bad decision that’s why I decided to
come here. The only reason.” This implied to defendant that if he admitted to a mistake, he
might not be arrested and suggested that the officer had the power to make such a decision. The
officer misrepresented the law by suggesting that “mistaken touches” would result only in
treatment. He also misrepresented his authority by repeatedly using the word “I” to describe
how a confessed mistake would be “deal[t] with,” implying that defendant could strike a bargain
with the detective if he agreed to confess.
¶ 21. As the trial court found, the effect of these promises was enhanced by the other
techniques used by the detective, techniques that standing alone are not necessarily problematic.
This includes the detective periodically portraying himself as defendant’s ally; pandering to
defendant’s good reputation in the community; and reminding defendant that they were in his
home and not the police station. Defendant had limited experience with law enforcement, and
we agree that, under the totality of the circumstances, a reasonable person in defendant’s position
could believe that the detective was promising him treatment but not jail if he capitulated to the
“mistake” paradigm. The coercive atmosphere was further enhanced because the detective
refused to disclose the reason for the interrogation before it began; he did not remind defendant
of his right to terminate the interview at any time; and he led defendant to believe that that this
was his last opportunity to strike a deal, saying “This is your opportunity with me now. You
only get one.”
¶ 22. The State argues that this case is like Pontbriand, 2005 VT 20, where we
concluded that a defendant, who was interrogated by two police officers in his hospital room,
voluntarily confessed. We disagree. Most importantly, there were no promises of leniency
10 involved in Pontbriand. Additionally, the officers there immediately informed the defendant that
they worked for a special unit that investigated sexual offenses and showed the defendant a copy
of an incriminating email that the defendant had sent his girlfriend; they told the defendant that
he was not under arrest and that he did not have to talk to them; they informed him that “[w]e are
cops” and that “sometimes people go to jail,” and repeated that they wanted to make sure the
defendant wanted to talk to them. Id. ¶ 23.
¶ 23. While the officers also told the defendant that “this was his opportunity to tell his
side of the story and that they were not going to come back again,” id. ¶ 4, we did not consider
this statement, in the totality of the circumstances, to have contributed to a coercive atmosphere.
Id. ¶ 28 (noting that other courts hold that “police statements to a suspect suggesting he or she
has one last chance to talk are not conclusive evidence of coercive questioning”). We noted that
the defendant “had not yet been charged with a crime when he was interviewed,” and concluded
that “[a] person in his position could reasonably have anticipated that, even if the police declined
to question him again, he would still have the opportunity to present his side of the story in
court.” Id. ¶ 29. Because there was no other evidence of coercive interrogation tactics, we found
this statement insufficient to render the defendant’s further participating in the conversation
involuntary.
¶ 24. The State argues that, like the defendant’s confession from his hospital bed in
Pontbriand, we should find defendant’s confession voluntary here. It cites our statement in
Pontbriand that “[i]n the absence of a threatened adverse consequence—like the threat of
physical harm or repercussions against family members—for refusing to answer questions, [the
defendant’s] decision to continue the interview was a product of his own balancing of competing
considerations.” Id. ¶ 27 (quotation omitted). It maintains that the officer here made no threats.
It also argues that the officer’s statement that defendant would have one opportunity to speak
with him is similar to the statement discussed above.
11 ¶ 25. We find these arguments unpersuasive. First, the statement concerning adverse
consequences must be considered in the context in which it was made. It was not intended to
limit the voluntariness analysis to a single factor and eliminate any consideration of the effect of
promises or other elements that might be present in other cases. The totality of the
circumstances here differ significantly from those present in Pontbriand. The officer’s statement
about defendant having one opportunity to talk to him, moreover, is but one small piece of the
larger picture of coercion here, and this statement enhanced the effectiveness of the officer’s
implied promises of leniency and the misrepresentation of his authority.
¶ 26. The State also cites In re M.A., 2011 VT 9, 189 Vt. 354, 22 A.3d 410, where the
defendant was intellectually disabled; the interrogation lasted four hours and occurred at the
police station; and the detective told the defendant that the interview was “private” and “you’re
not in trouble anyways.” Id. ¶ 4. The State argues that the circumstances in M.A. were more
egregious than those here yet we found the defendant’s confession voluntary.
¶ 27. The question presented in M.A. differs from that presented here, and we
distinguish it on this basis. In M.A., we considered whether the trial court erred in finding that
the defendant presented a danger of harm to others, and thus was “in need of custody, care and
habilitation” under 18 V.S.A. § 8839. The trial court found by clear and convincing evidence
that the defendant had committed sexual assaults and lewd or lascivious conduct against the
victim, and was therefore a danger to others. M.A., 2011 VT 9, ¶ 8. In reaching its conclusion,
the court found that the defendant had voluntarily made incriminating statements during a police
interview. On appeal, the defendant argued that his confession was unreliable because his
mental deficiencies rendered him easily overborne by extensive, coercive questioning. He
presented expert testimony to this effect. Based on this argument, and his assertion that the
victim’s testimony was also unreliable, the defendant argued that there was insufficient evidence
that he presented a danger of harm to others.
12 ¶ 28. We reviewed the trial court’s decision for clear error, and affirmed its ruling. In
doing so, we cited the trial court’s finding that “the officer’s questioning techniques, while
‘persistent’ and ‘sophisticated,’ were not ‘abusive or threatening’ and contained ‘no improper
promises of leniency, or undue psychological trickery,’ and that [the] defendant’s will was not
overborne.” Id. ¶ 17. In considering the defendant’s reliability argument, we deferred to the trial
court’s assessment of the credibility of witnesses and the weight of the evidence, and concluded
that the defendant failed to show that the court’s findings concerning the absence of coercion
were clearly erroneous. Id. ¶ 18. Given that the defendant’s argument in M.A. was premised on
the unreliability of his confession, and given that we were deferring to the trial court’s
assessment of the weight of the evidence, we do not find this case persuasive here.
¶ 29. We thus turn to the State’s remaining arguments. The State asserts that defendant
admitted twice at the suppression hearing that his confession was the truth. It maintains that this
shows that defendant was not coerced during his interview with police. We disagree. “Whether
true or false, a confession given involuntarily is inadmissible in a criminal trial.” Beckley, 157
Vt. at 448, 600 A.2d at 295. “The reason for excluding involuntary confessions is the likelihood
their being fabricated in the hope of escaping punishment, or obtaining leniency.” State v.
Cocklin, 109 Vt. 207, 213, 194 A. 378, 380 (1937). Even assuming that defendant admitted to
“telling the truth” at the suppression hearing, this has no bearing on our voluntariness analysis.
¶ 30. The State also challenges the trial court’s finding that defendant was more
credible than the detective, and it cites reasons why defendant should have been deemed not
credible. As set forth above, defendant’s credibility is not central to the voluntariness analysis.
See Miller, 474 U.S. at 116-117 (stating that “assessments of credibility and demeanor are not
crucial to the resolution of the ultimate issue of ‘voluntariness’ ”). We have evaluated the
totality of the circumstances from the perspective of a reasonable person in defendant’s position,
13 and as set forth above, conclude that defendant could have reasonably believed the offer would
ensure that he received more lenient treatment if he confessed to a mistaken touch.
¶ 31. Finally, the State argues that the court erred by failing to decide its motion that
requested permission to examine defendant, instead declaring that the court would hold a
suppression hearing limited only to the detective’s techniques, and then taking testimony about
defendant’s mental condition and making assessments of his credibility, without allowing the
State to have an expert examine him as permitted by V.R.Cr.P. 16.1.
¶ 32. Rule 16.1 allows a judicial officer to require a defendant to submit “to a
reasonable mental examination by a psychiatrist or other expert” if a defendant gives notice “that
expert testimony will be offered as provided in [V.R.Cr.P.] 12.1.” V.R.Cr.P. 16.1(a)(1)(I).
Defendant was not allowed to present expert testimony at the suppression hearing, and the basis
of the trial court’s analysis was an objective assessment of voluntariness, not dependent on
defendant’s special vulnerabilities. For these reasons, even if the court’s failure to allow the
State to conduct an examination under V.R.Cr.P. 16.1 was error—a question we do not decide—
we discern no prejudice from the trial court’s failure to allow the examination.
Affirmed.
FOR THE COURT:
Chief Justice