Jurisdictional Statement — Wall v. Vermont

DEC

In The

Supicme Court, U. &-

FILED

MICHAL RODAK, JR., CLERK.

one

17 1979

Supreme Court of the United States

October Term, 1979

No’ 69-945

VICTOR J. WALL,

Appellant,

Vs.

STATE OF VERMONT,

Appellee.

ON APPEAL FROM

THE SUPREME COURT OF VERMONT

JURISDICTIONAL STATEMENT

ROBERT FAIN

DAVID P. BURKE

Robert Fain, P.C.

777 Summer Street

Stamford, Connecticut 06901

December 17, 1979 Counsel for Appellant

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ee

CONSTITUTIONAL AND STATUTORY PROVI-

hen wes oes sceccseecacsees

STATEMENT OF THE CASE .................5-

RAISING THE FEDERAL QUESTIONS .........

THE FEDERAL QUESTIONS ARE SUBSTAN-

REE ee IS SE Oe ee ee

I. Vt. Stat. Ann. tit. XXV, §1205(a) and the

custodial advice given pursuant thereto are

violative of the Fifth and Fourteenth Amend-

ments of the Constitution of the United States

in that they are utilized to coerce an individu-

al’s consent to take a chemical breath test... .

II. Appellant’s waiver of his ‘‘Miranda rights,”’

having been obtained while Appellant alleged-

ly was intoxicated and after Appellant had un-

equivocally requested the presence of an at-

torney, did not satisfy the minimum constitu-

tionally guaranteed standards...............

SE CGS ee CANA Ww abc epee secs cccsece

APPENDICES

Trial Court’s ruling on Appellant’s Motion to

Opinion of the Supreme Court of Vermont ..

10

10

13

16

la

TABLE OF CASES

Barr v. City of Columbia, 378 U.S. 146 (1964) ......

California v. Byers, 402 U.S. 424 (1971)............

Carter v. Texas, 177 U.S. 442 (1899) ................

Chambers v. Mississippi, 410 U.S. 284 (1973) .......

County Court of Ulster Cty. v. Allen, U.S.

- er as a REPO ook cce eck sadsdveven

Fare v. Michael C., fk i ey:

PE a eae ea Pei G Uy MOG

Fisher v. United States, 425 U.S. 391 (1976) ........

Gay v. City of Orlando, 202 So.2d 896 (Dist. Ct.

1967), cert. denied, 390 U.S. 956 (1968) ..........

Hoffman v. United States, 341 U.S. 479 (1951)......

In re McMorrow, 133 Vt. 472, 346 A.2d 218 (1975) ..

Jenkins v. George, 418 U.S. 153 (1974). ............

Johnson v. Zerbst, 304 U.S. 458 (1938) ............

Malloy v. Hogan, 378 U.S. 1 (1964) ...............

Michigan v. Mosley, 423 U.S. 96 (1975) ............

Mincey v. Arizona,

PEPE a cee en ssh dab sie es cb ce wee es ¥

Miranda v. Arizona, 384 U.S. 440 (1966) ...........

Page

7,8,9

13

5,13,15

iii

People v. Thomas, 46 N.Y. 2d 100, 385 N.E. 2d, 584,

412 N.Y.S.2d 845 (1978), appeal dismissed,

U.S. , 48 U.S.L.W. 3240 (1979) .......... 12,13

Raley v. State of Ohio, 360 U.S. 423 (1959) ......... 6

Schmerber . California, 384 U.S. 757 (1966) ....... 11,12,13

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) .... 13,14

State v. Andrews, 297 Minn. 260, 212 N.W.2d 863

(1973), cert. denied, 419 U.S. 881 (1974) ......... 12

State v. Brean, 136 Vt. 147, 385 A.2d 1085 (1978).... 10

State v. Conti, 132 Vt. 83, 315 A.2d 261 (1974) ...... 8,9

State v. D’Amico, 136 Vt. 153, 385 A.2d 1082 (1978) . 8,9

State v. Garvey, 133 Vt. 29, 329 A.2d 662 (1974)..... 8,9

State v. McSheffrey, 131 Vt. 329, 306 A.2d 702

gs NOPE ee OE ae Fay Creep eae 8

Street v. New York, 394 U.S. 576 (1969) ........... 7,8,9

Townsend v. Sain, 372 U.S. 293 (1963)............. 13

Williams v. Georgia, 349 U.S. 375 (1955) ........... 8,9

TABLE OF CONSTITUTIONAL

AND STATUTORY PROVISIONS

United States Constitution, Fifth Amendment ...... 2,3,10,

13,14

United States Constitution, Fourteenth Amendment . 2,3,10

iV

MO UDA; ARID: ones cd Sevan eee

Vt. Stat. Ann. tit.

Vt. Stat. Ann. tit.

Vt. R.Cr.P. 52(b)

Malet GEO Sk xantddvewects

RaGV GRO i sweden sh nena

Se |

Page

2,3,4,6,

7,9,10,11

8

In The

Supreme Court of the United States

October Term, 1979

No.

VICTOR J. WALL,

Appellant,

Vs.

STATE OF VERMONT,

Appellee.

ON APPEAL FROM

THE SUPREME COURT OF VERMONT

JURISDICTIONAL STATEMENT

VICTOR J. WALL, the Appellant, appeals from the final

judgment of the Supreme Court of Vermont, dated September

17, 1979, in which that Court affirmed the District Court of

Vermont, Unit I, Bennington Circuit’s judgment of guilty with

respect to the charge of driving while under the influence of in-

toxicating liquor in violation of Vt. Stat. Ann. tit. XXV, §1201

(a) (2).

OPINIONS BELOW

The ruling of the District Court of Vermont, Unit I, Benning-

ton Circuit on Appellant’s Motion to Suppress is unreported

and is set forth in Appendix A. The opinion of the Vermont Su-

preme Court is reported at Vt. , A.2d

(1979), and is set forth in Appendix B.

JURISDICTION

The judgment of the Vermont Supreme Court was entered on

Septmeber 17, 1979. See Appendix B, at 1b. This appeal is being

docketed in this Court within ninety (90) days from the entry of

the Vermont Supreme Court’s judgment. The jurisdiction of

this Court is invoked under 28 U.S.C. §1257(2).

QUESTIONS PRESENTED

I. Whether Vt. Stat. Ann. tit. XXV, §1205(a) and the custodi-

al advice given pursuant thereto violate the Fifth and Four-

teenth Amendments of the Constitution of the United States

in that they are utilized to coerce an individual’s consent to

take a breath test.

II. Whether Appellant’s waiver of his ‘‘Miranda rights,’’ hav-

ing been obtained while Appellant was injured and, alleged-

ly intoxicated and after Appellant had unequivocally re-

quested the presence of an attorney, satisfied the minimum

constitutionally required standards applicable to such a

waiver.

—

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Fifth Amendment, United States Constitution:

No person. ..shall be compelled in any criminal case to be

witness against himself. . .

Fourteenth Amendment, United States Constitution:

No State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United States, nor

shall any State deprive any person of life, liberty, or property,

without due process of law... °

Vt. Stat. Ann. tit. XXV, §1205(a):

If the person refuses to submit to a chemical test, it shall not

be given but such refusal may be introduced as evidence in a

criminal prodeeding.

STATEMENT OF THE CASE

The Appellant was involved in a single car accident during the

evening hours of July 9, 1977. According to the Vermont Su-

preme Court, a local police officer observed the accident and

immediately proceeded to the Appellant’s vehicle. Appendix B

1b.* Upon arriving at the scene of the accident, the police offi-

cer noticed that Appellant was having difficulty opening the

driver’s door of the automobile, apparently because of damage

that the automobile had sustained in the collision. The officer,

therefore, proceeded to assist the Appellant in opening the car

door. When the door was finally opened, the Appellant, ac-

cording to the arresting officer, stumbled out. Continuing, the

court observed that the police officer, having the opportunity to

observe Appellant’s general appearance and behavior, and de-

tecting the odor of alcohol on Appellant’s breath took Appel-

*Hereinafter, the Vermont Supreme Court opinion, annexed hereto as

Appendix B., shall be referred to as ‘‘App. B Fg

lant into custody under the charge of driving while intoxicated.

App. B 2b.

The Appellant was taken into custody at the scene of the acci-

dent. App. B 2b. After taking Appellant into custody but before

advising him of his ‘‘Miranda rights,’’ the arresting officer car-

ried On a conversation with the Appellant, during the course of

which the Appellant made highly incriminating statements.

App. B 2b. Finally, in spite of the fact that the arresting officer

carried on a conversation with the Appellant, obtaining highly

incriminating statements, he did not advise Appellant of his

“‘Miranda rights’’ until sometime after they arrived at the police

station.

Once Appellant was advised of his ‘‘Miranda rights’’ at the

police station, he unequivocally refused to answer any further

questions until an attorney was present. App. B 2b. Although

the Appellant was unable to reach an attorney, the arresting

officer continued his interrogation, ultimately obtaining state-

ments tantamount to a confession from the Appellant.

During the course of the interrogation, the arresting officer

requested the Appellant to take a breath chemical test. Follow-

ing the precedure implementing Vt. Stat. Ann. tit. XXV,

§1205(a), the officer informed Appellant that if he refused to

take the breath chemical test, it would not be administered but

that his refusal could be used as evidence against him in a

criminal proceeding. App. B 2b. Subsequent to receiving this

custodial advice, the Appellant purportedly consented to, and

did, provide a breath sample.

HOW THE FEDERAL QUESTIONS WERE RAISED

AND DECIDED BELOW

Appellant’s Waiver of his Miranda Rights.

Appellant, at a pretrial proceeding, moved to suppress the in-

criminating statements that he had made during the course of

his custodial interrogation. In addition, Appellant moved to

suppress the results of the breath chemical test. As grounds for

the suppression of his custodial statements, Appellant main-

tained that, because of the injuries that he sustained in the auto-

mobile accident that immediately preceded his arrest, he was in-

capable of knowingly and intelligently waiving — by the stan-

dards set forth by this Court’s opinions in Miranda v. Arizona,

384 U.S. 436 (1966); Johnson v. Zerbst, 304 U.S. 458 (1938) —

his rights against self-incrimination. Similarly, Appellant main-

tained that his pre-arrest injuries prevented him from knowingly

and intelligently consenting to provide a breath sample.

The trial court, in denying Appellant’s motion to suppress,

concluded as a matter of law that Appellant had knowingly and

intelligently waived his ‘‘Miranda rights, ’’ both at the scene of

the accident and later at the police station. App. A 3a. Conse-

quently, highly incriminating statements made by the Appellant

both at the scene of the accident, before Appellant even had

been advised of his rights, and at the police station were admit-

ted into evidence at his trial. In addition, the trial court, con-

cluding that the Appellant had voluntarily consented to the tak-

ing of a sample of his breath, denied Appellant’s Motion to

Suppress the results of the breath chemical test. App. A 4a.

Appellant was tried before a jury and found guilty as charged.

Subsequent to his trial Appellant reiterated both of the above

claims in his post-trial motion for a judgment of acquittal and in

his post-trial motion for a new trial. The trial court summarily

dismissed Appellant’s claims and entered a judgment of guilty

on the jury’s verdict of guilty.

Appellant renewed his claim — that because of his physical

and mental condition he was incapable of waiving his rights

againt self-incrimination as guaranteed by the Constitution of

the United States — before the Vermont Supreme Court. In ad-

dition, Appellant contended that the manner in which his pur-

ported waiver was obtained was constitutionally improper. For,

in spite of Appellant’s unequivocal request to speak with an at-

torney before answering any further questions, the arresting

officer continued his interrogation of the Appellant when the

Appellant’s initial efforts to reach an attorney failed.

The Vermont Supreme Court, affirming the trial court’s

judgment, found no error in the trial court’s conclusion that

Appellant had knowingly and intelligently waived his rights

against self-incrimination. App. B 4b. The Vermont Supreme

Court observed with respect to the second portion of

Appellant’s claim — that his right to remain silent had been

violated by the arresting officer’s immediate resumption of

questioning — that Appellant had not pressed this issue before

the trail court. Nevertheless, at Appellant’s request under the

Vermont “‘glaring error’’ doctrine, the Vermont Supreme Court

reviewed the record with respect to this point. App. B 5b.

Stating that no evidence of coercion or undue influence ap-

peared in the record, the Vermont Supreme Court concluded

that there was no “‘glaring error.”’

In summary, both the issue of Appellant’s capacity to know-

ingly and intelligently waive his rights against self-incrimination,

and the issue of the violation of Appellant’s right to remain

silent are properly before this Court. The former issue was

raised at every possible opportunity in the Vermont State pro-

ceedings and ultimately was ruled upon by the Vermont Su-

preme Court. The latter issue, while not raised at the trial level,

was substantively considered and ruled upon by the Vermont

Supreme Court. See, Raley v. State of Ohio, 360 U.S. 423

(1959); and Jenkins v. Georgia, 418 U.S. 153, 157 (1974)

(‘‘Whether or not Appellant argued this constitutional issue

below, it is clear that the Supreme Court of Georgia reached

and decided it. That is sufficient under our practice.’’).In both

instances, Appellant’s rights as guaranteed by the Constitution

of the United States were denied by the Vermont Supreme

Court.

The Unconstitutionality of Vt. Stat. Ann. tit. XXV, 1205(a).

Appellant’s challenge to the constitutionality of Vt. Stat.

Ann. tit. XXV, §1205(a) was before the Vermont Supreme

Court. While that court did review Appellant’s challenge to the

custodial interrogation procedure under its “‘glaring error’’ doc-

trine, the constitutionality uf the statute was not so considered.

Nevertheless, the Vermont Supreme Court citing its earlier

decisions on this issue, did reaffirm the constitutionality of this

statute.* Mindful of this Court’s policy of not considering

issues rejected on an independent and adequate state procedural

ground by the state courts below, County Court of Ulster Cty.

v. Allen, 99 S.Ct. at 2220, and the burden of establishing that

the issue was properly presented at the state level, Street v. New

York, 394 U.S. 576, 582 (1969), Appellant will briefly set forth

the reasons why the issue of the constitutionality of Vt. Stat.

Ann. tit. XXV, §1205(a) is properly before this Court.

At the outset, Appellant notes that this Court has repeatedly

stated that, ‘‘[t]he issue whether a federal question was suffi-

ciently and properly raised in the state courts is itself ultimately

a federal question, as to which this Court is not bound by the

decision of the state courts,’’ Street v. New York, 394 U.S. at

583 (footnote omitted). In making its determination on this

point, however, this Court has shown considerable respect for

the procedural rules of the state in question, typically consider-

ing, inter alia, the statutory and case authority for the pro-

cedural rule in question as well as for any exceptions thereto.

County Court of Ulster Cty.; Chambers v. Mississippi 419 U.S.

284 (1972; Street v. New York, supra; Williams v. Georgia, 349

U.S. 375 (1955); Carter v. Texas, 177 U.S. 442 (1899). Only

recently this Court observed that, ‘“‘if neither the state

legislature nor the state courts indicate that a federal constitu-

*Cf., County Court of Ulster Cty. v. Allen, __. U.S. ___.,, 99 S.. Ct.

2213 (1979). (In concluding that the Court of Appeals, in effect, ruled

on the constitutional issue there involved, this Court equated that

court’s:

{R]eprise of the explanation that its prior cases [had] traditionally

given for the statute in holding it constitutional and a citation of two

of those cases [with] . . . @ passing and summary disposition of an

issue that had already been decided on numerous occasions. ”’

99 S.Ct., at 2222) (emphasis added).

tional claim is barred by some state procedural rule, a federal

court implies no disrespect for the state by entertaining the

claim.’’ County Court of Ulster Cty. v. Allen, 99 S.Ct at 2223.

The courts of the State of Vermont are authorized under V.R.

Cr.P. 52(b) and its civil counterpart to consider issues of con-

stitutional import even when such issues were not brought to the

attention of the court below. Although the Vermont Supreme

Court has indicated that this so-called ‘‘plain error’’ or ‘‘glaring

error’’ doctrine is to be invoked only in the most exceptional cir-

cumstances, the cases in which it has been utilized to review the

decisions of lower courts reveal that the alleged constitutional

infraction need not be exceptional See, e.g., State v. D’Amico,

136 Vt. 153, 385 A.2d 1082 (1978); In re McMorrow, 133 Vt.

472, 346 A.2d 218 (1975); State v. Garvey, 133 Vt. 29, 329 A.2d

662 (1974); State v. Conti, 132 Vt. 83, 315 A.2d 261 (1974);

State v. McSheffrey, 131 Vt. 329, 306 A.2d 702 (1973). Indeed,

in the latter three cases, the Vermont Supreme Court utilized the

‘*glaring error’’ doctrine to consider inadequacies in the admin-

istration of Vt. Stat. Ann. tit. XXV, §§1201-1210. Appellant’s

challenge, on the other hand, was and is directed not merely at

administrative infirmities, but at the very constitutionality of

the statute itself.

This Court has stated that:

[W]here a State allows questions of this sort to be

raised at a late stage and be determined by its courts

as a matter of discretion, we are not concluded from

assuming jurisdiction and deciding whether the state

court action in the particular circumstances is, in ef-

fect, an avoidance of the federal right. A state court

may not, in the exercise of its discretion, decline to

entertain a constitutional claim while passing upon

kindred issues raised in the same _ manner.

Williams v. Georgia, 349 U.S. at 383 (footnotes omitted, em-

phasis added). See also, Barr v. City of Columbia, 378 U.S. 146,

149-150 (1964) (‘We have often pointed out that the state pro-

cedural requirements which are not strictly or regularly followed

cannot deprive us of the right to review. (citations omitted)). In

Williams, after observing that Georgia appellate courts had

discretionary authority to consider issues not raised below, and

that the Georgia appellate courts had in practice utilized their

discretion to consider issues similar to the one before this Court

in Williams, this Court concluded that:

[T]he trial court and the State Supreme Court de-

clined to grant Williams’ motion though possessed of

power to do so under state law. Since his motion was

based upon a constitutional objection, and one the

validity of which has in principle been sustained here,

the discretionary decision to deny the motion does

not deprive this Court of jurisdiction to find that the

substantive issue is properly before us.

349 U.S. at 389.

In the present case, then, Appellant maintains that his chyl-

lenge to the constitutionality of Vt. Stat. Ann. tit. XXV,

§1205(a) is properly before this Court. For, as was the case in

Williams the state appellate court here declined, at least osten-

sibly, to review Appellant’s challenge though possessed of the

power to do so under state law, and though it had exercised this

power to review less constitutionally fundamental challenges in

similar cases involving Vt. Stat. Ann. tit. XXV, §§1201-1210.

See, e.g., Garvey; Conti; McSheffery.

Because Appellant’s challenge was based upon a constitution-

al objection, the vaildity of which has in principle been sus-

tained by this Court, the Vermont Supreme Court’s discre-

tionary decision to deny to review Appellant’s constitutional

challenge does not deprive this Court of jurisdiction to find that

the substantive issue is properly before it. Williams v. Georgia,

349 U.S. at 329; County Court of Ulster Cty. v. Allen, 99 S.Ct.

2213; Chambers v. Mississippi, 410 U.S. 294; Street v. New

York, 394 U.S. 576; Carter v. Texas, 177 U.S. 442.

10

THE FEDERAL ISSUES INVOLVED ARE SUBSTANTIAL

I. Vt. Stat. Ann, tit. XXV, §1205(a), and the custodial advice

given pursuant thereto violate the Fifth and Fourteenth

Amendments of the Constitution of the United States in

that they are utilized to coerce an individual’s consent to

take a breath chemical test.

A. The Statute is Repugnant to the Constitution.

Appellant maintained before the Vermont Supreme Court

that Vt. Stat. Ann. tit. XXV, §1205(a), which provides in part

that an individual’s refusal to submit to a breath chemical test

may be used as evidence against him, was unconstitutional. In

addition, Appellant contended that the advice customarily given

by the Vermont police in connection with their request that a

person take a breath chemical test, being based upon this un-

constitutional statute, was constitutionally erroneous. Conse-

quently, Appellant maintained that the giving of this constitu-

tionally erroneous advice in this custodial setting by an officer

of the State, which advice formed a basis for Appellant’s crucial

decision, vitiated his purported consent. State v. Brean, 136 Vt.

147, 385 A.2d 1085 (1978). The Vermont Supreme Court, osten-

sibly refusing to consider Appellant’s challenge, merely reiter-

ated its prior rulings on the points in question.

Appellant maintains, nevertheless, that Vt. Stat. Ann. tit.

XXV, §1205(a) is unconstitutional. The Fifth Amendment to

the United States Constitution provides in part that, ‘‘[n]o per-

son shall be compelled in any criminal case to be a witness

against himself’? This Court, Malloy v. Hogan, 378 U.S. 1

(1964), held that, by virtue of the Fourteenth Amendment to the

United States Constitution, an individual’s Fifth Amendment

privilege against compulsory self-incrimination is protected

against abridgement by the States.

Of this privilege against self-incrimination this Court has

stated that the privilege protects an accused from being com-

pelled to testify against himself, or ‘‘otherwise provide the State

11

with evidence of a testimonial or communicative nature.’’

Schmerber v. California, 384 U.S. 757, 761 (1966); Fisher v.

United States, 425 U.S. 391, 419 (1976) (Brennan, J., concur-

ring). Elaborating on the meaning of the phrase ‘‘evidence of a

testimonial or communicative nature,’’ this Court noted in

Schmerber that a ‘‘nod or handshake is as much a ‘testimonial’

or ‘communicative’ act in this sense as are spoken words.’’ 384

U.S. at 761, n. 5.

' Turning to the substantive rights guaranteed by the Fifth

Amendment, this Court has stated repeatedly that, to sustain a

claim of privilege, ‘‘it need only be evident from the implica-

tions of the question, in the setting in which it is asked, that a

responsive answer to the question or an explanation of why it

cannot be answered might be dangerous because injurious dis-

closure could result.’’ Hoffman v. United States, 341 U.S. 479,

486-487 (1951) (emphasis added); Malloy v. Hogan, 378 U.S. at

11-12; California v. Byers, 402 U.S. 424, 437 (1971) (Harlan, J.,

concurring). See generally, Mansfield, The Albertson Case:

Conflict Between the Privilege against Self-incrimination and

the Government’s need for Information, 1966 Sup. Ct. Rev.

103.

In applying this test, it must be ‘‘perfectly clear, from a care-

ful consideration of all the circumstances in the case that the

answer[s] cannot possibly have such tendency to incriminate.”’

Hoffman v. United States, 341 U.S. at 488. Malloy v. Hogan,

378 U.S. at 12; California v. Byers, 402 U.S. at 439 (Harlan, J.,

concurring).

Appellant maintains, then, that in context and setting in

which an individual is asked to take a breath chemical test, an

answer to the request, or an explanation of why he cannot

answer the request, clearly falls within the realm of privileged

communications as the likelihood of an injurious disclosure is

great. The carte blanche statutory authorization set forth in Vt.

Stat. Ann. tit. XXV §1205(a) for the admission into evidence of

statements or communicative acts made by an individual refus-

ing to take the test is, therefore, unconstitutional on its face for

such a statutory authorization cannot possibly satisfy the fac-

tual, case by case consideration mandated by this Court’s well-

reasoned decisions.

B. The issue here in question — the admissibility of a refusal to

take a breath chemical test — has caused, and continues to

cause, much controversy and litigation in both state and

federal courts.

This Court, in explaining its holding in Schmerber specifically

declined to rule on the admissibility into evidence of an individ-

ual’s refusal to take a breath chemical test. This Court did note,

however, that, ‘‘[i]f it wishes to compel persons to submit to

such attempts to discover evidence, the State may have to forego

the advantage of any festimonial products of administering the

test — products which would fall within the privilege.’’ 384 U.S.

at 765, n. 9. Addressing petitioner Schmerber’s claim that his re-

fusal to submit to a ‘‘breathalyzer’’ test should not have been

admitted into evidence, this Court, while not ruling on the issue,

noted its belief that general Fifth Amendment principles would

be applicable to such a claim.

In the decade and a half since this Court’s decision in Schmer-

ber, courts and attorneys in the several states, in weighing the

admissibility of a refusal to submit to a breath chemical test,

have spent a considerable amount of time trying to determine

what this Court meant or was intimating by its reference to pri-

vileged ‘‘testimonial products.’ The numerous resulting opin-

ions — a significant portion of which purportedly having re-

solved the issue on constitutional grounds and specifically citing

Schmerber — are in hopeless conflict. People v. Thomas, 46

N.Y.2d 100, 385 N.E.2d, 584, 412 N.Y.S.2d 845 (1978), appeal

dismissed, —U.S.—, 48 U.S.L.W. 3240 (1979); State v. An-

drews, 297 Minn. 260, 212 N.W.2d 863 (1973), cert. denied, 419

U.S. 881 (1974); Gay v. City of Orlando, 202 So.2d 896 (Dist.

Ct. App. 1967), cert. denied, 390 U.S. 956 (1968); see generally,

Annot., 87 A.L.R.2d 370 (1963). Indeed, the seriousness of the

conflict among the states on this issue was the basis of Mr. Jus-

tice White’s dissent — a dissent in which Mr. Justice Brennan,

13

the author of Schmerber joined in this Court’s recent dismissal

of the appeal in People v. Thomas, 48 U.S.L.W. 3240.

In the interest, then, of a just and uniform resolution of this

issue, as well as in the interest of judicial economy, which will

continue to be thwarted until this issue is resolved by this Court,

Appellant respectfully requests the opportunity to present this

issue for plenary consideration.

II. Appellant’s waiver of his ‘‘Miranda rights,’’ having been

obtained while Appellant allegedly was intoxicated and after

Appellant had unequivocally requested the presence of an

attorney, did not satisfy the minimum constitutionally guar-

anteed standards.

A. Appellant’s incapacity to waive his rights.

Appellant challenged the admission into evidence of certain

self-incriminating statements at every possible opportunity in

the state proceedings below. Appellant consistently maintained

that his physical and mental condition were such that he was

incapable of knowingly and intelligently waiving his privilege

against self-incrimination.

Because of the fundamental importance of privileges guaran-

teed by the Fifth Amendment, this Court has stated that to

establish a waiver of these rights, the State must meet the heavy

burden of proving that there was ‘‘an intentional relinquish-

ment or abandonment of a known right or privilege’’ on. the

part of the defendant. Johnson v. Zerbst, 304 U.S. at 464. See,

Schneckloth v. Bustamonte, 412 U.S. 218, 235 (1973). Expand-

ing on the standard to be observed, the Supreme Court has said

that any waiver of these rights must be ‘‘the product of a ration-

al intellect and a free will.’’ Townsend v. Sain, 372 U.S. 293

(1963); see, Mincey v. Arizona, f an, 7. 8 & 2

2408, 2417 (1978). ‘‘The defendant may waive effectuation of

these rights, provided that the waiver is made voluntarily, know-

ingly and intelligently,’’ Miranda v. Arizona, 348 U.S. at 444.

14

In evaluating the validity of a waiver of these rights and the

admissibility of any subsequent incriminating statements, this

Court has observed that, if a defendant’s ‘‘capacity for self-

determination [has been] critically impaired, the use of his con-

fession offends due process.’’ Schneckloth v. Bustamonte, 412

U.S. at 226-227 (citations omitted).

Appeilant contends that, not having been advised of his rights

until he arrived at the police station, the trial court’s ruling that

he knowingly and intelligently waived his rights at the scene of

the accident was a denial of his constitutional rights. ‘*{A]n indi-

vidual will not be deemed to have made a knowing and intelli-

gent waiver of his ‘right to silence’ unless the authorities have

first informed him of that right.’’ Michigan v. Mosley, 423 U.S.

96, 108 (1975) (White, J., concurring).

Appellant further maintains that his physical and mental

incapacity resulting from the accident and attested to by both

the State and the appellant is dramatically inconsistent with the

trial court’s conclusion of law that appellant knowingly and in-

telligently waived his rights in connection with the self-incrimi-

nating statements obtained by the officer at the police station.

Whether appellant was under the influence of intoxicating

liquor as the State contends, or dazed and in a state of shock as

he contends, his behavior at the time that the alleged waiver oc-

curred clearly revealed a lack of sound, reasoning judgment. To

cursorily conclude, then, that appellant knowingly and intelli-

gently waived his rights makes a mockery of the procedural

safeguards established by this Court.

B . The continued interrogation of appellant after he had re-

quested an attorney be present was a violation of his rights.

Before the Vermont Supreme Court, appellant argued that

the arresting officer’s immediate resumption of questioning

after the appellant unequivocally requested the presence of an

attorney, violated appellant’s Fifth Amendment rights. The

Vermont Supreme Court, however, found no error in this

immediate resumption of questioning.

15

This Court, in Miranda delineated the procedure to be fol-

lowed to safeguard an individual’s Constitutional rights.

Therein, this Court said that:

If the individual states that he wants an attorney, the

interrogation must cease until an attorney is present.

At that time, the individual must have an opportunity

to confer with the attorney and to have him present

during any subsequent questioning. If the individual

cannot obtain an attorney and he indicates that he

wants one before speaking to police, they must

respect his decision to remain silent.

Id., at 474 (emphasis added, footnotes omitted). Fare v. Michael

G. US. (1979); Michigan v. Mosley, 423 U.S. 96

(1975). Distinguishing between the procedural safeguards trig-

gered by a request to remain silent and a request for an attorney

this Court restated: ‘‘‘the interrogation must cease until an at-

torney is present’ only ‘[i]f the individual states he wants an at-

torney.’’’ Michigan v. Mosley, 423 U.S. at 103, n. 10 (citations

omitted). Similarly, in Fare v. Michael C., U.S. :

99 S.Ct. 2560 (1979), this Court observed that, ‘‘if the accused

indicates in any manner that he wishes to consult an attorney,

interrogation must cease, and any statement obtained from him

during interrogation thereafter may not be admitted against him

at his trial’’ 99 S.Ct. at 2563 (citation omitted). Continuing, this

Court said:

The per se aspect of Miranda was based on the unique

role the lawyer plays in the adversarial system of crim-

inal justice in this country the lawyer is the one person

to whom society as a whole looks as the protector of

the legal rights of that person in his dealings with the

police and the courts. For this reason the Court

fashioned in Miranda the rigid rule that an accused's

request for an attorney is per se an invocation of his

Fifth Amendment rights, requiring that all interroga-

tion cease.

99 S.Ct at 2569.

16

Appellant maintains, based on these well reasoned prece-

dents, that the immediate resumption of questioning after the

appellant had, based on the State’s own evidence, unequivocally

expressed his right to have counsel present was a violation of his

constitutional rights meriting plenary review by this Court.

CONCLUSION

For the reasons set forth above, this Court should note prob-

able jurisdiction of this appeal and provide appellant with the

opportunity to more fully present to this Court the issues here in

question.

Respectfully submitted,

ROBERT FAIN

DAVID P. BURKE, of

Robert Fain, P.C.

777 Summer Street

Stamford, Connecticut 06905

December 17, 1979

In The

Supreme Court of the United States

October Term, 1979

No.

VICTOR J. WALL,

Appellant,

Vs.

STATE OF VERMONT,

Appellee.

ON APPEAL FROM

THE SUPREME COURT OF VERMONT

JURISDICTIONAL STATEMENT

APPENDIX

la

APPENDIX A

TRANSCRIPT OF THE RULING OF THE VERMONT

DISTRICT COURT UNIT ONE, BENNINGTON CIRCUIT

ON APPELLANT’S MOTION TO SUPPRESS

APRIL 3, 1978

JUDGE RONALD F. KILBURN

The Court is prepared to rule.

First, with regard to your request to have the matter certified

up at this late a date on the evening of atrial, and the jury having

been selected and administered the oath, and the matter having

been scheduled for trial tomorrow, and it involving an incident

which occurred in July of 1977, the Court denies the motion

to have the issue certified at this stage of the proceedings.

On the basis of the evidence as now stands, and that which

the Court has received in connection with the hearing on this

motion, on which evidence has already been recited on the rec-

ord, the Motion to Suppress Evidence is denied.

First, the Motion to Suppress all evidence obtained by the

Police following initial contact with the Defendant, as set forth

in paragraph one — Defendant’s motion is denied. Paragraph

number two, as it relates to all statements made by the Defen-

dant after his accident, that they be suppressed, is also denied.

And thirdly, which the Court treats as being included, in a sense,

within paragraph one, the result of all chemical tests given by

the Defendant to the law enforcement officers — Request to

suppress those results is also denied on the status of the evidence

now before the Court.

The Court will recite orally some brief essential findings on

the record to support the decision in that regard.

First, the Court finds, on the basis of the evidence, that the

Defendant Victor Wall was the operator of the motor vehicle on

the Route number 30, on the evening of July 9, 1977 at the

2a

Town of Winhall, within this territorial district. That such oper-

ation occurred at or about three minutes after 10 o’clock in the

evening. Further, the Defendant, as a result of said operation

was involved in a single car accident, having come in contact

with some guard rails, resulting in damage to the motor vehicle

he was operating and damage to the guard rails.

Further, just previous to the accident, the Defendant was

observed operating in an irradic manner — that is left of the

center — and which operation resulted in contact with the guard

rails in question.

Further, that both the operation and the accident were ob-

served by the witness, Barker, who testified in these proceedings.

Further, that the witness, Barker, approached the Defendant

following said accident, examined his physical condition suffi-

cient to determine, in his own mind at least, that the Defendant

was not suffering from any physical injuries as a result of the

accident.

Further, that the witness offered to the Defendant medical

treatment as a part of his own standard operating procedure

with regard to motor vehicle operators who are involved in acci-

dents on the highway.

Further, that the Defendant declined such medical treatment,

and further, that the Defendant stated to the witness, Barker,

that he was not suffering any physical injuries. This is supported

by the testimony of the Officer given here in Court and is also

supported by State’s A, which shows the answer to the question

**Any recent injury?’’ as being ‘‘None.”’

Further, that the Defendant hesitated at first, in connection

with responding to questions, until he had had an opportunity

to attempt to contact an attorney.

Further, that after attempting to contact an attorney and not

being successful, he agreed to proceed and answer questions by

the Officer.

3a

Further, that these answers were given subsequent to the ;eci-

tation of rights to which he was entitled by virtue of the consti-

tution and by virtue of the Miranda decision.

Further, that he consented to the taking of the sample of his

breath.

Further, that the sample of his breath, as taken by the Officer,

resulted in a test report, and I am emphasizing a test report only

which is available for the Court’s consideration for the purposes

of this hearing, and which test report indicates a result of .20.

Further, that the Defendant recently, by way of an affidavit

filed with the Court in connection with this hearing, which affi-

davit is dated the 30th of March, 1978, indicates that he suffered

certain injuries such as being dizzy and having a bleeding head

and having been stunned as a result of the accident. That he did

not fully recover until the next day.

Further, that an unsigned affidavit, Defendant’s C, preport-

ing to come from one Dr. Marshall Bernstein, indicates that the

Defendant was examined by Dr. Bernstein, a Physician, in

Bridgeport, Connecticut on the 11 day of July; some two days

after the operation and accident in question. By operation, the

Court means a motor vehicle operation.

Further, that the doctor concludes in his affidavit that a lump

on the top of his head, observed by the physician, reveals in all

probability, a lump which resulted in a concussion; and further,

that the symptoms related by the Defendant at the time of that

examination preport to be consistent with the nature of the

injuries stated.

The Court concludes, as a Conclusion of Law, that the Defen-

dant knowingly and intelligently waived his rights in connection

with the verbal statement given to the Officer, both at the scene

and following, during the processing of the Defendant for the

case at hand; and secondly, the Court concludes, as a matter of

4a lb

law, that the Defendant voluntarily consented to the taking of APPENDIX B

the sample of his breath which resulted in the test before the

Court at this time.

The Court sees the arguments and issues raised by Counsel ; ene ae vr jupacet Coline

for the Defendant as being issues which go to the weight of the 4 ENTRY ORDER FILED IN CLERK'S OFFICE

evidence at this stage of the proceeding and not to the admissi- SUPREME COURT DOCKET NO. 161-78 | SEP 1 71979

bility of the evidence. . June TERM, 19.79

y APPEALED FROM a

. . ....8tate of Vermone i rR)

The Court, as previously stated, the Motion to Suppress on rey year teege

all grounds is denied. However, I will give leave to Counsel for ‘ abba ci Niae cats ama :

the Defendant to review the motion in the event that the evi- DOCKET NO... 786-77Ber_

dence changed substantially from the evidence before the Court

at this time. aE Ot RE ce Le

In th: above entided cause the Clerk will carer:

Judgment affirmed.

» Asgofiate Justice

FOR THECOURT: cwer:

dace eth. a a

Xe. ‘

ee mes ee Hem tape,

a oy ee --—4 ee Fs

Te ae pri ane Ate c. Hill iate Justice

ae ; Milford K. Smith, Associate Justice (Ret.)

Specially Assigned

2b

Supreme Court

On Appeal From District Court of Vermont, Unit No. 1,

Bennington Circuit

State of Vermont

v.

Victor J. Wall

Present: Barney, C.J., Daley, Larrow and Hill, JJ., and Smith,

J. (Ret.), Specially Assigned

DALEY, J. The defendant appeals from his conviction, after

trial by jury, of operating a motor vehicle upon a highway, while

under the influence of intoxicating liquor, in violation of 23

V.S.A. § 1201(a)(2). We affirm.

The record shows the following: On a clear, summer night in

July, 1977, a police officer in the village of Bondville, Vermont,

saw a Lincoln Continental weave back and forth across the cen-

ter line and then, as the road curved, continue straight ahead,

slamming into four guard rails in the left lane. The officer

rushed to the vehicle, which the driver, the defendant here, was

attempting to drive away. The defendant was unsuccessful,

however, because the impact had immobilized the car. After the

door was jarred loose, the defendant stumbled out. His breath

smelled strongly of alcoholic beverages and his eyes were blood-

shot. The officer asked him if he wished to see a doctor. He

indicated that he was not injured and refused medical assistance.

After examining him for injuries and finding none, the officer

took him into custody.

At the police station, the defendant was read Miranda warn-

ings and asked to take a breath test. The defendant was advised,

consistently with 23 V.S.A. § 1205(a), that if he refused the

breath test it would not be administered but such refusal might

be used as evidence against him in a criminal proceeding. He

pleaded with the officer to charge him with something other

than D.W.I. and initially declined to take the breath test. He

refused to sign a Miranda form waiving his rights and stated

Seas eee ED

3b

that he would not answer any questions until after he had con-

sulted with an attorney. After he failed to reach the lawyer he

wanted, he agreed to the test. He also verbally permitted the

officer to question him. During the ensuing interrogation, he

admitted that he thought he was under the influence. The

breath test results showed a blood alcohol content by weight of

.20 per cent.

The defendant first claims that the warning that evidence of a

refusal might be used against him in a criminal proceeding is

erroneous because such evidence is actually inadmissible by vir-

tue of the Fifth Amendment. He did not raise this claim below,

but nonetheless urges our consideration on the ground of ‘‘glar-

ing error.’’ In State v. Brean, 136 Vt. 147, 385 A.2d 1085 (1978),

we held that such evidence does not violate the privilege against

self-incrimination. In State v. Welch, 136 Vt. 442, 395 A.2d

1115 (1978), we reiterated that holding. See also, Welch v. Dis-

trict Court, 594 F.2d 903 (2d Cir. 1979); City of Westerville v.

Cunningham, 15 Ohio St. 2d 121, 239 N.E.2d 40 (1948); People

v. Sudduth, 65 Cal.2d 543, 421 P.2d 401, 55 Cal. Rptr. 393

(1966) (Traynor, C.J.); Annot., 87 A.L.R.2d 370 § 5 (1963). We

find no reason to again consider the issue, especially where the

defendant not only consented rather than refused but also failed

to raise the objection at trial.

The defendant next claims that the court erred in admitting

the breath test results and his statements to police. He proffers

two grounds. First, he renews his objection, made in the lower

court, that he lacked the capacity to ‘‘knowingly and intelli-

gently’’ consent to the breath test and to waive his rights. He

contends that a blow to the head, sustained during the accident,

caused a concussion, thereby incapacitating him and making

any consent to waiver ‘‘involuntary,’’ in the sense that it could

not have been ‘‘knowingly and intelligently’? made. His second

objection, which he raises here for the first time, is that his right

to remain silent was violated by the resumption of questioning

after he had refused to sign a waiver and refused to answer ques-

tions until he consulted with his attorney.

4b

The question of capacity was raised below by motion to sup-

press. Upon pretrial hearing, the court concluded that the waiver

and the consent were knowingly and intelligently given. On

appeal, the defendant asserts that the court’s conclusion is not

supported by the findings and that it is inconsistent with the

evidence.

In support of his motion below, the defendant offered two

affidavits. One was from a physician who saw him two days

after the accident. The doctor stated that he was ‘‘dizzy and

stunned”’ at the time of the accident and that he was then prob-

ably suffering from a concussion. The other affidavit was pre-

pared by the defendant himself. It too recited that he was ‘‘dizzy

and stunned.’’ The defendant buttressed his claim of concussion

and resulting incapacity by pointing to State’s evidence that he

stumbled as he got out of his car, that his words to the officer

were slurred, and that, at one point, he stepped out of the police

cruiser and staggered onto the travelled portion of the highway.

In rejecting the defendant’s claim, the court found that, at the

time of the accident, he denied injury and refused medical assis-

tance, that the officer found no sign of injury, and that the

defendant exercised the very rights which he claimed to lack the

capacity to waive.

The weight and sufficiency of the evidence as well as the

credibility of the witnesses and the persuasive effect of their tes-

timony is for the trial court. Its determination must stand if

supported by credible evidence, although there may be inconsis-

tencies or even substantial evidence to the contrary. State v.

Rochleau, 131 Vt. 563, 574, 313 A.2d 33, 41 (1973). Unless it

can be said as a matter of law that the court’s determination was

wrong, it must stand. Jd.; State v. Goyet, 120 Vt. 12, 36, 132

A.2d 623, 639 (1957). Although the question of capacity was

controverted, the court’s conclusion is supported both by its

findings and the evidence. We find no error.

The defendant’s next claim is that his right to remain silent

was violated by police procedure, a contention which he initiates

here. In urging error, he argues in essence that the police failed

ill

5b

to honor his decision to remain silent. Because this issue was not

raised below, however, it will not be considered here in the

absence of glaring error.

‘*Where an error is ‘a glaring error...so grave and serious that

it strikes at the very heart of [a defendant’s] constitutional

rights,’ a failure to raise it in the trial court will not bar its asser-

tion here.’’ State v. Kasper, 137 Vt. , p

A.2d P (1979). In such a case, the ‘‘defect should

be noticed by the trial judge sua sponte....’’ Id. We do not find

such error in the defendant’s claim of procedural violations of

his Miranda rights. No evidence of coercion or undue influence

appears in the record. Indeed, to the contrary, the record shows

that the defendant was questioned with his consent. In these cir-

cumstances, we do not find ‘‘glaring error.”’

The defendant’s following claims, which were not presented

to the trial court, are also waived. They are that the trial court

erred in not submitting the issue of his waiver of Miranda rights

to the jury and in admitting evidence that the defendant was

advised that he could have an independent blood sample taken.

We have examined the record, but we find no error so glaring

and grave that it strikes at the very heart of his constitutional

rights. Nor is there any reasonable basis for a fear that injustice

has been done.

Finally, the defendant claims error in the court’s instructions

to the jury. He objects to that part of the charge that if the jury

found him to be in the slightest degree under the influence, it

would be enough to sustain a conviction under 23 V.S.A.

§ 1201(a), which makes it an offense to operate a motor vehicle

while under the influence of intoxicating liquor. The court’s

charge, however, was correct under our holding in State v.

Storrs, 105 Vt. 180, 185, 163 A. 560, 562 (1933).

Judgment affirmed.

FOR THE COURT:

/s/ Rudolph J. Daley

Associate Justice