# Jurisdictional Statement — Wall v. Vermont

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Jurisdictional Statement
- **Published:** January 1, 1980
- **Citation:** 444 U.S. 1060

## Text

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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I eee kee Ke Kaeiseserccccceess
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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1407%3A1. Public record. Not legal advice.