On Appeal from Superior Court, Bennington Unit, Criminal Division September Term, 2012 David Suntag, J.
The opinion of the court was delivered by: Skoglund, J.
State v. Brooks (2011-329)
(motion to suppress); David A. Howard, J. (final judgment)
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. Defendant appeals convictions on two counts of aggravated sexual assault on a minor following a jury trial, alleging three errors. Defendant asserts that the trial court committed reversible error by failing to suppress all statements made to the police on August 31, 2009, and by admitting evidence of defendant's website-browsing history. Defendant also contends that the introduction of previously excluded testimony at trial rendered the trial unfair. As a final matter, defendant maintains that even if none of his individual claims constitutes reversible error, the cumulative effect of all errors denied him a fair trial. We disagree and affirm defendant's convictions.
¶ 2. The facts are as follows. On August 31, 2009, defendant was called into the Bennington Police Station and questioned by Detective Cole for approximately forty minutes regarding allegations of sexual abuse of defendant's twelve-year-old daughter. Defendant denied the allegations during the interview. At the conclusion of the interview, defendant was arrested and placed in a holding cell. Six hours later, Detective Plusch approached defendant to arrange defendant's dinner.
¶ 3. Defendant asked "what was going on" in the case, and Detective Plusch informed him of the current police investigation. Defendant then volunteered, "Well, if everyone said I did this I must have." At the time, police had not informed defendant of his Miranda rights. Detective Plusch immediately advised defendant that if he wished to talk about the case, he would need to wait so Plusch could get the necessary paperwork and move defendant to an interview room. Ten minutes later, Detective Plusch transferred defendant to an interview room and advised him of his Miranda warnings. Defendant informed Detective Plusch that he understood his rights, was willing to discuss the case, and did not want to contact an attorney at that time. Defendant signed the Miranda rights form. Defendant also consented to a sworn recorded statement.
¶ 4. Detective Plusch interviewed defendant for approximately seventy-five minutes. Defendant initially denied all allegations of sexual molestation. Defendant, however, provided hypothetical answers, saying, "I don't remember ever doing anything . . . [but] it probably happened naturally . . . . she'd probably take her [pants] off and I'd do mine. . . . probably she just lays down and I get on top of her . . . put a condom on and I'd probably start having sex with [her]." Eventually, Detective Plusch left defendant with a blank statement form and told him that if he wanted to write a statement, he could fill out the form. Defendant wrote an incriminating statement, confessing to having sexual intercourse with his twelve-year-old daughter. He subsequently signed the statement in the presence of Detective Plusch.
¶ 5. At a pretrial suppression hearing, defendant challenged the validity of all statements given to the police on that day in August, claiming that his statements were involuntary and taken in violation of his Miranda rights. The trial court suppressed the pre-Miranda-warning statement given in the holding cell, concluding that defendant was not properly informed of his right to remain silent while under custodial interrogation, and therefore, such statements were obtained in violation of defendant's Fifth and Fourteenth Amendment rights and inadmissible. The court, however, admitted the post-Miranda-warning statements, finding that the unwarned statement did not taint subsequent warned statements, as discussed below.
¶ 6. Also prior to trial, the State gave notice pursuant to Vermont Rule of Criminal Procedure 26(c) that it intended to offer evidence of defendant's history of browsing pornographic and incest websites. Defendant objected to the evidence, arguing that it was not relevant and could not be connected to defendant specifically, as others in the house used the computer. He further argued that its prejudicial effect substantially outweighed any probative value regarding the charged counts. The trial court permitted the State to present a "limited list of site names" related to incest as prior bad acts under Vermont Rule of Evidence 404(b), finding the probative value of these sites to show a plan, scheme, or motive and to outweigh the prejudicial effects, as discussed in detail below.
¶ 7. At trial during the State's case-in-chief, Detective Plusch began to repeat defendant's excluded holding cell statement. Defendant objected. The court sustained the objection and instructed the jury to "ignore [Detective Plusch's] response." The jury found defendant guilty of two counts of aggravated sexual assault on a minor in violation of 13 V.S.A. § 3253(a)(8). This appeal followed.
¶ 8. Defendant asserts that the trial court erred in failing to suppress all statements he made to the police on August 31, 2009, as a violation of his constitutional rights. As noted, the court suppressed defendant's statement made in the holding cell before being informed of Miranda rights but declined to suppress statements made to the police after the administration of Miranda warnings. Defendant contends the court erroneously concluded that the "mid-stream" ...