On Appeal from Superior Court, Bennington Unit, Criminal Division William D. Cohen, J.
Christina Rainville, Bennington County Chief Deputy State's Attorney, Bennington, for Plaintiff-Appellant.
Timothy M. Andrews and David F. Silver of Barr, Sternberg, Moss, Lawrence, Silver & Munson, P.C, Bennington, for Defendant-Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. In this interlocutory appeal, the State challenges the trial court's suppression of defendant's pre-arrest confession to police. The State argues that the court erred in concluding that the confession was involuntarily made. We affirm.
¶ 2. Defendant is charged with four felony counts of lewd and lascivious conduct with a child and one felony count of aggravated sexual assault on a victim younger than thirteen. Defendant was sixty-seven years old at the time of the charged conduct, and the alleged victim, defendant's neighbor Z.Z., was seven years old. Defendant filed a motion to suppress in October 2014, arguing that the incriminating statements he made were the product of police coercion and thus taken in violation of his constitutional rights.
¶ 3. Following a hearing, the court granted defendant's motion. It made numerous findings, including the following. In late December 2013, a police detective contacted defendant and asked if he would come to the station to discuss a neighborhood complaint. Defendant agreed to help if the detective would come to his house instead. The detective arrived in plainclothes with no visible weapon. He was accompanied by a caseworker from the Department for Children and Families. After introducing themselves, the detective asked defendant if he could record his statement electronically. Defendant consented, although he exhibited some confusion about the word "statement." The detective did not conspicuously display his recording device during the interview.
¶ 4. The detective began by asking defendant about his relationship with his neighbors and their children. The detective did not immediately inform defendant that he was a person-of-interest in a criminal investigation, or answer defendant's questions about why he was there. Defendant responded to the detective's question about his neighbors, and about the layout of his home. Defendant seemed confused but relaxed during this line of questioning.
¶ 5. After about four minutes, the detective disclosed the general reason for his questions. He told defendant that Z.Z. had "talked about some inappropriateness that went on." Defendant was audibly taken aback. Defendant agreed with the detective that Z.Z. was not the type of child who would make things up or try to get someone in trouble. When defendant continued to indicate no understanding of where the conversation was headed, the detective stated that Z.Z. had "talked about touching each other's privates."
¶ 6. Defendant indicated that he was having trouble processing the conversation. The detective continued with his questioning. The court found that the detective's questions featured numerous confession-driven techniques, the most important of which was a suggestion that few or no legal repercussions would follow if defendant admitted to a mistaken touch. The court found the overall tone of the exchange to be one of intense suspicion, and it indicated that the audiotape fully captured the interrogation's accusatory, antagonistic, and unyielding nature.
¶ 7. After half an hour of talking to the detective, defendant admitted to inappropriately touching Z.Z. Defendant told the detective that "It just happened. . . . Like you said." He then answered yes or no to the detective's targeted follow-up questions. The court found that defendant offered almost no details of his own. The court was not persuaded by the detective's attempt at the hearing to validate the approach he had taken.
¶ 8. Defendant testified that, during the interview, he was suffering from a panic attack that prevented him from thinking clearly about the allegations. He indicated that his goal was to get out of the immediate, stressful situation. According to defendant, he confessed because he believed it was the only way to end the interrogation, and he believed the detective was promising him treatment, not jail, as long as he said that the touching was a mistake. The court found defendant considerably more credible than the detective.
¶ 9. Based on these and other findings, the court concluded that the State failed to prove by a preponderance of the evidence that defendant confessed voluntarily. See State v. Robinson, 158 Vt. 286, 294, 611 A.2d 852, 856 (1992) (identifying State's burden of proof), abrogated on other grounds by State v. Carter, 164 Vt. 545, 550, 674 A.2d 1258, 1262 (1996); see also State v. Pontbriand, 2005 VT 20, ¶ 21, 178 Vt. 120, 878 A.2d 227 (explaining that State must show that "coercive governmental conduct" did not "play a significant role in inducing the statement"). The court determined that the detective's seven unrelenting questioning strategies and other enhancing circumstances played a significant role in inducing defendant's confession. Most importantly, the court found that the detective made a series of promises that if defendant would admit to a mistaken or accidental touch, he would not face criminal sanctions, and defendant testified that this played a significant role in his confession. The detective also periodically portrayed himself as defendant's ally; pandered to defendant's good reputation in the community; and reminded defendant that they were in his home and not the police station. The court found that defendant had limited experience with law enforcement and that it was reasonable for him to believe that the detective was promising him treatment but no jail time if he capitulated to the "mistake" paradigm. The court further concluded that the coercive atmosphere was enhanced because the detective led defendant to believe that this was his last opportunity to ...