Appeal from Superior Court, Addison Unit, Criminal Division
Samuel Hoar, Jr., J.
Tartter, Deputy State's Attorney, Montpelier, for
Matthew Valerio, Defender General, and Joshua S. O'Hara,
Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1. Defendant appeals his conviction by a jury for aggravated
sexual assault of a child. On appeal he makes four arguments.
First, he claims that his confession-that he repeatedly had
sex with his niece, A.H.-should have been suppressed because
law enforcement obtained it by interrogating him in a
custodial setting without advising him of his
Miranda rights. He also claims that his confession
was involuntary because he was coerced by police. Next,
defendant argues that the trial court abused its discretion
when it excluded testimony by his two expert witnesses. Last,
defendant asserts that the trial court erred when it
instructed the jury that it could decide that he confessed
voluntarily even if it determined that the police's use
of psychological tactics contributed to his confession. We
2. In the spring of 2014, Detective Sergeant Ruth Whitney of
the Addison County Sheriff's Department received a tip
from an officer in New Hampshire to investigate defendant for
having sexually assaulted his niece, A.H., a New Hampshire
resident. A.H. had reported to New Hampshire officials that
defendant repeatedly assaulted her over the course of the
previous two years when she visited him in Vermont, starting
when she was eleven years old. Detective Whitney interviewed
A.H. and then interviewed defendant. As detailed below,
defendant confessed to Whitney that he had repeatedly had sex
with A.H. He was arrested and subsequently charged.
3. Defendant moved to suppress his confession. The trial
court held a motion hearing at which Detective Whitney
testified. After accepting supplemental briefing, the court
denied defendant's motion. Also before trial, defense
counsel notified the State that defendant planned to call two
experts in clinical psychology, Paula Nath and Charles Rossi,
to testify about why, in their opinion, defendant's
confession was false. After deposing them the State moved to
exclude their testimony from trial for failing to meet the
requirements of Vermont Rule of Evidence 702. The court held
a motion hearing at which Nath testified. Transcripts from
both expert depositions were admitted and defense counsel
proffered the conclusions to which Rossi would testify at
trial, if permitted. The court granted the State's motion
to exclude and later denied defendant's motion to
4. Defendant was tried by a jury and convicted of aggravated
sexual assault of a child and aggravated sexual assault of a
victim under thirteen. By stipulation, the trial court only
entered judgment on the count for aggravated assault of a
child. Defendant now appeals. I. Defendant's Suppression
5. Defendant argues that the trial court should have granted
his suppression motion on two grounds. First, he should have
been given Miranda warnings because he was in
custody when he was interviewed by Detective Whitney. Second,
his confession was involuntary. This Court accepts a trial
court's factual findings regarding a suppression motion
unless they are clearly erroneous. State v.
Pontbriand, 2005 VT 20, ¶ 12, 178 Vt. 120, 878 A.2d
227. But we review legal conclusions-such as whether law
enforcement conducted a non-custodial interrogation and
whether defendant confessed voluntarily-de novo. Id.
6. The trial court found the following facts in connection
with the suppression motion, which are supported by the
record and unchallenged by defendant on appeal. After
receiving a tip from New Hampshire officials, Detective
Whitney began her investigation by interviewing A.H. Then she
notified the Vermont Department for Children and Families
(DCF) of the allegations. DCF alerted the Shoreham School
District, where defendant worked as a bus driver. The school
district suspended him from work and told him to contact DCF.
An official with DCF told defendant to contact Detective
Whitney to find out why he was suspended. He telephoned her
twice but did not reach her. She called back and asked to
speak to him in person either at the police station or his
home. Defendant selected the station and agreed to come in
the next morning. He drove himself. He was not, to any degree
of consequence, impaired by drugs.
7. Detective Whitney greeted him in the lobby and he followed
her up the stairs through an unlocked door and into the unit
where she worked. Just before entering her unit, there was a
"clearly marked exit sign." Detective Whitney led
defendant into a room that had been designed for interviewing
crime victims rather than suspects: it was carpeted and
furnished with a sofa, a coffee table, a lamp, and two
upholstered chairs. Framed artwork decorated the walls. A
video camera recorded the entire interview.
8. Detective Matthew Wilson, who was armed, joined them
inside. The officers closed-but did not lock-the door to this
room. Defendant sat on the sofa, placing his arm around the
back of it, appearing relaxed and comfortable. The detectives
sat in the chairs. Detective Whitney asked defendant for
permission to record their interview and defendant assented.
Defendant asked if he could have a witness present for the
interview, to which Detective Whitney responded that he could
if he chose to have one. Defendant did not then make a
request to have a witness present.
9. Before the detectives asked any questions about the
allegations, speaking calmly, Detective Whitney told
defendant "You don't have to be here," and,
"You can leave any time you want." She then
reiterated to him that "Any time you want to stop
answering our questions or you want to leave, there's the
door, you're free to go. . . . No hard feelings."
Defendant stayed. The detectives spoke in calm, often
friendly tones throughout the interview. This is borne out by
the video recording of the interview.
10. Defendant and the detectives chatted for several
minutes-about topics unrelated to this case-before defendant
asked them to tell him the allegations that had been made
against him. The detectives explained that defendant's
niece, A.H., had accused him of being "sexually
inappropriate" with her, to which defendant replied-with
flat affect-that he was "shocked." He had expected
their questioning to be related to his job. The detectives
elaborated that A.H. said she and defendant had engaged in
sexual activity many times. Defendant denied this. The
detectives then specified the type of sexual act that A.H.
alleged had taken place. Again, defendant denied the
11. Detective Whitney told defendant that she had physical
evidence to support A.H.'s charges. Defendant asked
whether this meant that there was DNA evidence, to which the
detective responded, "Yeah. What's the-what's
the explanation? How did your DNA . . . your transfer of body
fluids, or cells, or hairs . . . get on A.H. and into A.H.?
How did that happen?" The police did not have any such
evidence. Initially, defendant dodged answering the question.
Detective Whitney asked again how defendant's cells could
have transferred onto A.H. if, as defendant maintained, they
did not have sex. "I can't figure that out. And
I'm looking for you to tell me how that happened,"
Detective Whitney said. Detective Wilson interjected that
A.H. would not have ...