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State v. Kolts

Supreme Court of Vermont

December 14, 2018

State of Vermont
Rein Kolts

          On Appeal from Superior Court, Addison Unit, Criminal Division Samuel Hoar, Jr., J.

          David Tartter, Deputy State's Attorney, Montpelier, for Plaintiff-Appellee.

          Matthew Valerio, Defender General, and Joshua S. O'Hara, Appellate Defender, Montpelier, for Defendant-Appellant.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          CARROLL, J.

         ¶ 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 affirm.

         ¶ 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 reconsider.

         ¶ 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 Motion

         ¶ 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.[1]

         ¶ 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 allegations.

         ¶ 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 ...

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