Appeal from Superior Court, Caledonia Unit, Criminal
Division, M. Kathleen Manley, J. (Ret.)
Kathleen Manley, J. (Ret.) David Tartter, Deputy State's
Attorney, Montpelier, for Plaintiff-Appellee.
Matthew Valerio, Defender General, and Dawn Matthews,
Appellate Defender, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
1.Following a jury trial, defendant appeals his conviction of
sexual assault of a minor in violation of 13 V.S.A. §
3252(c). Defendant argues the trial court violated his due
process rights by allowing the State to impermissibly comment
on his silence. We affirm.
2. In December 2015, the State charged defendant with sexual
assault of a minor based on an allegation that defendant
raped the complainant. Prior to defendant's arrest,
Detective Tallmadge interviewed defendant. Detective
Tallmadge testified about this interview at trial. He
reported that he told defendant he did not have to speak to
him. He did not give defendant a Miranda warning. He
said that he told defendant about the allegation against him,
and defendant denied it. He also testified that when he asked
defendant about the complainant, defendant said "he
would never do anything sexual with her because she was
nasty, which was a direct quote, and a child, which is
another direct quote." The State asked if defendant
"ever [made] any statements about why you were there to
talk to him, any further statements about why you were there
to talk to him." Detective Tallmadge testified, "He
indicated that he felt insulted that I was there interviewing
him about the allegations."
3. Defendant testified at trial. He confirmed he was with the
complainant on the evening of the alleged assault. He
testified that the complainant had been "[k]ind of
trying to nuzzle me a little bit, kind of trying to be
flirtatious, making passes" and had been trying "to
kind of pursue me." He said he had tried to avoid her
and dismiss the situation and that he had "felt
uncomfortable." He testified there was no sexual contact
4. On cross-examination, the State asked defendant, "And
you mentioned that [the complainant] was trying to nuzzle
with you, you were feeling uncomfortable, and that she
pursued you, correct?" Defendant answered,
"Correct." The State then asked, "And you
didn't tell Detective Tallmadge any of that during your
interview with him, did you?" Defendant replied, "I
did not." Defendant also confirmed that he had been
convicted of providing false information to a police officer
5. The State's closing arguments raised defendant's
failure to tell Detective Tallmadge that the complainant
tried to pursue him. After noting that defendant and the
complainant told different stories about what had happened
that evening, and that the jury had to "figure out what
to believe," the State said:
[Defendant] did admit that he didn't tell Detective
Tallmadge that [the complainant] came on to him or was
pursuing him or was nuzzling him. And he didn't admit to
Detective Tallmadge-he had every chance-that he'd been
uncomfortable with [the complainant's] behavior. . . . He
did admit he has a conviction for false information to a law
State reiterated that defendant had a prior conviction for
providing false information to a law enforcement officer.
After defendant's closing argument, the State again
raised defendant's failure to tell Detective Tallmadge
that the complainant had pursued him: "And why
didn't the defendant tell the cop what really happened?
Why didn't he say she was badgering me that night, she
was coming on to me?" The jury returned a guilty
verdict, and the court entered judgment.
6. On appeal, defendant argues the State impermissibly
commented on his right to remain silent, which violated his
right to due process. Defendant did not raise his challenge
below, so we review for plain error. State v. Yoh,
2006 VT 49A, ¶ 36, 180 Vt. 317, 910 A.2d 853; see also
State v. Haskins, 2016 VT 79, ¶ 41, 202 Vt.
461, 150 A.3d 202 (reciting four-part test for plain error,
including that there must be error).
7. Defendant's argument derives from Doyle v.
Ohio, 426 U.S. 610 (1976), and State v. Mosher,
143 Vt. 197, 465 A.2d 261 (1983). In Doyle, two
defendants were arrested and given Miranda warnings.
426 U.S. at 618; see Miranda v. Arizona, 384 U.S.
436, 467-73 (1966) (requiring that "if a person in
custody is to be subjected to interrogation, he must first be
informed . . . that he has the right to remain silent").
They both remained silent after arrest, but at trial they
testified that they were framed. On cross-examination, the
State impeached the defendants by asking why they did not
inform the arresting officer they had been framed. The U.S.
Supreme Court held that impeaching the defendants using their
silence at the time of arrest, after receiving
Miranda warnings, violated the Due Process Clause of
the Fourteenth Amendment. Doyle, 426 U.S. at 619.
The Court reasoned that any silence following a
Miranda warning is "insolubly ambiguous"
because Miranda warnings advise someone taken into
custody "that he has the right to remain silent, that
anything he says may be used against him," and
"[s]ilence in the wake of these warnings may be nothing
more than the arrestee's exercise of these Miranda
rights." Id. at 617. The Court admitted that
Miranda warnings "contain no express assurance
that silence will carry no penalty," but "such
assurance is implicit" to the Miranda warning.
Id. at 618. The Court concluded, "In such
circumstances, it would be fundamentally unfair and a
deprivation of due process to allow the arrested person's
silence to be used to impeach an explanation subsequently
offered at trial." Id.; see also St ...