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State v. Fischer

Supreme Court of Vermont

May 24, 2019

State of Vermont
v.
Jeremy Fischer

          On Appeal from Superior Court, Caledonia Unit, Criminal Division, M. Kathleen Manley, J. (Ret.)

          M. 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, JJ.

          REIBER, C.J.

         ¶ 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 between them.

         ¶ 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 in 2016.

         ¶ 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 enforcement officer.

         The 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 ...


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