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State v. Sherwood4/19/2002
On Appeal from District Court of Vermont, Unit No. 2, Addison Circuit
In this appeal from defendant's conditional nolo contendere plea for driving under the influence of intoxicating liquor ("DUI") we are asked to decide whether the State's videotaping of defendant's telephone conversation with his attorney violates the statutory right to counsel under 23 V.S.A. § 1202(c) warranting dismissal of the charges or suppression of defendant's refusal to submit to a breath test. Because we agree with the district court's determination that defendant failed to demonstrate that the videotaping affected his consultation with his attorney, or that the State made any use of the recording or information contained therein to defendant's prejudice, we affirm.
The undisputed facts establish that a state trooper observed defendant's vehicle speeding on Route 7 in Salisbury, Vermont in the late evening of March 14, 2000. The trooper pursued defendant with his siren on and blue lights flashing. After about a mile, defendant stopped his car, and his passenger jumped out and fled. The trooper drew his weapon and ordered defendant to remain in the car fearing he might also attempt to flee. During his initial conversation with defendant, the trooper noted signs of intoxication. The trooper thereafter administered roadside dexterity tests and a preliminary breath test, which led the trooper to take defendant into custody to process him for DUI at the state police barracks.
While the trooper went through the standard DUI processing procedure at the barracks, defendant was handcuffed, although he was cooperative. Defendant's handcuffs were removed while he spoke to his attorney by telephone, and he was allowed to walk around the processing room during the conversation. The trooper moved about on the other side of the one open door to the processing room, but did not monitor or overhear any of defendant's conversation. The second door to the processing room remained closed. Another trooper was also in the building at the time and passed by the open door; but like her colleague, she did not show any interest in defendant's telephone conversation. After consulting with counsel, defendant refused to provide an evidentiary sample of his breath.
Defendant's entire conversation with his attorney, like the entire processing, was videotaped. The system also captured the sound, but defendant was unaware of that fact at the time. The taping comported with the trooper's standard practice of recording the whole processing event to eliminate any possibility that a defendant could claim the State tampered with the tape. Taping was also generally done for security reasons. In addition to the tape, the processing was televised on a monitor in the sergeant's office, but no voices could be heard over the monitor because the sound had been turned down. No one in the barracks that evening watched the monitor during defendant's conversation with his lawyer, however.
After defendant learned of the existence of the videotape, which included a recording of the conversation he had with his lawyer, he moved to dismiss the charges against him on the grounds that the secret taping violated his right to a private consultation with a lawyer under 23 V.S.A. § 1202(c). In the alternative, defendant requested that the court suppress his refusal to supply a breath sample. The court denied both requests. It found that although the State did not have a legitimate security concern, defendant failed to show he was prejudiced by the trooper's surreptitious taping. The court found, based on defendant's testimony, that defendant thought his consultation with counsel was meaningful and that he was not inhibited during t
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