State v. Benoit

• Citation: 490 A.2d 295,126 N.H. 6
• Decision Date: 06 February 1985
• Docket Number: No. 83-027,83-027
• Parties: The STATE of New Hampshire v. Philip J. BENOIT.
• Court: New Hampshire Supreme Court

Page 295

490 A.2d 295

126 N.H. 6

The STATE of New Hampshire v. Philip J. BENOIT.

No. 83-027.

Supreme Court of New Hampshire.

Feb. 6, 1985.

[126 N.H. 8] Gregory H. Smith, Atty. Gen. (Andrew L. Isaac, Asst. Atty. Gen., on brief and orally), for the State.

Joanne S. Green, Asst. Appellate Defender, Concord, by brief and orally, for defendant.

DOUGLAS, Justice.

The principal question raised in this appeal is whether the superior court erred in its determination that the fifteen-year-old defendant, Philip Benoit, had voluntarily, knowingly and intelligently waived his privilege against self-incrimination before making an incriminating statement to the police. In addition, we are asked to determine whether the superior court erred in ruling that defense counsel's questioning of a State's witness concerning her inability to identify the defendant on the day of the alleged offense would "open the door" to inquiry into a previously excluded line-up identification. We reverse and remand.

I. Facts

On May 27, 1982, a loaded .44 magnum revolver and a .22 caliber revolver were stolen from under the front seat of Paul Gagnon's truck, which was parked on Thorndike Street in Concord. One day later, an armed robbery occurred at the Food Basket Store, also located in Concord. The defendant became the principal suspect in the two crimes.

On the evening of May 28, the defendant was at a party in Pittsfield. Sometime that night, the Pittsfield police arrived at the party to arrest the defendant, but he managed to elude them and escape. Approximately one hour later, the police went to the apartment of Tammie Recce in Epsom, after being notified that Philip had taken refuge there. When the police confronted the defendant at the Recce apartment, Philip ran through the apartment, crashed through a glass door, escaped onto the roof, and jumped to the ground some fifteen or twenty feet below. He then wrestled with the arresting officer.

At the time of the arrest, Philip was bleeding profusely. He was taken to Concord Hospital by a rescue squad, where he was treated for lacerations of his hands and head that resulted from his crash into the glass door. Sometime later, he was transferred to the Concord police station, where he remained overnight.

Officer Cross of the Concord police testified that, at approximately 9:00 a.m. the following morning, he went to the child's cell with the purpose of obtaining a statement. Just he and Philip were present at the meeting. The officer informed the defendant that he wished to discuss the armed robbery of the prior day. The officer testified that Philip agreed to talk, so they moved to an interview room.

Officer Cross testified that once in the interview room, he reminded Philip of his rights, as required under both the State and Federal Constitutions, by reading one sentence at a time from the Concord Police Department's standard form used for adults. See State v. Nash, 119 N.H. 728 At the time of the interrogation, the child had been in police custody for approximately nine hours. During that time, the police had made no effort to contact his parents, a lawyer, or any adult interested in his welfare. The officer further testified that he did not discuss with the defendant any of the possible legal consequences of a confession to, or a conviction for, the felony of armed robbery.

                730-31, 407 A.2d 365, 367 (1979);  Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 1612-13, 16 L.Ed.2d 694 (1966).  The officer testified that he made no attempt to explain any of the rights, but [126 N.H. 10] merely asked the child if he understood them, to which Philip replied "yes."   During the one-hour interrogation, the defendant made a statement in which he incriminated himself in the armed robbery and the theft of the firearms
                

Philip was fifteen years old, and had spent much of his life in various foster homes, group homes, and residential treatment facilities under the authority of the State. Although he is of average intelligence, he has completed only an eigth-grade education, which puts him approximately two years behind his peers.

Marsha Flynn, the Chief Probation Officer at the Concord District Court, testified that she had had contact with Philip in regard to his life-long family neglect situation, as well as to six prior delinquency proceedings. She testified that, although he had been read his Miranda rights on numerous occasions, on each such occasion he was in court in the presence of a judge and represented by counsel.

The unrebutted testimony of Dr. Durand, a psychiatrist, was that Philip may have sufficient intelligence to understand the substance of the privilege against self-incrimination. Dr. Durand was certain, however, that Philip does not have the capacity to exercise the informed and independent judgment required in order to knowingly and intelligently relinquish that right.

Dr. Durand's opinion was partly based on his belief that Philip is impulsive, lacks common sense, and exercises poor judgment in the day-to-day management of his conduct. More important to the doctor's determination, however, was his belief that although Philip may have known that judicial proceedings could result in incarceration, his frame of reference was limited to incarceration in State programs which he had known all his life, such as the Youth Development Center (YDC). In effect, the doctor was certain that Philip would have recalled the immediate consequences of his prior situations and would not have understood the consequences of being certified as an adult and possibly being sentenced to the State prison. Thus, the doctor concluded that Philip would not be in a position to exercise informed and independent judgment in waiving his constitutional rights.

On June 30, 1982, the child was certified to stand trial as an adult, pursuant to RSA 169-B:24 (Supp.1983) by order of the Concord District Court (Robbins, J.). He subsequently was indicted for the felonies of armed robbery, RSA 636:1, II(a) and theft, RSA 637:3, I.

Prior to trial, Philip moved to suppress the incriminating statement made by him in response to police questioning. Based upon the above-described facts, he argued that the totality of the circumstances did not show a voluntary, knowing and intelligent waiver of his privilege against self-incrimination as well as of his right to counsel, and that his statement should be excluded because it was obtained in the absence of an adult who was interested in his welfare.

After a hearing, the Superior Court (DiClerico, J.) denied the motion to suppress. The court declined to rule that a juvenile could not waive his rights without the advice of counsel and held that it would continue to use the totality of the circumstances test in determining whether a juvenile has made a voluntary, knowing and intelligent waiver. The court then concluded that the State had proved beyond a reasonable After a jury trial in Superior Court (Cann, J.), Philip was convicted of theft of a firearm and armed robbery. He has been sentenced to the New Hampshire State Prison for four to ten years for armed robbery and one to three years for theft, to be served concurrently. This appeal followed.

doubt that Philip had voluntarily, knowingly and intelligently waived his privilege against self-incrimination and his right to counsel.

II. Treatment of Juveniles Under New Hampshire Law

This State long has recognized the common-sense fact that a child does not possess the discretion and experience of an adult, Porter v. Wilson, 106 N.H. 270, 271, 209 A.2d 730, 731 (1965), and that special procedures are required to protect juveniles, who possess immature judgment. State v. Lemelin, 101 N.H. 404, 406, 144 A.2d 916, 918 (1958).

In recognition that children often act imprudently and lack the capacity to understand the full consequences of their acts, the law of this State provides that juveniles may disaffirm a contract upon reaching majority, Porter v. Wilson, supra, 106 N.H. at 271, 209 A.2d at 732, may not marry without parental and judicial consent, RSA 457:5 to :7, and may not purchase alcoholic beverages, RSA 175:5 (Supp.1983). See also RSA 464-A:42 (court must approve settlement made on behalf of minor); RSA 31:43-c (Supp.1983) (cities and towns may adopt curfews prohibiting persons under the age of sixteen in public places or streets after nine o'clock unless accompanied by a parent or guardian); RSA 571-C:1 (Supp.1983) (persons under the age of seventeen may not donate blood); RSA 287-E:7, III (Supp.1983) (persons under the age of eighteen may not attend bingo games).

More importantly, the legislature, in recognition of the inherent differences between children and adults, has provided for special treatment of juveniles under the juvenile justice statute. RSA ch. 169-B (Supp.1983). The juvenile justice system differs both in philosophy and procedure from the adult penal system, and this court has recently reaffirmed that the purpose of the juvenile justice system is not penal, but protective. State v. Smith, 124 N.H. 509, 512, 474 A.2d 987, 989 (1984).

RSA chapter 169-B provides that the district courts shall have exclusive jurisdiction over any person under the age of eighteen who is charged with the commission of an offense which would be a felony or a misdemeanor, if committed by an adult. RSA 169-B:2, II, :3, :4 (Supp.1983). RSA chapter 169-B was enacted as part of a "comprehensive juvenile justice system that has as its primary concern the welfare of the child." In re Eric C., 124 N.H. 222, 224, 469 A.2d 1305, 1306 (1983).

"The primary purpose of the Legislature [in enacting RSA chapter 169-B] was to shield children under eighteen from the environment surrounding adult offenders and inherent in the ordinary criminal processes. As an incident to the accomplishment of this purpose, proceedings involving children under eighteen are so conducted as to prevent attachment of the 'stigma of a...