State v. Butler, 7721

• Decision Date: 31 October 1977
• Docket Number: No. 7721,7721
• Citation: 117 N.H. 888,379 A.2d 827
• Parties: The STATE of New Hampshire v. James H. BUTLER.
• Court: New Hampshire Supreme Court

Page 827

379 A.2d 827

117 N.H. 888

The STATE of New Hampshire v. James H. BUTLER.

No. 7721.

Supreme Court of New Hampshire.

Oct. 31, 1977.

David H. Souter, Atty. Gen., and Robert V. Johnson, II, Asst. Atty. Gen., for the state.

James E. Duggan, of Manchester, Public Defender, by brief and orally for defendant.

GRIMES, Justice.

The issues in this rape case are whether defendant's confession given after he had requested counsel should have been excluded, and whether the trial court erred in ruling that defendant opened the way for the admission of a previously excluded identification of the defendant by the complaining witness.

Defendant was indicted for rape, RSA 632:1 (Repl.1974), and deviate sexual relations RSA 632:2 (Repl.1974), alleged to have been committed on July 1, 1975, in Greenville, New Hampshire. He moved to suppress certain statements made to the police and an identification made by the complaining witness through a one-way mirror while he was alone in a room at the police station. The court denied the motion regarding the confession but granted it as to the identification and ordered that no in-court identification could be made unless defendant during the course of the trial did something to open the door for it. During the trial the court ruled that defendant had opened the door. Defendant was convicted and his exceptions to the rulings of the court were transferred by Loughlin, J.

The complainant testified that she had spent the day with her boyfriend who worked as a night watchman. She ate dinner with her parents and then went for a bicycle ride. She turned into a picnic area intending to drink out of her canteen but observed a man standing beside a parked automobile. She did not like his looks so she kept going intending to leave the area by another exit. The man started his car and pulled in front of her knocking her off her bicycle. He then took her into the woods and raped her after putting his face in her vaginal area. The police, alerted by a passerby, came to the scene after the man had left, and complainant gave them a description of the man who had raped her. She described him by height, weight, hair color, etc., and told them he had large bulging eyes. She also described his automobile as being a Plymouth Gold Duster with large lettering on the back which was scratched.

The following day at about 2:45 p. m., a Greenville police officer stopped a Gold Duster being driven by a man meeting the description given by the complainant. This man was the defendant. He was asked to drive to the police station and he complied. He was given the Miranda warnings by the chief of police. It is not clear that he expressly waived his rights at that time. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). As we will show later, however, this is not fatal in this case.

After being given the Miranda warnings, defendant was questioned about his activities the night before. After a time defendant asked why he was being questioned and when he was told he declined to answer more questions and asked to talk with a lawyer. He was allowed to use the telephone and called his mother who said she would obtain a lawyer.

At about 4:20 p. m., complainant was brought to the police station. She identified defendant's automobile as being the one her assailant had used. She was then taken to a one-way mirror where she observed defendant sitting alone. She identified him as being her assailant.

Defendant was placed under arrest, finger-printed and photographed. His bail was set at $1,000 on personal bond. At some point about 7:00 p. m., a lawyer talked by telephone to the chief of police regarding the defendant, but no lawyer came to visit defendant at the station.

At about 7:15 p. m., defendant stated that he wished to make a statement. He was brought to the chief's office where he was again warned of his constitutional rights, and he initialed each warning on a form including a waiver of those rights. He then wrote out a statement in his own hand in which he confessed to the rape.

We find no error in the denial of the motion to suppress the confession. Although defendant had indicated that he did not want to be questioned further and that he wished to talk with a lawyer, it was findable that questioning in fact ceased in accordance with the dictates of Miranda and that there was no further questioning. Although he had asserted his right to have a lawyer, he was entitled to change his mind and to waive that right provided he did so voluntarily. The evidence supports a finding that the waiver of that right was voluntary, and, unlike the case of Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), there had been no violation of that right by questioning prior to the waiver which induced the defendant to talk.

Although, as we before stated, the record does not show that he expressly waived his rights at the time of the first Miranda warnings, no incriminating evidence which was subject to objection was obtained during the period prior to the express waiver after the second Miranda warning. We remind the police and prosecutors, however, that whatever may be the future interpretation of Miranda, that the decision in that case requires not only an understanding of the warnings but also an express waiver of the rights involved. 384 U.S. at 475, 86 S.Ct. 1602. Strict compliance by the police will avoid the danger that statements, otherwise admissible, will have to be excluded. Miranda cards not providing for express waivers should be revised.

The trial court granted defendant's motion to suppress the out-of-court...