State v. Cote

• Decision Date: 03 June 1987
• Docket Number: No. 86-178,86-178
• Citation: 530 A.2d 775,129 N.H. 358
• Parties: The STATE of New Hampshire v. Alfred F. COTE.
• Court: New Hampshire Supreme Court

Page 775

530 A.2d 775

129 N.H. 358

The STATE of New Hampshire v. Alfred F. COTE.

No. 86-178.

Supreme Court of New Hampshire.

June 3, 1987.

Stephen E. Merrill, Atty. Gen. (William H. Lyons, Asst. Atty. Gen., on brief and orally), for State.

John A. Macoul orally and on the brief, and Barbara A. Fielden, on brief, Salem, for defendant.

JOHNSON, Justice.

The defendant appeals three misdemeanor convictions for sexual assault and alleges numerous errors by the Trial Court (Nadeau, J.). The following issues are presented for our review: (1) whether, under the circumstances of this case, the trial court erred in denying the defendant's motion to suppress statements made by him to a police officer and welfare official, in the welfare official's office, and subsequent statements to the same police officer at the Londonderry police station; (2) whether the trial court erred in allowing the State's motion to vacate prior orders granting discovery in six cases of sexual assault, five of which were consolidated with the three cases being appealed; (3) whether the trial court erred in consolidating the eight sexual assault charges which were tried; (4) whether, under the circumstances of this case, the trial court erred in refusing to give a jury nullification charge; (5) whether the defendant's motion for a directed verdict and/or to set aside the verdict should have been granted; (6) whether the trial court erred in denying the defendant's motion for a new trial based upon newly discovered evidence; and (7) whether, under all of the circumstances of this case, the trial court committed an abuse of discretion in sentencing. We affirm the defendant's conviction, but vacate his sentence and remand for resentencing.

The defendant was initially charged under various indictments and misdemeanor informations alleging sexual misconduct on his part. He was accused of aggravated felonious sexual assault on a minor in Nottingham on or about August 17, 1984. He was also indicted for aggravated felonious sexual assault and charged with four misdemeanors of sexual assault on a Sunday morning in September, 1984, after he allegedly took the victims to a speedway in Epping and returned to an ambulance building in Danville, the alleged situs of the crimes. Finally, he was charged with three misdemeanor informations alleging sexual contact with minors on or about September 1, 1984, while sleeping in a tent with the three victims in Londonderry. Prior to trial, the State entered nolle prosequi on the Nottingham assault indictment, the alleged victim having denied that the crime occurred. The remaining eight charges were consolidated and tried together, over the defendant's objection.

Prior to the filing of formal charges relating to any of the above allegations, the defendant was telephoned by Cynthia Herman a social worker, who requested that he come to her office. The defendant did so on November 30, 1984, apparently under the belief that he would be discussing his family and stepchildren. To his apparent surprise, Officer Ryan of the Londonderry Police Department was present at Herman's office, in order to question him regarding sexual misconduct.

Officer Ryan gave the defendant his Miranda warnings, and offered to leave if the defendant wished him to do so. The defendant, who was unrepresented by counsel at the time, allowed Officer Ryan to remain, and made several statements at the meeting after apparently waiving his rights. He then left of his own volition, as he had come. The defendant was under medication at the time.

The next day, the defendant went to the Londonderry police station at Officer Ryan's request. He was met at the door by Ryan, who arrested him, gave him his Miranda rights, and requested a statement concerning the issues discussed the day before. Officer Ryan subsequently typed a two-page report, which the defendant allegedly signed. Formal charges were filed, and after a suppression hearing, the trial court refused to suppress the statements elicited at both meetings.

In addition to his motion to suppress, the defendant filed pre-trial motions for discovery and a bill of particulars in the six docketed cases not involved in this appeal, although five of them were tried therewith. These motions were granted by the Superior Court (Thayer, J.) on April 8, 1985, after the State's failure to object within ten days of filing. On May 7, 1985, the State at last filed a motion to vacate the defendant's discovery orders, which motion was granted by the Trial Court (Nadeau, J.) on May 27, 1985, after a hearing at which the defendant duly objected.

Over the defendant's objection, all eight cases were consolidated for trial. The jury returned a verdict of not guilty to the five Danville charges. As to the charges which are the subject of this appeal, Matthew D. testified that on the night the defendant's daughter was born (August 31, 1984), the defendant slept with Matthew and his brother Mark, in a tent behind the boys' residence in Londonderry. The defendant had been invited to do so by the boys' parents, who were home at the time. Matthew testified that at that time, over a period of minutes, the defendant touched Matthew's penis and that Matthew touched the defendant's penis, with each having an erection. Mark D. testified that the defendant touched Mark's penis at about the same time.

There was evidence that the boys may have been upset over other matters with the defendant, who was their former scoutmaster. It also appeared that the boys did not complain immediately about the incident.

The defendant alleged that he had little or no recollection of the incidents, and called ten witnesses in support of an alibi defense. One of these witnesses testified that he saw the defendant at the Parkland Medical Center around 8:00 p.m. on the evening of his daughter's birth. Another witness testified that he saw the defendant at the Danville Ambulance Service around midnight on the evening in question. The defendant also introduced telephone billings alleged to represent calls made by him from the ambulance service after midnight of the night his daughter was born.

The jury returned a verdict of guilty of the three Londonderry charges. The defendant's motion to poll the jury was denied; this issue, however, was not raised by the defendant on appeal and hence is waived.

Based upon various factors, including a probation report, the trial court sentenced the defendant to the maximum one-year sentence for each of the three offenses, the sentences to run consecutively. The court remarked at the sentencing hearing that it had found that the defendant's conduct did not represent an isolated incident.

On April 1, 1986, the defendant's motions to reconsider and to set aside the verdict were argued. The trial court denied both motions, and on July 1, 1986, a hearing was held on the defendant's motions for a new trial and to revise, revoke and/or reconsider sentencing. Both motions were also denied, and this appeal was brought.

We first address the defendant's argument that the statements made by him at the welfare office should have been suppressed, as products of an illegal custodial interrogation. The defendant raises claims under both the United States and New Hampshire Constitutions. We will consider the defendant's State constitutional argument first. See State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983). However, we find the federal case law on the question instructive, and will therefore use it as an aid to the interpretation of our own constitution. See Michigan v. Long, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983). We need not consider this argument at length, however, because we find that the defendant was not in custody at the time the statements in the welfare office were made.

New Hampshire citizens are entitled to protection from unreasonable searches and seizures: "Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his house, his papers, and all his possessions...." N.H. CONST. pt. I, art. 19. "[W]e interpret part I, article 19 to reflect the intent of the framers that all searches and seizures must be reasonable." State v. Ball, supra, 124 N.H. at 234, 471 A.2d at 352.

Before these constitutional protections attach, however, a person must have been "seized." "Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Terry v. Ohio, 392 U.S. 1, 19 [129 N.H. 365] n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). In State v. Riley, 126 N.H. 257, 263, 490 A.2d 1362, 1366 (1985), this court adopted the objective test articulated in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), for the determination of whether a seizure has occurred. We must ask whether, "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Mendenhall, supra at 554, 100 S.Ct. at 1877.

In this case, we think it clear from all the circumstances that the defendant had not been seized at the time he was questioned in the welfare office, and that therefore no violation of his rights occurred. Officer Ryan, before questioning the defendant, offered to leave, but the defendant allowed him to remain. It is not enough to establish a seizure "that the person asking the questions was a law enforcement official." Mendenhall, supra at 555, 100 S.Ct. at 1877. Further, not only was the defendant Cote in fact free to leave, but he did indeed "go his way" at the end of the interview. Here, Cote acted "voluntarily in a spirit of apparent cooperation with the officer's investigation." Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 1903, 20...