State v. Dellorfano

• Decision Date: 03 October 1986
• Docket Number: No. 85-229,85-229
• Parties: The STATE of New Hampshire v. Joseph DELLORFANO.
• Court: New Hampshire Supreme Court

Page 1163

517 A.2d 1163

128 N.H. 628

The STATE of New Hampshire v. Joseph DELLORFANO.

No. 85-229.

Supreme Court of New Hampshire.

Oct. 3, 1986.

Stephen E. Merrill, Atty. Gen. (Tina Schneider, Asst. Atty. Gen., on the brief and orally), for the State.

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

KING, Chief Justice.

The defendant was tried by a jury and convicted on charges of accomplice to armed robbery, RSA 636:1, III(a) and RSA 626:8, III; accomplice to kidnapping, RSA 633:1 and RSA 626:8, III; and possession of a controlled drug, second offense, RSA 318-B:26, I(b)(2). During trial, the Court (Bean, J.) overruled the defendant's objection to the admission of certain statements made to the police before and after Miranda warnings. This ruling, and the court's failure to give a particular accomplice testimony instruction, are challenged on appeal. For the reasons that follow, we affirm.

Shortly after midnight on May 8, 1984, Marc Dahlstrom locked up the Merit gas station on Elm Street in Manchester. A man followed Dahlstrom home and, upon reaching Dahlstrom's apartment, ordered him at gunpoint to return to the station. They were joined enroute by the defendant, who the first man referred to as "Jake." Dahlstrom later described Jake as being about 5 feet, 7 inches in height and weighing 150 pounds, having a dark complexion, collar-length wavy hair, and a moustache, and possibly being of Greek extraction. He wore dark pants and a black jacket.

At the gas station, the first man took $300, including $201 in singles, from a drawer and unsuccessfully attempted to shoot open two safes. He left with the money and Dahlstrom contacted the police, who responded at 12:24 a.m. From the site where the first man and the defendant were last seen, a tracking dog followed a scent to Orange Street. In addition, other police officers were ordered to stake out the vicinity of Orange Street. Robert Haas, who lived in an apartment at 137 Orange Street, was a suspect in similar armed robberies. As a woman approached the apartment, she was questioned by the police. She identified herself as Holly Baker and indicated that she was going to visit Haas. She volunteered a plastic bag containing marijuana and was arrested and taken to the police station.

Baker admitted to being an accomplice in the Merit gas station robbery, along with Haas and a Puerto Rican man she knew as "Jay," and gave a description of Jay similar to Dahlstrom's description of "Jake." She stated that at about 11:00 p.m. that night, she and Haas drove to the Kimball Street Project and picked up Jay. Haas dropped off Jay and Baker at a motel across from the Merit station, drove home, and returned by foot. Baker remained at the motel to divert the night clerk's attention while the two men robbed the station.

Based on this information, the police obtained a search warrant for Haas's apartment and car. Before the warrant was executed, however, the police arrested the defendant and Haas as they were leaving the apartment building parking lot. A search of the defendant uncovered a roll of money, including $152 in one-dollar bills, and a bag of marijuana. A search of the car revealed two firearms. The defendant was taken to the Manchester police station, booked, and placed in a jail cell.

That morning, police officer Timothy Dobmeier interrogated the defendant. Officer Dobmeier testified to the following chain of events:

"Before I went down to the cell block to retrieve Mr. Dellorfano for an interview I read what notes had been prepared, and it was noted in the prepared notes that the victim from the Merit Gas Station had informed the investigators that one of the assailants were [sic] referred to by the other as Jake. And in reviewing Holly Baker's statement to Detective Moore she also stated that her and Robert Haas had gone to the Kimball Street Project and picked up a guy by the name of Jay. So, with that in mind I went down to the cell block and upon entering the cell block I simply stated, 'Hey, Jay.' "

The defendant responded "Yeah." Officer Dobmeier walked over to the cell and said "Jay?" The defendant said "Yeah" and was taken upstairs to an interview room. He was given Miranda warnings and stated that he did not want a lawyer at that time. He told Officer Dobmeier that he was staying at Haas's apartment and had been there for the entire evening. The defendant denied any involvement in the Merit gas station robbery until, according to Officer Dobmeier,

"I confronted [him] with the physical description provided by the victim at the Merit Gas Station; fitting him very closely ... and I also confronted him with the fact that I had just simply walked into the cell block and asked for Jay and that he had answered, and that the victim from the gas station had referred to--had stated that one of his assailants had referred to the other as Jake."

The defendant then indicated that he knew what Robert Haas had been up to and offered to give the police information on three or four other robberies "on a silver platter for a deal." At trial, the defendant was convicted of accomplice to armed robbery, accomplice to kidnapping, and possession of a controlled drug, second offense. This appeal then ensued.

The defendant's contentions on appeal are as follows. First, the defendant's response to Officer Dobmeier's inquiry of "Hey, Jay," was inadmissible at trial because the officer's statement amounted to custodial interrogation before administration of the defendant's Miranda rights. Second, the elicitation of the defendant's unwarned statement tainted his latter, warned statement offering to provide information on other robberies in exchange for a deal. As a result, the latter statement was also inadmissible at trial. Third, the trial judge erred in not giving the defendant's requested instructions on accomplice testimony to the jury.

Before addressing the substance of the defendant's arguments, we must establish the specific framework of analysis. The defendant's brief cites New Hampshire case law, apparently in an effort to implicate the protections of the New Hampshire Constitution. This court has stated that it "has the power to interpret the New Hampshire Constitution as more protective of individual rights than the parallel provisions of the United States Constitution." State v. Ball, 124 N.H. 226, 231-232, 471 A.2d 347, 350 (1983). When a defendant specifically invokes the State Constitution, we will consider those constitutional claims before addressing federal claims. Id. at 232, 471 A.2d at 351. However, the defendant must fulfill two preconditions before triggering a State constitutional analysis: first, the defendant must raise the State constitutional issue below, State v. Westover, 127 N.H. 130, 497 A.2d 1218 (1985) (defendant's brief referred in terms to the State Constitution, but since the defendant failed to rely on the applicable State constitutional provision in his pre-trial motion to suppress, the issue had not been preserved for appeal); second, the defendant's brief must specifically invoke a provision of the State Constitution. State v. Reynolds, 124 N.H. 428, 432, 471 A.2d 1172, 1173-74 (1984) (although defendant's brief referred extensively to State case law, the defendant did not cite a New Hampshire constitutional provision and thus did not raise a State constitutional issue).

In the instant case, the defendant did not unambiguously and specifically raise self-incrimination issues grounded in the New Hampshire Constitution (part I, article 15). In State v. Cimino, 126 N.H. 570, 572, 493 A.2d 1197, 1199-1200 (1985), we cautioned defendants to raise a clear State, as distinct from federal, constitutional claim at the trial court level in order to invoke State v. Ball at the appellate level. At the trial of this case, the defendant objected to the admission of his statements to police based only on generalized "constitutional" concerns. Nowhere does the trial record indicate a State constitutional foundation for the defendant's objection. His pre-trial motion to suppress does mention the New Hampshire Constitution, but the motion posits an illegal search and seizure. The motion does not call for suppression of evidence based on a theory of compelled self-incrimination. Search and seizure issues are not coextensive with self-incrimination issues. See generally, 1 D. Nedrud, The Supreme Court and The Criminal Law, A § 2-s 4 (search and seizure), B § 1 (interrogation), B § 3 (self-incrimination/identification) (8th ed. 1985). At the federal level, the fifth amendment is not subsumed within the fourth amendment. At the State level, part I, article 15 is not subsumed within part I, article 19.

Because the defendant failed to raise a specific article 19 issue below, we elect to follow Reynolds and enforce the admonition of Cimino. We will thus not perform a State constitutional analysis of defendant's compelled self-incrimination arguments.

The defendant's federal constitutional arguments proceed in close, sequential fashion: first, defendant's response to "Hey, Jay," was the product of a custodial interrogation before the advisement of the defendant's Miranda rights. Consequently, the trial judge should have excluded evidence of defendant's response. Second, the defendant's subsequent post-Miranda warning statement (offering information about other robberies "on a silver platter for a deal") was tainted by the previous Miranda violation.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), clearly states that the fifth amendment requires the exclusion of incriminating statements elicited during a custodial interrogation prior to apprising the suspect of his constitutional rights. In its brief the State argues that Officer Dobmeier's exclamation "Hey, Jay," did not constitute interrogation and thus fell outside the proscriptive ambit of Miranda.

The United States Supreme...