State v. DeMeritt

• Decision Date: 21 October 2002
• Docket Number: No. 2001–083.,2001–083.
• Citation: 813 A.2d 393,148 N.H. 435
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Robert DEMERITT.

148 N.H. 435

813 A.2d 393

The STATE of New Hampshire

v.Robert DEMERITT.

No. 2001–083.

Supreme Court of New Hampshire.

Submitted Aug. 28, 2002.

Opinion Issued Oct. 21, 2002.

Rehearing Denied Dec. 12, 2002.

Philip T. McLaughlin, attorney general (David W. Ruoff, attorney, on the brief), for the State.

Desfosses Law Firm, of Portsmouth (Sven D. Wiberg on the brief), for the defendant.

DUGGAN, J.

The defendant, Robert Demeritt, appeals his convictions for negligent homicide and reckless conduct. On appeal, he argues that the Trial Court (Coffey , J.) made several improper evidentiary rulings. He also argues that the trial court gave an erroneous jury instruction, deprived him of a public trial by excluding his female companion from the view, and improperly refused to dismiss the charges on double jeopardy grounds. We affirm.

The charges arose out of the defendant's operation of a van on August 17, 1998. At 7:00 a.m., Greg Scanlon, the victim, left for work driving a Subaru. At approximately 7:45 a.m., the Subaru passed a vehicle on Route 152. The occupants of that vehicle testified that the Subaru was traveling at a high rate of speed, and following closely behind it was a white van being driven by the defendant. They also testified that the van was traveling just as fast and appeared to be "chasing" the Subaru. Other witnesses testified that as the two vehicles traveled down Route 152, the defendant's van was in the wrong lane and oncoming vehicles were forced off the road. Thereafter, while the defendant was steering the van back into its proper travel lane, the van struck the Subaru, causing it to hit a telephone pole and a tree. The Subaru ultimately came to rest upside down twenty-five feet down an embankment. Scanlon was killed instantly. The defendant's van came to rest on the other side of Route 152.

Nottingham Police Chief Philip English arrived on the scene within minutes. Someone told the chief that "the van pushed the [Subaru] off the road." The chief then asked who was driving the van. The chief testified that the defendant put his hand up and said, "I was." The chief asked the defendant what happened. The defendant responded that "he would try to pass, the car would speed up, then he'd pull in and the car would slow down and try to pass, and then [the defendant] said, ‘Up here, I bumped it off the road.’ " The chief then put up his hand and said, "Don't say any more" and told the defendant, "Go stand over by my cruiser."

Sometime later, after other fire and rescue personnel had arrived at the scene and Scanlon's body was removed from his vehicle, a State trooper attempted to speak with the defendant but the defendant refused to speak to him.

The defendant was initially tried for manslaughter, RSA 630:2 (1996), and reckless conduct, RSA 631:3 (1996). He was acquitted of manslaughter, but convicted of the lesser-included offense of negligent homicide and reckless conduct. The trial court vacated these convictions due to juror misconduct. On retrial, the defendant was again convicted of negligent homicide and reckless conduct. This appeal followed.

The defendant first argues that his silence in response to the State trooper's questions was inadmissible. During the State's case-in-chief, the trooper who spoke to the defendant testified that he asked the defendant about the incident, but the defendant told him, "He didn't want to say anything." Defense counsel immediately asked for a mistrial. The State, apparently assuming that the defendant would later testify, argued the statement was admissible in spite of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), which prohibits the prosecution from using a defendant's post-arrest, pre-Miranda silence to impeach. Although the defense argued Doyle applied, the court denied the motion for a mistrial. After the State rested its case, the defendant testified that although he wanted to give the "full version of the story" to the police, he did not say anything to the trooper because the chief had told him to stop talking. The prosecution cross-examined him as to why he had refused to talk with the trooper.

On appeal, the defendant argues that his statement that "he didn't want to say anything" was inadmissible under New Hampshire Rule of Evidence 512(a) and Doyle v. Ohio, 426 U.S. at 615–19, 96 S.Ct. 2240. The State contends that because the defendant never referred to Rule 512(a) or any State or federal constitutional provisions when he objected to the admission of this statement, none of these arguments are preserved for appellate review. The State also contends that this issue is not preserved for appeal because the defendant failed to object to the statement's introduction during the prosecution's cross-examination of the defendant.

At the outset, we reject the State's argument that the defendant did not properly preserve these issues for appeal. With regard to the defendant's challenge under Rule 512(a), when defense counsel moved for a mistrial, he argued that "now we have a comment on essentially his refusal to talk to the police." Although defense counsel did not cite any particular rule, the objection follows the language of Rule 512(a). See N.H. R. Ev. 512(a). It is thus a specific objection adequate to preserve this issue for appeal. See N.H. R. Ev. 103(a) ; State v. Wisowaty, 133 N.H. 604, 607–08, 580 A.2d 1079 (1990). Moreover, during the colloquy at the bench, defense counsel argued that the rule of Doyle applies. While defense counsel did not specifically state that the admission of the defendant's statement would violate his due process rights, the exchange made clear to the trial judge that due process was the basis of the objection. Lastly, we reject the State's contention that the failure of defense counsel to object during the defendant's testimony bars appellate review. Having already raised the issues regarding the admissibility of the defendant's statement to the trooper, defense counsel was not required to repeat the objections when the same evidence was elicited from the defendant. See State v. Parra, 135 N.H. 306, 309, 604 A.2d 567 (1992) ; State v. Simonds, 135 N.H. 203, 205, 600 A.2d 928 (1991).

We now turn to the merits of the defendant's arguments. The defendant's first argument relies on Rule 512(a), which states: "The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel." N.H. R. Ev. 512(a). Even assuming that the defendant's statement that "he didn't want to say anything" constitutes a claim of privilege, Rule 512(a) does not bar its admissibility. By its plain language, the rule does not apply to the testimony of a witness but instead prohibits judges and counsel from commenting on a defendant's claim of privilege. The purpose of this rule is to prohibit a jury from drawing negative inferences from the invocation of the right against self-incrimination. See Fischer v. Hooper, 143 N.H. 585, 594, 732 A.2d 396 (1999). Because Rule 512(a) does not purport to bar testimony by witnesses, the rule is simply inapplicable to the State trooper's testimony.

The defendant's second argument relies upon Doyle and the Fourteenth Amendment. When a defendant is advised of his Miranda warnings, fundamental fairness prohibits the prosecution from using the defendant's silence in response to these warnings to impeach the defendant's credibility, see Doyle, 426 U.S. at 618, 96 S.Ct. 2240, or from using the silence in its case-in-chief as substantive evidence of the defendant's guilt, see United States v. Tenorio, 69 F.3d 1103, 1106–07 (11th Cir.1995). The State contends that Doyle is inapplicable because the defendant was not read and did not invoke his Miranda rights prior to his refusal to answer police questions. Doyle and its progeny, however, are not rooted in the self-incrimination protection of the Fifth Amendment, but rather in the due process guarantee of the Fourteenth Amendment. Doyle, 426 U.S. at 618, 96 S.Ct. 2240. The relevant inquiry, thus, is whether "governmental action induced the defendant to remain silent before his arrest."

Jenkins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980) ; see also State v. Hill, 146 N.H. 568, 577, 781 A.2d 979 (2001). As a practical matter, such inducement will almost always come in the form of a post-arrest reading and invocation of Miranda rights. This case presents an unusual situation: a police officer, without advising the defendant of his Miranda rights, ordered the defendant not to say anything. It would be anomalous to hold that fundamental fairness precludes the use of silence when the State merely advises a defendant of his right to remain silent, see Doyle, 426 U.S. at 617–18, 96 S.Ct. 2240, but not when the State orders him to do so. Thus we hold that fundamental fairness precludes the State's use of the defendant's silence in its case-in-chief and for impeachment purposes.

Having found error in the court's decision to admit evidence of the defendant's silence, we must determine whether the error was harmless. "Where the trial court has erroneously admitted evidence, we must reverse unless the State can show beyond a reasonable doubt that such error did not affect the verdict." State v. MacArthur, 138 N.H. 597, 599, 644 A.2d 68 (1994). Thus, we must review the evidence presented to the jury. In this case, the defendant did not dispute that he was the driver of the van, that he tried to pass Scanlon on the left, that he crossed over the double-yellow line into the wrong lane, that he drove in that lane alongside Scanlon for some time without braking, and that he came into contact with Scanlon's car as the defendant attempted to enter Scanlon's lane. Officer English testified that the defendant admitted he "bumped" Scanlon's car off the road. The State produced a number of witnesses who testified that the defendant was traveling at a high rate of speed and in the wrong lane when...