State v. Elbert, s. 82-389

• Decision Date: 04 May 1984
• Docket Number: Nos. 82-389,82-551,s. 82-389
• Parties: The STATE of New Hampshire v. Clarence ELBERT.
• Court: New Hampshire Supreme Court

Page 854

480 A.2d 854

125 N.H. 1

The STATE of New Hampshire v. Clarence ELBERT.

Nos. 82-389, 82-551.

Supreme Court of New Hampshire.

May 4, 1984.

Gregory H. Smith, Atty. Gen. (John A. Malmberg, Asst. Atty. Gen. (orally) and Amy L. Ignatius, Concord, on the brief), for the State.

James E. Duggan (on brief), Appellate Defender, and Joanne S. Green (orally), Asst. Appellate Defender, Concord, for defendant.

SOUTER, Justice.

The defendant was indicted under RSA 629:1 for attempted first-degree murder (RSA 630:1-a) and under RSA 650-A:1 (Supp.1983) for use of a firearm in the attempt to commit a felony. Following his arrest, the defendant made admissions to the police, which the Superior Court (Goode, J.) refused to suppress. Following trial, a jury returned verdicts of guilty to attempted second-degree murder and felonious use of a firearm. The Trial Judge (Flynn, J.) imposed consecutive sentences of fifteen to thirty years for attempted murder and ten to twenty years for felonious use of a firearm. The case comes to us on the defendant's exceptions to the ruling on his motion to suppress and to certain rulings at trial and at time of sentence. We affirm on all issues except the challenge to the sentence for felonious use of a firearm, on which the case will be remanded for resentencing.

The record indicates that the events leading to these charges began in Nashua late in the afternoon of November 4, 1981, when the defendant visited Albert Burelle, an acquaintance who entertained the defendant with food and drink. On leaving Mr. Burelle's apartment, at 6 p.m., or shortly before that, the defendant stole a revolver and its holster.

At about the same time, Mr. Burelle's young neighbor, Lisa Cantella, left her family's house and began to walk through Woodlawn Cemetery on her way to a nearby store. When she heard a rustling of leaves, she paused. She heard someone behind her ask "What are you doing in the cemetery? Get out of the cemetery!" She turned to see a man. She ran until a bullet struck the back of her head, and she fell. She survived the gunshot wound, and later described her assailant as black, 5 feet, 8 inches tall, with a scar on his nose, unshaven, having a flat hat, wearing a blue jacket and green baggy pants.

A witness driving past the cemetery in his car at this time saw a man leave the cemetery through a hole in the fence. The witness described the man as black, 5 feet, 11 inches tall, wearing dark clothing.

Later that evening, the defendant went to the apartment of a friend, Victoria Tessier, to whom he said "I'd like to talk to you. I'm in a heap of trouble." He claimed that earlier that day while scuffling with two men, he had discharged a gun. He said he had taken the gun and its holster from the ground and had fled. Then he added, "I hope it didn't go onto the girl." His friend asked whom he meant, and he explained that a girl had been walking with the two men, and "he hoped that when the gun went off, the bullet hadn't sprayed over to the girl." While the defendant was talking, the police came to the apartment looking for him. He hid until they were gone, and then left by a window, explaining to Miss Tessier that he "didn't want to go to prison anymore."

The next day, the defendant walked down the railroad tracks between Nashua and Lowell and threw the gun and holster into the Merrimack River nearby. He then traveled from New Hampshire to New York.

On November 13, 1981, the State filed complaints in the Nashua District Court charging the defendant with attempted first degree murder, possession of a firearm by a felon, and felonious use of a firearm, and the court issued warrants for his arrest. The FBI later obtained warrants for the defendant's arrest as a fugitive from justice. Independently, the State of New York charged the defendant with criminal offenses committed there. The defendant was held either by New York or the national government until December 31, 1981, when he waived extradition and submitted to the custody of Captain Robert Barry and Detective Donald Hamel of the Nashua Police Department.

At the hearing on waiver of extradition, a lawyer representing the defendant asked the judge to order the Nashua officers not to question the defendant until he had returned to New Hampshire and consulted with counsel there. The judge refused the order on the ground that his jurisdiction ended at the State line.

The Nashua officers and the defendant then began the drive to New Hampshire. After they had left New York City, there was some conversation about the defendant's past history and about his recent criminal difficulties in New York. The defendant asked the officers what charges had been brought against him in New Hampshire, and what penalties they carried. The officers answered his questions by explaining the charges and lesser-included offenses. Though conversation turned to other matters, the defendant returned to the subject of the pending New Hampshire charges.

While traveling through Connecticut, they stopped at a restaurant. Captain Barry was concerned about the defendant's intentions in speaking about the charges against him, for he believed the defendant was "a very street-wise individual." On leaving the restaurant, he therefore orally gave the defendant the Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After each separate warning, Captain Barry asked if the defendant understood the right, and to each question the defendant answered yes. Captain Barry asked him if he had any "problem" talking to the police about the New Hampshire charges without a lawyer present. The defendant said he had no problem, and he indicated he waived his rights.

Captain Barry then asked about the stolen revolver, and the defendant admitted he had stolen it. He described his visit to the Tessier apartment and his disposal of the weapon the next day. In the course of this interrogation, the police emphasized the importance of cooperation. They indicated that concurrent sentences would be a possibility, but they made no promises of any particular recommendations. The defendant said that his conscience had been bothering him, and that he felt better to learn that he had not killed anyone, and that the girl was not dead. At the end of the conversation, the defendant said that he would consult with a lawyer when they reached Nashua, and that thereafter he and the police might talk again. No further statements by the defendant were admitted into evidence.

In support of his exceptions, the defendant first argues that the superior court erred in denying the motion to suppress evidence of the statements he made to the police during the trip from New York to Nashua. His motion to suppress rested on claims that the arrest was illegal and that his interrogation was a violation of the right to counsel under the sixth amendment of the Constitution of the United States, as applied to the states through the fourteenth amendment. The arrest issue is not before us.

The trial judge on suppression treated the motion as also raising a fifth and fourteenth amendment claim under Miranda v. Arizona supra, and at the close of the suppression hearing, the defendant's counsel orally challenged the voluntariness of the defendant's statement. While the record is not as clear as it should be, it is sufficient for us to consider the defendant's exception as raising issues of voluntariness and of violations of both fifth and sixth amendment standards.

Taking the federal fifth amendment issue first, once a defendant has invoked his right to counsel by declining to speak to the police without a lawyer present, the police must refrain from or stop interrogation, id. at 474, 86 S.Ct. at 1627, and scrupulously honor the defendant's right to stop it. People v. Grant, 45 N.Y.2d 366, 375 n. 1, 380 N.E.2d 257, 262 n. 1, 408 N.Y.S.2d 429, 434 n. 1 (1978).

While the defendant may thereafter waive the right he had invoked, no claim of waiver may be considered unless the State proves that the defendant without prompting initiated conversation with the police about the subject of the charges. State v. Beaupre, 123 N.H. 155, 459 A.2d 233 (1983); Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 L.Ed.2d 378 (1981). To initiate conversation about the charges, the defendant must do more than speak about the details of his present confinement. He must refer to the charges for which he is confined. Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 2835, 77 L.Ed.2d 405 (1983). The act of initiating conversation is not itself a waiver of the right to the presence of counsel, however, and the State must further prove that the defendant did make an intentional waiver of that known right. Id.; see Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).

In this case the defendant raised no claim of right to counsel under part I, article 15 of the Constitution of New Hampshire. We note that if he had done so, and if he had earlier invoked his right to the presence of counsel during interrogation, our holding in State v. Nash, 119 N.H. 728, 407 A.2d 365 (1979) would require the State to prove that any waiver of that right was express, in the sense that the defendant referred expressly to the right or answered a question that referred to it.

Quite apart from the right to the presence of counsel during interrogation after invocation of fifth amendment rights under Miranda, once judicial proceedings have begun against a defendant, as in this case, the sixth amendment entitles him to the benefit of counsel in a variety of circumstances. See United States v. Melanson, 691 F.2d 579, 584-85 (1st Cir.1981). Among them, of course, is an interrogation. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). Under the sixth amendment, too, a defendant may waive his right to the presence of counsel if he acts with the intent and...