State v. Goding

• Decision Date: 09 July 1986
• Docket Number: No. 85-153,85-153
• Parties: The STATE of New Hampshire, v. William GODING.
• Court: New Hampshire Supreme Court

Page 325

513 A.2d 325

128 N.H. 267

The STATE of New Hampshire, v. William GODING.

No. 85-153.

Supreme Court of New Hampshire.

July 9, 1986.

Stephen E. Merrill, Atty. Gen. (Andrew L. Isaac, Asst. Atty. Gen., on brief and orally), for State.

James E. Duggan, Appellate Defender, Concord, by brief and orally, for defendant.

BATCHELDER, Justice.

In this appeal the defendant contests his conviction in Superior Court (Pappagianis, J.) for driving while intoxicated (DWI)-second offense, RSA 265:82. He argues that (1) the State was constitutionally barred from charging him with DWI-second offense prior to a trial de novo in superior court, after he was tried and convicted of DWI-first offense in district court; (2) his post-arrest admissions, uttered in response to implied consent law questioning, see RSA 265:84 et seq. (1982 and Supp.1985), should have been suppressed because Miranda warnings had not yet been given; and (3) we should adopt a rule that once a defendant is in custody, implied consent law questioning must be preceded by Miranda warnings. For the reasons that follow, we affirm.

On November 12, 1982, Greenfield Police Chief Charles Burrage signaled the driver of an erratically driven pick-up truck to pull over. As the chief approached the stopped vehicle, he noticed a strong alcoholic odor emanating from empty beer cans in the back of the truck. Two people were in the truck. When the chief asked the driver (the defendant) to step out of the vehicle, the defendant stepped out and steadied himself by leaning against the vehicle. According to the chief, the passenger appeared to be unconscious. The police chief asked the defendant about his erratic driving, and the defendant replied: "The only reason I'm driving is because I'm in a lot better shape than he is, so why don't you give me a break?"

The chief conducted four field sobriety tests to examine the defendant's reflexes, and thereafter arrested him. After imparting the implied consent law warnings to the defendant, the chief asked the defendant if he would take a breathalyzer test. The defendant responded: "I'll blow too high." The defendant was handcuffed and put in the back of the cruiser. En route to the police station, the chief asked the defendant if he would prefer to take a blood test at the hospital. The defendant acceded at first, but a few moments later he responded: "I'll take it next week."

The police chief read the Miranda warnings to the defendant at the station. As the defendant did not waive his right to remain silent, no interrogation ensued.

The defendant was charged with DWI-second offense and driving after revocation, RSA 263:64. Before his trial in district court, the State entered nolle prosequi on the DWI-second offense charge because the prosecutor did not have in his possession the necessary proof of the prior offense. Instead, the defendant was tried and convicted on DWI-first offense and driving after revocation charges. Thereafter, he exercised his right to a trial de novo in superior court. See RSA 592-A:2, 599:1. The State entered nolle prosequi on the two district court complaints, and brought two informations charging the defendant with DWI-second offense and driving without proof of financial responsibility, RSA 263:63.

At a May 1983 jury trial in Superior Court (Contas, J.), the defendant was convicted of driving without proof of financial responsibility. The jury was unable to reach a verdict on the DWI-second offense charge, however, and a mistrial was declared. On appeal, this court reversed the driving without proof of financial responsibility conviction because the trial court refused to consider the defendant's proposed voir dire questions. See State v. Goding, 124 N.H. 781, 474 A.2d 580 (1984).

The defendant was retried in November 1983 in superior court and convicted of DWI-second offense. Prior to sentencing, this court was presented with an interlocutory transfer of the question whether the State must allege and prove a culpable mental state in misdemeanor DWI cases, and ruled that no such mens rea requirement existed. State v. Goding, 126 N.H. 50, 489 A.2d 579 (1985). The defendant then appealed his DWI-second offense conviction.

The first issue on appeal is whether the defendant's due process rights were violated when the State charged him with DWI-second offense before a trial de novo in the superior court, after he appealed his district court DWI-first offense conviction. Since the defendant relies solely on the Federal Constitution, we need not address the State Constitution. State v. Reynolds, 124 N.H. 428, 432, 471 A.2d 1172, 1173-74 (1984). See State v. Ball, 124 N.H. 226, 231-32, 471 A.2d 347, 350-51 (1983) (Federal Constitution provides minimum level of protection of fundamental rights).

We begin our analysis by addressing two procedural matters raised by the State. First, the State asserts that the defendant should be precluded from alleging a due process violation on appeal because trial counsel initially raised the issue of the heightened charge in terms of double jeopardy rather than due process. We disagree and hold that when trial counsel challenged the propriety and fairness of the State's DWI-second offense charge, he effectively raised the due process issue at the first superior court trial.

The State also contends that since the defendant did not raise the due process issue at his second superior court trial, he failed to preserve the issue for appeal. At the first trial, the superior court denied pre-trial motions to suppress on Miranda grounds and to dismiss on due process grounds. At the retrial, the defendant stated that he was not waiving his Miranda objections from the first superior court trial, yet he did not specifically mention the due process issue.

The State relies on United States v. Mischlich, 310 F.Supp. 669 (D.N.J.1970), and State v. Hale, 127 N.J.Super. 407, 317 A.2d 731 (1974) in arguing that the earlier mistrial was a nugatory proceeding, and therefore the defendant's failure to raise and litigate his due process claim at the retrial was a waiver of that issue. We disagree. Although the trial court has the inherent power to correct an earlier, erroneous trial court ruling, see Croteau v. Harvey & Landers, 99 N.H. 264, 267, 109 A.2d 553, 555 (1954), defense counsel was not obliged to test or relitigate the court's earlier rulings on pre-trial motions just because there was a retrial, or because a different judge was presiding at the retrial. The mistrial did not render null all that went before it. Hence, the superior court's pre-trial determinations and the objections and exceptions thereto survived the mistrial, and remained effective.

We now address the due process claim. The defendant argues that in a two-tiered court system, the State is constitutionally prohibited from increasing the charges against a defendant in superior court after that defendant has been tried and convicted of a lesser charge in district court. In effect, he argues that the right of defendants to appeal a lower tier conviction and obtain a trial de novo will be chilled if a defendant runs the risk of having to defend against a more severe charge at a de novo trial.

Due process requires that any increased sentence or charge imposed on retrial not be the result of judicial or prosecutorial vindictiveness. When a defendant receives a more severe sentence from the same sentencing judge on retrial after appeal, judicial vindictiveness is presumed unless the judge states the reasons for the increased sentence on the record, and those reasons are based on objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing procedure. This would also include matters coming to the attention of the trial court during retrial. See North Carolina v. Pearce, 395 U.S. 711, 723, 726, 89 S.Ct. 2072, 2079, 2081, 23 L.Ed.2d 656 (1969). Judicial vindictiveness is not presumed, however, when a defendant, originally sentenced by a jury, receives a harsher sentence from the same trial judge on retrial, where additional evidence was heard at the retrial concerning the defendant's direct participation in the crime and the judge's stated rationale for the harsher sentence was logically related to the additional evidence. See Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 978-982, 89 L.Ed.2d 104 (1986) (upholding harsher sentence based on evidence of defendant's pre-trial conduct). Moreover, judicial vindictiveness is not presumed when a defendant receives a harsher sentence after a trial de novo in a two-tiered court system, since the judge is different and both the defendant and the prosecutor begin with a clean slate. See Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972).

Prosecutorial vindictiveness, on the other hand, is presumed in a case such as this, where the defendant, who is faced with a harsher charge at a de novo trial, alleges a due process violation. See Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974); Thigpen v. Roberts, 468 U.S. 27, 104 S.Ct. 2916, 82 L.Ed.2d 23 (1984). In Blackledge, the Court discussed the issue of prosecutorial vindictiveness and the institution of increased charges before a trial de novo:

"A prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a trial de novo in the Superior Court, since such an appeal will clearly require increased expenditures of prosecutorial resources before the defendant's conviction becomes final, and may even result in a formerly convicted defendant's going free. And, if the prosecutor has the means readily at hand to discourage such appeals--by 'upping the ante' through a felony indictment whenever a convicted misdemeanant pursues his statutory appellate remedy--the State can insure that only the most hardy defendants will brave the hazards of a de novo...