State v. Higgins

• Decision Date: 07 April 2003
• Docket Number: No. 2000–234.,2000–234.
• Citation: 149 N.H. 290,821 A.2d 964
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Jack Z. HIGGINS.

149 N.H. 290

821 A.2d 964

The STATE of New Hampshire

v.Jack Z. HIGGINS.

No. 2000–234.

Supreme Court of New Hampshire.

Argued Nov. 14, 2002.

Opinion Issued April 7, 2003.

Reconsideration Denied May 15, 2003.

Philip T. McLaughlin, attorney general (Susan P. McGinnis, attorney, on the brief and orally), for the State.

Richard E. Samdperil, public defender, of Stratham, by brief and orally, for the defendant.

Jack Z. Higgins, by brief, pro se.

BRODERICK, J.

The defendant, Jack Z. Higgins, appeals his convictions for aggravated felonious sexual assault, see RSA 632 A:2 (1996) (amended 1997, 1998, 1999), criminal restraint, see RSA 633:2 (1996), and two counts of felony criminal threatening, see RSA 631:4 (1996 & Supp.1996) (amended 2002). He argues that the Trial Court (Groff , J.) erred by: (1) ruling that he voluntarily waived his Miranda rights prior to making incriminating statements to the police; (2) precluding him from questioning the victim regarding her prior consensual sexual activity; (3) imposing enhanced sentences on his convictions for criminal threatening under RSA 651:2, II-g; and (4) subjecting him to consecutive, rather than concurrent, sentences on his convictions. We affirm.

I

The following facts were adduced at trial. In June 1998, the defendant was driving his truck in Manchester and met the victim, who was working as a prostitute. The two discussed exchanging sex for money and agreed upon a price of $65. The defendant took the victim to his third-floor apartment in Manchester. Once inside, the victim performed fellatio on the defendant and after some discussion, he informed her that he wanted to engage in intercourse. The victim told him that she hoped he was not into "freaky sex" because she was not. He replied that he did like "freaky" sex and told her that he wanted to engage in "doggie-style" intercourse. She reluctantly agreed after he reminded her that he was paying her.

During intercourse, the defendant suddenly stopped. The victim turned to look behind her and saw that he had a gun pointed to her head. He screamed at her, "You're in trouble now, bitch. What are you going to do? Do you realize how much trouble you are in?" The victim became hysterical and curled up in a corner of the bed.

For approximately two hours, the defendant viciously attacked and terrorized the victim. He handcuffed her hands behind her back, shackled her ankles, wrapped her in a sheet and blanket using packing tape to secure them around her neck, wrists and ankles, tied her wrists and ankles with rope, dragged her by her hair and by the ankle shackles, slammed her head into a wall, head-butted her in the face, beat her with a riding crop, attempted to force her to swallow a condom, gagged her with a sock, suffocated her with a pillow, and sat on her face with his bare buttocks. Throughout the attack, the defendant screamed profanities at her, saying that he hated women and that "it was all [her] fault." At one point, the victim tried to break through a window when the defendant left the room. He returned and put a gun in her mouth, asking her if he should "put [her] to sleep and get it over with now."

Towards the end of the attack, the defendant sodomized the victim, then turned on a light and said, "What have I done to you?" He eventually removed all the restraints and told her she had a few minutes to get dressed to go with him. They went to his truck and after driving for several miles, he told her that he was going to Boston and she could jump out whenever she wanted. She got out at a stop sign.

The following morning, the victim reported the attack to the police. She was treated for her injuries at a hospital and completed a rape kit. On June 28, the police arrested the defendant. He was transported to the Milford Police Department and interviewed. He initially gave several inconsistent stories but finally incriminated himself.

The defendant was convicted on one count of aggravated felonious sexual assault for sodomy, one count of criminal restraint and two counts of felony criminal threatening. At trial, the defendant advanced consent as a theory of defense, testifying that the victim allowed him to use the shackles, handcuffs, rope, riding crop, and willingly engaged in anal intercourse. He denied, however, that he wrapped and taped the victim in a sheet and blanket, pointed a gun at her, suffocated or gagged her, or committed any other physical assaults. The jury found him guilty on all four counts, and the court ordered him to serve four consecutive sentences, totaling 33 ½ to 67 years in the New Hampshire State Prison. This appealed followed.

II

The defendant argues that the trial court violated his right against self incrimination under Part I, Article 15 of the State Constitution when it ruled that he voluntarily waived his Miranda rights before making statements to the police about the events of June 26. See State v. Gagnon, 139 N.H. 175, 177, 651 A.2d 5 (1994) ; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). While he does not dispute that he understood his rights and waived them, he argues that the police did not inform him of his constitutional rights until after the interrogation concluded. He contends that the trial court's ruling to the contrary was against the manifest weight of the evidence. We assume without deciding that the defendant's argument was properly preserved for appellate review, and conclude that the trial court committed no error.

The sole issue is the timing of the Miranda warnings; that is, whether the police advised the defendant of his constitutional rights before or after the substantive interrogation. Because the trial court faced conflicting testimony on this issue and it "was in the best position to weigh the credibility of the witnesses, we will not reverse its finding [in favor of the State] unless the manifest weight of the evidence, when viewed in the light most favorable to the State, is to the contrary." State v. Plante, 133 N.H. 384, 387, 577 A.2d 95 (1990).

According to the interrogating officers, Detectives Stacey Howe and James Soucy, they began their interview with the defendant around 8:15 p.m., after his arrest. After spending approximately ten to fifteen minutes gathering background information from him, they advised him of his Miranda rights. The detectives testified that after they verbally reviewed a standard Miranda form, the defendant recited his rights, indicated that he understood them and signed the form. At that point, they began questioning him about his encounter with the victim and eventually obtained a version of events that essentially mirrored the victim's recollection. This chronology was corroborated by the time recorded on the Miranda form of 8:28 p.m.

The defendant testified, however, that at the conclusion of his interrogation, the officers reviewed and completed the Miranda form in conjunction with a consent to search form. He contends that the trial court should have completely discredited the officers' version of events due to a discrepancy in the State's evidence regarding the time the search form was completed. Specifically, the time recorded on the search form of 8:58 p.m., one-half hour after the time recorded on the Miranda form, contradicts Detective Howe's testimony and the chronology in the police report, which support the defendant's recollection that the search form was completed at the conclusion of the interrogation at approximately 10:30 p.m. The defendant asserts that absent a specific finding that he lacked credibility, the trial court should have disregarded the officers' testimony and ruled his statements to the police inadmissible. We disagree.

Howe acknowledged the mistake between the time recorded on the search form and the chronology provided in the police report. He explained that there is no standard procedure on presenting a search form during the course of an interview. He remained certain, however, as to when they reviewed the Miranda warnings with the defendant because he had been trained by the department to follow the same procedure for all interviews: first, gather background information; next, review Miranda rights; and, finally, question the detainee about the alleged crime.

Soucy's recall on the chronology of Miranda also was definite. While he could not remember when the search form was completed and signed by the defendant, he suggested that the defendant may have filled it out when discussion of the gun first arose and perhaps signed it once the interview ended. Moreover, Soucy's and Howe's recollection that they reviewed the defendant's Miranda warnings with him before questioning him about his involvement with the victim was corroborated by a third police officer who witnessed the initial portion of the interview from an adjoining room.

We conclude that the evidence before the trial court was sufficient to support its factual finding that the defendant was given his Miranda warnings before substantive interrogation began. The trial court expressly found the officers' testimony credible, and thus necessarily discredited the defendant's testimony. Accordingly, the defendant failed to show that the trial court's finding is against the manifest weight of the evidence.

III

The defendant next argues that the trial court erred when it precluded him from questioning the victim about her past consensual sexual activity as a prostitute. Specifically, he sought to inquire whether she previously had consented to acts of bondage, sadomasochism or sodomy in exchange for drugs or money. He contends that this line of inquiry was relevant to his defense theory that the victim consented to being restrained and to engaging in anal intercourse with him because she was previously willing to engage in acts she otherwise found objectionable in order to gain money to support her drug habit.

Generally, under the rape shield law, evidence of prior consensual sexual activity with persons other than the defendant...