State v. Hill

• Decision Date: 02 July 2001
• Docket Number: No. 98–461.,98–461.
• Citation: 146 N.H. 568,781 A.2d 979
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire, v. Paul HILL.

146 N.H. 568

781 A.2d 979

The STATE of New Hampshire,

v.Paul HILL.

No. 98–461.

Supreme Court of New Hampshire.

July 2, 2001.

As Modified on Denial of Rehearing Oct. 25, 2001.

Philip T. McLaughlin, attorney general (Douglas N. Jones, assistant attorney general, on the brief and orally), for the State.

Jenifer Bensinger Ackerman, assistant appellate defender, of Concord, by brief and orally, for the defendant.

Joshua L. Gordon, of Concord, and Barbara A. Bradshaw, of Durham, on behalf of the New Hampshire Civil Liberties Union, for Patricia Welsh, as amicus curiae.

BROCK, C.J.

The defendant, Paul Hill, appeals his convictions in Portsmouth District Court (Warhall, J.) for driving while intoxicated, second offense, RSA 265:82–b (1993 & Supp.2000) ; driving after revocation, RSA 263:64 (1993); disobeying a police officer, RSA 265:4 (1993); and false report to law enforcement, RSA 641:4 (1996). On appeal, the defendant asserts that: (1) evidence of his identity and motor vehicle record should have been excluded as fruits of an illegally obtained statement; (2) the false report to law enforcement charge should have been dismissed because the State failed to establish the necessary statutory elements; and (3) the defendant's motion for a mistrial should have been granted because the prosecutor impermissibly commented on the defendant's post-arrest silence. We affirm.

The following facts were either adduced at trial or appear in the record. On December 4, 1997, four police officers were dispatched to the Fielder's Choice Bar in Derry in response to a report of a disturbance. During their investigation, Officer Sinclair saw the defendant leave the bar. The defendant appeared to be unsteady on his feet, as though he had had too much to drink.

Moments later, Officer Sinclair saw the defendant drive away from the bar. Believing that the defendant was impaired by alcohol, Officer Sinclair attempted to stop him by shining his flashlight on him and yelling "yo" repeatedly. The defendant did not stop. As the vehicle drove past him, Officer Sinclair illuminated the driver's face with the flashlight and saw the defendant.

A second officer, Christine Krawec, put on her cruiser's lights and sirens and followed the defendant. When he finally pulled into a driveway and stopped, Officer Krawec immediately pulled in behind the vehicle with her lights and siren still on. Officer Krawec testified that she saw the same man who drove the vehicle away from the bar get out of the driver's side door of the truck. Officer Krawec twice ordered the man to stop. He complied with the second request. At that time, when asked for his name, the man said he was "Michael Micalizzi," provided Officer Krawec with a date of birth and said he had no identification with him.

When Officer Sinclair arrived at the scene, he administered field sobriety tests. The defendant failed four of the five tests. Officer Sinclair then arrested the defendant for driving while intoxicated and for failing to obey a police officer.

The defendant was taken to the police station for booking. Once there, he was asked to complete the standard administrative license suspension ("ALS") form used to advise people of their administrative license suspension rights. On this form, the defendant once again identified himself as "Michael Micalizzi" with a mailing address in Wilmington, Massachusetts. The defendant then went to the hospital for a blood test, where he again identified himself as "Michael Micalizzi." The blood test revealed a blood alcohol concentration level of .20.

The defendant and Officer Sinclair returned to the police department to complete the normal booking procedures, and the defendant again identified himself as "Michael Micalizzi." He provided the police with a social security number and a May 5, 1957 birth date. Officer Sinclair ran a record check for Michael Micalizzi. Because of discrepancies in the record, Officer Sinclair suspected that the defendant had provided a false name. Officer Sinclair confronted the defendant, telling him "you are not going anywhere until we find out who you are." The police had not given the defendant Miranda warnings, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), when Officer Sinclair made this statement.

The defendant immediately responded by providing his correct name, birth date and social security number. He explained that "the reason he had lied was because of a previous DWI conviction, and that now because of what had happened, he was going to have to go to jail." Officer Sinclair began a second booking sheet, which was completed by another officer. The defendant was charged with four class A misdemeanor offenses, including giving a false report to a police officer.

Prior to trial, the Court (Lawrence, J.) granted the defendant's motion to suppress his statements regarding his identity and reason for lying on the grounds that they were the product of a custodial interrogation in violation of Miranda. The court, however, denied the defendant's subsequent motion to suppress use of his name and status as obtained through motor vehicle records, court records "or other means." Therefore, prior to trial, the defendant stipulated to the fact that he was Paul Hill, that he had a prior driving while intoxicated conviction, that his driver's license had been revoked and that on December 4, 1997, he knew that his license had been revoked.

At trial, the defendant raised the defense that his girlfriend, Dawn Rosa, had been the driver of the vehicle. She testified that she had driven the defendant to the Fielder's Choice Bar that evening, and that she had remained with him at the bar while he had a beer and she had a non-alcoholic drink. The defendant asked her to wait in the vehicle, which she did. A few moments later, the defendant left the bar, and got into the vehicle. Ms. Rosa testified that she drove because the defendant did not have a license and had been drinking. According to Ms. Rosa, she pulled into her driveway, turned the vehicle off, removed the keys and left the lights of the vehicle on so that she could get her dogs from their pen. She did not recall seeing police lights or hearing sirens between the time she left the bar and the time she pulled into the driveway. She testified that she saw the police when she was in the dog pen, and that she put the dogs in the house and walked out the front door. There she saw the police administering field sobriety tests to the defendant. Ms. Rosa acknowledged on cross-examination, however, that she did not contact either the police or the county attorney between the time the defendant was arrested and the date of trial to inform them that she had driven the truck that night.

The jury convicted the defendant on all four counts.

I. Evidence of The Defendant's Identity and Motor Vehicle Record.

In granting the defendant's motion to suppress, the trial court concluded that given the nature of the charge of false report to law enforcement, Officer Sinclair's statement that the defendant "would not be going anywhere" until he properly identified himself was tantamount to interrogation. Therefore, the court held that "without the benefit and protection of Miranda warnings, any statements made by the defendant in response to Officer Sinclair's indirect interrogation should be suppressed."

The defendant also moved to exclude evidence of his name and his status as obtained through motor vehicle records, court records "or other means." He argued that all the identity information was derivative evidence and "fruit of the poisonous tree." At the hearing on his motion to exclude derivative evidence, the State relied upon the testimony Officer Sinclair had given at the hearing on the original motion to suppress.

The trial court denied the defendant's motion, stating:

With regard to the issue of inevitable discovery, the Court, under New Hampshire Rules of Evidence 201 takes judicial notice that the defendant would not have been released and no bail would have been set until his identify [sic ] was ascertained. The Court is able to take judicial notice of this fact based on more than twenty years experience in making bail determinations in New Hampshire District Court criminal cases and because the initial information obtained from the defendant immediately following the stop was suspected by the police to be inaccurate. Given this sort of suspicion by the police and assuming for the sake of discussion, that the defendant refused to say another word to the police in the course of his arrest and booking, he would not have been released until his identity had been ascertained. Thus the State has satisfied its burden to prove by a preponderance of the evidence that the defendant's identity would have inevitably been discovered.

The defendant argues on appeal that: (1) the trial court erred when it took judicial notice of the "fact" that the defendant would not have been released had his identity not been obtained; and (2) that the State failed to carry its burden of proving that the defendant's identity would have been inevitably discovered because it put on no evidence at the hearing. The State has not appealed the trial court's decision granting the defendant's motion to suppress his statement regarding his identity and the reason for his untruthfulness. Rather, the State argues that the exclusionary rule does not apply to the defendant's identity. The State also argues that even if identity could be excluded as "fruit of the poisonous tree," it should not be excluded in this case because the defendant's identity and motor vehicle records would inevitably have been discovered.

Rule of Evidence 201 allows a court to take judicial notice of a fact which is "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot...