State v. Lewis

• Decision Date: 09 October 1987
• Docket Number: No. 86-342,86-342
• Citation: 129 N.H. 787,533 A.2d 358
• Parties: The STATE of New Hampshire v. Timothy LEWIS.
• Court: New Hampshire Supreme Court

Page 358

533 A.2d 358

129 N.H. 787

The STATE of New Hampshire v. Timothy LEWIS.

No. 86-342.

Supreme Court of New Hampshire.

Oct. 9, 1987.

Stephen E. Merrill, Atty. Gen. (William H. Lyons, Asst. Atty. Gen., on brief and orally), for the State.

Joanne Green, Asst. Appellate Defender, Concord, by brief and orally, for defendant.

SOUTER, Justice.

In this appeal from convictions in the Superior Court (Dalianis, J.) for robbery and second degree murder, the defendant claims that error infected five of the trial court's rulings: (1) the determination that the defendant voluntarily waived applicable Miranda rights before confessing; (2) the rejection of his claim that admitting his confession obtained through police interrogation infringed State guarantees of due process; (3) the rejection of his claim that the admission of pre-arrest statements made to a wired agent of the State violated both State and federal due process guarantees; (4) the refusal to authorize public funds for a "psychological autopsy" of the victim; and (5) the denial of a motion to order discovery of the victim's psychiatric records. We affirm.

The evidence warranted the jury in finding that the victim, Paul Madden, accosted the defendant, Timothy Lewis, on Hanover Street in Manchester in the early morning hours of March 31, 1984, and invited the defendant to his apartment for a drink. The defendant accepted the invitation and, either on the street or at the apartment, recognized the victim as a homosexual whom he had assaulted and disfigured a year and a half earlier, after the victim had made sexual advances.

On the night in question the two entered the apartment, and the victim served the drink he had promised. He then excused himself and a short while later emerged from the bedroom naked. When the defendant responded by striking him, the victim smiled and advanced again toward the defendant, whom he asked "to be nice" to him. The defendant kicked the victim in the groin and chest and kicked or otherwise struck him in the face and throat. In the course of the melee, the defendant assaulted the victim with a belt and possibly with a rock as well. When the victim asked the defendant to stop, the defendant left him on the bed, bleeding profusely, while the defendant rifled through the apartment. After he had taken twenty-six dollars and had attempted to dispose of any evidence that might link him to the crime, the defendant left and called on one Greenwood, whom he told about what he had done.

Later in the day, the victim's niece discovered his corpse in the bloody and disheveled apartment. An autopsy disclosed a fracture of the right temporal area of the victim's skull extending to its base; a fragment of bone displaced from the right side of the skull, which had caused a subdural hematoma; fractures of the hyoid bone and thyroid cartilage; a broken rib; and a residue of eight ounces of blood that had flowed into the pericardial sack from a rupture of the pulmonary vein. The pathologist gave the cause of death as "multiple blunt injuries" of the head, the neck and the chest.

On April 2, 1984, the Manchester Police Department received an anonymous tip through its telephone "crime line," implicating the defendant both in the victim's death and in the earlier disfiguring assault. On April 11, a captain in the department met with the defendant and warned him of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Although the defendant spoke with the officer, he denied any part in the crimes and mentioned that he had been with Greenwood on the night of the murder. The police thereafter interviewed Greenwood to see whether he would corroborate the defendant's story.

On May 9, after another caller on the crime line had accused the defendant of the murder, the police had a second interview with Greenwood and found that he had made the calls. They spoke with the defendant for a second time, also, after giving him the Miranda warnings again. The defendant was not under arrest, however, and in fact left after an hour because he wished to speak with counsel.

On the basis of information supplied by Greenwood, the police obtained a warrant to search the defendant's apartment for the trousers and sneakers he had worn on the night the victim was killed. An examination of the sneakers revealed human blood.

Greenwood's disclosures also suggested a further investigative step. Greenwood mentioned to the police that after each of their conversations with the defendant, the defendant would visit Greenwood to talk about his concerns. Accordingly, the police and members of the attorney general's office devised a plan under which the police would execute a search warrant to obtain hair samples from the defendant, with the expectation that he would then speak with Greenwood, who would be wired to record the resulting conversation. See RSA 570-A:2, II(d). Greenwood agreed to participate, the plan was executed on July 20, 1984, and the defendant made incriminating statements.

The police then arrested the defendant on a charge of murder. After ascertaining that he was free from any influence of alcohol and drugs, they gave him the Miranda warnings and requested a statement. The defendant signed a waiver of the applicable rights and made a confession that was later introduced into evidence at trial.

The introduction of this confession over the defendant's objection is the first subject for consideration on appeal, the defendant claiming that the trial court erred when it found that he had waived his rights to remain silent and to require the presence of counsel during questioning. Given the defendant's objection, the State had the burden to demonstrate that, prior to speaking, the defendant knowingly and voluntarily waived his rights to silence and the presence of a lawyer, Miranda, 384 U.S. 436 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694, a matter to be judged not by concentrating on any narrow category of evidence but by examining its totality. See North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 1757-58, 60 L.Ed.2d 286 (1979); State v. Bushey, 122 N.H. 995, 999, 453 A.2d 1265, 1267 (1982). We are mindful that a finding made by the trial court after examining the totality of evidence is entitled to stand unless it is contrary to the manifest weight of the evidence. State v. Copeland, 124 N.H. 90, 92, 467 A.2d 238, 240 (1983), viewed in the light most favorable to the State. State v. Bushey supra.

Although Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 523, 93 L.Ed.2d 473 (1986), has recently held that the State need prove waiver only by a preponderance of the evidence, the State has not challenged the applicability of State v. Gullick, 118 N.H. 912, 915, 396 A.2d 554, 555 (1978), holding that the State must carry its burden by proof beyond a reasonable doubt. State v. Goddard, 122 N.H. 471, 473, 446 A.2d 456, 457 (1982). That will be our standard, then, in asking whether the evidence supported the trial court's finding that the defendant's ostensible waiver of rights was valid and effective.

As we understand the defendant's argument, he does not now take issue with the finding that he understood the Miranda rights at the time of his purported waiver. He disputes, rather, that he understood the concept of waiving rights and argues that his apparent waiver resulted from confusion produced by the conduct of the police. He invokes the rule that a valid waiver "must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception," Fare v. Michael C., 442 U.S. 707, 726-27, 99 S.Ct. 2560, 2572-73, 61 L.Ed.2d 197 (1979); Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986).

The specific facts bearing on the defendant's claim may not be summarized so readily as the law, however, and because the issue is a close one, we will have to describe the circumstances of the defendant's preliminary colloquy with the police in some detail. Under a plan devised, again, in consultation with the attorney general's office, the Manchester Police Department followed an unusual course in addressing Miranda. The police began in the normal fashion, by giving the defendant a written form containing statements of the several rights subject to the Miranda warning and waiver requirements. These statements were followed on the form by two questions to be answered by the suspect, (1) whether he understood the statements of the rights, and (2) whether he was willing to waive the applicable rights and answer questions.

The police captain in charge read each statement of rights aloud and discussed it with the defendant. After they had thus covered all of the rights, the captain then asked the defendant to "read question # 1 and answer that accordingly, if you feel you can. If you have any questions about these, please ask me[.] I'll be glad to explain them to you as best I can." The defendant, however, immediately addressed the second question, and the following exchange occurred:

Defendant: "What's the waiver? What's the waiver mean?"

Police: "That just means that before answering these questions you are waiving--you do understand what these mean...."

Defendant: "Am I giving up my rights?"

Police: "Oh no-no-no-not at all--not at all--not at all. It's just saying that you understand what this says over here."

The officer evidently then brought the defendant's attention back to the first question:

Defendant: "It says: Do you understand each of these rights? Yes."

Police: "Okay, that's the answer to that question. Okay, at this point I've been advised to, before we answer the next question, to give you some insights on why we're here and how we got here...."

It was at this point that the procedure departed from the usual course. Instead of going directly to the second question, addressing the defendant's willingness to waive his...