State v. Osborne

• Decision Date: 31 May 1979
• Docket Number: No. 78-136,78-136
• Citation: 119 N.H. 427,402 A.2d 493
• Parties: The STATE of New Hampshire v. Buckman Andrews OSBORNE.
• Court: New Hampshire Supreme Court

Page 493

402 A.2d 493

119 N.H. 427

The STATE of New Hampshire v. Buckman Andrews OSBORNE.

No. 78-136.

Supreme Court of New Hampshire.

May 31, 1979.

Thomas D. Rath, Atty. Gen. (Paul W. Hodes, Concord, atty., orally), for the State.

Dennis Pizzimenti, Concord, and Buckman Andrews Osborne, pro se (Dennis Pizzimenti, orally), for defendant.

BROCK, Justice.

This case presents numerous legal issues stemming from the defendant's conviction on December 15, 1977, of kidnapping, RSA 633:1, and aggravated assault, RSA 631:2. The defendant's several attorneys filed many pretrial motions. The most significant one for this appeal was a motion to suppress physical evidence taken from the defendant's living quarters. After the defendant was found guilty by a jury, the Trial Court (Johnson, J.) reserved and transferred the defendant's exceptions.

The evidence presented at trial showed that on the morning of November 3, 1976, Mrs. Doris Polka was attacked and beaten in her real estate office in Newbury. Her assailant bound and gagged her with rope and tape, blindfolded her and took her to the third floor of a house behind the office, where she was ultimately found by her husband and a police officer. At the hospital, the victim told police investigators that the assailant wore dark blue slacks, a maroon nylon jacket, and heavy yellow rubber gloves, and had covered his head and face with a mosquito net. She also stated that during the altercation she had stabbed the assailant's leg and broken his silver expansion watch band. Upon police questioning about possible suspects, she told them that a Dr. Osborne had visited the realty office daily for two weeks including a three-hour visit the previous afternoon. With assistance from the postmaster and the chief of police, Lt. Wilson determined that the defendant resided in a cottage at a motel. At about 6:45 p. m. on the evening of November 3, 1976, Lt. Wilson and Trooper Garvin went to the motel and the proprietor pointed out the defendant's cottage. All the lights were on in the cottage but no car was parked in the defendant's space. The officers knocked and called but got no response. Thinking that the defendant, if he had been the assailant, might have a serious leg injury and need assistance, Lt. Wilson opened the unlocked door and entered the cabin. Inside, he noticed some bandages, what appeared to be blood, and a pair of heavy yellow rubber gloves. He then left the cabin.

The officers decided that they should remain to talk with the defendant as a suspect, but did not think they had enough facts to support a search warrant. They waited about three hours until the defendant returned. The officers then went to the Osborne cabin and knocked. When the defendant answered the door, Lt. Wilson identified himself and asked if they could come in. The defendant invited them in. As he entered, Lt. Wilson noticed a wristwatch, without its watchband, on the table in the living room. Lt. Wilson then advised the defendant of his Miranda rights because of the seriousness of the offense he was investigating. Mr. Osborne asked if he was under arrest. Lt. Wilson replied that he was not. Lt. Wilson asked the defendant if he knew Doris Polka, and the defendant replied that he did not. Lt. Wilson then asked if he could look around. The defendant responded, "Help yourself, go ahead." Lt. Wilson went into the bathroom and observed a pair of yellow rubber gloves, a red parka hanging in the shower, and bloody gauze and tape in a wastebasket under the sink. He also observed a coil of rope similar to that which had been used to tie up Mrs. Polka. Lt. Wilson then informed the defendant that he was under arrest. Lt. Wilson frisked Mr. Osborne and felt a bulge on the side of his left leg that was found to be a large bandage with blood oozing from it. Lt. Wilson then secured the cabin, and transported the defendant to the New London police station for booking.

Relying on information obtained during the second entry, Lt. Wilson then obtained from the New London District Court a warrant to search the cottage and a station wagon in which the defendant had returned to his cottage. Lt. Wilson executed the warrant that night, seizing numerous items of evidence from the cottage and motor vehicle, including the clothing observed during the search conducted in defendant's presence and allegedly with his consent. On November 10, 1976, pursuant to a second search warrant, a typewriter was seized from the defendant's personal effects which by then had been placed in a storeroom at the motel.

The defendant excepted to the trial court's order denying his motion to suppress the evidence seized pursuant to these warrants, claiming that the two warrantless entries made prior to the issuance of the search warrants were constitutionally defective. If defendant's assertion is correct, the evidence obtained under the authority of the warrants is also tainted. Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Since the State, in its affidavits supporting the issuance of the search warrants, recited only facts determined during the second warrantless entry and in no way relied upon the first, we consider only whether the second entry was constitutionally defective. The State claims that the second entry was justified by the defendant's consent. The defendant contends that he did not have the mental capacity to consent, and that his consent should be disregarded because the State did not demonstrate affirmatively that he knew of his right to refuse consent.

The defendant first argues that the trial court erred in hearing and deciding the motion to suppress before the defendant could be evaluated on an in-patient basis at the New Hampshire Hospital, thereby depriving him of his right to call witnesses on his behalf. U.S.Const. Amend. VI; N.H. Const. pt. 1, art. 15. In March 1977, the defendant was examined pursuant to RSA 135:17 by Dr. Hans Standow. The defendant later moved for a second psychiatric evaluation on the grounds that the State would challenge Dr. Standow's testimony. The motion was granted on November 21, 1977, one week prior to the hearing on the motion to suppress, and the second evaluation was not done prior to that hearing.

RSA 135:17 provides that a trial court may order such pretrial psychiatric examination of a defendant as the circumstances of the case may require. The defendant did not have an absolute right to a second evaluation. There is no indication that the defendant was prejudiced by the absence of a second expert witness. The defendant told the court that Dr. Standow was the only psychiatrist who had ever understood him. Dr. Standow's lengthy testimony at the suppression hearing was highly favorable to the defendant. At the hearing the defendant did not object to the State's failure to provide the second examination or indicate a need for the additional evidence, so that the trial court had no opportunity to take remedial action. The issue is therefore waived. State v. Boisvert, 119 N.H. ---, 400 A.2d 48 (March 23, 1979).

Second, the defendant contends that at the time he consented to the police search of his cottage he was experiencing a psychiatric disorder that impaired his capacity to give a valid consent. His mental capacity was the principal issue at the suppression hearing. There may be situations in which, due to psychiatric disorders, drugs or intoxication, the defendant's consent is "not the product of a rational intellect and a free will" and is therefore invalid. United States v. Johnson, 563 F.2d 936, 939 (8th Cir. 1977), Cert. denied, 434 U.S. 1021, 98 S.Ct. 746, 54 L.Ed.2d 768 (1978). " No matter how genuine the belief of the officers is that the consenter is apparently of sound mind and deliberately acting, the search depending on his consent fails if it is judicially determined that he lacked mental capacity." United States v. Elrod, 441 F.2d 353, 356 (5th Cir. 1971); See Nelson v. Hancock, 239 F.Supp. 857, 869 (D.N.H.1965), Rev'd on other grounds, 363 F.2d 249 (1st Cir. 1966). The determination of mental capacity to consent is a question of fact for the trier of fact, which will not be disturbed if it is reasonably supported by the evidence. State v. Koucoules, 343 A.2d 860, 873 (Me.1974); Commonwealth v. Harmond, --- Mass. ---, 382 N.E.2d 203, 206 (Mass.1978); Cf. State v. Plummer, 117 N.H. 320, 327, 374 A.2d 431, 435 (1977).

At the suppression hearing, Dr. Standow, who first examined the defendant several months after the search, testified at length about the defendant's alleged "psychotic state." The other witnesses, including the arresting officers, testified that on the day of the search the defendant had appeared to them to be acting and reacting normally. Taken as a whole, the evidence supports the trial court's finding that the defendant had a sufficient understanding of the consequences of his consent to give a valid consent to the search.

Finally, the defendant contends that his consent was invalid because the State did not prove that he knew of his right to refuse consent to a warrantless search. See State v. Johnson, 68 N.J. 349, 346 A.2d 66 (1975). The United States Supreme Court has specifically rejected the argument that the fourth amendment requires such an affirmative showing. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). It would be possible for this court to impose a heavier burden on the State under the New Hampshire Constitution, pt. 1, art. 19. See, e. g., State v. Hogg, 118 N.H. 263, 385 A.2d 844 (1978); State v. Phinney, 117 N.H. 145, 370 A.2d 1153 (1977). We are not at this time convinced, however, that the added requirement urged by the defendant is necessary. In many instances, a person subject to search understands that the only practical consequence of his refusal to consent will be to force the State to obtain a warrant authorizing the search. See, e. g., United...