State v. Phinney

• Decision Date: 28 February 1977
• Docket Number: No. 7532,7532
• Parties: STATE of New Hampshire v. James E. PHINNEY, Jr.
• Court: New Hampshire Supreme Court

Page 1153

370 A.2d 1153

117 N.H. 145

STATE of New Hampshire v. James E. PHINNEY, Jr.

No. 7532.

Supreme Court of New Hampshire.

Feb. 28, 1977.

David H. Souter, Atty. Gen., and Richard B. Michaud, Concord, for the state.

John F. Cullity and Raymond A. Burgess, Manchester, for defendant.

GRIMES, Justice.

The issues in this appeal from a conviction for arson are whether certain confessions should have been excluded as being involuntary and whether the trial court erred in using the preponderance standard in initially passing upon the admissibility of the confessions.

We hold that the confessions were not inadmissible as a matter of law but that the trial court should have used the reasonable doubt test in determining admissibility of the confessions.

Prior to trial the defendant moved to suppress two signed statements. After hearing, the trial court ruled that 'on the preponderance standard of Lego v. Twomey, 404 U.S. 477 (92 S.Ct. 619, 30 L.Ed.2d 618) . . . the Court finds that the confessions were given voluntarily. . . .' Following a trial before a jury during which the statements were introduced defendant was found guilty of having burned his home on March 9, 1975. Defendant's exceptions were transferred by Cann, J.

In his charge the court properly instructed the jury that before the confessions may be considered as evidence, the state would have to show beyond a reasonable doubt that defendant had been warned of his constitutional rights, that the defendant waived those rights 'and that the statements were given voluntarily.'

Defendant contends that the evidence compels the exclusion of the confessions because they were given in response to a promise by the police that they would talk to the judge to see if he would release defendant on his personal recognizance instead of the $5,000 cash bail previously set. It is undisputed that defendant, whose wife was pregnant, was concerned about losing his job and sought to be released on his own recognizance because of his inability to raise the bail. One of the officers agreed to talk to the judge about it. However it is findable that the statements were not induced by any promise that was made, but that the defendant himself initiated the meetings to give his statements and that his decision to talk was arrived at before and independent of any agreement on the part of the officers to talk to the judge. State v. Geldart, 111 N.H. 219, 279 A.2d 588 (1971); C. McCormick, Evidence § 150, at 323 (2d ed. 1972).

It is clear from the trial court's statement that the preponderance standard of Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972) was used in determining voluntariness. That standard was held in Lego v. Twomey, supra, to satisfy the federal constitutional requirements, but it was also made clear that the states were free to adopt a more strict standard. Id. at 489, 92 S.Ct. 619. As early as 1845, it was suggested that the reasonable doubt standard be used in determining the voluntariness of confessions, State v. Howard, 17 N.H. 171, 183-84 (1845). But see State v. Squires, 48 N.H. 364, 369 (1869). In fact that was the standard adopted by the Supreme Court of the United States in Bram v. United States, 168 U.S. 532, 565, 18 S.Ct. 183, 42 L.Ed. 568 (1897).

The danger of admitting involuntary confessions is as great now as it was then and the policy considerations for excluding confessions which are involuntary are as compelling now as they ever were. There is always the danger that a defendant's involuntary confession will be admitted against him. The preponderance test does not provide a sufficient safeguard...