State v. Portigue

• Decision Date: 09 August 1984
• Docket Number: No. 82-399,82-399
• Citation: 480 A.2d 896,125 N.H. 338
• Parties: The STATE of New Hampshire v. Sheila PORTIGUE.
• Court: New Hampshire Supreme Court

Page 896

480 A.2d 896

125 N.H. 338

The STATE of New Hampshire v. Sheila PORTIGUE.

No. 82-399.

Supreme Court of New Hampshire.

Aug. 9, 1984.

Gregory H. Smith, Atty. Gen. (Brian T. Tucker, Asst. Atty. Gen., on the brief, and Gregory W. Swope, Asst. Atty. Gen., orally), for the State.

James E. Duggan, Appellate Defender, Concord, by brief and orally, for defendant.

BATCHELDER, Justice.

The defendant was indicted and tried by jury in the Strafford County Superior Court (Temple, J.) for the second-degree murder of her daughter, Amy. See RSA 630:1-b, I(b). After pre-trial motions to suppress were denied, and after jury trial, the defendant was found guilty. She was sentenced to from thirty years to life in the State prison. She appeals from the denial of her motions to suppress. We affirm.

The hearing on the motions to suppress adduced the following facts. On January 9, 1982, at about 1:00 a.m., Rochester Police Sergeant John Cook arrived at the Frisbie Memorial Hospital in Rochester. Upon arriving at the hospital, Sergeant Cook saw the badly bruised body of Amy Portigue and determined from a nurse and another police officer that the child was dead. He also learned that the child's father, Rodney Portigue, had brought the child to the hospital several minutes prior to Sergeant Cook's arrival. By this time, there were two other uniformed police officers at the hospital.

Sergeant Cook approached Rodney Portigue in the waiting room of the hospital emergency area and advised him of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Rodney at first told Sergeant Cook that Amy had been sick. In response, Sergeant Cook told Rodney that "there [were] bruises and cuts on the baby that were not ... the result of sickness ...." According to Sergeant Cook, Rodney then told him that "for the past several months Sheila Portigue had struck Amy with her hands and feet."

Sergeant Cook then approached Sheila, who was also in the hospital waiting room with her two other children.

The defendant testified at the suppression hearing that she had driven herself and her two sons to the hospital in a family truck. The first person she saw at the hospital was a nurse. The defendant told the nurse that she was "Amy's mother," and the nurse directed her to wait in the waiting room.

Sergeant Cook testified that after he identified himself to the defendant, he immediately questioned her about her personal background. After eliciting certain personal data about her, he orally advised the defendant of her rights under Miranda. Sergeant Cook testified that in response to her having been advised of her rights, the defendant said that she did not want to talk to him and that "she wished to have an attorney or a lawyer." Sergeant Cook then decided to leave the waiting room. Before leaving he "asked" the defendant to "stay" in the waiting room. The only person present with the defendant in the waiting room was a uniformed Rochester police officer.

Between 1:45 and 2:00 a.m., written Miranda forms were delivered to the hospital. The defendant was asked to fill out a form, on which she repeated her desire to have an attorney and her desire not to speak to anyone. There was no evidence that the defendant wished the police to procure an attorney for her, and no effort was made to reach an attorney on her behalf.

Sergeant Cook then informed Captain Hall, Lieutenant Winship, Officer Moore, Officer McGee and Strafford County Attorney Dennis May, all of whom had arrived at the hospital some time in the early hours of the morning, that he had read the defendant her Miranda rights and that she did not wish to speak to the police.

Eventually, a total of nine police officers were present at the hospital. As many as five of the officers were in uniform. One of the officers, Paul Moore, a juvenile officer, told the defendant that the police were "going to be taking custody of her two children and placing them in a crisis home." According to Officer Moore, the defendant said "fine" and that she "understood". The children were apparently taken into custody shortly before the defendant decided to talk to the police.

After 2:00 a.m., Rodney Portigue was interviewed in a small room in the hospital which was used as a doctor's office. Rodney signed a written waiver of his constitutional rights and gave a statement to the police. Present in the room during this interview were Captain Hall, Lieutenant Winship and Strafford County Attorney May. Rodney completed and signed his statement at approximately 3:00 a.m. In it, Rodney told the police that the defendant had beaten Amy by hitting her with a strap, kicking her, and pushing her against the walls so that Amy had fallen against a flower pot and "opened up" her chin.

Captain Hall then asked Rodney to try to get the defendant to speak to the police. At the hearing on the motions to suppress, Captain Hall was asked exactly what he said to Rodney. He replied:

"A. I had mentioned to Rodney that I understood that his wife had mentioned she wanted an attorney earlier, and I asked if he thought that she would probably talk to us and he said he didn't know, and I asked him to go out and talk to her.

Q. You asked him to go out and talk to Sheila to see if she would talk to you without an attorney?

A. Correct."

Rodney then went into the waiting room unescorted by the police and spoke with the defendant. He returned a short while later and told the police that the defendant was willing to talk with them.

After 3:00 a.m., the defendant entered the doctor's office. Present in the small room were Lieutenant Winship, Captain Hall and County Attorney May. Captain Hall testified that:

"Sheila was brought into the doctor's office, at which time I advised her of her rights. Before I did this, I had mentioned to her ... [that] I understand that you did not want to talk to us, that you had indicated you want to see an attorney, and is that still so, and she said no, that she would talk to us. I advised her of her rights as I did Rodney under Miranda, and after I read the form to her, I had her read it. I also had her sign it. I also had her put yes after paragraphs six and seven and initial it. She signed it."

Captain Hall questioned the defendant for nearly an hour about Amy. The defendant gave a complete and detailed statement describing how she had abused Amy. Her statement was typed on a police statement form. The defendant read the statement, directed that certain changes be made, and signed the statement. After completing the interrogation, Captain Hall asked Rodney whether he could search the Portigue home. Rodney consented to the search, while the defendant remained silent.

The Portigues then drove their car to their home in East Rochester. Following the Portigues home were Officer McGee, driving the Portigue's second vehicle, and Captain Hall, Lieutenant Winship, and Officer Moore driving an unmarked cruiser. At 5:24 a.m., they arrived at the Portigue home where they were met by Officer Caldwell, who had a consent-to-search form. Rodney signed the consent form, and the defendant witnessed his signature. At 5:25 a.m., five police officers entered the Portigue home.

As the police went through the house, the defendant was questioned about various items. Lieutenant Winship testified that:

"We went into the residence. The Captain asked, you know, if Sheila could point out the pot that Amy had fallen up against, and which Sheila went directly over by the kitchen table on the floor. She picked up a metal green planter and put it on the table and said, 'This is the pot Amy fell against and opened up her chin.' The Captain also asked whereabouts Sheila had kicked Amy and pushed her up against the wall, and which Sheila did point out the door casing area that goes into the living room and pointed out some marks which we had observed which appeared to be blood stains on the door casing."

At 6:00 a.m., the police left the Portigue residence, after having seized a blood-stained sheet from Amy's bed along with a metal plant pot and two leather straps. The defendant had pointed out the metal plant pot to the police, and Rodney had directed the police to the leather straps and bed. The defendant had also identified a blood-stained door casing, which the police seized later that day pursuant to a search warrant. These items, together with the defendant's statements, were introduced at trial.

When the police left, they allowed the Portigues to remain at their home. The Portigues told the police that "they were going to stay right there." Lieutenant Winship testified that Captain Hall told the Portigues that "if they decided to go anywhere to relatives or to take off out of town or anything, if they could possibly call us to let us know so, you know, we could contact them with reference to the notification of what the cause of the death of the child was."

At about 3:00 o'clock that afternoon, the police called the Portigue residence and asked Rodney Portigue if he and his wife would come to the police station. The Portigues first went to a funeral home where they met the pastor of their church. After making funeral arrangements, the Portigues and the minister went to the Rochester Police Station.

After questioning Rodney Portigue at the Rochester Police Station, Rochester Police Juvenile Officer Kenneth McGee asked the defendant to come into his office. Present in the office was a Strafford County deputy sheriff. Officer McGee told the defendant he wished to speak with her in more detail about the death of her daughter, and the defendant agreed to talk. Again, the defendant was given Miranda warnings both orally and in written form. The defendant said she understood her rights and signed and initialed the waiver form. Officer McGee again asked the defendant if she wanted an attorney. The defendant said she did not and, at McGee's request, the defendant wrote on the waiver...