State v. Prevost, 95-330

• Decision Date: 12 March 1997
• Docket Number: No. 95-330,95-330
• Citation: 141 N.H. 647,690 A.2d 1029
• Parties: The STATE of New Hampshire v. David PREVOST.
• Court: New Hampshire Supreme Court

Page 1029

690 A.2d 1029

141 N.H. 647

The STATE of New Hampshire v. David PREVOST.

No. 95-330.

Supreme Court of New Hampshire.

March 12, 1997.

Jeffrey R. Howard, Attorney General (Jeffrey S. Cahill, Assistant Attorney General, on the brief and orally), for the State.

Gary Apfel, Assistant Appellate Defender, of Orford, by brief and orally, for defendant.

THAYER, Justice.

The defendant, David Prevost, appeals a jury verdict finding him guilty of being a felon in possession of a firearm, see RSA 159:3 (1994), and receiving stolen property, see RSA 637:7 (1996). On appeal, the defendant argues that the Superior Court (McGuire, J.) erred by denying the defendant's motions: (1) to suppress evidence found in the vehicle in which he was a passenger; (2) to suppress statements made during a custodial interview; and (3) to dismiss the charge of receiving stolen property. We affirm.

On February 5, 1994, probation/parole officers Christopher Callahan and Elizabeth Boisvert went to a fast food restaurant in Hillsboro, where Callahan encountered the defendant, a former parolee whom Callahan had supervised. As both men exited the restaurant, a physical confrontation ensued, during which the defendant struck Callahan twice.

The defendant then entered a Ford Escort, and the driver, Alicia Curtis, drove out of the restaurant's parking lot. Officers Callahan and Boisvert followed the Escort in an unmarked State vehicle. While heading east toward Henniker in pursuit of the Escort, Callahan reported the incident to the Hillsborough County Dispatch.

Responding to the dispatch report, Sergeant Douglas Paul of the Henniker Police Department drove toward Route 9 to investigate. Sergeant Paul signaled Curtis to pull the Escort to the side of the road.

After Curtis stopped the Escort, the defendant quickly exited the car and approached Sergeant Paul with a jacket obscuring his hands. At first, the defendant disregarded Sergeant Paul's command to get back in the car, but after being ordered at least once to place his hands on the rear of the Escort, the defendant complied.

Officers Ryan Murdough and Tama Mitchell of the Hillsboro Police Department arrived shortly thereafter. Concerned for the officers' safety, Officer Murdough frisked the defendant, handcuffed him, and placed him in the Hillsboro police cruiser.

After the defendant was placed in the cruiser, Sergeant Paul instructed Curtis to get out of the Escort. Although Curtis initially consented to Murdough's request to search her car, Curtis interrupted Murdough as he read her a consent-to-search form and requested an attorney. Murdough replied that that was fine and explained to her that the police were going to tow her vehicle and apply for a search warrant.

Murdough returned to the cruiser, leaving Curtis with Officer Mitchell. Officer Mitchell testified that Curtis made a couple of comments about wanting to leave to which Mitchell responded that she could not leave because they were going to have her car towed. Shortly thereafter, Curtis informed Mitchell that she would sign a consent-to-search form. Officer Mitchell informed Officer Murdough of Curtis' decision. Murdough read the consent form to Curtis and addressed her concern about whether she was consenting to a search of her vehicle only. Mitchell and Murdough searched the car and found a loaded revolver, that was previously reported stolen, in a blue duffle bag and a backpack containing marijuana. The defendant was placed under arrest and subsequently informed of his Miranda rights.

Five days later, on February 10, 1994, the defendant's brother telephoned Sergeant Paul asking whether he would accept a collect call from the jailed defendant. Sergeant Paul agreed. Sergeant Paul testified that when the defendant called a few minutes later, the defendant claimed that Curtis was not responsible for the marijuana found in the car and essentially said, "I'll tell you anything you want to know if you come up and see me."

Accepting the defendant's invitation, Sergeant Paul traveled to the jail, bringing a tape recorder with him. Prior to recording, Sergeant Paul read the defendant his Miranda rights. The defendant refused to sign the standard Miranda waiver form but verbally waived his Miranda rights. The defendant told Sergeant Paul, "I'll tell you some things but I won't tell you others," and then proceeded to rehearse what he wanted to say before the taping began. The defendant told Sergeant Paul that the blue duffle bag was his and that he put it in the car, but he would not tell the sergeant what was in the bag. Then Sergeant Paul began the taped interview. At the interview's conclusion Sergeant Paul asked the defendant if he had been informed of his rights, to which the defendant answered: "I know what my rights are. Correct."

The defendant was indicted on the charges of receiving stolen property and being a felon in possession of a firearm. After a hearing, the superior court denied both his motion to suppress the evidence obtained during the search of the Escort, to wit, the gun, and his motion to suppress his statements to Sergeant Paul concerning the blue bag. After a jury trial, the defendant was convicted on both charges. This appeal followed.

I. Motion to Suppress Evidence

The defendant first contends that the warrantless search of Alicia Curtis' automobile violated his rights under part I, article 19 of the New Hampshire Constitution and the fourth and fourteenth amendments to the United States Constitution because the police obtained her consent involuntarily. As the State does not contest the defendant's standing to challenge the search, we decline to address the issue or revisit our automatic standing doctrine. See State v. Paige, 136 N.H. 208, 210, 612 A.2d 1331, 1332 (1992). "We decide this issue under the State Constitution, which provides at least as much protection as its federal counterpart." State v. Seymour, 140 N.H. 736, 747, 673 A.2d 786, 794, cert. denied, --- U.S. ----, 117 S.Ct. 146, 136 L.Ed.2d 93 (1996); see State v. Green, 133 N.H. 249, 260, 575 A.2d 1308, 1315 (1990).

The State bears the burden of proving by a preponderance of the evidence that the defendant's consent was free, knowing, and voluntary. "In the case of a consensual search, the State must show from all the surrounding circumstances that the consent given was free, knowing, and voluntary." State v. Osborne, 119 N.H. 427, 433, 402 A.2d 493, 498 (1979). "In reviewing a trial court's finding of voluntary consent, we will not overturn the finding unless it is without support in the record." State v. Pinder, 126 N.H. 220, 223, 489 A.2d 653, 655 (1985). The record in this case supports this factual finding.

The record supports the trial court's finding that "[t]he State has met its burden of proving by a preponderance of the evidence that Alicia Curtis gave [the police] voluntary and uncoerced consent to search her car." Officers Callahan, Paul, and Mitchell testified that Curtis appeared neither scared, upset nor intimidated during the police stop. Although Curtis initially refused to sign the consent form and requested an attorney, "prior refusal does not necessarily invalidate a subsequent consent as involuntary." Green, 133 N.H. at 259, 575 A.2d at 1315. Officer Murdough testified that despite her initial refusal, Curtis subsequently did not hesitate in signing the consent form. The court concluded that Officer Murdough's statement about having the car towed was explanatory rather than coercive in nature. The trial court reasonably concluded that Curtis had her questions and reservations satisfactorily resolved and as a result voluntarily signed the consent form.

II. Miranda Waiver

The defendant next argues that Sergeant Paul violated the scope of any Miranda waiver the defendant provided during their meeting on February 10, 1994. Specifically, the defendant alleges that he attempted to limit the discussion's topic to the marijuana found in Curtis' car and that Sergeant Paul asked questions concerning a duffle bag which were unrelated to the marijuana possession. Consequently, the defendant contends that the trial court's failure to suppress his statements, other than those regarding the marijuana, violated his State and federal constitutional rights against self-incrimination and right to counsel. We disagree.

In New Hampshire, before evidence obtained during a custodial interrogation can be used against a defendant, the State must establish "beyond a reasonable doubt that the defendant was apprised of his constitutional rights and that his subsequent waiver was voluntary, knowing, and intelligent." State v. Girmay, 139 N.H. 292, 296, 652 A.2d 150, 153 (1994). Because the Federal Constitution affords the defendant no...