State v. Radziewicz, 80-475
| Decision Date | 10 March 1982 |
| Docket Number | No. 80-475,80-475 |
| Citation | 122 N.H. 205,443 A.2d 142 |
| Parties | The STATE of New Hampshire v. Charles RADZIEWICZ. |
| Court | New Hampshire Supreme Court |
Gregory H. Smith, Atty. Gen. (Peter W. Mosseau, Asst. Atty. Gen., on the brief and orally), for the State.
Stephen R. Goldman and Dennis Pizzimenti, Concord, for defendant.
After a bifurcated jury trial (see Novosel v. Helgemoe, 118 N.H. 115, 384 A.2d 124 (1978)) in the Cheshire County Superior Court, the defendant was found guilty on three counts: first-degree murder (RSA 630:1-a); robbery while armed with a deadly weapon (RSA 636:1 III(a)); and conspiracy to commit armed robbery (RSA 629:3). The Trial Court (Wyman, J.) sentenced the defendant to life imprisonment without the possibility of parole. RSA 630:1-a III; State v. Farrow, 118 N.H. 296, 300-05, 386 A.2d 808, 810-14 (1978).
Contending that certain evidence admitted at trial was obtained through illegal searches and seizures, and that the jury observed a rifle not introduced into evidence, the defendant appeals to this court. Finding no error in the proceeding below, we affirm.
During the evening of December 16, 1978, Wayne Perkins, a high school senior, was fatally wounded by a point-blank shotgun blast to his chest while working at a Sunoco gas station in Keene. Five days later, an armed robbery occurred at Romy's Market, also located in Keene. Witnesses to the robbery reported to the police that the assailant was carrying a large-barreled gun, approximately eighteen inches long, and that the robber was in his twenties, five feet four to five feet five inches tall, of light build and wearing a plaid shirt and glasses.
It was also established that five hundred dollars was taken during the robbery, and that the robber's speech seemed to be slurred. Other witnesses reported that the robber fled in a bluish four-door Valiant and was last seen heading east on Marlborough Street. The license plate was reported by a witness to be XG 1304. Once this information had been obtained, the police immediately broadcast a bulletin over their radio.
While patrolling on Route 101 in Marlborough, Henry Southwell, Chief of the Marlborough Police Department, heard the bulletin as it was broadcast over a mutual aid frequency. Within minutes, he saw a green Valiant with the license plate number XG 3104-very similar to plate number XG 1304 that was reported by the witnesses to the robbery. Chief Southwell had been observing this vehicle for several minutes when, while traveling westerly on Route 101, it suddenly veered across a solid center-line. He stopped the vehicle. Because the operator of the vehicle performed poorly on field sobriety tests, he was arrested for driving while under the influence, RSA 262-A:62 (Supp.1979), searched for weapons, advised of his Miranda rights, and transported to the Keene police station by Chief Southwell.
Upon his arrival at the Keene police station, the defendant's Miranda rights were once again explained to him, and he acknowledged that he understood them both orally and in writing. In addition, he signed a written waiver of his rights. The defendant was asked a number of questions, and he stated that he had taken both drugs and alcohol prior to his arrest. In the presence of a State trooper, the defendant once again performed poorly on sobriety tests and was given a breathalyzer test. The test indicated that the defendant's blood alcohol content was .04%, a reading which is considered prima facie evidence that the defendant is not under the influence of intoxicating liquor. RSA 262-A:63. At approximately this time, Douglas Fish, the Keene Police Lieutenant responsible for investigating the robbery at Romy's Market, returned to the police station and observed Chief Southwell's prisoner. Lieutenant Fish, recalling the description of the robbery suspect given to him by witnesses only shortly before, then stated "that was the same guy as in Romy's." He asked Chief Southwell for the prisoner's automobile registration and discovered that it was for a 1968, four-door, green Valiant with the license plate number XG 3104.
Within moments of Lieutenant Fish's declaration, another officer noticed a bulge in the prisoner's clothing and a pat-down search was conducted. The search resulted in the discovery of five hundred dollars in the prisoner's boot. Almost immediately after that discovery, Lieutenant Fish questioned the defendant about the Romy's Market and the gas station robberies. The defendant told him that he was home "all night" on the night that the gas station robbery-murder took place. A short time later, the defendant requested that he be allowed to contact his attorney. Questioning of the defendant terminated at that time. Except for the fact that the defendant was formally charged with murder and robbery about four hours later, events relating to his presence at the police station during the remainder of the evening are not relevant on this appeal because the State elected not to use at his trial any of the incriminating statements made during this period of time by the defendant.
Prior to the time that the defendant was formally charged and while he was in custody, the police officers traveled to the defendant's apartment. Sandra Scadova, his girlfriend, answered the door. The officers identified themselves, informed her that they were investigating a robbery and murder and, as a precaution, advised her of her constitutional rights. She was then told that they wished to search the apartment for a cash drawer and a shotgun, but she initially refused to consent to such a search. At that point, Lieutenant Fish left the apartment in order to seek a search warrant. Chief Southwell remained at the apartment with Ms. Scadova. Chief Southwell and Ms. Scadova, who once had been an employee of the Chief, engaged in casual conversation for a time, and then Chief Southwell told her that "it would be easier for her to allow the search." After a few minutes of reflection, she consented to a search of the apartment. Chief Southwell then called Lieutenant Fish, who returned to the apartment. Once Lieutenant Fish returned, Sandra Scadova acknowledged that she had consented to a search of the apartment and, in fact, signed a form confirming her consent. She then told him and Chief Southwell where to find the shotgun and the cash drawer they were looking for.
The defendant first contends on this appeal that the five hundred dollars found in his boot, the shotgun, and the cash drawer were all products of illegal searches and seizures and should have been suppressed.
He claims that the search of his person that was conducted after he took the breathalyzer test was illegal because, once the results of that test were known, Chief Southwell no longer believed he had probable cause to hold the defendant and intended to release him.
Our review of the record, with particular reference to those portions of the transcript relied upon by the defendant, indicates that the defendant has taken some license in his interpretation of Chief Southwell's testimony. The transcript reads:
"Defense Attorney: As I understood, you indicated as soon as that test was given it was your opinion then that he was not under the influence, is that correct?
Chief Southwell: From the results of the test, .04, I drew the conclusion he was not DWI.
Defense Attorney: And you did not intend to prosecute him for it?
Chief Southwell: I had not reached that decision.
Defense Attorney: You had come to the conclusion that he was not under the influence, but you had not come to the ....
Chief Southwell: I came to the conclusion he was not under the influence of alcohol, but his movements for tests and everything like that there was something that wasn't normal. (Emphasis added.)
Prosecutor: What do you mean when you said under the influence of something else?
Chief Southwell: I thought he was under the influence of drugs."
It is apparent that these are not the words of a police officer who is about to release a person he has arrested and drop charges of violating RSA 262-A:62 (Supp.1979). This is especially true where, as here, the defendant had previously stated he had taken both drugs and alcohol prior to his arrest, and where RSA 262-A:62 (Supp.1979) prohibits the operation of a motor vehicle "while under the influence of intoxicating liquor or any controlled drug ...." (Emphasis added.) Under these circumstances, the defendant's reliance upon the breathalizer test results is misplaced because the defendant's admission and physical behavior themselves constituted probable cause to continue...
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