State v. Seeley, 7487

• Decision Date: 30 December 1976
• Docket Number: No. 7487,7487
• Citation: 368 A.2d 1171,116 N.H. 831
• Parties: STATE of New Hampshire v. James J. SEELEY.
• Court: New Hampshire Supreme Court

Page 1171

368 A.2d 1171

116 N.H. 831

STATE of New Hampshire v. James J. SEELEY.

No. 7487.

Supreme Court of New Hampshire.

Dec. 30, 1976.

David H. Souter, Atty. Gen., and Robert V. Johnson, II, Asst. Atty. Gen., for the State.

Barrett & McNeill, Durham, and Leppo & Paris, Boston, Mass. (Martin K. Leppo, Boston, Mass., orally), for defendant.

GRIMES, Justice.

Defendant seeks to set aside his conviction for burglary on several grounds, including the claims that the arresting officer had no probable cause, that his motion for mistrial should have been granted when his silence after the Miranda warnings was shown in evidence, that the court erred in allowing certain evidence to be introduced and in its failure to charge as requested. Defendant's exceptions were transferred by Perkins, J. We uphold the conviction.

The evidence shows that about five o'clock on the morning of September 12, 1974, Ring, a dispatcher in the sheriff's office of the Rockingham County Administration and Justice Buildings, heard shuffling sounds and whispering over the intercom system. He was able to locate the source of the sounds by a selector system. He called the local police and while he was doing so Mr. Luce, another employee, armed himself and went to investigate. As he approached the entrance to the basement garage, the area from which the sounds had come, he heard noises and saw two people running from the garage area. Each had a cardboard box in his hands. Luce yelled to halt or he would shoot. Both men looked at him and ran toward the woods. He fired warning shots, the men dropped the boxes, and continued running into the woods. In the path the men had followed in running away, Luce found a portable radio and two gunnysacks. He also found the boxes they had dropped. In the boxes he saw what appeared to be antiques, including a coffee tray and two mirrors which were being held as evidence against Richard Mallouf in a criminal action.

Deputy Sheriff Stone and others were called to the scene. Luce told Stone and Deputy Sheriff Farrar what had occurred, showed them the boxes, told Stone that one of the men of medium height and slender build was wearing dungarees and an olive drab fatigue jacket. About 600 feet behind the building, Stone and Farrar came upon an automobile which they determined to belong to the defendant. At about nine o'clock that morning, Stone, while searching in the woods, saw a man 'going to the ground.' He went to him and inquired what he was doing there. The man stated that he 'got cocked last night and went into the woods to relieve (himself) and must have passed out.' The man met the description given Stone by Luce. Stone told him about the problem they had the night before and asked him to come along to the office. The person went with Stone to the sheriff's department and when asked for identification produced a Massachusetts driver's license with photograph showing him to be James J. Seeley. Stone then notified Deputy Sheriff Farrar that he had found the subject and Farrar came and read the Miranda warnings to him and tried to talk with him, but Seeley remained silent and asked for an attorney.

Farrar had been introduced to Seeley by Mallouf and therefore knew that they were acquainted. He also had some knowledge of locks and the picking of locks and had examined the locks in the building in the vicinity where entry had been made and determined that they had been picked. He had been told by Mallouf that Seelay was a 'topnotch lock picker.' After attempting to interview Seeley, Farrar advised him he was under arrest for burglary.

Seeley was then taken to the county jail. Deputy Sheriff Christie, who searched his outside jacket, found a lock pick in one of the pockets. Defendant moved to suppress this evidence on the basis that there was no probable cause for his arrest. It does not appear whether Stone took defendant into custody or whether defendant went voluntarily with him to the sheriff's office. It makes no difference, however, because no evidence was obtained from him during this time. Terry v. Ohio, 392 U.S. 1, 19, n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967); Sibron v. New York, 392 U.S. 40, 62-66, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

Deputy Sheriff Farrar at the time he placed defendant under arrest had ample information of his own and that he had obtained from other officers (State v. Standish, 116 N.H. ---, 363 A.2d 404 (1976); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)) to constitute probable cause to make the arrest. State v. Schofield, 114 N.H. 454, 322 A.2d 603 (1974). At the time the evidence was obtained, therefore, defendant was under a valid arrest and the admission of the evidence was proper. See United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974).

Defendant argues that the trial court erred in admitting testimony of Deputy Sheriff Farrar that he had been introduced to the defendant by Mr. Mallouf in Somerville, Massachusetts, while he, Farrar, was working as an undercover agent. This evidence was admissible on the issue of motive because the items stolen were being held as evidence against Mallouf. The facts that defendant, although a resident of Someville, was at the scene of the crime in New Hampshire, and that he was acquainted with Mallouf and that the items stolen were being held as evidence against Mallouf supplied strong circumstantial evidence against defendant. The evidence did not necessarily imply that defendant had a criminal record or was of had character. Any possible prejudice was outweighed by its importance on the question of motive. S...