State v. Tapply, 82-476

• Decision Date: 27 December 1983
• Docket Number: No. 82-476,82-476
• Citation: 124 N.H. 318,470 A.2d 900
• Parties: The STATE of New Hampshire v. Donaldson TAPPLY, Jr.
• Court: New Hampshire Supreme Court

Page 900

470 A.2d 900

124 N.H. 318

The STATE of New Hampshire v. Donaldson TAPPLY, Jr.

No. 82-476.

Supreme Court of New Hampshire.

Dec. 27, 1983.

Gregory H. Smith, Atty. Gen. (Brian T. Tucker, on brief, and Peter W. Mosseau, on brief and orally, Asst. Attys. Gen. and Donald J. Perrault, Asst. Atty. Gen., orally), for State.

Edward J. Burke, Keene, on brief and orally, and William H. Kennedy, Keene, on brief, for defendant.

PER CURIAM.

The issue presented in this interlocutory appeal from a superior court ruling in a second-degree murder case is whether certain inculpatory statements made by the defendant in response to police questioning should be suppressed because they were obtained in violation of the defendant's constitutional rights. We hold that the statements must be suppressed, and therefore reverse.

The defendant attacks the admission of the statements on the basis both of the Constitution of the United States and of the Constitution of this State. U.S. CONST. amends. IV, V, VI; N.H. CONST. pt. I, arts. 15 & 19.

In such situations, we first look to our own constitution, using its history, our precedents and such reasoning as we find persuasive in decisions of the United States Supreme Court and of other courts. We then look to the Federal Constitution to see whether our decision offends its provisions. See Linde First Things First: Rediscovering the States' Bills of Rights, 9 U.Balt.L.Rev. 379 (1980); Developments in the Law--The Interpretation of State Constitutional Rights, 95 Harv.L.Rev. 1324 (1982). We find that our conclusions based on our own constitution offend none of the provisions of the Constitution of the United States; and although we refer to federal cases, it is only for guidance and not because they are controlling authority. State v. Ball, 123 N.H. 226, ----, 471 A.2d 347, 350 (1983); see Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983).

The defendant was indicted for second-degree murder for causing the death of Michael Estes recklessly under circumstances manifesting an extreme indifference to the value of human life. RSA 630:1-b, I(b). He moved to suppress certain statements made in response to police questioning. After a hearing, Dalianis, J., denied the motion as to some statements, but granted it as to others. Because the court recognized that there was a substantial basis for a difference of opinion, the question of the correctness of the rulings was transferred in advance of trial. The specific questions transferred ask whether the defendant had, halfway through the questioning, effectively asserted his right to counsel after having been given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), at the start of the questioning. In this court, however, the inquiry was expanded to consider other alleged grounds for suppression.

Michael Estes, age nineteen months, was found by the defendant at about 2:00 a.m., on February 6, 1982, in the partially filled bathtub of his mobile home in Troy where the defendant was living with the child's mother, Cindi, who was at work. Although the defendant made attempts to revive the child and called on a neighbor for help, the child was in fact dead. That night, a corporal of the New Hampshire State Police (corporal) and an officer of the Troy Police Department, in the process of investigating the death, went to the defendant's home. After about fifteen minutes, the defendant went with them to the Troy police station where he was interviewed on tape beginning about 9:30 p.m. and ending at about 10:30 p.m. He was then taken home. No Miranda warnings were given. The trial court, however, found that the defendant consented to accompany the officers to the station, and that he was not in custody so as to require warnings; and this finding was supported by the evidence.

The corporal continued his investigation and formed the opinion, which he expressed to the county attorney and some fellow officers, that the defendant had in fact killed the Estes boy and would confess to him that night, February 8, 1982.

At about 7:30 on the night of February 8, the corporal, a police officer, and a deputy sheriff arrived at the defendant's home to pick him up and bring him to Keene for further questioning. The defendant went with the officers to the New Hampshire State Police troop station in Keene, about ten miles away, where he was taken to a room and given the Miranda warnings, which he said he understood.

The defendant, however, was not asked whether he waived his rights, nor did he expressly waive them. The State therefore, even under North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979), bears a heavy burden to show a knowing and intelligent waiver. See Tague v. Louisiana, 444 U.S. 469, 100 S.Ct. 652, 62 L.Ed.2d 622 (1980) (waiver not shown). We have said that a waiver must be shown beyond a reasonable doubt. State v. Goddard, 122 N.H. 471, 473, 446 A.2d 456, 457 (1982). The questioning began at 8:36 and ended at 11:14 that night during which the defendant was under intensive and very skillful questioning. It was not until more than halfway through the questioning, after being led into a discussion of child discipline and suggestions as to what had happened, that the defendant made incriminating statements after the following exchange:

"Defendant: Should I have my lawyer ....

Corporal: Tap, let me tell you something ....

Sheriff: I know you didn't do it on purpose.

Corporal: We're not out here to hang you Tap, we have to get the truth.

Defendant: Cindi is going to kill me.

Corporal: No, she's not going to kill you.

Sheriff: It was an accident, wasn't it?

Defendant: It was an accident. I sat him in the tub ...."

The fact that the incriminating statements came only after a long period of skillful interrogation in a police-dominated atmosphere militates against a finding that the defendant had waived either his right to silence or his right to a lawyer even under federal constitutional standards. See Tague v. Louisiana, 444 U.S. at 470-71, 100 S.Ct. at 653. We need not decide this question because we conclude that the statements of February 8 were inadmissible on two other separate grounds.

This case, however, illustrates the danger of relying on an implied waiver as we warned in State v. Butler, 117 N.H. 888, 891, 379 A.2d 827, 829 (1977). We believe that it is in the best interest of law enforcement that law enforcement officers have clearer guidelines regarding the assertion of the right to counsel after Miranda warnings are required and have been given. We conclude that this defendant effectively asserted his right to counsel and that the rigid rule that all questioning must then cease was violated.

The first reference to counsel by the defendant already appears above. Directly thereafter, the defendant made incriminating statements. The corporal told him not to worry about being "put away" and then asked the defendant to tell exactly what happened. The following exchange occurred under questioning by the deputy sheriff.

"Defendant: Do I need a lawyer for this before I ....

Sheriff: That's entirely up to you, you've already confessed to us as to what happened. We just want to get this thing straightened out ...

Defendant: In other words, I've already screwed myself....

Sheriff: Not screwed yourself up, you want to get the slate clean, you want to have a clear conscience, don't you?

We know you didn't plan out, plan to murder this boy, we know the circumstances, we know it was an accident, we know you tried to revive him....

Defendant: I loved Michael.

Sheriff: I'm sure you did.

....

Sheriff: Can I explain something to you, Tap?

Defendant: Yes.

Sheriff: There is a difference between premeditated murder and an accident. Yes, you're responsible, right?

Defendant: I am responsible. If it comes to this that I, like he says, if I have to live with this for the rest of my life...."

After further prodding to get it off his chest, the defendant made further incriminating statements regarding the "accident."

The defendant had been told he was not under arrest; but he was nevertheless in custody, for purposes of Miranda as found by the trial court, and he had been seized for article 19 and fourth amendment purposes. Indeed, his being told he was not under arrest created an even greater need for legal advice because at no time before his incriminating statements and his reference to a lawyer had anyone even suggested that anything more than an accident was involved; yet the entire focus of the questioning was not to obtain information, but to get him to incriminate himself.

It is against this background that we consider whether the defendant asserted his right to counsel on the two occasions referred to above. When the defendant said: "Should I have a lawyer ..." the immediate responses were: "I know you didn't do it on purpose." "We're not out here to hang you...." This was clearly a clever ploy to throw the defendant off his guard, to play down the seriousness of the situation and to induce him not to insist on a lawyer. When the defendant shortly thereafter said: "Do I need a lawyer for this before I ..." he was again discouraged from insisting on one.

Whatever may be the protections afforded the citizen under the Federal Constitution, article 15 of our Bill of Rights requires fairer treatment with regard to the right to counsel than was shown here. We hold that, on both occasions, the defendant indicated his lack of understanding of the seriousness of his situation and sufficiently indicated that he was seeking the advice of a lawyer. See State v. Nash, 119 N.H. 728 at 731, 407 A.2d 365 at 367. The responses of the officers on each occasion indicate...