State v. Torres

• Decision Date: 10 March 1988
• Docket Number: No. 86-527,86-527
• Citation: 540 A.2d 1217,130 N.H. 340
• Parties: The STATE of New Hampshire v. Diego TORRES.
• Court: New Hampshire Supreme Court

Page 1217

540 A.2d 1217

130 N.H. 340

The STATE of New Hampshire v. Diego TORRES.

No. 86-527.

Supreme Court of New Hampshire.

March 10, 1988.

Stephen E. Merrill, Atty. Gen. (John S. Davis, on the brief and orally), for the State.

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

BROCK, Chief Justice.

The defendant, Diego Torres, appeals from his conviction for possession of marijuana with intent to sell (RSA 318-B:2, I, :26, I(a)(2)), alleging that the Superior Court (Thayer, J.) erred in denying his pre-trial motion to suppress a statement which he claims was the product of a custodial interrogation conducted without his having affirmatively waived his constitutional rights. For the reasons that follow, we reverse and remand for a new trial.

On August 28, 1985, the State Police, pursuant to a warrant authorizing the search of the residence and person of the defendant, stopped and arrested him as he was driving his automobile on Route 95 in Portsmouth. Detective Sergeant Henry Carpenito testified that he read Torres his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), asked him whether he understood those rights, and asked whether he understood English. Torres responded affirmatively to both questions. Carpenito then asked Torres what the rights meant to him. Torres replied, according to Carpenito's testimony, "[t]hat anything I say you can use." State trooper John Pickering, also present at the arrest scene, testified that Torres did not appear to want to answer questions but appeared to want to think about his rights. No further conversation or interrogation occurred at the scene of the arrest.

The police took Torres to his home and explained that they had a warrant to search the premises. Torres responded by volunteering the location of certain drug contraband. No interrogation took place at the house.

The police conducted their search and, approximately two hours after the initial arrest, transported Torres to the Rockingham County Jail. Following his booking, Carpenito and State trooper Neil Scott took Torres into a small room to talk to him. Torres was neither readvised of his rights nor asked whether he wished to waive them.

Scott testified that as he entered the room Carpenito was talking to Torres, summarizing the severity of the crime and reviewing the items that had been seized in the search. Carpenito stated that, during a five-minute interrogation, he asked Torres whether he would cooperate and reveal his source of supply. Scott testified that Torres answered in the negative, but requested that the officers return a ledger that had been seized; Carpenito quoted Torres as stating "[t]here's a lot of money owed to me in there."

Prior to his trial, Torres moved to suppress his statement to the police concerning the ledger. Torres claimed, as the ground for suppression, that he had never been advised of his Miranda rights. The police testimony contradicted this. Torres' counsel, however, elicited testimony that no one ever asked Torres if he wished to waive his rights and then raised the issue of waiver with the trial court. Relying on State v. Brodeur, 126 N.H. 411, 493 A.2d 1134 (1985) and State v. Bushey, 122 N.H. 995, 453 A.2d 1265 (1982), the trial court denied the suppression motion, finding that (1) Torres had been given his Miranda rights, (2) Torres had not asserted either his right to remain silent or his right to counsel, (3) his statements had been made voluntarily, and (4) Torres had knowingly and intelligently waived his rights under both New Hampshire and federal constitutional standards.

On appeal, the defendant does not challenge the trial court's finding that he was advised of his rights under Miranda; rather, he claims that he never waived those rights. The trial court correctly stated the standard for determining whether the defendant waived his Miranda rights:

"The State of New Hampshire has the burden of proving beyond a reasonable doubt based on the totality of [the] circumstances that the defendant ... [voluntarily,] knowingly and intelligently waived [his Miranda ] rights."

State v. Gullick, 118 N.H. 912, 915, 396 A.2d 554, 555 (1978). It is well-settled under Miranda that if custodial interrogation occurs without an attorney, after the defendant has been warned of his or her rights, the prosecution bears a heavy burden to show that the defendant has knowingly and intelligently waived those rights. State v. Lewis, 129 N.H. 787, 791, 533 A.2d 358, 360-61 (1987); State v. Bushey, supra 122 N.H. at 999, 453 A.2d at 1267; R. McNamara, 1 New Hampshire Practice, Criminal Practice and Procedure § 199 (1980 & Supp.1987). The Miranda requirement establishes an objective set of procedures to counter the inherent pressures of custodial interrogations. Id. at § 197.

We note that the trial judge in the present case faced a difficult set of facts in making his ruling. The record and evidence before us indicate that no express waiver, either written or oral, was requested of the defendant by any interrogating officer. Of course, an express waiver is not necessary for a waiver to be valid. North Carolina v. Butler, 441 U.S. 369, 375-76, 99 S.Ct. 1755, 1758-59, 60 L.Ed.2d 286 (1979); see also State v. Sullivan, 130 N.H. 64, 68, 534 A.2d 384, 386 (1987). However, the presumption is that a defendant does not waive any constitutional rights, and the burden is on the State to show otherwise. Butler, supra 441 U.S. at 373, 99 S.Ct. at 1757; State v. Gullick, 118 N.H. 912, 915, 396 A.2d 554, 556 (1978).

In the absence of an express waiver, we must ascertain whether, under the totality of the circumstances, the defendant's understanding of his rights coupled with his conduct supports the trial court's ruling that he otherwise voluntarily, knowingly, and intelligently waived his rights beyond a reasonable doubt. Butler supra; Sullivan su...