State v. Wheeler, 85-519
| Citation | 519 A.2d 289,128 N.H. 767 |
| Decision Date | 05 December 1986 |
| Docket Number | No. 85-519,85-519 |
| Parties | The STATE of New Hampshire v. Guy WHEELER. |
| Court | Supreme Court of New Hampshire |
Stephen E. Merrill, Atty. Gen. (Andrew W. Serell, on the brief and orally), for the State.
James E. Duggan, Appellate Defender, Concord, by brief and orally, for defendant.
The defendant appeals his conviction by jury in the Superior Court (DiClerico, J.) on charges of burglary. The defendant presents the following questions concerning whether the trial court erred: (1) in allowing the defendant's witness to invoke her privilege against self-incrimination, and (2) in allowing introduction of evidence of the testing of the defendant's boots which were seized when he was arrested on an unrelated charge. We find no error and affirm.
On the morning of April 11, 1984, an employee of Merrill's Radiator in Concord reported to work and discovered that the building had been broken into. The Concord police investigated the break-in and determined that entry had been forced in the rear of the building, where the garage door and another inside door had been kicked in. The police officers found a yellow card with a bootprint on it near the inside door. The officers observed that this print was very similar to a bootprint which had been discovered outside the building near the point of entry.
Once inside, the burglar had forced open a safe, and $75 to $80 was missing, as was a pry bar from a tool box which had been opened. The building had been found to be secure at 12:30 a.m. on April 11, when a police officer had done a perimeter check of the building. Thus, the time of the break-in was narrowed to between 12:30 a.m. and 7:30 a.m., the time the burglary was discovered.
Later the same day, the defendant was arrested at his Concord home on a capias warrant issued for failure to appear in court on an unrelated charge. When the defendant was brought to the police station an inventory search was conducted and personal items, including his boots, were taken from him. Officer Magoon, who had been at the burglary scene earlier, examined the defendant's boots and believed they matched the bootprints which had been found at the site of the burglary. The boots were turned over to another officer to be secured as evidence. The following day, the police sought and obtained a search warrant in order to have the boots sized and tested at the State Police laboratory.
The defense called one witness at trial, who invoked her privilege against self-incrimination. The defendant was convicted and sentenced to 3 1/2 to 7 years in the State prison, and now appeals that conviction.
We first address whether the trial court erred in allowing the defendant's witness to invoke her privilege against self-incrimination. See N.H. CONST. pt. I, art. 15, U.S. CONST. amend. V. The defendant made an offer of proof to the trial court and now asserts that this witness would have provided an alibi for him during the crucial time in which it was determined that the burglary had occurred.
The witness was first asked this question by defense counsel, outside the presence of the jury: "Between the hours of 10:00 p.m. on April 10, 1984 and 1:15 p.m. on April 11, 1984, did Guy Wheeler visit your house?" Upon advice of counsel, she refused to answer this question. The trial court allowed defense counsel to narrow the question as follows: "[W]as Guy Wheeler present at ... 33 Fayette Street between 12:30 a.m. on April 10 (sic), 1984 and 7:30 a.m. April 10 (sic), 1984?" The witness after consultation with counsel, again refused to answer based on her constitutional privilege. Finally, she refused to answer the question: "Was Guy Wheeler a member of your household in April of 1984?"
It is clear to us, from a thorough review of the record, that the trial court carefully considered the circumstances of the witness, questioned her legal counsel concerning the matters about which she was asked to testify, and determined that her answers might possibly incriminate her. See State v. Lavallee, 119 N.H. 207, 210, 400 A.2d 480, 482 (1979). Among these circumstances was the fact that the witness was a welfare recipient who could have been charged with an offense for receiving certain benefits if another potential wage earner was a member of her household.
The defendant argues that the trial court should have granted his request to have the trial court examine the witness in camera, and that the trial court did not adequately question her concerning her claim that her answers to the above questions could be incriminating. We disagree. The trial court clearly was not required to question the witness in camera. In fact, in outlining the reasons for not pursuing such questioning, the trial court stated the following:
We agree with the trial court's decision and analysis.
In State v. Lavallee supra, we stated that when there is a conflict between a witness's right to remain silent and a defendant's right to present the most compelling case, "the court must engage in a delicate balancing of these conflicting interests" and the burden is on the defendant to prove that the court's decision is improper or prejudicial to the defendant's case. Id. at 210, 400 A.2d at 482. In the case at bar the trial court specifically stated:
"... under the circumstances of the case and in light of the [fact] that the witness has narrowed down a claim of privilege to the very time frame which is involved in this indictment and its bill of particulars, the Court is of the opinion that she is exercising her right in good faith, that this is not a mere pretext on her part to avoid answering questions, and the Court will allow her to stand on her Fifth Amendment privilege."
In Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), the United States Supreme Court stated that to allow a witness to invoke the privilege against self-incrimination, "it need only be evident from the implications of a the question, in the setting in which it is asked, that a responsive answer to the...
To continue reading
Request your trial
-
State v. Cheatam
...privacy and officers may take a "second look" and remove items in connection with unrelated crime without a warrant); State v. Wheeler, 128 N.H. 767, 519 A.2d 289 (1986) (defendant's boots taken during inventory; boots later taken as evidence in unrelated burglary investigation where boot p......
-
Wallace v. State
...to conduct forensic experiments on them months after they were validly seized pursuant to an inventory search). Cf. State v. Wheeler, 128 N.H. 767, 519 A.2d 289 (1986) (although not relying on the Federal Constitution, upholding an officer's retention of evidence for the purpose of preservi......
-
DeMauro v. DeMauro
...or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result." State v. Wheeler, 128 N.H. 767, 771, 519 A.2d 289, 291 (1986) (quotation omitted). "The privilege against self-incrimination extends not only to answers that in themselves would sup......
-
Contreras v. State
...they have not expressly articulated a rationale for their holding. See State v. Copeland, 530 A.2d 603 (Conn.1987); State v. Wheeler, 128 N.H. 767, 519 A.2d 289, 292 (1986). 2 We have found no post-Edwards case which required the police to obtain a warrant to seize items which were already ......