State v. Wilkinson, 91-242

• Decision Date: 01 September 1992
• Docket Number: No. 91-242,91-242
• Citation: 136 N.H. 170,612 A.2d 926
• Parties: The STATE of New Hampshire v. Kevin WILKINSON.
• Court: New Hampshire Supreme Court

Page 926

612 A.2d 926

136 N.H. 170

The STATE of New Hampshire v. Kevin WILKINSON.

No. 91-242.

Supreme Court of New Hampshire.

Sept. 1, 1992.

John P. Arnold, Atty. Gen. (Ward E. Scott, attorney, on the brief and orally), for the State.

Charles A. Russell, Concord, by brief and orally, for defendant.

BATCHELDER, Justice.

The defendant, Kevin Wilkinson, was found guilty by a jury (O'Neil, J.) of violating RSA 264:25, conduct after an accident. On appeal, he contends that the search of the car involved in the accident was unlawful because the affidavit underlying the search warrant had insufficient indicia of reliability and contained material misrepresentations. Further, he argues that his wife was allowed to testify at his trial in contravention of the marital privilege. We affirm.

On May 29, 1989, at about 11:30 at night, a man was severely injured in a hit-and-run accident in front of the Meredith Station restaurant on Route 3 in Meredith. The investigation remained open until April 3, 1990, when the defendant's estranged wife called the Meredith police, gave her identity, and reported that her husband was involved in the accident and that the car he was driving at the time was parked in the garage at her home in Pembroke. She also called the Pembroke police and told them the same information anonymously. Based on the information, the Meredith police obtained a search warrant for the car. A jury convicted the defendant of violating RSA 264:25, which requires a person knowingly involved in such an accident as occurred here to stop, report it to the police, and share certain information with any person injured.

The defendant first contends that the fruits of the search of the automobile should be suppressed because the search violated his rights under part I, article 19 of the New Hampshire Constitution. He alleges that the affidavit supporting the warrant had insufficient indicia of reliability and contained material misrepresentations.

The law in New Hampshire on the use of informants in constructing affidavits to support a search warrant is by now clear.

"Part I, article 19 of the New Hampshire Constitution provides that search warrants shall issue only upon cause or foundation, supported by oath or affirmation. We interpret this language as a requirement for probable cause.... [T]his court adopted the totality-of-the-circumstances test for determining whether probable cause exists. Under this test, elements including the informant's veracity and basis of knowledge are important factors to be considered by judges and magistrates in determining whether probable cause exists. Other indicia of reliability, however, such as corroboration by police officers, may be used in determining the existence of probable cause to supply the missing factors relative to the informant and the informant's information."

State v. Caicedo, 135 N.H. 122, 125, 599 A.2d 895, 897 (1991) (quotations and citations omitted). "Probable cause to search exists if a [person] of ordinary caution would be justified in believing that what is sought will be found in the place to be searched." State v. Doe, 115 N.H. 682, 685, 371 A.2d 167, 169 (1975).

In this case there was a sufficient basis for finding that the defendant's wife had knowledge of the facts. The car belonged to her husband and was located in her garage. See State v. Hazen, 131 N.H. 196, 201, 552 A.2d 77, 80 (1988). Unlike State v. Davis, 133 N.H. 211, 575 A.2d 4 (1990), and State v. Carroll, 131 N.H. 179, 552 A.2d 69 (1988), where the informants were anonymous, the informant here revealed her identity and her relationship to the defendant. Although the application for the search warrant and its supporting affidavit did not precisely establish the fact of a statement from the defendant to his wife in which he implicated himself in the offense, the magistrate was, on the remaining facts, entitled to such a conclusion based upon circumstantial evidence from the wife's statement that she "wanted to clear her conscience." See United States v. Badessa, 752 F.2d 771, 774-75 (1st Cir.1985).

There was also a sufficient basis for the veracity of the informant. "It is reasonable to infer the credibility of an informant where he makes an admission against his own penal interest." Hazen, 131 N.H. at 201, 552 A.2d at 80. The defendant's wife's statements to the Meredith police concerning her knowledge of the incident involving her husband's car constituted an admission to a misdemeanor pursuant to RSA 642:3, I(d) ("A person is guilty of an offense if, with a purpose to hinder, prevent or delay the discovery, apprehension, prosecution, conviction or punishment of another for the commission of a crime, he ... [c]onceals ... physical evidence that might aid in the discovery, apprehension or conviction of such person....").

Under even the most strict analysis this court has enunciated to assess the credibility of informants, State v. Mandravelis, 114 N.H. 634, 637, 325 A.2d 794, 796 (1974); State v. Carroll, 131 N.H. at 192, 552 A.2d at 77 (Batchelder, J., concurring), the affidavit here would be sufficient. Under Carroll's totality-of-the-circumstances analysis, there is no doubt that the warrant was properly issued.

The defendant next argues that the affidavit supporting the warrant was flawed because it contained material misrepresentations made either intentionally or recklessly. State v. McGann, 128 N.H. 186, 188-89, 514 A.2d 1247, 1249 (1986). Omissions, as well as positive misstatements, can be construed as misrepresentations for purposes of an affidavit in certain cases. See State v. Jaroma, 128 N.H. 423, 426-27, 514 A.2d 1274, 1276 (1986). The materiality of an omission is a question of law which must be determined before the degree of the affiant's intent is considered. Id. at 426, 514 A.2d at 1276; see State v. Spero, 117 N.H. 199, 205, 371 A.2d 1155, 1158 (1977). Materiality is determined by whether, if the omitted statements were included, there would still be probable cause. State v. Valenzuela, 130 N.H. 175, 191, 536 A.2d 1252, 1262-63 (1987) (an omission is material if it is "necessary for the finding of probable cause"), cert. denied, 485 U.S. 1008, 108 S.Ct. 1474, 99 L.Ed.2d 703 (1988); see State v. Chaisson, 125 N.H. 810, 814, 486 A.2d 297, 300 (1984); State v. Renfrew, 122 N.H. 308, 311, 444 A.2d 527, 529 (1982).

The defendant alleges that there are three sets of facts which constitute material omissions. The first is that the couple's marriage was not stable and that the affiant did not apprise the issuing judge of the possible motive of vindictiveness in informing the authorities of her husband's conduct. However, " 'where an informant contacts authorities with a motivation other than "a sense of civic duty" the informant can still be found credible.' " Jaroma, 128 N.H. at 426, 514 A.2d at 1276 (quoting United States v. Lefkowitz, 618 F.2d 1313 1317 (9th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 27 (1980)). Here, regardless of her motives, Valerie Wilkinson's credibility was sufficiently established.

Second, the defendant claims that the affiant's failure to include the fact that the informant's phone call to the Pembroke police was anonymous was a material omission. However, there is no indication that the informant provided additional information to the Pembroke police that the Meredith police did not have from her as a named source. Thus, we can presume that the search warrant was procured using information from a known source, and that the call to the Pembroke police was, for the purposes of the warrant, irrelevant.

Finally, the defendant claims that the affiant's failure to include in the affidavit several witnesses' varying descriptions of the car constitutes a material omission. The affidavit stated that "[o]ne witness described the vehicle as a dark possibly blue vehicle. He said it looked like a full sized 1978-79 Ford LTD type vehicle." The police log stated, however, that the car was white, and the police issued an all-points-bulletin for a white car. Additionally, the witnesses stated variously that the car was an "older and large white type car"; a "dark colored possibly black, 4 door"; an "older full size 2 tone blue vehicle possibly Ford"; a "possibly dark, possibly blue vehicle"; and light green or dark green. In fact, the car was a 1978 two-door metallic green Ford Thunderbird with a white vinyl roof. More importantly, however, we have already concluded that the magistrate could have properly inferred that the wife's basis of knowledge was the defendant himself, thereby rendering the omission of the differing descriptions irrelevant.

The defendant's second issue on appeal is the admission of his wife's testimony at trial. The defendant's wife, Valerie Wilkinson, was home in Meredith on the evening of the hit-and-run incident. Although she tried to stop him from going out because he had been drinking, the defendant left in their 1978 Ford Thunderbird, which he regularly drove. He returned momentarily to collect his forgotten cigarettes, but left again. He returned in a few minutes very upset, but told his wife that he "hadn't been gone long enough for anything to have happened." Suspecting more, she pressed him, and he admitted that he had hit something near Hart's Turkey Farm, which she testified is "just a little bit up the road from Meredith Station." Together they went into the garage to look at the car and noticed a dent on the...