State v. Williams, 7199

Decision Date31 July 1975
Docket NumberNo. 7199,7199
Citation343 A.2d 29,115 N.H. 437
PartiesThe STATE of New Hampshire v. Joseph J. WILLIAMS.
CourtNew Hampshire Supreme Court

Warren B. Rudman, Atty. Gen., and David W. Hess, Asst. Atty. Gen., for the State.

Leonard, Prolman, Prunier & Mazerolle, Nashua (Richard W. Leonard, Nashua, orally), for defendant.

KENISON, Chief Justice.

The issue to be decided by this case is whether the transcripts of a defendant's testimony in a probable cause hearing in district court and of his testimony on a motion to set bail in superior court are admissible in a subsequent trial of the defendant for first degree murder. RSA 630:1-a (Homicide, First Degree Murder). Prior to the trial the State informed the defendant and the superior court that it intended to offer the two transcripts as evidence of the defendant's guilt. Cann, J., reserved and transferred without ruling the question of the admissibility of the transcripts as part of the State's case.

On the advice of his attorney the defendant testified in his own behalf in the probable cause hearing and in the hearing on the motion to set bail which were both held on May 1, 1974. The reason for this rather unusual procedure was the belief of the defendant's counsel that the first degree murder charge was unwarranted by the facts and that it should be reduced at an early stage in the proceedings.

The record clearly reveals and it is not disputed that the defendant's testimony in both of the hearings was voluntarily and understandingly given. Miranda v. Arizona, 384 U.S. 436, 460, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Powers v. United States, 223 U.S. 303, 314, 32 S.Ct. 281, 56 L.Ed. 448 (1912); see 3 J. Wigmore, Evidence § 826, at 351-52 (Chadbourn rev. 1970); Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); 8 J. Wigmore, Evidence § 2266, at 400-1 (McNaughton rev. 1961). The probable cause hearing was held in the Hampton District Court at 1:30 p.m. on May 1, 1974; the hearing on the motion to set bail was held later that same afternoon before the superior court in Exeter. The following preliminary interchange occurred during the superior court hearing:

THE COURT: Excuse me, Mr. Leonard. I assume that you have instructed your client that he has a right not to testify and that if he does testify that any statements that he makes may and will be used against him in the prosecution of this case?

MR. LEONARD: That's right, your honor. I have advised him of that, and he testified at the probable cause hearing this afternoon.

THE COURT: You understand that?

WITNESS: Yes, sir.

Although the superior court expressly warned the defendant the he had a right to remain silent, the district court did not do so. RSA 596-A:3 (Preliminary Examinations, Caution to Accused).

I. Transcript of the Probable Cause Hearing

As a general rule of evidence testimony given at a former hearing pursuant to a voluntary and understanding waiver of the privilege against self-incrimination is admissible at any subsequent trial. Harrison v. United States, 392 U.S. 219, 222, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); United States v. Houp, 462 F.2d 1338, 1340 (8th Cir. 1972); 8 J. Wigmore, Evidence § 2276, at 459 (McNaughton rev. 1961). The defendant argues that the rule is inapplicable to the admissibility of the transcript of the probable cause hearing since that hearing was not a trial, but merely a 'legal proceeding to establish the probability of a crime having been committed.' U.S.Const. Amend. V; N.H.Const., pt. I, art. 15. It is defendant's position that because he was not formally accused by an indictment at the time of the hearing and since the district court failed to warn him of his right to remain silent, his testimony at the hearing should be inadmissible at trial.

Although the constitutional position of a defendant at a preliminary hearing to determine probable cause is not entirely clear, constitutional protections have been increasingly expanded in recent years to encompass the incipient stages of the criminal process. RSA 596-A:3; Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54, 114 (1975). See J. McCormick, Evidence § 130, at 273 N. 6 (1972); 5 F. Wharton, Criminal Procedure § 2013, at 151 (R. Anderson ed. 1957); id. (Supp.1974, at 71). RSA 596-A:3 specifically recognizes the importance of protecting the accused at preliminary examinations by requiring that the 'court shall . . . inform the accused that he is not required to make a statement or to testify, but that any statement or testimony given by him may be used against him.' See Peterson, The Federal Magistrates Act: A New Dimension in the Implementation of Justice, 56 Iowa L.Rev. 62, 78-79 (1970); Note, 79 Yale L.J. 926, 936 (1970).

While a probable cause hearing is obviously not a trial, it is an essential preparatory stage in the criminal process preceding formal indictment and trial. Note, Preliminary Examination Potential, 58 Marq.L.Rev. 159, 159-60 (1975); Theis, Preliminary Hearings in Homicide Cases: A Hearing Delayed Is A Hearing Denied, 62 J.Crim.L. 17, 18 (1971). In the course of performing its basic functions of determining whether an offense has been committed and if there is probable cause to believe that the prisoner committed it, the district court may piece together the evidentiary skeleton which could provide the basis for a future trial. Smith v. O'Brien, 109 N.H. 317, 318, 251 A.2d 323, 324 (1969); see Note, The Preliminary Hearing-An Interest Analysis, 51 Iowa L.Rev. 164, 171 (1965). By providing the protection of counsel and the right to remain silent at the preliminary hearing, RSA 596-A:3 insures that the determination of probable cause will be something more than a routine proceeding leading inevitably to indictment and trial. The statutory protections envision an adversary process during which charges without sufficient supporting evidence will be eliminated. See Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1166-69 (1960).

As a matter of pretrial strategy an accused may, on the advice of his attorney, voluntarily choose to forego the protection against self-incrimination afforded to him by RSA 596-A:3 in an attempt to convince the court that probable cause does not exist. Note, 51 Iowa L.Rev. 164, 173 (1965); Note, Preliminary Hearings on Indictable Offenses in Philadelphia, 106 U.Pa.L.Rev. 589, 590 (1958). If one exercises his prerogative to testify at a probable cause hearing after having been informed of his right to remain silent, he does so with the knowledge and at the risk that what he says may be used at a later trial for the crime charged. People v. James, 29 Mich.App. 522, 526-27, 185 N.W.2d 571, 574 (1971).

Since the defendant in this case knowingly and understandingly waived his right to remain silent during the preliminary hearing to determine probable cause, the transcript of that testimony is admissible in his subsequent trial for the offense charged. The fact that the defendant was not indicted at the time of the hearing is immaterial since he was afforded by statute and in fact the same safeguards as one who is so charged. In this case the transcript is admissible despite the district court's failure to give the statutory warning since the statement of the defendant's counsel, and the assent of the defendant himself before the superior court on the same afternoon as the probable cause hearing shows that the defendant was fully apprised of his statutory and constitutional rights. Under these circumstances the purposes of the statute to inform and to protect the prisoner at a preliminary hearing were satisfied.

Nor does the case of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) dictate a different result in this instance. See The Supreme Court, 1967 Term, 82 Harv.L.Rev. 95, 214-20 (1968). In Simmons a defendant testified prior to trial that he owned certain clothing which was part of a government exhibit, in order to establish his standing to move for suppression of the evidence under the fourth amendment. 390 U.S., at 389, 88 S.Ct. 967. The 'only, or at least the most natural . . .' way in which a defendant could gain standing to object to the admissibility of the evidence was to testify that he owned it. Id., at 391, 88 S.Ct. at 974. Under the rule generally prevailing prior to Simmons if the defendant testified in order to establish his standing to make a fourth amendment objection, he did so at the risk that what he said would later be used to incriminate him. Id., at 392, 88 S.Ct. 967. That rule created an intolerable tension between the rights guaranteed by the fourth and the fifth amendments as a result of which a defendant might be compelled to forego an attempt to suppress illegally seized evidence in order to avoid incriminating himself. To relieve the tension between the two constitutional rights the Supreme Court held that when a defendant testifies in support of a motion to suppress evidence on fourth amendment grounds, the testimony may not be admitted against him at trial on the issue of guilt unless he does not object. 390 U.S., at 394, 88 S.Ct. 967.

Testimony knowingly given by a prisoner at a probable cause hearing is not necessarily the product of the inevitable tension that the Simmons case sought to eliminate. In order to exercise his constitutional right (i.e. to gain standing to claim his personal rights under the fouth amendment), the defendant in Simmons was compelled to take the stand. In this case a preliminary hearing is provided as of right by RSA 596-A:3. See Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)). While the accused may waive the preliminary hearing (see 596-A:4), he does not have to relinquish any other constitutional right in order to have a judicial determination of probable cause.

Although pretrial strategy may indicate that testifying at the probable cause hearing might...

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