Before his trial for attempted murder the defendant moved to suppress his confession. The Superior Court (Dunn, J.) denied the motion subject to exception. Following the trial, and submission of the case to the jury, the defendant excepted to the court's answer to a question from the jury. We sustain the denial of the motion to suppress but hold that the court erred in its answer to the jury. We therefore reverse.
On September 18, 1983, two bombs were thrown into a house in Nashua. Its occupant told the police that he had seen the defendant run from the house immediately after the bombing. The occupant explained that he and the defendant had been feuding. Later that day the police found the defendant in Manchester. It is not clear on the record whether the police had then obtained a warrant for the defendant's arrest for the bombing, but there was a valid outstanding warrant for his arrest on unrelated misdemeanor charges. On that authority the police arrested the defendant. They did not explain the reason for the arrest or mention the bombing.
When they reached the Nashua police station, the police read the Miranda warnings to the defendant. He said that he understood them and signed a waiver of his rights under them. Immediately he began to talk about the subject of the unrelated misdemeanor charges. The police then told him they wished to talk about the bombing. The defendant denied knowledge of that until after he had inadvertently exclaimed that there was no way the victim could have seen him. Thereafter the defendant talked for several hours and made a confession. After he had completed his statement, however,
Prior to trial the defendant moved unsuccessfully to suppress the written statement as prepared by the police, and the State later introduced it into evidence. During closing argument defense counsel argued to the jury that the defendant's refusal to sign was evidence that the written statement was inaccurate. During their deliberations the jurors sent out the question whether "the lack of a signature on Mr. Jones' statement, [meant] a complete denial of the statement." The court responded, "[t]he answer is no." Defense counsel excepted to this answer. He argued that the jury had posed a "factual question" and that "they should be instructed to rely on their own recollection of the evidence in determining that issue." The assistant county attorney argued that the question was one of law and that the court's answer was correct. The court gave no further instructions. The jury returned a verdict of guilty.
On these facts the defendant's first assignment of error is the court's denial of the motion to suppress the confession. Defendant's brief in no way raises the New Hampshire Constitution as a basis for suppressing the confession, but relies on Miranda v. Arizona, 384 U.S. 436 (1966), a case construing the Federal Constitution, and cases interpreting Miranda. But see State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983). He argues that a failure to inform him that the police wished to discuss the bombing prior to his waiver of Miranda rights "casts doubt on the validity of the original waiver." He also argues that his refusal to sign the statement "militates against a valid waiver."
The significance of a defendant's knowledge of the subject of the questioning arises from the requirement of Miranda v. Arizona, 384 U.S. 436 (1966), that a waiver of the rights to silence and the presence of counsel must be "knowing and intelligent." Id. at 475. The defendant argues that a court cannot find such a waiver beyond a reasonable doubt, as required under State v. Phinney, 117 N.H. 145, 370 A.2d 1153 (1977), when the evidence indicates that a defendant did not know the reason for the questioning about which he is said to have waived his rights.
The defendant relies on Schenk v. Ellsworth, 293 F.Supp. 26 (D. Mont. 1968). In that case the defendant had been found lying on a bed next to his murdered wife's corpse. The police told him that they wished to question him "in connection with the shooting incident of his wife." Because the police did not specifically advise the defendant that they suspected that he had shot her, the court held that the
Applying these rules to the facts of this case, we find no error. It is true that when the defendant signed the waiver form the police had not told him that they suspected that he had been involved in the bombing. That was one circumstance for the trial court to consider in determining whether the defendant gave the waiver at that point with an understanding of the potential significance of the questions and answers that might follow. There is no indication in the record that the trial judge failed to consider the evidence in just this way.
Lawyers would probably have understood the judge's answer to mean that the lack of signature did not as a matter of law compel the conclusion that the defendant had denied the truth of the entire statement. Lawyers would have understood him to mean that more than one factual interpretation was possible. We believe that is what the judge intended.
To a juror, however, we believe the judge's answer probably meant that the refusal to sign was not an act of complete denial or retraction. We believe that a juror would probably have taken the answer as a resolution of a factual issue, not as a statement of law that left the issue open.
Since the effect of the judge's statement must be determined from the perspective of the jury, we conclude that his answer probably had the effect of superceding the exercise of the jurors' own judgment. He therefore invaded "the exclusive province of the jury to decide what facts are proved by competent evidence." Ewing v. Burnet, 36 U.S. (11 Pet.) 41, 50-51 (1837), contrary to part I, article 15 of the Constitution of New Hampshire.
We therefore conclude that the answer to the question violated the defendant's right to trial by jury. We must reverse the judgment of conviction and remand the case for a new trial.
Reversed and remanded.