The defendant, Alan O. Roberts, was indicted by a Coos County Grand Jury for witness tampering, pursuant to RSA 641:5, I(b), for telling his estranged wife that their twelve-year-old daughter would not be returned to her unless his wife agreed not to testify against him on a pending sexual assault charge. The defendant was convicted following a jury trial and sentenced by the Court (Morrill, J.). The defendant now appeals.
The defendant challenges his conviction on two grounds: (1) that the trial court erred in failing to suppress certain of his statements; and(2) that the trial court erred in excluding testimony by the defendant that he kept his daughter in Vermont in order to protect her from abuse by her mother. For the reasons that follow, we affirm.
On June 13, 1986, Elizabeth Roberts of Gorham, the defendant's estranged wife, reported to the Gorham Police Department that her twelve-year-old daughter, Angie, was missing. Earlier that day,
That evening the defendant called his wife. Mrs. Roberts told the defendant that Angie was missing and asked him if he had taken her. The defendant denied taking Angie and "acted really shocked that she was missing." According to Mrs. Roberts' testimony, the defendant then told her that she should "drop the charges so he could come over and help look for [Angie]." The defendant continued to call his wife every few minutes with the same request.
On June 15, the defendant called his wife, and she told him that she feared that Angie had been picked up hitchhiking. Mrs. Roberts testified that the defendant told her that perhaps she should search the woods "because if somebody had picked her up, they might have thrown her body up there." The following day, according to both the testimony of the defendant and that of his wife, the defendant again called his wife and told her that he had heard from Angie, and that Angie had said that she was all right but that she would not return home until Mrs. Roberts dropped the pending sexual assault charge against the defendant. The defendant repeated this request several times over the course of the next few days.
On June 21, 1986, Sergeant Gerald Marcou of the Gorham Police Department and New Hampshire State Police Trooper John Scarinza met in Vermont with Vermont State Police Trooper Van Dam to search for the girl. After visiting the homes of several of the defendant's relatives, they observed the defendant's vehicle parked in the driveway of his brother's house in Danville, Vermont. As Trooper Van Dam entered the house, the defendant ran out the back and into the woods. The defendant was pursued and apprehended and was taken back to the house, where he was arrested by Trooper Van Dam on an outstanding fugitive from justice warrant on a charge of witness tampering.
In the kitchen of the defendant's brother's home, Trooper Van Dam advised the defendant of his Miranda rights, and the defendant stated that he wished to call his attorney. The defendant tried to call his attorney three times but was unable to reach him. The police then advised the defendant that their purpose in being
As Sergeant Marcou, Trooper Scarinza, and the defendant were leaving the driveway in the police cruiser, or at some point shortly thereafter, the defendant "started talking to [the two police officers]." They told him not to make any statements, advised him of his Miranda rights, and asked if he understood them. The defendant indicated that he did. The defendant then stated that he "could get in contact with his daughter" by calling a relative from a pay phone. During the return trip, while still in Vermont, the police stopped at a pay phone, and the defendant made a phone call to one of his relatives to arrange for his daughter's return.
When the police crossed the border into New Hampshire, they arrested the defendant and again advised him of his Miranda rights. They then drove the defendant to his lawyer's office in Lancaster, but his lawyer was unavailable. At some point during the trip, the defendant further stated that he "knew how to get the girl back but didn't want to get the people that had her involved in trouble." The police then brought Roberts to the Gorham police station, where he made a few phone calls, and within two hours, his daughter appeared at the police station.
Before trial, the defendant sought to suppress "any and all statements" that he may have made to the police while in custody, and "all evidence obtained by the State pursuant to, following, or as a result of any investigation by the State following its receipt of his said statements." The Trial Court (Morrill, J.) denied the defendant's motion. In its order, the trial court discussed only the statements made by the defendant while in the police cruiser, and found "beyond a reasonable doubt that [because] the defendant was not being questioned and volunteered the statements . . . there was no violation of [the] defendant's rights under the Fifth Amendment and Part I, Article 15 of the New Hampshire Constitution."
In analyzing the admissibility of the defendant's statements, we first address the defendant's claim under the State Constitution. See State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983). However, we decline to decide whether the defendant's initial statement was admissible, because the issue is not properly before this court on appeal. The defendant failed to present this issue to the trial court and to obtain a ruling on it. The defendant's written motion sought to suppress "any and all" of the defendant's statements. At the pretrial suppression hearing, however, the parties focused only on the statements made by the defendant while in the police cruiser. The defendant did not confront the State's witness, Sergeant Marcou, regarding the initial statement, nor did he refer to it specifically during his argument to the court at the close of the hearing.
The trial court's order indicates the court's perception that the defendant sought to suppress only the statements made while in the police cruiser. The trial court stated the issue to be decided as follows: "Defendant's claim is that he did not expressly waive his right under Miranda v. Arizona . . . and that his subsequent statements to the officers in the cruiser" were obtained in violation of his constitutional rights. The court then denied the suppression of these statements on the ground that the "defendant was not being questioned."
Despite the trial court's apparent failure to rule on the admissibility of the defendant's initial statement, the defendant, in his notice of objection to the court's order, failed to advise the court that it had overlooked a statement which he sought to suppress. The defendant objected solely on the ground that the admission of the "statements at issue" would violate the defendant's rights under
We therefore proceed to a review of the admissibility of the statements which the defendant made while in the police cruiser. We find no error by the trial court in admitting these statements.
The second issue raised by the defendant is whether the trial court erred in preventing him from testifying as to specific instances of abuse of his daughter by Mrs. Roberts as the reason for his taking Angie to Vermont and allowing her to remain there.
The State first objected to the defendant's testimony on direct examination that his daughter had called him "because my wife had been out drinking with two of her ___." The court ruled that the testimony was irrelevant, and defense counsel stated, "All right," and instructed the defendant to "stay away from that . . . ." The defendant nonetheless further testified that "my daughter was concerned about the situation at home. . . . She was being hit." The State objected, and a bench conference was held off the record.
When the defendant was then asked how he felt about Angie's request to leave home and stay with him, he testified that he felt that she should be permitted to do so because of "all the things that were going on at home. If I'm not allowed to bring them up ___." The State again objected and a second bench conference ensued. Defense counsel argued that Angie's reasons for leaving home were relevant to rebut the implication that the defendant had taken his daughter away in order to pressure his wife not to testify. The court ruled, however, that this testimony was irrelevant and hearsay. Defense counsel then stated that he wanted to introduce the defendant's reasons for taking his daughter to Vermont and for helping her to stay there for a week. When the trial court offered defense counsel an opportunity to make an offer of proof as to what the defendant would testify, defense counsel stated that the defendant would testify: that he took his daughter to Vermont at her request in order to make her happy; that he would have brought her home if she had wanted to return; and that Angie had never made such a request. The court ruled that the defendant could testify in accordance with this offer of proof, but that he could not testify "as to actions that his wife was taking at that time." The court then addressed the defendant himself to determine whether he understood the court's ruling. The defendant stated to the court, "[T]he reason I took my daughter was because she was being hit and being abused . . . and I think that's very important." The court responded that such testimony was hearsay and irrelevant.
On cross-examination, the defendant again testified as to his wife's misconduct. At that point, the trial court admonished the defendant, "I've instructed you twice on that issue already and you've heard my instructions." A bench conference was then held during which defense counsel stated to the court, "I don't have any problem with the court's ruling. We have a witness here that is a little difficult to handle . . . ." Defense counsel then argued as to the admissibility of the remainder of a conversation, where the State had introduced part of the same conversation. The court responded that the State had not opened up the subject area for further testimony and that, in any event, the defendant's testimony was irrelevant, and ruled against the defendant, noting his exception.
The State urges us that the record indicates that defense counsel agreed with the court's exclusion of the defendant's testimony relative to his wife's misconduct, noting specifically defense counsel's statement that he had no problem with the court's ruling. However, viewing this statement in the context of the lengthy bench conference which had been held earlier relative to this issue, it is reasonable to interpret defense counsel's statement as indicating merely that he was informing the court that he was aware of the court's prior adverse ruling, and that he would attempt to comply with it for the remainder of trial.
Moreover, we find unavailing the State's argument that the defendant's offer of proof was insufficient because it did not include the defendant's testimony that his wife's abuse of his daughter prompted his taking Angie to Vermont. The defendant himself stated to the court that he would testify to the abuse as his reason for keeping Angie, and the court ruled specifically on the admissibility of that evidence.
Thus, based upon the record as a whole, it is apparent that the trial court was sufficiently apprised of the substance of the evidence, and of the defendant's objection to its exclusion, to enable the court to rule on the issue, and to correct at that time any error in its ruling, see N.H. R. Ev. 103(b); State v. Sands, 123 N.H. 570, 595, 467 A.2d 202, 217-18 (1983), and we therefore reach the merits of the defendant's claim.