concurring specially: I join in the opinion of my brothers Batchelder and Johnson. They apply the proper standard in reviewing the finding of custody, for we uphold a trial court’s finding “unless we conclude that it is clearly erroneous or contrary to the manifest weight of the evidence.” State v. Gosselin, 131 N.H. 243, 247, 552 A.2d 974, 976 (1988). In my view, the trial court’s finding that the defendant “certainly would be justified in concluding that he was not then free to leave,” after the detectives returned to the interrogation room, was neither erroneous nor contrary to the manifest weight of the evidence, as detailed in the majority opinion.
Ambiguity apparent in decisions of the United States Supreme Court, however, leaves me less than certain that the standard we have found applicable in determining whether or not the defendant was in custody is the correct one. The trial court and the majority base the finding of custody upon language contained in Berkemer v. McCarty, 458 U.S. 420, 442 (1984) (“the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his position”), which seems to establish a somewhat different standard than that enunciated elsewhere in that opinion, id. at 439 (“safeguards prescribed by Miranda become applicable as soon as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest’” (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam))), and in previous cases addressing the same issue, see Beheler supra (“ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest” (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam))); Mathiason, supra at 494 (“Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody’”) (per curiam); Miranda v. Arizona, 384 U.S. 436, 444 (1966) (“By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way”). Given these seemingly conflicting directives from the federal bench, I cannot conclude that the trial court here erred as a matter of law.