STATE
v.
WILLIAM A. GELDART, JR.
No. 6096.
Supreme Court of New Hampshire.
June 30, 1971.Warren B. Rudman, Attorney General, and Henry F. Spaloss, Assistant Attorney General (Mr. Spaloss orally), for the State.
William P. Shea (by brief and orally) for the defendant.
KENISON, C.J.
The question presented in this case is whether an oral confession made after Miranda warnings at the scene of a burglary within minutes after arrest and subsequently reduced to writing within two or three hours was a voluntary confession as found by the trial court. The defendant was indicted for aiding and abetting in the commission of a burglary. At a pretrial hearing, at which the defendant did not testify, the Court (King, J.) found the confessions to be voluntary and reserved and transferred the defendant's exceptions thereto.
About eleven o'clock in the evening law enforcement officers were called to a residence at which a burglary was in progress. According to the testimony at the pretrial hearing they saw someone run behind a large propane tank outside the residence and *220 discovered the defendant hiding himself there. He was handcuffed and placed in a police cruiser. The arresting officer fully advised him of his rights in accordance with the requirements of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), but did not question him at that time. Shortly thereafter, a second officer arrived and sat in the back seat with the defendant. After the defendant complained that the handcuffs hurt him because "he had a burn or something on his hand," the officer had them removed. The officer then asked him who else participated in the burglary. That officer told the defendant that he ought to make it easy on himself and tell who was with him and that if he cooperated things would probably go better for him. "Within a minute or two" defendant stated the names of his brothers, who participated with him in the burglary, and confessed his part therein.
The defendant was taken to the county jail where within two or three hours after his arrest he signed a written confession of his part in the burglary. The written confession was preceded by the following statement in part: "I have been duly warned . . . that I do not have to make any statement at all, and that any statement I make may be used in evidence against me on the trial for the offense concerning which this statement is herein made. Without promise or hope of reward, without fear or threat of physical harm, I freely volunteer the following statement. . . ." The confession also stated that "I told them about the burglary . . . without promise or hope of reward. I have read this statement . . . and the facts contained therein are true and correct . . . ."
There is uncontradicted testimony that none of the police officers made any promises or threats to the defendant or offered any inducement that they would drop the prosecution. The court specifically determined that "There was no atmosphere here of pressure, of force or power or over-reaching that would under the Miranda case result in ruling out this confession." In ruling that the confession was voluntary the court stated that the defendant did not confess because of the statements made by the officers and that the time-lapse between the oral confession and the signing of the written confession in any case would have dissipated any improper inducement that might have been suggested at the time the defendant made his oral confession.
In cases in which it is alleged that proper warnings were not given the defendant, or where it is alleged that the suspect was given an improper inducement which rendered his confession *221 involuntary, it is proper for the trial court to determine the questions of fact and to rule on the voluntariness of the confession. State v. Santos, 107 N.H. 490, 493-94, 225 A.2d 617, 619 (1967); State v. Reed, 106 N.H. 140, 141-45, 207 A.2d 443, 444-47 (1965). In the present case it is conceded by all that the defendant received complete Miranda warnings of his rights. In that situation if he chose to make a statement he could do so provided it was a voluntary one and a waiver of his rights. Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 707, 86 S. Ct. 1602, 1612 (1966); Rothblatt and Pitler, Police Interrogation: Warnings and Waivers Where Do We Go From Here?, 42 Notre Dame Lawyer 479, 489-92 (1967); State v. Godfrey, 182 Neb. 451, 155 N.W.2d 438 (1968); Annot., 10 A.L.R. 3d 1054 (1966).
The present case is quite similar to one recently decided in Illinois in which it was established that the defendant was warned of his rights, but was also told that it would benefit him if he made a statement. As in the present case the trial judge determined the subsequent confession to be voluntary. On review the appellate court stated, "It is axiomatic that such a finding by the trial judge who stands in the best position to weigh the credibility of the witnesses will not be overturned on review unless contrary to the manifest weight of the evidence." It also found that the sheriff's statement that "it would be better" for the defendant to make a statement "did not constitute an inducement or promise of leniency rendering the confession involuntary. Such a statement, standing alone, as was the case here, is not sufficient inducement to invalidate an otherwise voluntary confession." People v. McGuire, 39 Ill. 2d 244, 249, 250, 234 N.E.2d 772, 775 (1968). Federal cases involving similar facts have reached the same conclusion. United States v. Frazier, 434 F.2d 994, 995-96 (5th Cir. 1970); United States v. Ferrara, 377 F.2d 16, 17 (2nd Cir. 1967).
The defendant relies in part on State v. York, 37 N.H. 175 (1858) in which similar statements were made to a defendant. However that case stands on a very different footing from the case at bar and the Illiniois case discussed above because the defendant here was fully warned of his right to remain silent, that anything he said could be used against him, that he could have representation of counsel and that counsel would be appointed for him if necessary. In addition, it appears that in the present case the defendant was caught at the scene of the crime red-handed *222 and in circumstances which viewed most favorably to the defendant were at best most compromising. On such facts we conclude that the trial court could properly find that the statements made to the defendant did not influence his decision to confess and that his confessions were therefore voluntary and admissible. State v. Santos, 107 N.H. 490, 493-94, 225 A.2d 617, 619 (1967); State v. Reed, 106 N.H. 140, 141-45, 207 A.2d 443, 444-47 (1965). See also Frazier v. Cupp, 394 U.S. 731, 22 L. Ed. 2d 684, 89 S. Ct. 1420 (1969); Boulden v. Holman, 394 U.S. 478, 22 L. Ed. 2d 433, 89 S. Ct. 1138 (1969).
Exceptions overruled.
All concurred.