State v. Portigue

481 A.2d 534, 125 N.H. 352, 1984 N.H. LEXIS 266
Supreme Court of New Hampshire·Decided August 9, 1984·No. No. 83-126·Published·Cited by 20 cases

Opinion

King, C.J.

The defendant, Rodney Portigue, appeals his conviction by a jury in the Strafford County Superior Court (Temple, J.) of the misdemeanor of endangering the welfare of his child in violation of RSA 639:3, I (Supp. 1983). The defendant was sentenced to one year in the house of correction. The questions presented are: (1) whether the defendant’s motion for a bill of particulars was properly denied; (2) whether the defendant’s rights protected by the Fifth and Fourteenth Amendments of the United States Constitution were violated; (3) whether the defendant’s motions for mistrial were correctly denied; and (4) whether the evidence was sufficient to support the jury’s verdict. For the reasons that follow, we affirm.

The following facts have been adduced from the hearing on the motion to suppress and, for the purpose of determining the sufficiency of the evidence, from the trial record. On January 9, 1982, at approximately 1:00 a.m., the defendant entered the emergency room of the Frisbie Memorial Hospital in Rochester carrying his daughter Amy Portigue, a child, in his arms. The defendant told the emergency medical technician on duty at the hospital that his daughter needed to be examined because his wife had been severely disciplining the child for the preceding two weeks.

[356]*356A nurse brought the defendant into a trauma room where the child was undressed and examined. Both the nurse and the medical technician observed that the child exhibited extensive bruising, including discoloration and puffing around the eyes, and was not breathing. In response to the nurse’s inquiry about the child’s condition, the defendant stated “[sjhe’s been beating her” for “[o]ver a week.” He also told the nurse that “I should have taken her away from her a long time ago.” The defendant was then ushered into the waiting room by hospital personnel.

After the child failed to respond to cardiopulmonary resuscitation conducted by the emergency room physician, the child was pronounced dead at 1:12 a.m. The autopsy performed on the child later that morning by the Strafford County medical examiner revealed multiple bruises over all of her body surfaces, including black eyes and other facial bruises, which were apparently inflicted over a two-to fourteen-day period prior to the child’s death. The medical examiner testified that the bruises he observed on the child were consistent with the child’s being kicked, and being beaten with straps and human hands. The medical examiner also observed a crusted laceration of the child’s scalp, about one-and-one-half inches long, which formerly had been a gaping wound, and which was consistent with a child’s falling onto a sharp object. The autopsy further revealed a prominent abrasion on the child’s chin, two to five days in age, and gangrenous toes. The internal examination of the child produced evidence of trauma.

At approximately 1:25 a.m., while the defendant sat in the waiting room of the hospital emergency area, he was approached by Rochester Police Sergeant Cook and advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436 (1966). Since Officer Cook was not in possession of a so-called Miranda form at the time of the interview, a written waiver of the defendant’s Miranda rights was not executed until a later time. The interview of the defendant was conducted in the presence of another police officer, who was standing by the swinging doors in the waiting room which led to the main emergency area. There are two other exits in the waiting room: a hallway which leads to the main corridor of the hospital and a set of glass doors which exit directly onto the street. Officer Cook testified that the defendant was free to leave the hospital during the course of the interview.

In response to Officer Cook’s questioning regarding the condition of the child, the defendant described the child’s respiratory illness. After briefly discussing the reasons for his decision to bring the child to the hospital, the defendant, according to Officer Cook’s testimony, paused. Officer Cook testified that the following colloquy [357]*357with the defendant then occurred: “I told him it’s quite obvious that beatings and bruises and other things had taken place, and he said, T don’t want to get her in trouble.’” Officer Cook informed the defendant that if he did not disclose the complete story surrounding the child’s condition, the defendant “could probably be into some problems” with the Rochester Police Department. Thereupon, the defendant responded, “Okay, I’ll tell you,” and proceeded to tell Officer Cook that “his wife . .. had been beating the child ... for the past several months.”

After the “pause” in the interview and before the defendant’s decision to disclose his wife’s beatings of the child, Officer Cook did not reassert the Miranda warnings. On cross-examination, Officer Cook stated that he did not interpret the defendant’s assertion that he did not want to get his wife into trouble as an indication that the defendant wished to terminate any further discussions with the police.

“Q: So at that point when he indicated he didn’t really want to go any further with his story, you did, essentially, [state] that he could get into a lot of trouble if he didn’t?
A: Mr. Portigue was relating to me a story, and it was a pause, a natural pause. I just asked him if there was more to the story, and he told me the rest of the story.”

The defendant also told Officer Cook that he was aware of the beatings and had also observed some of the beatings performed by his wife. Despite these observations, the defendant told Officer Cook that “he had not taken any action to report the beatings because he was afraid of getting his wife and/or himself in trouble.”

Subsequently, at approximately 1:50 a.m., Officer Cook obtained a Miranda form and sought to memorialize in writing the defendant’s earlier oral waiver of his Miranda rights. Initially, the defendant indicated on the form that he did not wish to speak with Officer Cook. Upon Officer Cook’s inquiry, the defendant told Officer Cook: “After talking with my wife I don’t wish to speak with you.” Whereupon Officer Cook explained to the defendant that the time entered on the Miranda form — 1:25 a.m. — represented the defendant’s earlier oral waiver. The defendant then agreed to execute the retroactive written waiver on a second form. The first form was discarded by Officer Cook.

Officer Cook later informed his superiors who were present at the hospital, Captain Hall and Lieutenant Winship, of the defendant’s refusal to speak further with police due to the defendant’s conversa[358]*358tion with his wife. However, Officer Cook also told the detectives that it was his impression, based on his earlier conversation with the defendant, that the defendant would in fact talk with the detectives. Officer Cook testified:

“When we first held our . . . talk, after being given the Miranda, I found him very easy to talk with and, you know, very calm. Then between 1:45 and 2 o’clock, after he had spoken with his wife, he was very nervous. He gave me the impression verbally that after he had talked with his wife that she had determined that he wasn’t going to talk with anyone, and I felt that if the detectives got a chance to talk with Mr. Portigue that... he would in fact talk with them.

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State v. Portigue, 481 A.2d 534, 125 N.H. 352, 1984 N.H. LEXIS 266 (N.H. 1984).

481 A.2d 534 (State v. Portigue) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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