State v. Poulicakos

559 A.2d 1341, 131 N.H. 709, 1989 N.H. LEXIS 44
CourtSupreme Court of New Hampshire
DecidedJune 13, 1989
DocketNo. 89-037
StatusPublished
Cited by10 cases

This text of 559 A.2d 1341 (State v. Poulicakos) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Poulicakos, 559 A.2d 1341, 131 N.H. 709, 1989 N.H. LEXIS 44 (N.H. 1989).

Opinions

Brock, C.J.

The defendant challenges an order of the Superior Court (Gray, J.) authorizing his detention pending his trial for second degree murder. He appeals pursuant to RSA 597:6-e, III (Supp. 1988), contending that the trial court erred in holding his detention hearing more than 72 hours after his arrest and violated his right to confront witnesses against him under the State Constitution by allowing the State to present its evidence by an offer of proof, without calling any witnesses. See RSA 597:6-a, VII (Supp. 1988). We stayed processing with respect to the first issue as it had already been accepted, briefed, and argued, and we remand that question for consideration in light of our decision in State v. Hall, 131 N.H. 634, 557 A.2d 997 (1989). We further hold that the State may proceed by offer of proof so long as it supplies a witness or witnesses who can make meaningful the defendant’s right to cross-examination, and we therefore affirm in part and remand.

The body of Richard Miville, Jr., was discovered floating in the Merrimack River on August 23, 1988. During questioning by police the next day, the defendant, James P. Poulicakos, admitted that on the 23rd, he stole coins from Miville’s apartment. Within days, the defendant left New Hampshire, and he later was arrested on a fugitive warrant in San Diego, California, on January 5,1989. After he was returned to New Hampshire, the State filed a motion for pretrial detention under RSA 597:6-a (Supp. 1988).

[711]*711At the detention hearing, the State made an offer of proof regarding the cause of the victim’s death, the defendant’s departure from New Hampshire, and the defendant’s inculpatory statement to police in California. The defendant objected, arguing that allowing the State to proceed by offer of proof violated his due process rights to confront and cross-examine adverse witnesses and to otherwise challenge evidence presented. The court overruled the objection. The defendant then cross-examined the only State witness present, the police captain who headed the investigation into Miville’s death. The court ordered the defendant detained, finding that because the defendant had “apparently admitted causing the death” of Miville and had “already fled the State,” he posed a serious risk of flight, and no condition or combination of conditions would reasonably assure the defendant’s appearance at trial. See RSA 597:6-a, VI (Supp. 1988).

The defendant contends on appeal that the superior court’s interpretation of RSA 597:6-a, VII (Supp. 1988), permitting the State to present evidence at his detention hearing by offer of proof, without presenting any witnesses, violated his right of confrontation under the State Constitution. See N.H. Const, pt. I, art. 15. We disagree.

At a pretrial detention hearing held “to determine whether any condition or combination of conditions . . . will reasonably assure the appearance of the person as required or the safety of the person or of any other person or the community. . . .” RSA 597:6-a, VII (Supp. 1988), a defendant “shall be afforded an opportunity to testify, to present witnesses on his own behalf, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise.” Id. See generally State v. Hall, 131 N.H. 634, 557 A.2d 997. The statute also provides that “rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing.” RSA 597:6-a, VII (Supp. 1988). The statute is silent with respect to means the State may use to meet its burden of convincing the court that the defendant should be detained pending trial. Id.

Federal courts construing identical language in the federal bail statute, 18 U.S.C. § 3142(f), have permitted the government to proceed by proffer and have not required it to present live witnesses. United States v. Gaviria, 828 F.2d 667, 669 (11th Cir. 1987); United States v. Martir, 782 F.2d 1141, 1145 (2nd Cir. 1986); United States v. Acevedo-Ramos, 755 F.2d 203, 207-08 (1st Cir. 1985). Under the federal statute, trial judges retain the discretion to require presentation of live witnesses when the proffer’s [712]*712credibility has been put into question. United States v. Acevedo-Ramos, supra at 207.

We hold that under RSA 597:6-a, VII (Supp. 1988), as under the federal law, the government may proceed by proffer. If the defendant raises questions about the accuracy of the State’s proffer, the court can require the prosecution to present witnesses to buttress its offer of proof. See State v. Hall, supra at 639, 557 A.2d at 1000; United States v. Acevedo-Ramos supra.

Furthermore, the defendant has the right “to cross-examine witnesses who appear at the hearing.” RSA 597:6-a, VII (Supp. 1988). In order to make this right meaningful, the State must supply a witness or witnesses capable of being effectively cross-examined. See United States v. Acevedo-Ramos supra. A witness must be more than a mere reporter of information gathered by others. In this case, for example, the witness supplied by the State led the homicide investigation and sought the warrant leading to the defendant’s arrest; he was therefore capable of being effectively cross-examined. The State, however, need not make available all the sources of the information underlying its offer of proof. The statute suspends the rules of evidence for detention hearings, RSA 597:6-a, VII (Supp. 1988), and witnesses therefore may present hearsay testimony. If unsatisfied with the opportunity for cross-examination, and if the accuracy of the State’s proffer is in question, a defendant can always call as adverse witnesses other sources of the State’s information. See State v. Hall, supra at 639, 557 A.2d at 1000.

The defendant contends that the trial court, which acted in conformity with these procedures, violated the State due process clause. N.H. Const, pt. I, art. 15. Due process protections apply where, as in a detention hearing, an individual faces a potential deprivation of liberty. In re Gamble, 118 N.H. 771, 775, 394 A.2d 308, 310 (1978). In determining whether challenged procedures afford the process necessary to protect a liberty interest, we consider the following factors:

“(1) the private interest affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the [713]*713additional or substitute procedural requirements would entail.”

Petition of Bagley, 128 N.H. 275, 285, 513 A.2d 331, 338-39 (1936).

We address each of these factors in turn.

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Bluebook (online)
559 A.2d 1341, 131 N.H. 709, 1989 N.H. LEXIS 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-poulicakos-nh-1989.