State v. Roache

• Decision Date: 15 July 2002
• Docket Number: No. 2001–262.,2001–262.
• Citation: 803 A.2d 572,148 N.H. 45
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Donald ROACHE.

148 N.H. 45

803 A.2d 572

The STATE of New Hampshire

v.Donald ROACHE.

No. 2001–262.

Supreme Court of New Hampshire.

Argued March 6, 2002.

Opinion Issued July 15, 2002.

Rehearing Denied Aug. 15, 2002.

Philip T. McLaughlin, attorney general (Stephen D. Fuller on the brief and orally), for the State.

Stein, Volinsky & Callaghan, P.A., of Concord (Scott F. Johnson on the brief and orally), for the defendant.

BROCK, C.J.

The State of New Hampshire appeals, pursuant to RSA 606:10 (1986), from orders of the Superior Court (Hollman , J.) granting, in part, the defendant's motion to suppress statements. The court ruled that Part I, Article 15 of the New Hampshire Constitution requires the police to inform a suspect, during a custodial interrogation, of an attorney's specific efforts to contact him or offer assistance in order for the suspect's Miranda waiver to be valid. We affirm.

The relevant facts are undisputed. On June 15, 2000, two detectives from the Nashua Police Department went to the residence of the defendant, Donald Roache, and asked if he would accompany them to the police station to answer questions about an investigation involving his stepdaughter. He agreed, and prior to leaving his house, called his wife to tell her that he was going to the police station. She then called Attorney Andru Volinsky and retained him to represent the defendant. The defendant had not asked his wife to call an attorney.

The defendant arrived at the police station at approximately 4:45 p.m. Detective Brown escorted him to a small interview room. After asking some preliminary background questions, Detective Brown presented the defendant with a Miranda waiver form, which he reviewed and signed at 4:53 p.m. Detective Brown asked the defendant if he knew why he was being questioned. The defendant responded that it was because he molested his stepdaughter and that he was not going to deny it. Thereafter, Detective Brown read the defendant his Miranda warnings again and made an audio recording of the interview, which lasted approximately thirty minutes and ended at 5:58 p.m.

Meanwhile, at 4:50 p.m., Attorney Volinsky called the Nashua Police Department and spoke to Officer Yurcak. Attorney Volinsky explained that he was the defendant's attorney and asked to speak with the defendant. Officer Yurcak initially did not know whether the defendant was in the building, but called Attorney Volinsky back at 5:06 p.m. and stated that the defendant was in the station with Sergeant Mark Manley, the supervisor on duty. Attorney Volinsky then called Sergeant Manley and left a voice mail message that the defendant's wife had retained him and that all questioning should cease until he spoke with the defendant.

Sergeant Manley spoke to Attorney Volinsky at 5:44 p.m., but refused to stop the interview. Manley told Volinsky that the department had a practice of not interrupting interviews when an attorney was trying to contact a client unless the client had requested counsel.

The defendant was charged with multiple counts of aggravated felonious sexual assault, see RSA 632 A:2, I(j)(1) (1996), and one count of attempted aggravated felonious sexual assault. See id.; RSA 629:1 (1996). He moved to suppress the statements he made at the Nashua Police Department. Based on the facts set forth above, the trial court ruled: (1) that the defendant was in custody for the purposes of invoking Miranda protection; and (2) the police department's failure to inform the defendant of his attorney's efforts to contact him vitiated his waiver of his Miranda rights. The court found that the duty to inform the defendant of his attorney's attempts to contact him arose at 5:06 p.m., when Officer Yurcak learned of the defendant's whereabouts. Therefore, any statements made by the defendant after 5:06 p.m. were suppressed.

When reviewing a trial court's ruling on a motion to suppress, we accept the trial court's factual findings unless they lack support in the record or are clearly erroneous. See State v. Wallace, 146 N.H. 146, 148, 772 A.2d 892 (2001). Our review of the trial court's legal conclusions, however, is de novo . See id . The level of constitutional protection provided by Part I, Article 15 in this context is strictly a question of law, which we review de novo . See State v. Paulsen, 143 N.H. 447, 449, 726 A.2d 902 (1999).

The State does not challenge the trial court's conclusion that the defendant was in custody, but argues that the police department's failure to inform the defendant of his attorney's efforts to contact him did not render inoperative his waiver of the presence of counsel. The defendant relies solely upon the New Hampshire Constitution, as his claim is untenable under the Federal Constitution. The United States Supreme Court has held that efforts by counsel to contact a suspect who is in custody have no bearing on the validity of that suspect's waiver of rights guaranteed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See Moran v. Burbine, 475 U.S. 412, 422, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).

The defendant in Moran was arrested in connection with a burglary. Id. at 416, 106 S.Ct. 1135. While he was in custody, the police learned of facts implicating him in a murder. Id. After being informed of his Miranda rights and executing a series of written waivers, the defendant confessed to the murder. Id. at 415, 106 S.Ct. 1135. The defendant did not at any time request an attorney. Id. While the defendant was in custody, however, his sister obtained a lawyer to represent him. Id. The attorney telephoned the police station and was assured that the defendant would not be questioned further until the next day. Id. The interrogation session continued, however, and the defendant made a number of inculpatory statements. Id. He was never informed that his sister had retained an attorney to assist him, or that the attorney was trying to reach him. Id. at 415–16, 106 S.Ct. 1135. He was later found guilty of first degree murder. On appeal to the United States Supreme Court, he argued that his inculpatory statements should have been suppressed.

The Court held that the action of the police did not violate the defendant's Fifth Amendment right against self-incrimination. Id. at 420, 106 S.Ct. 1135. Applying traditional waiver principles, and after noting that the waiver was otherwise voluntary, the court stated that "[e]vents occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right." Id. at 422, 106 S.Ct. 1135. The Court reasoned:

Once it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.

Id. at 422–23, 106 S.Ct. 1135. While the Court refused to require police to inform a suspect of an attorney's efforts to reach the suspect as a matter of federal constitutional law, the court recognized that "[n]othing we say today disables the States from adopting different requirements for the conduct of its employees and officials as a matter of state law." Id. at 428, 106 S.Ct. 1135.

Since Moran , a number of state supreme courts have held that the due process and/or self-incrimination provisions of their state constitutions require broader protection than is afforded by Moran . See, e.g. , Com. v. Mavredakis, 430 Mass. 848, 725 N.E.2d 169 (2000) ; People v. Bender, 452 Mich. 594, 551 N.W.2d 71 (1996) ; People v. McCauley, 163 Ill.2d 414, 206 Ill.Dec. 671, 645 N.E.2d 923 (1994) ; West v. Com., 887 S.W.2d 338 (Ky.1994) ; State v. Simonsen, 319 Or. 510, 878 P.2d 409 (1994) ; State v. Reed, 133 N.J. 237, 627 A.2d 630 (1993) ; Bryan v. State, 571 A.2d 170 (Del.1990) ; State v. Stoddard, 206 Conn. 157, 537 A.2d 446 (1988) ; People v. Houston,

42 Cal.3d 595, 230 Cal.Rptr. 141, 724 P.2d 1166 (1986) (superseded by constitutional amendment). Other States have adopted Moran when analyzing their state constitutional provisions. See, e.g. , State v. Stephenson, 878 S.W.2d 530 (Tenn.1994) ; Mitchell v. State, 306 Ark. 464, 816 S.W.2d 566 (1991) ; State v. Earls, 116 Wash.2d 364, 805 P.2d 211 (1991) ; McClaskey v. State, 540 N.E.2d 41 (Ind.1989) ; State v. Hanson, 136 Wis.2d 195, 401 N.W.2d 771 (1987) ; Lodowski v. State, 307 Md. 233, 513 A.2d 299 (1986). We determine today whether the New Hampshire Constitution requires law enforcement officers undertaking the custodial interrogation of a suspect to inform the suspect that an attorney retained on his or her behalf is attempting to contact the defendant.

"The New Hampshire Constitution guarantees a criminal defendant protection from involuntary self-incrimination." State v. Benoit, 126 N.H. 6, 14, 490 A.2d 295 (1985) ; see N.H. CONST. pt. I, art. 15. While neither the Federal nor the New Hampshire Constitutions "require any specific code of procedures for protecting the privilege against self-incrimination during custodial interrogation," Miranda, 384 U.S. at 490, 86 S.Ct. 1602, both the United States Supreme Court and this court have developed rules for safeguarding the rights that guarantee the defendant certain procedural protections. Thus, when a person is taken into custody or deprived of his freedom in any significant way, and prior to interrogating him, the police must tell him that he has a right to remain silent, that anything he says can and will be used against him, and that he has a right to counsel. Id. at 467–72, 86 S.Ct. 1602; State v. Munson, 126 N.H. 191, 193, 489 A.2d 646 (1985). If the person asserts any of these rights, all questioning must cease. Miranda, 384 U.S. at 474, 86 S.Ct. 1602; Munson, 126 N.H. at 193, 489 A.2d 646. While these so-called Miranda warnings are "not themselves rights protected by the Constitution," ...