State v. Barnett
| Decision Date | 21 December 2001 |
| Docket Number | No. 2000–060.,2000–060. |
| Citation | 147 N.H. 334,789 A.2d 629 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire, v. Herbert BARNETT. |
Philip T. McLaughlin, attorney general (Stephen D. Fuller, attorney, on the brief and orally), for the State.
Risa Evans, assistant appellate defender, of Concord, by brief and orally, for the defendant.
The defendant, Herbert Barnett, appeals his convictions in Superior Court (Hollman , J.) on one count of felonious sexual assault, see RSA 632–A:3 (Supp.2000), and one count of sexual assault, see RSA 632–A:4 (1996). We reverse and remand.
The record establishes the following facts. On February 5, 1999, the Nashua police received reports that the defendant had sexually assaulted two juvenile females, ages thirteen and twelve. Contacted by an intermediary, the defendant voluntarily went to the police station at approximately 6:35 p.m. After a few minutes of general conversation, Detective Brooke Lemoine advised the defendant of his Miranda rights, see Miranda v. Arizona , 384 U.S. 436, 444–45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but made it clear that he was not under arrest. The defendant executed a valid waiver of his Miranda rights at 7:03 p.m.
The defendant initially denied molesting either of the girls. After approximately forty-five minutes of questioning, the defendant admitted that he had purposefully fondled the breast of the twelve-year-old female. The defendant also admitted to purposefully rubbing the clothing covering the genitalia of the thirteen-year-old female. At the request of Detective Lemoine, the defendant agreed to repeat his admissions so they could be recorded on audiotape. The taped interview began at 8:25 p.m. During the taped interview, the defendant repeated his confession. The audio taped statement concluded at 8:45 p.m. After giving his statement, the defendant was placed under arrest.
On appeal, the defendant argues that the trial court erroneously admitted the tape recording of his confession because his prior exculpatory statements were not also recorded. The defendant contends that the selective recording of his statements violated his due process rights under the State and Federal Constitutions. The defendant also argues that the trial court misinterpreted RSA 632–A:1, IV (1996) (amended 1999), which defines "sexual contact."
We analyze the defendant's constitutional claims first under the New Hampshire Constitution, referencing decisions of the United States Supreme Court and other jurisdictions only for the purpose of aiding our State constitutional analysis. See State v. Cannuli , 143 N.H. 149, 151, 722 A.2d 450 (1998). Because Part I, Article 15 of the New Hampshire Constitution is at least as protective of the defendant's rights as the Due Process Clause of the Fourteenth Amendment, cf . Knowles v. Warden, N.H. State Prison , 140 N.H. 387, 389, 666 A.2d 972 (1995), and as the Sixth Amendment, see State v. Settle , 132 N.H. 626, 630, 570 A.2d 895 (1990), we do not engage in a separate federal analysis. See State v. Ball , 124 N.H. 226, 232, 471 A.2d 347 (1983).
The defendant sought to suppress his recorded statement, in part, because the police recorded only his inculpatory statements. He argues that the selective recording of his interrogation was fundamentally unfair, infringing upon his due process rights. The standard for determining whether a law or procedure violates due process is whether it is fundamentally fair. See Opinion of the Justices , 131 N.H. 583, 586, 557 A.2d 1355 (1989). "A fundamentally unfair adjudicatory procedure is one, for example, that gives a party a significant advantage or places a party in a position of prejudice or allows a party to reap the benefit of his own behavior in placing his opponent at an unmerited and misleading disadvantage." State v. Winslow , 140 N.H. 319, 321, 666 A.2d 946 (1995).
The interrogation of the defendant conducted by Detective Lemoine lasted approximately one hour and forty-two minutes. Of that, only the last twenty minutes of the interrogation, precisely when the defendant inculpated himself, were recorded. The defendant contends that the inculpatory recording was out of context and not consistent with the remainder of the interrogation and therefore misleading. The defendant argues that he was confronted with the State's best evidence, a recorded confession, and placed at an unmerited and misleading disadvantage, only able to offer testimonial evidence of his exculpatory statements.
Only one state supreme court has held, independent of a legislative directive, that the due process clause of its state constitution requires custodial interrogations be electronically recorded. In Stephan v. State , 711 P.2d 1156, 1159–60 (Alaska 1985), the Alaska Supreme Court held that an unexcused failure to record a custodial interrogation conducted in a place of detention violated a suspect's right to due process under the Alaska Constitution, rendering any statement subsequently obtained inadmissible. The Alaska Supreme Court elevated the taping requirement to a constitutional right, however, only after law enforcement officials failed to follow the rule it had established five years earlier. See id . at 1159; see also Mallott v. State , 608 P.2d 737, 743 n. 5 (Alaska 1980). In fact, since 1985, no state supreme court, absent legislative direction, has held that due process requires custodial interrogations be recorded. See , e .g ., State v. Buzzell , 617 A.2d 1016, 1018 (Me.1992). Consistent with the overwhelming majority of States that have addressed this issue, we hold that due process does not require the recording of custodial interrogations.
In rejecting Stephan , however, we have yet to resolve the inequities inherent in selectively recording custodial interrogations. For guidance we look to Minnesota v. Scales , 518 N.W.2d 587 (Minn.1994), in which the Supreme Court of Minnesota declined to find under the Minnesota Constitution that a criminal suspect has a due process right to have his or her custodial interrogation recorded. Id . at 592. Instead, the court exercised its "supervisory power to insure the fair administration of justice" by requiring that all custodial interrogations be recorded, "including any information about rights" and "any waiver of those rights." Id . The court predicated the suppression of all statements made during custodial interrogation upon a case-by-case determination that the violation of the recording requirement was "substantial." Id . We too elect to exercise supervisory jurisdiction over our trial courts to ensure the fair administration of justice. See Hopps v. State Bd. of Parole , 127 N.H. 133, 140, 500 A.2d 355 (1985) ; RSA 490:4 (1997).
Today we steer a narrow course between Alaska and Minnesota. In establishing a recording rule, we are mindful of the benefits provided by the clear and definite rule of suppression utilized in Stephan . Conversely, like the Scales court, we believe that a recording rule is more properly founded upon our supervisory jurisdiction. We believe both Stephan and Scales , however, by excluding all statements made during unrecorded custodial interrogations (absent certain narrow exceptions), go too far. Our primary motive in establishing a recording rule is to ensure the fair and equitable presentation of evidence at trial. "A recording speaks for itself literally on questions concerning what was said and in what manner." Com. v. Diaz , 422 Mass. 269, 661 N.E.2d 1326, 1328–29 (1996). Listening to a defendant be inculpated by his or her own voice has a persuasive power unrivaled by contradictory testimonial evidence.
To avoid the inequity inherent in admitting into evidence the selective recording of a post-Miranda interrogation, we establish the following rule: In order to admit into evidence the taped recording of an interrogation, which occurs after Miranda rights are given, the recording must be complete. The police need not tape the administration of a defendant's Miranda rights or the defendant's subsequent waiver of those rights. However, immediately following the valid waiver of a defendant's Miranda rights, a tape recorded interrogation will not be admitted into evidence unless the statement is recorded in its entirety. Unlike Stephan and Scales , failure to record the complete interrogation will not result in the wholesale exclusion of the interrogation. See Stephan , 711 P.2d at 1163; see also Scales , 518 N.W.2d at 592. Rather, where the incomplete recording of an interrogation results in the exclusion of the tape recording itself, evidence gathered during the interrogation may still be admitted in alternative forms, subject to the usual rules of evidence. In light of our ruling, admission of the incomplete recording of the defendant's interrogation is not permissible. Therefore, the defendant's...
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