State v. Bruneau, 85-131

• Decision Date: 09 December 1988
• Docket Number: No. 85-131,85-131
• Citation: 131 N.H. 104,552 A.2d 585
• Parties: The STATE of New Hampshire v. Robert BRUNEAU.
• Court: New Hampshire Supreme Court

Page 585

552 A.2d 585

131 N.H. 104

The STATE of New Hampshire v. Robert BRUNEAU.

No. 85-131.

Supreme Court of New Hampshire.

Dec. 9, 1988.

Stephen E. Merrill, Atty. Gen. (Brian T. Tucker, Associate Atty. Gen., on the brief and orally), for the State.

James E. Duggan, Chief Appellate Defender, Concord, on the brief and orally, for defendant.

SOUTER, Justice.

The defendant stands convicted of first degree murder, RSA 630:1-a, I(a), and appeals on four assignments of trial and post-trial error by the Superior Court (Cann, J.): (a) in admitting the defendant's inculpatory statements to an informer, over the objection that receipt of the informer's testimony violated State and federal rights to counsel; (b) in ruling that other statements of the defendant, concededly obtained in derogation of State and federal rights to counsel, could be used to impeach him if he took the stand; (c) in refusing to give proffered jury instructions on the significance of flight by an individual who the defendant claimed had committed the murder; and (d) in refusing to authorize public funds for a post-conviction deposition of that same individual. We affirm.

On March 8, 1984, the defendant, Robert Bruneau, went to the house of one Baranski, in Manchester, where he met two associates, Asselin and Mathieu, with whom he planned to travel to Florida. The defendant asked the others to postpone their departure by one day, to give him time to speak with his estranged wife, Emma Waters, before he left. The defendant was then under indictment in Maine for kidnapping Waters, and he had previously boasted that he would kill her unless she desisted from her intention to testify against him. On the afternoon of March 9, the three men drove to Concord where, at length, Asselin and Mathieu observed the defendant approach Waters in a New Hampshire Hospital parking lot and thereafter drive out of the lot in a car with a woman. Asselin and Mathieu then left for Florida without the defendant.

Early that evening, the defendant walked to a house on the outskirts of Concord, from which he called Baranski. Baranski drove to Concord to pick the defendant up, and on the way back to Baranski's house the defendant said, "I just got done killing my wife. I only shot her in the head once." He then took out a handgun and replaced an empty shell with a live round. At Baranski's house, the defendant retrieved his own car and left for Florida in pursuit of Asselin and Mathieu. That same evening Waters's car was seen parked about a half mile from the house at which the defendant had made his call, and the following morning her body was found beside the car, with a single gunshot wound in the head.

Later on March 10, the defendant ran into Asselin and Mathieu in a rest area in North or South Carolina. They noticed he was carrying a gun under his belt, and he told them he had killed his wife. Although the defendant wished to join the other two at that point, they persuaded him to plan a rendezvous at a spot further south. Asselin and Mathieu failed to stop there, however, but drove straight to Daytona, Florida.

Soon after they arrived, they were again reminded of the defendant's persistence in seeking their company, when a police officer stopped them as they were about to enter their van and told them that a friend of theirs named Bob had asked the police to tell them he was waiting at the Salvation Army building. Instead of going there, however, Asselin and Mathieu made calls to Baranski and to the police in Concord, New Hampshire, to find out whether Waters had, in fact, been killed. When they found she had been, they told what they knew about the killing to the Daytona police, who relayed the information to Concord.

Baranski, too, spoke with the authorities after verifying that Waters had been killed as the defendant had said. He first called the State police, who passed his inquiry on to the Concord Police Department. Investigators from Concord then called on Baranski and took his statement.

In due course, the defendant was charged with homicide and arrested, and while in custody awaiting return to New Hampshire he made several telephone calls to Baranski. On March 11, during an interview with Concord police, Baranski told them the defendant had called and would probably call him collect again. When he asked what he should do, the police told him the expense of any long distance collect calls would be his and that he should accept or refuse them as he saw fit. Baranski told the police he would accept the calls, and thereafter informed them that the defendant had asked him if he knew anyone who "could take care of" Asselin and Mathieu, the former of whom the defendant had said he intended to blame for the murder.

As soon as the defendant had been returned to New Hampshire, members of the Concord Police Department spoke with him at the county jail where he was awaiting trial. The defendant's lawyer was not present, and the police elicited no constitutionally adequate waiver of the defendant's right to the presence of counsel before he agreed to speak with them. He did not confess to the murder, however, but purported to admit that he had merely assaulted his late wife. The trial court suppressed the use of this statement in the State's direct case, and although the court ruled further that it could be used for impeachment, the defendant never took the stand, and the statement was never introduced.

Nor did Mathieu ever take the stand, for neither side could locate him in time. When Mathieu was arrested after the trial was over, the defendant sought but was denied public funds to pay for deposing him as a material witness. We consolidated the defendant's appeal from this denial with the issues raised in his appeal from the murder conviction, to which we now turn.

The defendant argues, first, that Baranski's testimony repeating incriminating statements made by the defendant in the course of telephone calls from Florida was received into evidence in derogation of the defendant's State and federal rights to the assistance of counsel. See N.H. CONST. pt. I, art. 15; U.S. CONST. amends. VI and XIV. We begin with the State claim. See State v. Ball, 124 N.H. 226, 232, 471 A.2d 347, 351 (1983).

There is no dispute that the defendant's article 15 right to the assistance of counsel had attached by virtue of the commencement of formal criminal proceedings, cf. State v. Scarborough, 124 N.H. 363, 367, 470 A.2d 909, 912 (1983). The State does not contest the proposition that the defendant was thereafter entitled to the assistance of counsel during any interrogation, in the admitted absence of any waiver of that right, see State v. Elbert, 125 N.H. 1, 9, 480 A.2d 854, 858 (1984). Nor does the State deny it is forbidden to employ third parties to conduct interrogations that would infringe the article 15 right to counsel if done directly by the police. See State v. Tapply, 124 N.H. 318, 325, 470 A.2d 900, 904 (1983) (right to counsel under State Constitution should be construed liberally).

The point of disagreement occurs, however, at the defendant's assertion that the police in this case did indirectly through Baranski's agency what they concededly could not do directly, that the police used Baranski to gather evidence surreptitiously by circumventing the conceded limitations imposed by article 15 on the interrogation of a defendant whose right to counsel has vested. Specifically, the State denies two propositions: (1) that for purposes of applying article 15, Baranski can be viewed as having acted as the government's agent during his conversations with the defendant; and (2) that Baranski's part in those conversations, if attributed to the State, was interrogation forbidden under article 15 in the absence of counsel or waiver. In dealing with the issues thus raised, we must therefore apply both a concept of agency to determine when an ostensible third party functions as the equivalent of a police officer and a concept of interrogation to identify the activity that implicates article 15 protection.

The definition of the agency relationship is a subject of first impression under the State Constitution, and we approach it with emphasis on the specific context in which it is to be employed. Since the defendant makes no claim that the government is subject to a per se disability to receive evidence obtained from a defendant after the right to counsel has attached, the object of an agency test must be to distinguish between permitted and forbidden processes employed in obtaining the evidence from the defendant. A conclusion that the government has engaged in the process through an agent, and has not merely received evidence already obtained, must therefore require proof of some affirmative action by a police officer or other governmental official that preceded the interrogation and can reasonably be seen to have induced the third party to conduct the interrogation that took place.

Two varieties of governmental action will qualify. Most obviously, the government's prior agreement with a third party that the latter should act to obtain evidence from a defendant will suffice as affirmative act and inducement. Such an agreement may merely authorize or sanction the third party's action, or it may take on the features of a private contract, with an agreed-upon quid pro quo for the third party's efforts or results. It may be expressed with precision on each side, or confirmed by a mere wink or nod. But however formal or informal the agreement may be, there will be some responsive communication between the parties, and the exchange will evince an understanding that the third party will be acting on the government's behalf or for the government's benefit.

Not all prior governmental inducement, however, may fall within the scope of agreements, understood as requiring responsive communication antecedent to third party action. A prior governmental request for help may...