State v. Burgess, No. 2006-871.

CourtSupreme Court of New Hampshire
Writing for the CourtDuggan
Citation943 A.2d 727
PartiesThe STATE of New Hampshire v. John BURGESS.
Decision Date26 February 2008
Docket NumberNo. 2006-871.
943 A.2d 727
The STATE of New Hampshire
v.
John BURGESS.
No. 2006-871.
Supreme Court of New Hampshire.
Argued: November 13, 2007.
Opinion Issued: February 26, 2008.

[943 A.2d 728]

Kelly A. Ayotte, attorney general (Esther B. Piszczek, assistant attorney general, on the brief and orally), for the State.

Theodore Lothstein, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

DUGGAN, J.


The defendant, John Burgess, was convicted by a jury of attempted escape, see RSA 629:1 (2007); RSA 642:6 (2007), and possessing an implement for escape, see RSA 642:7 (2007). The Superior Court (Lewis, J.) sentenced him to ten to thirty years in prison on each indictment, to be served concurrent with each other and consecutive to sentences the defendant already was serving. On appeal, the defendant argues that the trial court violated his privilege against self-incrimination under Part I, Article 15 of the New Hampshire Constitution by using his silence as a factor in sentencing. We affirm.

I

The following facts were adduced at trial and sentencing. Between October 25 and October 27, 2004, the defendant appeared in Merrimack County Superior Court for a judicial proceeding. At the time, the defendant was serving sentences for burglary and accomplice to theft. Each morning of the proceeding, Lieutenant Leo Degreenia of the Merrimack County Sheriff's Department placed a leg brace on the defendant while he was in the holding cell in the basement of the courthouse. The leg brace contained a locking mechanism that prevented the defendant's knee joint from bending, which required the defendant to walk stiff-legged. While sitting, however, the defendant could unlock the brace by pulling a lever, thus allowing his knee to bend. The purpose of the brace was to prevent the defendant from running.

On October 27, 2004, Deputy Sheriff James Moran escorted the defendant from the holding cell to the courtroom. At the end of the proceeding, pursuant to normal practice, the trial court ordered that the defendant be returned to the holding cell. Around this time, Deputy Sheriff Wayne Robie noticed the defendant "[l]ooking at the different entrances and exits and the window areas in the courtroom, seeing where each bailiff was positioned...." Moran approached the defendant to escort him back to the holding cell. When the defendant finished speaking with his attorney, Moran directed the defendant to face the front of the courtroom and place his hands behind his back so that he could

943 A.2d 729

handcuff him. The defendant placed his right hand behind his back, and as Moran attempted to handcuff him, the defendant "turned toward the right and bolted towards the doors." Moran and another deputy sheriff yelled for the defendant to stop. Before he reached the exit door, the defendant ran into Deputy Sheriff Robert Croteau, who was stationed at the exit. Both individuals were forced through the doors into the small hallway between the inner and outer doors to the courtroom. Croteau then tackled the defendant. The defendant continued to resist until several other court officers arrived to subdue him. The defendant was handcuffed and taken to the holding cell.

Later, when Deputy Sheriff Dennis Crawford unlocked the brace to remove it, he observed part of a shoelace tied around the leg strap. The shoelace was holding the locking pin up such that the lock would not work properly while standing. As a result, the defendant could bend his knee and run in a normal fashion. The lace had been cut from one of the defendant's shoes.

During a subsequent interview, Lieutenant Robert Krieger of the Merrimack County Sheriff's Department asked the defendant where he had obtained the lace used to disable the lock. The defendant responded: "You know where I got the shoelace from. You have my shoes." Krieger testified that, when he asked the defendant how he thought he would get out of the courthouse, the defendant "said it wasn't a very well thought out plan and laughed...."

At trial, the defendant admitted that he had used a paper clip that he found on the floor of the holding cell to cut his shoelace, which he then used to keep the brace's lock open. He testified that he disabled the lock on all three days of the proceeding, not with the intent to escape, but to prevent the brace from "pinching" him. The defendant further testified that when he turned away from Moran, he did not intend to escape, but was trying "to get out of being grabbed by a number of people." He was "upset," "nervous," and "[s]omewhat afraid" because he felt that a number of court officers were "moving very aggressively towards" him. Thus, when Moran reached for his arm, he "panicked a little bit" and "lunged toward the door."

With respect to his interview with Krieger, the defendant admitted to informing Krieger that he had used a lace from his shoe to disable the brace's lock. However, he did not "think" that he "said it wasn't a very well thought out plan." Instead, the defendant testified that he "said that was not my plan or [he] didn't have a plan to do that."

The jury found the defendant guilty of attempted escape and possessing an implement for escape. Prior to sentencing, the defendant refused to speak to the person conducting the presentence investigation (PSI). See generally RSA 651:4 (2007). At the sentencing hearing, the State requested the maximum extended term sentence of ten to thirty years, consecutive to the sentences the defendant already was serving. See RSA 651:6 (2007). The State based this request upon: (1) the defendant's character; (2) prior criminal history, which included, among other convictions, three prior convictions for escape; (3) the nature and circumstances of the offenses; and (4) potential for deterrence and rehabilitation. Defense counsel asked the trial court for leniency, contending, in relevant part:

Unfortunately, Mr. Burgess, as he sits before you, is a man without hope, without a future and without a family and I ... would ask the Court for a little mercy in this case because I don't think

943 A.2d 730

it's likely that given his current situation that Mr. Burgess is ever going to walk out of prison as a young man, a healthy man and a free man.... I think this was an impulsive and irrational act. I don't think — see how any individual could have expected to escape from a courtroom with six guards nearby.

The defendant did not address the court during the hearing.

The trial court imposed the maximum extended term sentence. In support of this sentence, the court stated, in pertinent part:

I very carefully considered this matter, given it a good deal of thought, read the Pre-Sentence report, listened to arguments of counsel, considered the defendant's situation and have concluded that I'm going to go along with the State's position in this matter. There isn't any real basis for mercy as asked for by defense counsel in this case. We have a defendant who has an extended record, has simply not accepted over the years in any constructive way his situation, made matters deliberately worse for himself time and time again. The tragedy involved here is entirely attributable to Mr. Burgess' actions. He has not cooperated in terms of the Pre-Sentence report in terms of telling any — or talking to me as he's had opportunities to do about his situation. The record is a fairly deplorable one and at the same time the kind of crimes we're talking about, the attempted escape and the implements of escape go to the very integrity and safety of the personnel that are involved with law enforcement and the judicial process and there needs to be a very stern message sent out that this is simply not going to be tolerated at all.

To the degree that any of this had to do with impulsivity on the part of Mr. Burgess, Mr. Burgess in my mind clearly knew what he was doing, has done this a number of times in the past and could very well have much more seriously injured the people involved, let alone the injury to the process itself.

(Emphasis added.)

The defendant subsequently moved to vacate the sentence. Relying upon Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999), the defendant argued that the trial court violated his privilege against self-incrimination under both the New Hampshire and United States Constitutions by considering his failure to participate in the PSI and his silence at the sentencing hearing. The State responded that, despite "any alleged consideration that may have been given to the defendant's silence prior to, or during, the sentencing hearing," the trial court considered several other aggravating factors that supported the sentence. To alleviate any uncertainty on the issue, the State asked the trial court to clarify whether it "considered the defendant's silence at the sentencing hearing or his lack of participation in the pre-sentence investigation as factors in his sentencing."

In a written order, the trial court explained its decision:

[T]he Court did not consider the defendant's silence or his lack of involvement in the Pre-sentence Report preparation process in a manner proscribed by Mitchell or other pertinent authorities. As the sentencing hearing transcript reflects ..., the Court considered the defendant's silence at the sentencing hearing and his declination to participate in the pre-sentence investigation process in the context of dealing with the plea by his counsel for leniency or mercy, and in assessing the degree, if at all, the defendant had any rehabilitation potential, or ability to alter his undisputed long history of disturbing criminal activity, both in

943 A.2d 731

and out of prison, including three (3) prior convictions of Escape. The defendant's silence and declination obviously did not result in the Court being presented any evidence from the defendant through these means pertaining to rehabilitation or leniency. The Court did not consider...

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1 practice notes
  • State v. Barnes, SCWC-15-0000909
    • United States
    • Supreme Court of Hawai'i
    • June 6, 2019
    ...the defendant’s potential for rehabilitation, which is an appropriate sentencing consideration." New Hampshire v. Burgess, 156 N.H. 746, 943 A.2d 727, 733 (2008) ; see also Lee v. State, 36 P.3d 1133, 1141 (Wyo. 2001) ("A defendant’s failure to cooperate in the PSI is certainly a valid fact......
1 cases
  • State v. Barnes, SCWC-15-0000909
    • United States
    • Supreme Court of Hawai'i
    • June 6, 2019
    ...the defendant’s potential for rehabilitation, which is an appropriate sentencing consideration." New Hampshire v. Burgess, 156 N.H. 746, 943 A.2d 727, 733 (2008) ; see also Lee v. State, 36 P.3d 1133, 1141 (Wyo. 2001) ("A defendant’s failure to cooperate in the PSI is certainly a valid fact......

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