State v. Burris
| Decision Date | 18 May 2017 |
| Docket Number | NO. 218-2016-CR-1278,218-2016-CR-1278 |
| Parties | STATE OF NEW HAMPSHIRE v. DAVID BURRIS |
| Court | New Hampshire Superior Court |
Rockingham Superior Court
Case Name: State v. David Burris
Enclosed please find a copy of the court's order of May 18, 2017 relative to:
The defendant, David Burris, is charged with three counts of felony Reckless Conduct. The State alleges that he committed Reckless Conduct when, during a home visit of an individual he was supervising as a probation officer, the defendant discharged his firearm three times at a motor vehicle operated by the probationer. The defendant moves to dismiss, arguing that he is entitled to transactional immunity for these charges under Part I, Article 15 of the New Hampshire Constitution. The defendant asserts he was compelled to make statements during an internal investigation of the incident by his employer, the Department of Correction ("the DOC"). Alternatively, the defendant requests a hearing pursuant to Kastigar v. United States, 406 U.S. 441 (1972), at which the State would be required to prove that its case is entirely independent of the compelled statement. The State objects on both grounds. The Court heard oral argument on April 10, 2017. For the reasons explained below, the defendant's motion to dismiss is DENIED. The Court will, however, permit the defendant to pursue an interlocutory appeal on this issue. Accordingly, the Court will sign a properly filed interlocutory appeal statement consist with the terms of this order. See Sup. Ct. R. 8.
The following facts are taken from the defendant's motion to dismiss unless otherwise noted. At all relevant times, the defendant was employed by the DOC as a probation and parole officer. See Mot. Dismiss ¶ 3. The incident giving rise to the Reckless Conduct charges in this case occurred on December 1, 2015, while the defendant was conducting a home visit of a probationer in Raymond. See Obj. to Def.'s Mot. Dismiss Ex. 3, ¶¶ 4-5. Shortly after the incident, the DOC initiated an internal investigation. See Mot. Dismiss ¶¶ 4-6.
On December 4, 2015, the DOC "ordered [the defendant] under threat of termination to provide a written statement regarding the events [of December 1, 2015]." Id. ¶ 6. The defendant "complied with that order and provided a written report." In doing so, he asserted his right against self-incrimination under both the Fifth Amendment to the United States Constitution and Part I, Article 15 of the New Hampshire Constitution. Id. Specifically, page 2 of his "Incident Report" states:
Id. Ex. A (emphases added); accord id. ¶ 6.1
On January 14, 2016, the DOC ordered the defendant "to submit to an interrogation by [DOC] Director Forbes regarding the events [of December 1, 2015]." Id. ¶ 7. The defendant asserted his right against self-incrimination under the State and Federal Constitutions in the same manner as he did in his written report. See id. "[T]he parties agreed that the interview would be conducted subject to [the defendant's] assertion of the exact same rights he asserted prior to providing his December 4, 2015 written statement." Id.; accord id. Ex. B. The defendant then answered Director Forbes' questions about the December 1, 2015 incident. See id. ¶¶ 5, 7.
Director Forbes authored a report ("the Forbes Report") about the internal investigation and submitted this report to the Commissioner of Corrections on February 4, 2016. See id. ¶ 8. The Forbes Report "quoted and directly relied upon" statements the defendant made in his December 4th written statement and during his January 14th interview. Id. The Forbes Report also included a copy of the defendant's December 4th written statement. Id.
In May 2016, the Rockingham County Attorney's Office referred the December 1, 2015 incident involving the defendant to the Strafford County Attorney's Office (hereafter "the SCAO" or "the State") "for review of possible criminal charges." Obj. to Def.'s Mot. Dismiss ¶ 3; see also id. Ex. 3, ¶ 5. The defendant was indicted on three counts of felony Reckless Conduct in October 2016.
In his motion to dismiss, the defendant asserts that, prior to indicting the defendant, the SCAO obtained a copy of the Forbes Report, and its chief investigator, William Irving, also spoke with Director Forbes about the internal investigation. See Mot. Dismiss ¶¶ 9-10. The State counters that it obtained a redacted copy of the DOC's internal investigation, which the Court assumes is synonymous with the Forbes Report, in response to a grand jury subpoena in June 2016. See Obj. to Def.'s Mot. Dismiss ¶¶ 4-5. The cover letter accompanying the redacted report explains that because the defendant "assert[ed] his Garrity rights as to his incident report and interview," the Attorney General's Office "redacted all reference to information he was required to report to his employer, [the DOC]."2 Id. Ex. 1. The State has also provided this Court with a statement from Irving explaining that he "reviewed the reports and the evidence gathered by the Raymond Police Department" in relation to the December 1, 2015 incident. Id. Ex. 3, ¶ 6. While the State concedes that Irving "had discussions with members of the [DOC] in an effort to conduct further investigation," the State avers that Irving did not "learn of any information provided by the defendant [during the internal investigation]." Obj. to Def.'s Mot. Dismiss ¶ 7. The State further avers that no one from the SCAO has "seen or been provided with any information offered by thedefendant as a result of any interview[] he was compelled to provide." Id. ¶ 8. As such, the State asserts that its case is entirely independent of the defendant's statements.
The Court will first address the defendant's claim that he is entitled to transactional immunity under Part I, Article 15 of the New Hampshire Constitution. He asserts that the right against self-incrimination under the State Constitution is broader than the right provided by the Fifth Amendment to the United States Constitution. See Mot. Dismiss 6-7. This Court addressed the very same issue in State v. Richardson, Rock. Cty. Super. Ct., No. 218-2014-CR-00461, 2014 WL 7009287 (Dec. 2, 2014) (Delker, J.) [hereinafter "Richardson Order"]. In Richardson, the Court concluded:
After considering the text, the evolving treatment of immunity statutes by state and federal courts, and other relevant policies and interests, the Court concludes that use and derivative use immunity, along with the procedural safeguards set forth in Kastigar, is sufficient to protect the defendant's right against self-incrimination under Part I, Article 15 of the State Constitution. SeeKastigar, 406 U.S. at 461-62. The defendant will not receive complete amnesty from prosecution simply because he testified to an investigator as part of an administrative investigation of his conduct. Rather, pursuant to Garrity and Kastigar, he is afforded use and derivative use immunity for those statements.
Richardson Order at 24-25, 2014 WL 7009287, at *11 (footnote omitted).3
The defendant urges the Court to reconsider its conclusion in Richardson. More specifically, the defendant asserts that this Court incorrectly classified as dicta the New Hampshire Supreme Court's discussion of transactional immunity in Nowell. See Mot. Dismiss 11-13. The defendant argues that Nowell is controlling precedent on the issue of whether Part I, Article 15 requires transactional immunity, as opposed to other types of immunity, when a public employer compels a statement from its employee underthreat of termination. See id. According to the defendant, Nowell forecloses the analysis undertaken by the Court in Richardson and requires dismissal of the charges.
For the reasons explained below, the Court rejects the defendant's invitation to revise the conclusion it reached in Richardson. The Court does, however, clarify and expand upon its rationale for treating Nowell as dicta and for declining to adopt Massachusetts' approach...
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