State v. Burris

• Decision Date: 05 June 2018
• Docket Number: No. 2017–0409,2017–0409
• Citation: 187 A.3d 830,170 N.H. 802
• Parties: The STATE of New Hampshire v. David BURRIS
• Court: New Hampshire Supreme Court

170 N.H. 802

187 A.3d 830

The STATE of New Hampshire

v.David BURRIS

No. 2017–0409

Supreme Court of New Hampshire.

Argued: January 25, 2018

Opinion Issued: June 5, 2018

Gordon J. MacDonald, attorney general (Sean R. Locke, assistant attorney general, on the brief and orally), for the State.

Nolan | Perroni, P.C., of North Chelmsford, Massachusetts (Peter J. Perroni on the brief and orally), for the defendant.

LYNN, C.J.

The defendant, David Burris, has been indicted on three counts of felony reckless conduct. See RSA 631:3 (2016). The Superior Court (Delker, J.) denied the defendant's motion to dismiss the charges but approved this interlocutory appeal from ruling. Sup. Ct. R. 8. Because we conclude that the defendant is not entitled to transactional immunity under Part I, Article 15 of the New Hampshire Constitution, we affirm and remand.

The facts as presented in the interlocutory appeal statement are as follows. At the time of the events giving rise to the indictment, the defendant was employed as a probation and parole officer with the New Hampshire Department of Corrections (Department). The indictment alleges that on December 1, 2015, the defendant engaged in reckless conduct when, during a home visit to a probationer he was supervising, he discharged a firearm three times at a motor vehicle operated by the probationer.

The Department investigated the incident. According to the defendant, as part of that investigation he was ordered, on at least two occasions, "under threat of immediate termination to provide a written statement regarding the events [that later gave] rise to the indictment." Before providing a written statement, and again prior to submitting to an interrogation by the director of the Department, the defendant made the following assertion:

I have been ordered by the NH Department of Corrections to participate in this interview/meeting and/or to provide this statement. I do so at this order as a condition of my employment. Failure for me to abide by this order would lead to immediate severe discipline in the form of automatic dismissal and/or job forfeiture. As such, I have no alternative but to abide by this order. It is my belief and understanding that the Chief and the Department requires [sic ] my participation solely and exclusively for internal purposes and will not release it [sic ] to any other agency. It is my further belief that any statements will not and cannot be used against me in any subsequent criminal proceedings. I authorize release of any statements to my attorney or designated union representative. I retain the right to amend or change this statement upon reflection to correct any unintended mistake without subjecting myself to a charge of untruthfulness. For any and all other purposes, I hereby reserve my constitutional right to remain silent under the Fifth and Fourteenth Amendments to the United States Constitution and Part 1, Article 15 of the New Hampshire Constitution and any other rights prescribed by law. I specifically rely on the [principles] and protections afforded to me by State v. Norwell [sic ], 58 N.H. 314 (1878). Further, I rely upon the protection afforded me under the doctrines set forth in Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) ; Spevack v. Klein, 385 U.S. [511], 87 S.Ct. 625, 17 L.Ed.2d 574 [1967] ; State v. Litvin, 147 NH 606, 794 A.2d 806 (2002) and any other rights afforded under New Hampshire law and/or the New Hampshire Constitution, should this report/statement be used for any other purpose of whatsoever kind or description.

The defendant then provided a compelled statement regarding the events of December 1, 2015. The director subsequently issued an investigative report to the commissioner of the Department that quoted and directly relied upon both the defendant's written statement and his interview.¹

The State avers that the prosecuting entity in this case, the Strafford County Attorney's Office, "was provided with a redacted version of the [investigative report] and other materials from [the] New Hampshire Department of Corrections, that did not reference or include [the defendant's] statement or the fruits therefrom." For purposes of this interlocutory appeal, the defendant accepts the State's representations regarding the materials to which the Strafford County Attorney's Office has had access. In October 2016, the defendant was indicted on three counts of felony reckless conduct.

The defendant moved to dismiss the indictment, arguing that he is entitled to transactional immunity under Part I, Article 15 of the New Hampshire Constitution. He asserted that the State Constitution provides broader protection against self-incrimination than the Fifth Amendment to the United States Constitution and that, pursuant to State v. Nowell, 58 N.H. 314 (1878), only transactional immunity is sufficient to protect the privilege against self-incrimination provided by the State Constitution. The trial court denied the defendant's motion.

The question transferred for our review is: "Whether Article 15 of the New Hampshire Constitution, as construed by [this court] in State v. Nowell, 58 N.H. 314 (1878), requires a public employee be given transactional immunity when he is compelled to furnish statements against himself by his public employer?" The protection afforded by Part I, Article 15 in this context is strictly a question of law, and thus our review of the trial court's ruling is de novo. State v. Roache, 148 N.H. 45, 46–47, 803 A.2d 572 (2002) ; see Petition of State of N.H. (State v. Johanson), 156 N.H. 148, 151, 932 A.2d 848 (2007).

Part I, Article 15 of the State Constitution provides in part that "[n]o subject shall be ... compelled to accuse or furnish evidence against himself." N.H. CONST. pt. I, art. 15. This privilege against self-incrimination permits an individual "to refuse to testify against himself at a criminal trial in which he is a defendant, [and] also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Knowles v. Warden, N.H. State Prison, 140 N.H. 387, 391, 666 A.2d 972 (1995) (quotation omitted). The purpose of the right is to prevent the compulsion and subsequent use of the defendant's testimony to establish his guilt in a criminal case. See State v. Marchand, 164 N.H. 26, 32, 48 A.3d 856 (2012).

The defendant argues that Part I, Article 15 "requires that a public employee be afforded transactional immunity to displace the right to be free from providing compelled statements against one's self," and that "[b]ecause full transactional immunity ... is the price the State must pay for compelling his testimony, the indictment[s] must be dismissed." The defendant further contends that the trial court erroneously determined that the holding in Nowell is dicta. In addition, he asserts that even if we determine that transactional immunity is not necessary to displace his right to remain silent, he was entitled to rely upon this court's longstanding precedent.

There are generally two types of immunity that prosecutorial authorities offer in exchange for compelled testimony. "Transactional immunity," the broadest form of immunity, affords "immunity from prosecution for offenses to which compelled testimony relates." Kastigar v. United States, 406 U.S. 441, 443, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). "Use and derivative use immunity" affords "immunity from the use of compelled testimony and evidence derived therefrom." Id. Unlike transactional immunity, a grant of use and derivative use immunity does not prevent future prosecution. See id. at 452–53, 92 S.Ct. 1653. Both types of immunity are typically creatures of statute. See id. at 442–43, 92 S.Ct. 1653 (constitutional challenge to a federal immunity statute conferring use and derivative use immunity); Counselman v. Hitchcock, 142 U.S. 547, 560, 12 S.Ct. 195, 35 L.Ed. 1110 (1892) (constitutional challenge to a federal immunity statute conferring transactional immunity). But see State v. Belanger, 146 N.M. 357, 210 P.3d 783, 787, 788 (2009) (explaining that, in New Mexico, while transactional immunity is a "legislative prerogative because it amounts to a decision by the people to exclude an entire class of individuals from application of the state's criminal laws," use immunity, which "serves to establish an evidentiary safeguard to protect the right against self-incrimination," is governed by court rule (quotation omitted) ). The United States Supreme Court has held that, under the Federal Constitution, use and derivative use immunity is coextensive with the scope of the Fifth Amendment privilege against compulsory self-incrimination, noting that transactional immunity "affords the witness considerably broader protection than does the Fifth Amendment privilege." Kastigar, 406 U.S. at 453, 92 S.Ct. 1653.

In New Hampshire, prosecutors are authorized, by statute, to grant use and derivative use immunity. See RSA 516:34 (2007); see also State v. Kivlin, 145 N.H. 718, 721, 766 A.2d 274 (2001) (explaining that, pursuant to statute, "the State, with authorization from the attorney general or county attorney, may grant a witness use immunity and request the trial court to order the witness to testify"); State v. Roy, 140 N.H. 478, 480–81, 668 A.2d 41 (1995) (noting that the statute "vests with the State the power to request that a witness, who has asserted his or her privilege against self[-]incrimination, be ordered to testify in exchange for a grant of use immunity where the testimony is necessary to the public interest" (emphasis and quotation omitted) ).

Distinguished from immunity authorized by statute or court rule, the type of immunity at issue in this case is so-called " Garrity immunity," which applies in the public employment context. See Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). Gar...