State v. Carrier, 040720 NHSC, 2018-0575

Docket Nº:2018-0575
Opinion Judge:HANTZ MARCONI, J.
Attorney:Gordon J. MacDonald, attorney general (Sean R. Locke, assistant attorney general, on the brief and orally), for the State. Stephanie Hausman, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
Judge Panel:HICKS, BASSETT, and DONOVAN, JJ., concurred.
Case Date:April 07, 2020
Court:Supreme Court of New Hampshire




No. 2018-0575

Supreme Court of New Hampshire

April 7, 2020

Hillsborough-southern judicial district

Argued: November 6, 2019

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

Stephanie Hausman, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.


The State brings this appeal pursuant to RSA 606:10, II(a), arguing that the Superior Court (Colburn, J.) erred in suppressing two sets of recorded statements made by the defendant, Dominic Carrier. See RSA 606:10, II (2001). The trial court ruled that the defendant was subject to custodial interrogation at the time he gave the first set of statements, and, because he was not given the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), those statements were obtained in violation of his right against self-incrimination. The court suppressed the second set of statements because it found that the State did not prove beyond a reasonable doubt that the defendant gave them voluntarily. We affirm and remand.


The trial court found or the record reflects the following facts. As of November 19, 2017, the defendant, his mother, the alleged victim, and her father lived together in a Nashua apartment. The defendant's mother and the alleged victim's father were engaged to be married. The apartment is located in a multi-unit building with a partially enclosed front porch. At 5:00 a.m. on November 20, the defendant left for work. After he left, the alleged victim (AV), who was thirteen years old at the time, told her father that the defendant had entered her bedroom during the early hours of the morning and touched her genitals while she slept.

AV's father called the police, and Officer Kekejian of the Nashua Police Department arrived at the residence around 7:00 a.m. Kekejian wore a full uniform, with badge and gun visible. AV's father relayed his daughter's allegation to Kekejian, who then contacted additional officers. Kekejian was directed to remain at the residence with AV, her father, and the defendant's mother until the Child Advocacy Center (CAC) could conduct AV's forensic interview later that day.

Kekejian and the family waited in the living room of the apartment. At 9:09 a.m., the defendant returned. He walked through the front door, which entered into the living room, without knocking. Kekejian immediately ordered the defendant to leave, then followed the defendant outside to the front porch and closed the door behind him, leaving the family inside. Kekejian stood in front of the door, preventing the defendant from reentering his home. He told the defendant that the police were "investigating a matter" and that the apartment was "being held as a scene." Kekejian also pat-frisked the defendant. In addition, when the defendant began using his phone, Kekejian took it from him, gave no explanation for why he did so, and never returned it.

Kekejian proceeded to question the defendant about AV's allegations. He asked the defendant "what he had done" that morning and whether he had entered AV's bedroom. He also asked about the defendant's living arrangements at the apartment. Kekejian did not tell the defendant that he could refuse to answer his questions, that he was not under arrest, or that he was free to leave. It was cold and windy that day, but the defendant did not have a coat.

This initial interaction on the porch lasted approximately ten minutes, until Officer Ciszek arrived. Ciszek arrived in a fully marked police cruiser and wore a police uniform. After Ciszek arrived, Kekejian called Detective Hallam. Hallam initially told Kekejian that he would "get in contact with" the defendant at a later time. Kekejian provided the defendant with Hallam's contact information. As Kekejian and the defendant were discussing where the defendant would go in light of the weather and the fact that he would not be allowed to return to the home, Hallam called Kekejian back. Hallam instructed Kekejian to ask the defendant to remain at the residence for an interview. The defendant said he would wait for Hallam; however, the defendant was not told that he was not required to wait for Hallam or that he could refuse to speak with him. Kekejian, Ciszek, and the defendant remained on the front porch until approximately 10:00 a.m., when Hallam arrived with Detective McIver. During that time, Kekejian again questioned the defendant about his whereabouts that morning while also making "small talk" about other topics, such as the defendant's employment and cars. There is no evidence that either Kekejian or Ciszek left the porch during the time that the three men waited for Hallam and McIver.

Hallam subsequently arrived with McIver in an unmarked police car, a Chevrolet Impala, and parked across the street from the apartment. The Impala had government license plates and a police radio, but was otherwise similar to a non-police vehicle. Hallam and McIver wore dress shirts and dress pants, but their badges and guns were visible. Upon their arrival, Hallam and McIver walked to the front porch and asked the defendant to speak with them in their car. The detectives accompanied the defendant to the car and all three got inside, closing the doors behind them. Hallam sat in the driver's seat, McIver sat in back, and the defendant sat in the front passenger's seat.

Hallam turned on an audio recording device shortly after entering the car. The defendant stated he was "fine" with Hallam doing so. Hallam asked the defendant if he was "giving a statement voluntarily" and stated that he didn't want the defendant to feel "forced" to speak with him. Hallam also demonstrated to the defendant that the doors to the car were not locked and said that he should "feel free" to leave. However, the defendant and Hallam were talking over each other when Hallam made all of these statements.

The detectives began questioning the defendant about AV's allegations. The defendant denied that he had ever left his bedroom the previous night. However, over the course of the approximately one-hour interrogation, the detectives repeatedly accused the defendant of lying and of being "deceptive." They told the defendant that they were not interested in hearing the defendant's denials and that all they wanted to hear from the defendant were explanations for his conduct. The detectives told the defendant that they "wouldn't be here" investigating AV's allegations if they were not true, that AV had no reason to lie, and that they believed the defendant had touched AV's vagina. Despite the nature of the detectives' accusations, the trial court found that the overall tone of the interrogation was generally polite.1

As the interrogation inside the Impala progressed and the detectives repeatedly accused the defendant of lying and of sexually assaulting AV, the defendant made incriminating statements. The doors to the car remained closed throughout this encounter. Kekejian and Ciszek were within viewing distance the entire time. The defendant was not given or offered a break at any point.

After the interrogation concluded, the defendant apparently used Hallam's phone to call his father. The defendant arranged for his father to pick him up at a nearby convenience store. The defendant told the detectives he would be staying with his father and gave them his father's address. The detectives then drove the defendant to the convenience store.

After AV's CAC interview later that day, a warrant was issued for the defendant's arrest. Hallam arrested the defendant at his father's home at 8:20 p.m., and the defendant was brought to the Nashua police station. Hallam approached the defendant in the booking area around 10:00 p.m. and asked the defendant to speak with him. The defendant agreed and was brought upstairs to an interview room. Hallam read the defendant his Miranda rights, and the defendant said he would waive them. Less than twenty seconds after giving the defendant Miranda warnings, however, Hallam invoked the defendant's statements in the Impala that morning, telling the defendant that there were "inconsistencies" in his first set of statements and that this time he wanted to "skip all that B.S. that we were doing out there." Hallam continued to bring up the defendant's first set of statements throughout this second interrogation; the defendant made additional incriminating statements.

The defendant was charged with one count of aggravated felonious sexual assault (AFSA). See RSA 632-A:2 (2016) (amended 2017, 2018). He moved to suppress the recorded statements he made inside the Impala as well as his subsequent recorded statements at the police station. The trial court held a hearing, at which it heard testimony from Kekejian and Hallam. The recorded statements themselves, as well as transcripts of each set of statements, were submitted to the trial court by agreement. As to the Impala statements, the court ruled that the defendant was in "custody" for Miranda purposes when, approximately sixteen minutes into the recording, Detective Hallam repeatedly accused him of lying. As to the statements at the police station, the court found that the State failed to meet its burden of proving beyond a reasonable doubt that the defendant gave those statements voluntarily. Accordingly, the court granted the defendant's motion. The State filed a motion to reconsider, to which the defendant objected. The court denied the State's motion, and this appeal followed.


We begin with the Miranda issue. The State argues that the defendant was not in custody at any point before he was formally arrested at his father's home; thus he was not entitled...

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