State v. Carroll, 92-516

• Decision Date: 22 July 1994
• Docket Number: No. 92-516,92-516
• Parties: The STATE of New Hampshire, v. Jason CARROLL.
• Court: New Hampshire Supreme Court

Page 82

645 A.2d 82

138 N.H. 687

The STATE of New Hampshire, v. Jason CARROLL.

No. 92-516.

Supreme Court of New Hampshire.

July 22, 1994.

Jeffrey R. Howard, Atty. Gen. (Tina L. Nadeau, Asst. Atty. Gen., on the brief and orally), for State.

Kinghorn & Maynard, P.A., Nashua (Stephen L. Maynard and Eric R. Wilson on the brief, and Mr. Maynard orally), for defendant.

HORTON, Justice.

The defendant, Jason Carroll, was convicted after two jury trials in Superior Court (Murphy, J.) of second degree murder and conspiracy to commit murder. He appeals, arguing that his confession was involuntary and that the police violated his right to remain silent. We affirm.

The pertinent facts follow. The strangled and stabbed body of Sharon Johnson, then in an advanced stage of pregnancy, was found at a Bedford construction site on the morning of July 29, 1988, and the State Medical Examiner determined that she had been killed the night before. New Hampshire State Police Sergeant Roland Lamy was later assigned to the case and learned from one Tony Pfaff that the victim's husband, Ken Johnson, had solicited Pfaff to move the victim's car shortly after the time of the murder. Investigation into Pfaff's background revealed that the nineteen-year-old defendant worked with Pfaff, and that the defendant had not reported for work on the night of the murder. Lamy first interviewed the defendant on November 24, 1989, at the National Guard Armory. The defendant admitted having been at the murder scene with Pfaff and Johnson but admitted no other involvement in the murder. After completing a written statement to this effect, the defendant indicated he was tired and, agreeing to continue the interview three days later, went home with his parents.

On the morning of November 25, however, the defendant told his parents that he wanted to recant his previous statements to the police. After the defendant unsuccessfully tried to contact Lamy, Karen Carroll, the defendant's mother and a Bedford police officer, called her colleague, Bedford Police Captain Leo Morency, who drove to the Carroll home where he advised the defendant of his Miranda rights. After Morency spoke with Lamy by telephone, the defendant agreed to go to the Bedford police station to continue the interview. The defendant drove himself and his mother to the police station, where, at about 1:30 p.m., he met Lamy and Morency in Morency's office, which measured about 10 feet by 10 feet and had two outside windows. Shortly thereafter, State Police Sergeant Neal Scott joined the interview. After Lamy reminded the defendant that he was "still under Miranda," the defendant denied any knowledge of the murder. In a sometimes raised voice, Lamy repeatedly said he did not believe the defendant. At about 2:45 p.m., the defendant asked to have his mother present. While Lamy went to get the defendant's mother, the defendant told Morency and Scott that his statement of the day before was true, and that he was afraid of Johnson and Pfaff. Lamy later testified at the suppression hearing that before Karen Carroll entered the interview room, he told her that she was entering as the defendant's mother, not as a police officer, and that, although she was not to assist the police in their interrogation, she was free to do anything she wanted as the defendant's mother. Lamy and Scott both testified that Lamy gave a similar instruction in the presence of the defendant.

The interview resumed, and at about 3:20 p.m., Morency activated an audio tape recorder. During the recorded portion of the interview, Karen Carroll began to aggressively question her son. Both she and Lamy used raised voices at times, and several times the defendant began to cry. Morency and Scott testified that it was one of the most emotional and intense interrogations they had ever witnessed. During the taped interview, the defendant admitted, inter alia, that he had agreed with Pfaff to participate in the murder for $2000, that he had helped Pfaff trick the victim into being driven from a mall to the construction site, that he had been the first to stab the victim, that he had helped move the victim's car after the murder, and that his own pocket knife was the murder weapon. At this point, the defendant broke down and, in tears, said, "I just want to go home. I want to go home. I want to go home.... I want to go home." The interview continued for another two minutes, concluding at 3:49 p.m. After the interview, the defendant completed a written statement and a consent search form for the murder weapon. When asked to diagram the murder scene, the defendant said he was too tired. At about 5:30 p.m., after agreeing to complete the diagrams the next day, he went home with his mother. On November 27, the defendant agreed to another interview, during which he admitted that he had been paid $5000 and that he and Pfaff had forced the victim into the car at the mall. That night the defendant was charged with capital murder.

I. Voluntariness of Confession

On appeal, the defendant argues that his November 25 confession was involuntary and admitted in violation of part I, article 15 of the State Constitution and the fifth and fourteenth amendments to the Federal Constitution because it was induced by improper police techniques, including promising leniency, conditioning his protection on confessing, and misleading him that he was not a suspect. Because the State Constitution provides greater protection to a criminal defendant with respect to the voluntariness of confessions than does the Federal Constitution, see State v. Carpentier, 132 N.H. 123, 128, 562 A.2d 181, 184 (1989), we decide this case under the State Constitution with reference to federal cases only to aid our analysis. See State v. Ball, 124 N.H. 226, 232, 471 A.2d 347, 351 (1983).

Whether a statement is voluntary is a question of fact. State v. McDermott, 131 N.H. 495, 500, 554 A.2d 1302, 1305 (1989). The State must prove voluntariness beyond a reasonable doubt, State v. Phinney, 117 N.H. 145, 147, 370 A.2d 1153, 1154 (1977), and a trial court's finding of voluntariness will not be reversed unless it is contrary to the manifest weight of the evidence, McDermott, 131 N.H. at 500, 554 A.2d at 1305. A statement is voluntary only if it is the product of an essentially free and unconstrained choice and thus must be considered involuntary where the defendant's will has been overborne by improper police tactics. State v. Reynolds, 124 N.H. 428, 434, 471 A.2d 1172, 1175 (1984). Although we have said that a confession is involuntary if " 'extracted by any sort of threats or violence, or obtained by any direct or implied promises, however slight, or by the exertion of any improper influence,' " see State v. Copeland, 124 N.H. 90, 92, 467 A.2d 238, 240 (1983) (quoting Bram v. United States, 168 U.S. 532, 542-43, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897)) (brackets omitted), voluntariness is more properly determined by considering the totality of the circumstances. See Carpentier, 132 N.H. at 129, 562 A.2d at 184; see also Arizona v. Fulminante, 499 U.S. 279, 285, 111 S.Ct. 1246, 1251, 113 L.Ed.2d 302 (1991) (explaining that the Bram test for voluntariness is inconsistent with the current totality of circumstances test).

The defendant first argues that his confession was involuntary because it was induced by promises of immunity and leniency from both his mother and Lamy. While, under the totality of circumstances test, most promises by the police to the defendant are not dispositive of voluntariness, a confession made in reliance upon a promise of confidentiality or a promise of immunity is per se involuntary. See McDermott, 131 N.H. at 501, 554 A.2d at 1305. Our constitution, however, is offended only by State action, see State v. Chapman, 135 N.H. 390, 400, 605 A.2d 1055, 1062 (1992); cf. State v. Tapply, 124 N.H. 318, 325, 470 A.2d 900, 905 (1983) ("neither the government nor any of its agents had any power to violate or infringe upon [defendant's State constitutional] rights"), and thus, even "[t]he most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause." Colorado v. Connelly, 479 U.S. 157, 166, 107 S.Ct. 515, 521, 93 L.Ed.2d 473 (1986). Here, the trial court properly found that Karen Carroll, although a Bedford police officer, was not an agent of the State inasmuch as Lamy had cautioned her, first outside and then in the defendant's presence, as to her private role. The defendant argues, however, that even if his mother was not an agent of the State, the police had a duty to correct her misstatements and promises. While we refuse to recognize such a categorical duty, in certain cases a trial court may find that, by their conduct, the police have essentially adopted the representations made by a private person. Here, the defendant did not argue that such adoption occurred, and nor does the record compel that finding. Particularly, we note that, at the outset, the police attempted to distance themselves from any statement Karen Carroll might make by detailing, in the defendant's presence, her limited and private role. Accordingly, we concern ourselves only with those statements made by Lamy.

The defendant directs us to only one alleged exchange (we are unable to discern Lamy's statement from the tape provided to us) involving Lamy that he argues was a promise of leniency:

"[Mother]: The longer you put off telling the truth, the harder it is gonna be, and the worse it is gonna be on yourself because you still have a chance to save your ass, my dear. I don't want to see you go to prison ...

[Defendant]: I don't want to go to prison either Ma.

[Lamy]: Then tell us the truth."

Even assuming this statement was made, it is nothing like the explicit promises of confidentiality made to the defendant in McDermott that led us to find a subsequent confession involuntary. There...