State v. Damiano

• Decision Date: 13 April 1984
• Docket Number: No. 82-504,82-504
• Citation: State v. Damiano, 124 N.H. 742, 474 A.2d 1045 (N.H. 1984)
• Parties: The STATE of New Hampshire v. Cindy Keith DAMIANO.
• Court: New Hampshire Supreme Court

Page 1045

474 A.2d 1045

124 N.H. 742

The STATE of New Hampshire v. Cindy Keith DAMIANO.

No. 82-504.

Supreme Court of New Hampshire.

April 13, 1984.

Gregory H. Smith, Atty. Gen. (James D. Cahill, III, Concord, Atty., on the brief and orally), for the State.

James E. Duggan, Appellate Defender, Concord, by brief and orally, for defendant.

BATCHELDER, Justice.

The defendant appeals her convictions of conspiracy to commit arson, RSA 629:3, I, and criminal liability for conduct of another, RSA 626:8, II(c). She alleges that the trial court erred in denying her motions to suppress certain statements and to discover grand jury testimony. For the reasons that follow, we affirm.

On October 26, 1981, a fire was set in a shed attached to a boarding house located at 5 Rollins Street in Concord. Rachel Kirouac, on December 3, 1981, confessed to setting the fire and implicated the defendant in the crime. On December 28, 1981, the defendant, allegedly in response to Ms. Kirouac's confession, made certain inculpatory statements to the police regarding the fire.

On March 25, 1982, Ms. Kirouac testified before the grand jury in the arson investigation. On the same day, the grand jury returned indictments against the defendant for conspiracy to commit arson and for criminal liability for the conduct of another. Pursuant to a court order granting a motion filed by the State, the grand jury testimony was recorded and transcribed. On May 20, 1982, this court issued its original opinion in State v. Purrington (later modified on July 21, 1982), prohibiting the transcription and discovery of grand jury testimony. Based on that decision, the State moved to seal the grand jury transcript and the trial court granted the motion.

Prior to trial, the defendant moved to discover the grand jury testimony of Ms. Kirouac and to suppress her statements to the police, alleging her due process rights were violated. The Trial Court (Souter, J.) denied both motions and the case went to trial on July 27, 1982. At trial, police officer James Cross testified as to the statements made by the defendant on December 28, 1981.

Based on the modified State v. Purrington, 122 N.H. 458, 462, 446 A.2d 451, 454 (1982), allowing the trial court in its discretion to permit the discovery of grand jury testimony transcribed before May 20, 1982, the defendant, at the close of the State's case, renewed her motion to discover the grand jury testimony of Ms. Kirouac. That testimony was transcribed before May 20, 1982. The court again denied the motion. After trial, the defendant was found guilty and appealed.

First, the defendant argues that her statements to the police were involuntary and, therefore, were inadmissible under the due process clauses of the State and Federal Constitutions. In construing the due process clause of the State Constitution, we refer to federal cases for guidance only and do not consider our results bound by those decisions. See State v. Ball, 124 N.H. 226, 471 A.2d 347 (1983).

The New Hampshire Constitution guarantees every citizen due process of the law. N.H. CONST. pt. I, art. 15; see State v. Baillargeon, 124 N.H. 355, ---, 470 A.2d 915, ---- (decided December 29, 1983). Due process requires not only that the State act according to the laws of the land, but also that its actions be "consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." Herbert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270 (1926).

Such fundamental principles are implicated when the State uses an individual's involuntary statements to obtain a conviction against that individual. The factors underlying the belief that such statements should not be admitted into evidence are the unreliability of the confession, see State v. Howard, 17 N.H. 171, 172, 182 (1845), the lack of rational choice of the accused, and society's conclusion that the State should not take advantage of an individual who is incapable of making a free choice. See Blackburn v. Alabama, 361 U.S. 199, 207, 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960); see also Schneckloth v. Bustamonte, 412 U.S. 218, 224-25, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854 (1973).

No single definition of voluntariness is sufficient to cover the range of situations in which the determination of voluntariness must be made. However, the nucleus of the inquiry is whether the actions of an individual are "the product of an essentially free and unconstrained choice." State v. Copeland, 124 N.H. 90, ---, 467 A.2d 238, 240 (1983) (quoting Schneckloth v. Bustamonte, supra at 225, 93 S.Ct. at 2046). If the statements are the product of a will overborne by police tactics, see State v. Hamson, 104 N.H. 526, 529, 191 A.2d 89, 91 (1963), or of a mind incapable of a conscious choice, see State v. Goddard, 122 N.H. 471, 446 A.2d 456 (1982); Blackburn v. Alabama supra; cf. State v. Osborne, 119 N.H. 427, 433, 402 A.2d 493, 497 (1979) (capacity to consent to a search), then the statements are inadmissible at trial. See State v. Nash, 119 N.H. 728, 733, 407 A.2d 365, 368 (1979).

The due process clause of the State Constitution requires that the determination of voluntariness be made in light of "the totality of all the surrounding circumstances--both the characteristics of the accused and the details of the interrogation." Schneckloth v. Bustamonte, supra, 412 U.S. at 226, 93 S.Ct. at 2047; cf. State v. Scarborough, 124 N.H. 363, ---, 470 A.2d 909, ---- (1983) (determination of waiver of State constitutional right to counsel depends on all the particular facts and circumstances in each case). In this case, the defendant argues that her "borderline psychiatric disorder," to which the court-appointed psychiatrist testified, necessitates a finding that her statements were involuntary.

The due process clause of the State Constitution requires us to label as involuntary, the statements of an individual who, because of a mental condition, cannot make a meaningful choice. Cf. State v. Goddard supra (reasonable doubt existed as to defendant's ability to voluntarily waive his rights and confess when he was experiencing delirium tremens ). However, mental illness does not, as a matter of law, render a confession involuntary. Rather, the trial court still must determine whether, given the totality of the circumstances, the defendant's statements were "the product of a rational intellect and a free will." Blackburn v. Alabama, supra, 361 U.S. at 208, 80 S.Ct. at 280.

The trial court, after listening to the testimony of the psychiatrist, the defendant, and the police officers, found that the State had proved beyond a reasonable doubt that the defendant's statements were voluntary. See State v. Phinney, 117 N.H. 145, 146-47, 370 A.2d 1153, 1154 (1977). On our review of the record, we cannot say that the trial court's finding was contrary to the weight of the evidence and, accordingly, we affirm the denial of the motion to suppress. See State v. Reynolds, 124 N.H. 428, 471 A.2d 1172 (1984).

The defendant also claims that her right to due process was violated because she was not warned that her statements could be used against her. Ordinarily such a warning is given as one of the procedural protections provided under the constitutional right against involuntary self-incrimination. N.H. Const. pt. 1, art. 15; State v. Nash, 119 N.H. 728, 730, 407 A.2d 365, 367 (1979); see Miranda v. Arizona, 384 U.S. 436, 469, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966). However, these procedural protections attach only after an individual has been taken into custody. See State v. Tapply, 124 N.H. 318, ---, 470 A.2d 900, ---- (1983).

The defendant asks us to hold that due process requires that the warning "anything said can and will be used against the individual in court" be given even in pre-custodial settings whenever the defendant, because of a pre-existing relationship with the police, believes that the statements will be held in confidence. The defendant argues that she had a prior relationship with the police as an informant and as a friend, and thus was entitled to that warning. We disagree.

We hold that the requirement that a defendant's statements be found voluntary is adequate to protect the defendant's due process rights. The determination of voluntariness takes into consideration all the circumstances surrounding the giving of the defendant's statements including the nature of the existing relationship between the defendant and the police, and whether the police led the defendant to believe that her statements would be kept in confidence.

Accordingly, because the defendant's statements were voluntary, the defendant's due process rights were not violated. Additionally, we find that our conclusions based on our State Constitution offend none of the provisions of the Federal Constitution.

The defendant also argues that the court erred in denying her motion to discover the grand jury testimony of Ms. Kirouac.

There is no constitutional right to examine grand jury testimony under the State or the Federal Constitutions. State v. Booton, 114 N.H. 750, 753, 329 A.2d 376, 380 (1974), ...