State v. Decker

• Decision Date: 21 April 1994
• Docket Number: No. 92-736,92-736
• Citation: 138 N.H. 432,641 A.2d 226
• Parties: The STATE of New Hampshire v. David DECKER.
• Court: New Hampshire Supreme Court

Page 226

641 A.2d 226

138 N.H. 432

The STATE of New Hampshire v. David DECKER.

No. 92-736.

Supreme Court of New Hampshire.

April 21, 1994.

Jeffrey R. Howard, Atty. Gen. (Ann M. Rice, Asst. Atty. Gen., on the brief and orally), for the State.

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

THAYER, Justice.

The defendant, David Decker, was found guilty of the first degree murder of Anthony Bardas after a jury trial in Superior Court (McHugh, J.). On appeal he contends that the trial court should have suppressed his confession, arguing: (1) the State failed to prove that the defendant's waiver of his rights and confession were voluntary because his desire to alleviate his harsh living conditions at the prison influenced his decision to confess; (2) the defendant's waiver of his right to counsel was insufficient because the waiver occurred without the consent or presence of counsel; and (3) an assistant attorney general violated Rule 4.2 of the Rules of Professional Conduct by allowing a post-indictment interview of a defendant without his counsel being present. We affirm.

On August 23 and 24, 1991, Alan Fifield and Anthony Bardas, inmates of the secure housing unit of the New Hampshire State Prison, were murdered. Bardas was stabbed to death just outside of his cell, in view of at least one guard who testified that he saw the defendant and two other inmates participate in the stabbing. Immediately after the murders, the defendant and the others implicated were placed on a high security status known as "special management," which was intended for inmates who required special handling due to their highly disruptive behavior or because they posed a threat to themselves, guards, or other inmates. The superior court found that severe restrictions were initially placed upon these inmates:

"[T]hey were completely segregated from other inmates; restricted to their individual cells for all but one hour each day; had reduced access to the dayroom on their [floor of the prison]; had reduced access to their personal hygiene items; had the use of their personal property, such as radios and reading and writing materials restricted; were subject to unscheduled and frequent cell searches and strip searches; were severely restricted with respect to the access that they had to telephone contact with their lawyers and friends and family; were confined by both hand and foot shackling during any time they spent outside their cell; were escorted by guards dressed in riot gear any time they left their cells; and were denied any access to the law library."

By the time of the defendant's confession, the conditions of his confinement had improved somewhat in that some of his personal property had been returned and he had more time out of his cell each day.

On November 27, 1991, Benjamin Robidoux, who had been indicted in the Fifield murder case and who was in special management status along with the defendant, wrote a note to department of corrections personnel expressing a desire to speak to the police concerning the homicides of both Fifield and Bardas. State Police Sergeant Kevin Babcock received the message that Robidoux wished to speak to him; he then called the attorney general's office and spoke with Assistant Attorney General Ward Scott. Scott told Babcock that any contact between the prison officials or the police and the defendants must be initiated by the defendants, any interview should be audio recorded, on the audio recording it should be made plain that the meeting was at the request of Robidoux, Robidoux must be advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Robidoux must specifically waive his right to have his attorney present at the interview. Babcock relayed this information to the department of corrections chief investigator at the prison, Lieutenant Donald McGill.

On December 2, 1991, the defendant, who had by this time been indicted in the Bardas murder case, sent a note requesting a meeting with McGill. The next day McGill held an audio-taped meeting with the defendant at which the defendant, after being advised of his Miranda rights and waiving his right to have counsel present, stated that he and the other Bardas/Fifield defendants would be willing to exchange information regarding the slayings for improved living conditions. McGill made the defendant no promises but stated he would check into the possibility of a deal. After the meeting McGill spoke with Babcock, who spoke with the attorney general's office and was told that there would be no deals made for confessions. McGill relayed this information to the defendant.

Despite knowing that no deals would be made, the defendant sent another note to McGill on December 5, 1991, requesting a meeting. In response to that request, McGill held a video- and audio-taped meeting with the defendant. The defendant was advised of his Miranda rights, which he acknowledged understanding and waived. He also stated that although he had an attorney, he did not want his attorney present. He admitted that he had been made no promises or deals, and that he knew the prosecution had a strong case against him. He also stated that he was confessing to set the record straight and to clear up lies that he perceived in the various police reports and witness statements. He then confessed, in detail, to his participation in both the Fifield and Bardas slayings.

Before the defendant's trial began, his counsel moved to suppress the confession on the grounds that it was not voluntary, given the defendant's living conditions, and that it had been taken in violation of the defendant's right to counsel. The trial court denied the motion, finding that while the defendant's living conditions were severe, the conditions were not in fact the cause of the defendant's decision to confess, and moreover the conditions had improved markedly from what they were immediately after the murders. The trial court therefore found, beyond a reasonable doubt, that the confessions were voluntary. The trial court also found that the defendant had voluntarily waived his right to have his attorney present at the confession interview.

The defendant contends on appeal that his waiver of counsel and confession were involuntary because they were induced by the stress and anxiety of three months' confinement in special management status and by an implied promise of improved living conditions. Because the State Constitution provides at least as much protection to the defendant's individual liberties in this context as does the Federal Constitution, we will address the claims under the State Constitution first and look to the decisions of the federal courts only for guidance. See State v. Chapman, 135 N.H. 390, 394, 605 A.2d 1055, 1058 (1992).

The voluntariness of a confession is initially a question of fact for the trial court, whose decision will not be overturned unless it is contrary to the manifest weight of the evidence, as viewed in the light most favorable to the State. Id. at 399, 605 A.2d at 1061. In order to be considered voluntary, a confession must be the product of an essentially free and unconstrained choice and not extracted by threats, violence, direct or implied promises of any sort, or by the exertion of any improper influence. Id. The State must prove voluntariness beyond a reasonable doubt. Id. at 398, 605 A.2d at 1060. In order for a waiver of the right to counsel to be considered voluntary, the defendant must know of his right to have his counsel present, understand the consequences of waiving that right, and choose to waive the right without any inducement by the government. State v. Scarborough, 124 N.H. 363, 369, 470 A.2d 909, 914 (1983). In making its determinations, the trial court must consider the "totality of the surrounding circumstances." Chapman, 135 N.H. at 399, 605 A.2d at 1061; see Scarborough, 124 N.H. at 369, 470 A.2d at 914-15.

The trial court heard six days of testimony about the defendant's conditions of confinement and viewed the defendant's living quarters at the prison. It also watched the video tape of the defendant's confession in which the defendant acknowledged that no promises were made to him for a confession, recognized his right to have his attorney present, and waived that right. The tape also shows that the defendant was calm, and was in fact in control of the interview. The defendant was not interrogated, but rather narrated his version of the story in his own words and with numerous uninterrupted tangents. In its order, the court recognized that the defendant's living conditions were harsh, and that under the law if the court found these conditions to have overborne the defendant's will, his confession would have to be suppressed. See State v. McVay, 127 Ariz. 18, 21, 617 P.2d 1134, 1137 (1980). The court found, however, that the

"defendants' confessions in December, 1991, were not given as a result of stress which was caused by the conditions of their confinement.... The confessions did not come as a result of one or more of the defendants simply "losing it" and screaming through the bars of their cells. Quite the contrary, they came after a period of negotiation that lasted over a week, from November 27, 1991, through December 5, 1991. The defendants were very careful throughout this period not to incriminate themselves until they wanted to."

The trial court further found the defendant's argument, that there had been inducements offered by the State, generally of improved living conditions, was unfounded; on the contrary, the only evidence as to inducements was Sergeant McGill's testimony that the defendant had been told clearly that no deals would be made for confessions. The trial court thus found, given the totality of the circumstances, that ...