State v. Ford, 97–617.

CourtSupreme Court of New Hampshire
Writing for the CourtHORTON, J.
Citation144 N.H. 57,738 A.2d 937
Parties The STATE of New Hampshire v. Scott FORD.
Docket NumberNo. 97–617.,97–617.
Decision Date21 July 1999

144 N.H. 57
738 A.2d 937

The STATE of New Hampshire
Scott FORD.

No. 97–617.

Supreme Court of New Hampshire.

July 21, 1999.

738 A.2d 939
144 N.H. 58

Philip T. McLaughlin, attorney general (Christopher H.M. Carter, assistant attorney general, on the brief and orally), for the State.

Gary Apfel, assistant appellate defender, of Orford, by brief and orally, for the defendant.


The defendant, Scott Ford, was convicted, inter alia, of one count of robbery armed with a deadly weapon, see RSA 636:1 (1997), and two counts of theft by unauthorized taking, see RSA 637:3 (1997). He appeals, arguing that the Superior Court (Murphy , J.) erred in denying his motion to suppress confessions made while he was in prison and in both convicting and sentencing him for robbery and theft as separate offenses. We affirm.

144 N.H. 59

In August 1995, the defendant agreed to participate in a staged robbery of a jewelry store in Hampton Beach, with the cooperation of the store owner, as part of an insurance fraud scheme. On August 22, the defendant entered the store and indicated interest in purchasing jewelry. In response to the store clerk's inquiry as to method of payment, he pulled out a gun and ordered her to put jewelry stored in a display case into a duffel bag. He then ordered the clerk and store owner to lie on the floor and began emptying other jewelry cases himself. After directing the owner and clerk at gunpoint to surrender the jewelry that they were wearing, the defendant pushed them into the bathroom and closed the door. He continued taking jewelry from the store and finally escaped through a back window.

The defendant was indicted for the theft of the jewelry and robbery of the store

738 A.2d 940

clerk. After a jury trial in June 1997, he was convicted of robbery and two counts of theft. Upon motion by the defendant, the trial court consolidated the two counts of thefts for the purposes of sentencing. It entered a final sentence of two seven and a half to fifteen years terms for the robbery conviction and consolidated theft convictions, resulting in a fifteen to thirty year prison sentence.

On appeal, the defendant first argues that incriminating statements he made to police on two occasions that led to his arrest for the Hampton robbery were obtained involuntarily and admitted in violation of Part I, Article 15 of the State Constitution and the Fifth and Fourteenth Amendments of the Federal Constitution.

On November 7, 1995, the defendant was arrested for passing a bad check and detained at a correctional facility in Rutland, Vermont. He was not then a suspect in the Hampton Beach robbery. He contacted the Federal Bureau of Investigation and met with special agent Michael Rosanova on November 8. After executing a written waiver of his Miranda rights, see Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the defendant advised Rosanova he had information about an armed robbery in Hampton Beach. Rosanova subsequently notified the Hampton Police Department. At the time, the Hampton police already had a suspect in custody charged with the robbery.

On November 10, Officer Lynn Charleston and Detective Philip Russell of the Hampton Police Department met with the defendant at the Rutland prison. At first, the defendant denied having spoken with the FBI, and the officers began to leave. After Russell commented on Rosanova's written report of the November 8th interview, however, the defendant admitted meeting with Rosanova and agreed to speak to the officers. The defendant initially spoke

144 N.H. 60

generally about the robbery, referring to the gunman in the third person. When he began to refer to himself as the gunman, the officers attempted to administer Miranda warnings, but the defendant insisted on disclosing specific details of his participation in the robbery. He then informed the officers that he and his family had been subject to threats from organized crime in Massachusetts and that he was also in danger as a result of testimony he had given against prison guards in Maine. He requested protection for himself and his family. He eventually signed a written waiver of his Miranda rights and proceeded to supply further incriminating details of the Hampton Beach crime.

On November 14, the defendant telephoned Detective Russell and requested another interview, agreeing to provide a formal taped statement. They met the next day, along with Charleston and Rosanova, at the Rutland prison. Again, the defendant initially refused to cooperate, prompting the officers to gather their equipment and prepare to leave. Again, the defendant changed his mind and consented to the interview. He executed a written waiver of his Miranda rights and a consent to tape form. He then gave a detailed, extensive account of the Hampton Beach robbery. He repeatedly expressed concerns about his safety and the safety of his family and attempted to negotiate agreements regarding the location and duration of his prospective prison sentence.

Prior to trial, the defendant moved to suppress his November 10 and November 15 statements, claiming that they were involuntary and given in violation of his Miranda rights. After a hearing, the trial court denied the motion.

We address the State constitutional claim first, citing to federal law only to aid in our analysis. State v. Ball , 124 N.H. 226, 231, 471 A.2d 347, 350 (1983). Because our State Constitution affords greater protection to a criminal defendant than the Federal Constitution in requiring the State to prove the voluntariness of the defendant's statements beyond a reasonable

738 A.2d 941

doubt rather than by a preponderance of the evidence, we need not undertake a separate federal analysis. See State v. Beland , 138 N.H. 735, 737, 645 A.2d 79, 80 (1994) ; Colorado v. Connelly , 479 U.S. 157, 158, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

A statement is voluntary if it is "the product of an essentially free and unconstrained choice." State v. Carroll , 138 N.H. 687, 691, 645 A.2d 82, 84 (1994). "In determining the voluntariness of the confession, the trial court must examine the totality of the surrounding circumstances." State v. Monroe , 142 N.H. 857, 864, 711 A.2d 878, 883 (1998).

144 N.H. 61

We are aware that, in contrast to our traditional deferential review of voluntariness of confessions, the federal courts apply a de novo review. See, e.g ., Miller v. Fenton , 474 U.S. 104, 110–11, 106 S.Ct. 445, 88 L.Ed.2d 405 (1985). We do not, however, think that the de novo rule has been made binding on the States, see State v. Jenner , 451 N.W.2d 710, 716 (S.D.1990), cert. denied , 510 U.S. 822, 114 S.Ct. 81, 126 L.Ed.2d 49 (1993), and we would not reach a different result here even if that rule were adopted. A finding of voluntariness, based ultimately on the fact finder's comprehension of the totality of the facts, cf . Commissioner v. Duberstein , 363 U.S. 278, 289, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960), relies on the unique position of the fact finder, who assesses first-hand all of the verbal and nonverbal aspects of evidence presented, cf . State v. Little , 138 N.H. 657, 661, 645 A.2d 665, 667 (1994). Words printed on the sterile pages of a transcript do not convey the intangible dynamics or full sensory experience of trial that may influence evaluation of the facts. Cf. id . Hence, while the legal standard to be applied is a question of law, cf. In re Cusumano , 162 F.3d 708, 713 (1st Cir.1998), the facts underlying the finding of whether a statement is voluntary present a question of fact, Carroll , 138 N.H. at 691, 645 A.2d at 84, and the application of law to facts is a mixed question reviewed deferentially, cf. Salve Regina College v. Russell , 499 U.S. 225, 233, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991). Because of the trier of fact's superior position in evaluating this essentially fact-driven question, we will not overturn the trial court's finding of voluntariness "unless it is contrary to the manifest weight of the evidence." Carroll , 138 N.H. at 691, 645 A.2d at 84.

The defendant argues that he provided information to the officers in reliance upon promises that he and his family would be protected from harm and that he would serve a reduced sentence in New Hampshire. The record, however, amply supports the trial court's finding that the officers made no promises to the defendant on either occasion.

Testimony reveals that on November 10 the defendant initiated discussion of threats against his life and family. In response, the officers indicated they would inform the proper authorities of his fears. Similarly, on November 15, it was the defendant who attempted to solicit an agreement with the State. The police consistently responded that they would notify the authorities but could not promise specific results. Moreover, during the interview, the defendant acknowledged that no threats or promises had been made to him. There are no allegations that either interview was excessively long or that the defendant was deprived of food,...

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  • State v. Ford, 97-617.
    • United States
    • New Hampshire Supreme Court
    • July 21, 1999
    ...144 N.H. 57738 A.2d 937THE STATE OF NEW SCOTT FORD No. 97-617. Supreme Court of New Hampshire. July 21, 1999. 144 N.H. 58 Philip T. McLaughlin, attorney general (Christopher H.M. Carter, assistant attorney general, on the brief and orally), for the State. Gary Apfel, assistant appellate def......

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