State v. Grant-Chase, GRANT-CHASE

• Court: Supreme Court of New Hampshire
• Citation: 140 N.H. 264,665 A.2d 380
• Docket Number: GRANT-CHASE,No. 93-268,93-268
• Parties: The STATE of New Hampshire v. Cindy
• Decision Date: 03 October 1995

Page 380

665 A.2d 380 140 N.H. 264 The STATE of New Hampshire
v.
Cindy GRANT-CHASE. No. 93-268. Supreme Court of New Hampshire. Oct. 3, 1995.

Page 381

[140 N.H. 265] Jeffrey R. Howard, Attorney General (John P. Kacavas, Assistant Attorney General, on the brief and orally), for the State.

Albert E. Scherr, Assistant Appellate Defender, Concord, by brief and orally, for defendant.

HORTON, Justice.

The defendant, Cindy Grant-Chase, was convicted of first degree assault, RSA 631:1 (Supp.1993), after a jury trial in Superior Court (Fauver, J.). On appeal, the defendant argues that the Trial Court (Smith, J.) erred in its pretrial order by refusing to suppress statements she made in response to police questioning, in violation of her right to counsel under the fifth amendment to the United States Constitution and part I, article 15 of the New Hampshire Constitution.

In an opinion dated December 14, 1994, we affirmed the defendant's conviction. The defendant moved for reconsideration. See Sup.Ct. R. 22. We granted the motion and withdrew our opinion. We affirm.

On December 28, 1990, the defendant and the victim, George Tegelaar, were in a physical struggle that resulted in the defendant shooting and wounding the victim. Both the victim and the defendant were transported to the hospital for treatment of their injuries. Because the defendant was a suspect in the case, Officers Langley and Folini went to the hospital to question the defendant, hoping to elicit incriminating statements. The defendant was under constant police watch and was not free to leave. Officer Langley was within three to five feet of her while she was in the emergency room. During that time the defendant asked Officer Langley for her purse [140 N.H. 266] and if she could call her lawyer. Once the hospital staff had completed their testing, the defendant telephoned her lawyer. During the five- to ten-minute telephone call Officer Langley remained present but could not overhear the substance of the conversation. After the defendant ended her phone

Page 382

call, Officers Langley and Folini approached her to initiate questioning. Until this point the police had not subjected the defendant to questioning or its functional equivalent. Officer Folini asked her if it was all right to ask some questions about the incident. The defendant told him that she had talked to her attorney, who advised her to cooperate with the investigation. The officers explained to the defendant her Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which she explicitly waived by signing a waiver form, and elicited incriminating statements.

The defendant contends that her request to call her attorney in the emergency room constituted an assertion of the right to counsel, and that statements elicited from her after that request violated both the State and Federal Constitutions. In deciding this case, we first look to our State Constitution, and then, if necessary, to the Federal Constitution to determine whether it provides the defendant with greater protection. State v. Ball, 124 N.H. 226, 232, 471 A.2d 347, 351 (1983). We cite "decisions of the Supreme Court of the United States and of courts of other jurisdictions for their helpfulness in analyzing and deciding the State issue." State v. Maya, 126 N.H. 590, 594, 493 A.2d 1139, 1143 (1985). Since we conclude that the Federal Constitution is not more favorable to the petitioner, see Davis v. United States, 512 U.S. 452, ---- - ----, 114 S.Ct. 2350, 2355-57, 129 L.Ed.2d 362 (1994), we make no separate federal analysis. See State v. LaFountain, 138 N.H. 225, 227, 636 A.2d 1028, 1029 (1994).

The defendant argues that the facts of...