State v. Kousounadis
| Decision Date | 04 December 2009 |
| Docket Number | No. 2008–248.,2008–248. |
| Citation | 986 A.2d 603,159 N.H. 413 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Arthur KOUSOUNADIS. |
Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.
Francis G. Holland, of Nashua, by brief and orally, for the defendant.
The defendant, Arthur Kousounadis, was convicted by a jury in Superior Court (Lynn, C.J.) of felony criminal threatening, see RSA 631:4, I(a), II(a)(2) (2007); RSA 625:11, V (2007), and violation of a protective order, see RSA 173–B:9, III (2002). He was sentenced under RSA 651:2, II-g (2007). We affirm in part, reverse in part and remand.
The record supports the following facts. The defendant and his former wife, Aspasia Kousounadis, married in 1972. They divorced in 1996. They reconciled in 2001, and lived together in Lowell, Massachusetts, until the defendant moved out in October 2006. The following month, Aspasia obtained a restraining order against him in a Lowell court. The defendant was present in the courtroom when the order was issued.
On December 1, 2006, the defendant purchased a semi-automatic shotgun with a special scope and ammunition from a sports shop in Hooksett.
When he was filling out the required federal forms, he falsely stated that he was not subject to a restraining order. On December 6, he drove to the Pheasant Lane Mall in Nashua, where Aspasia worked at Macy's. He parked his GMC Jimmy in the parking garage near her Honda. At around 8:30 p.m., Aspasia approached her car. When she opened her car door, she saw the defendant standing in front of her car, near his GMC. He said he wanted to talk; she responded, After saying, "okay," the defendant opened a back door to his vehicle and took out a shotgun. Aspasia ran as soon as she saw it. While she was running, she heard a gunshot. She kept running until she reached the Macy's employee entrance, where she rang the security bell. She testified at trial that, although she was scared, she was not fearful that she would be shot.
In their investigation of the scene, the police found a shell casing and plastic packing material used in shotgun shells near Aspasia's vehicle. They also found a hole in the wall at Macy's and a shotgun slug inside the store. The defendant went to the Nashua police station the next morning of his own volition and was arrested. He was booked by an officer using standard procedure, and placed in a holding cell.
He was subsequently indicted on one count of attempted murder, one count of felony criminal threatening and one count of violation of a protective order. Prior to trial, he moved to suppress all evidence obtained as a result of his statements to the Nashua police following his arrest on December 7, 2006. After a hearing, the Trial Court (Mohl, J.) denied his motion. The defendant also moved to dismiss the charge that he violated a protective order, contending that New Hampshire courts lacked jurisdiction to try him for allegedly violating an order issued in Massachusetts. This motion was also denied. Following a four-day trial, the jury found the defendant guilty of felony criminal threatening and violating a protective order, but not guilty of attempted murder.
The defendant filed two post-trial motions to set aside his conviction for criminal threatening. In the first, he contended that in closing argument, the State had "argued a different crime than was alleged in the indictment." In the second, he argued that because the court failed to instruct the jury on the definition of "deadly weapon," the jury could not have found that the shotgun he used was a deadly weapon, an element of criminal threatening. He also moved to bar application of the enhanced sentencing provisions for use of a deadly weapon, see RSA 651:2, II-g, because the jury had not made a factual finding that he used one. The trial court denied all three motions.
On appeal, the defendant argues that the trial court erred in: (1) denying his motion to suppress; (2) denying his motion to dismiss the charge of violating a protective order; (3) denying his two motions to set aside the criminal threatening verdict; and (4) denying his motion to bar an enhanced sentence. We address each argument in turn.
The defendant first argues that the police subjected him to custodial interrogation without first reading him his Miranda rights in violation of Part I, Article 15 of the New Hampshire Constitution and the Fifth and Fourteenth Amendments to the United States Constitution. See State v. Gagnon, 139 N.H. 175, 177, 651 A.2d 5 (1994) ; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He further contends that the police failed to "scrupulously honor[ ]" his invocation of his right to counsel. As a result, he asserts that "the [S]tate could not prove beyond a reasonable doubt that [his] confession as to the location of the gun was ... voluntary." We first address the defendant's arguments under the State Constitution, citing federal opinions for guidance only. See State v. Ball, 124 N.H. 226, 231–33, 471 A.2d 347 (1983).
When reviewing a trial court's ruling on a motion to suppress, we accept its factual findings unless they lack support in the record or are clearly erroneous. State v. Plch, 149 N.H. 608, 613, 826 A.2d 534, cert. denied, 540 U.S. 1009, 124 S.Ct. 546, 157 L.Ed.2d 419 (2003). Our review of the trial court's legal conclusions, however, is de novo. Id.
The police must give Miranda warnings before conducting custodial interrogation. State v. Turmel, 150 N.H. 377, 382, 838 A.2d 1279 (2003). It is the State's burden to establish beyond a reasonable doubt that a defendant's constitutional rights under Miranda were not violated before it is permitted to admit a defendant's statements into evidence. State v. Chapman, 135 N.H. 390, 394, 605 A.2d 1055 (1992). "[O]nce a defendant has invoked his right to counsel by declining to speak to the police without a lawyer present, the police must refrain from or stop interrogation, and scrupulously honor the defendant's right to stop it." State v. Elbert, 125 N.H. 1, 9, 480 A.2d 854 (1984) (citation omitted) (conducting analysis under the Fifth Amendment to the United States Constitution). The State then bears the burden of proving beyond a reasonable doubt that it was the defendant who initiated further conversation without any prompting from the police. Plch, 149 N.H. at 616, 826 A.2d 534. The police have a duty to see to it that an opportunity to consult with counsel is provided before further questioning may proceed. State v. Tapply, 124 N.H. 318, 325, 470 A.2d 900 (1983).
The State does not dispute that the defendant was in custody after he was arrested, booked and placed in a holding cell. However, the record contains conflicting testimony on what occurred following the defendant's arrest. Detective Daniel Archambault, who interviewed the defendant, testified that he did not ask him any questions before he gave him his Miranda warnings and had the defendant sign a form waiving them. In contrast, the defendant testified that Detective Archambault "asked [him] right away ... what happened at the mall" before informing him of his Miranda rights or turning on the interview recording equipment. The trial court considered the defendant's recorded interview with Detective Archambault as well as their conflicting testimony in resolving the issue of credibility in favor of the State.
The defendant argues that because he and Detective Archambault each had a markedly different version of what happened following his arrest, the State failed to prove beyond a reasonable doubt that it had not violated his Miranda rights. We disagree. Determining whether the defendant was interrogated prior to his Miranda warnings required the trial court to weigh the credibility of the witnesses. It has broad discretion in doing so. See State v. Patch, 142 N.H. 453, 458–59, 702 A.2d 1278 (1997). Based upon the record before us, we cannot say that the trial court's factual finding that the defendant was not subject to custodial interrogation before receiving and waiving his Miranda rights either lacked support in the record or was clearly erroneous.
With respect to the defendant's invocation of his right to counsel, we similarly conclude that the trial court's factual finding that the police scrupulously honored it was supported by the record and not clearly erroneous. Detective Archambault interviewed the defendant twice. The first interview was terminated immediately when the defendant requested counsel. The detective told him that if he wanted to speak further, he should tell the booking officer. The defendant was then returned to his cell, and approximately fifteen minutes later, he asked to speak once again with the detective. After they were back in the interview room, the detective turned on the recording equipment and advised the defendant again of his Miranda rights, which he again waived. During the second interview, the defendant told the detective where the gun and ammunition were located.
As the trial court observed, the interview transcript established that Detective Archambault terminated the first interview upon the defendant's request for a lawyer. During the second interview, he offered the defendant an opportunity to use the telephone to contact an attorney, which the defendant declined. The detective did not have an obligation to independently contact a public defender on behalf of the defendant, as the defendant's argument suggests. See Jackson v. Frank, 348 F.3d 658, 663 (7th Cir.2003) (), cert. denied, 541 U.S. 963, 124 S.Ct. 1723, 158 L.Ed.2d 407 (2004). Although the defendant may have made some voluntary...
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State v. Spade
...Resolution of this appeal requires statutory interpretation, which is a question of law that we review de novo. State v. Kousounadis, 159 N.H. 413, 423, 986 A.2d 603 (2009). We are the final arbiters of the legislative intent as expressed in the words of the statute considered as a whole. S......