State v. Lynch, 2015–0358

Decision Date10 March 2017
Docket NumberNo. 2015–0358,2015–0358
Parties The STATE of New Hampshire v. Kevin LYNCH
CourtNew Hampshire Supreme Court

169 N.H. 689
156 A.3d 1012

The STATE of New Hampshire

No. 2015–0358

Supreme Court of New Hampshire.

Argued: September 21, 2016
Opinion Issued: March 10, 2017

Joseph A. Foster, attorney general (Sean R. Locke, assistant attorney general, on the brief and orally), for the State.

Stephanie Hausman, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.


169 N.H. 692

The defendant, Kevin Lynch, appeals his conviction, following a jury trial, of misdemeanor simple assault. See RSA 631:2–a (2016). He argues that the Superior Court (Wageling, J.) erred by denying his motion to suppress his statements to police allegedly obtained in violation of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He also argues that the Superior Court (Schulman, J.) erred by permitting hearsay testimony from a pediatrician at trial. The State cross-appeals the trial court's order dismissing two indictments post-trial on double jeopardy grounds. We affirm.

I. Defendant's Appeal

A. Suppression Motion

The following facts are taken from the trial court's order denying the defendant's motion to suppress, are established by the evidence submitted at the suppression hearing—which includes the videotaped recording and transcript of the defendant's police interview—or are otherwise undisputed. On March 7, 2014, Detective Sergeant Munck of the Exeter Police Department interviewed the defendant at the police station regarding an allegation that he had assaulted his girlfriend's three-year-old daughter earlier that day. At the beginning of the interview, Munck informed the defendant that the interview was being audio- and video-recorded and read him his Miranda rights. The defendant waived his rights and agreed to speak with Munck. During the interview, the defendant made incriminating statements.

169 N.H. 693

Prior to trial, the defendant sought to suppress his incriminating statements. The State objected. Following a hearing, at which the parties made arguments and introduced the recording of the defendant's interview as the only evidence in support of each party's position, the court denied the defendant's motion. In doing so, the court noted that the State conceded that the defendant was subjected to custodial interrogation.

On appeal, the defendant argues that, under the State and Federal Constitutions, the trial court erred in denying his motion because he invoked his right to remain silent and his right to counsel after receiving Miranda warnings, and Munck failed to honor his invocation. See N.H. CONST. pt. I, art. 15 ; U.S. CONST. amends V, XIV. We will address the defendant's state constitutional claim first, citing federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, 231–33, 471 A.2d 347 (1983).

Before a defendant's responses made during custodial interrogation may be used against him, the State must prove, beyond a reasonable doubt, that the interrogation did not violate his constitutional rights under Miranda. State v. Gribble, 165 N.H. 1, 10, 66 A.3d 1194 (2013). On appeal,

156 A.3d 1016

in reviewing the trial court's finding that the State met its burden, we view the evidence in the light most favorable to the State. State v. Chapman, 135 N.H. 390, 394, 605 A.2d 1055 (1992).

The defendant does not dispute that he initially waived his Miranda rights during the March 7 custodial interrogation. Nor does he assert that his statements were involuntary. Rather, he argues that he invoked his right to silence and his right to counsel during the interview, thereby requiring Munck to cease questioning. To determine whether, after initially waiving his constitutional rights under Miranda, the defendant subsequently invoked those rights, we examine his statements under the totality of the circumstances. See id. ; see also Mayes v. State, 8 S.W.3d 354, 359 (Tex. App. 1999). Although we review a trial court's findings concerning which words a defendant used to invoke his Miranda rights under the clearly erroneous standard, whether the defendant's words constitute an invocation of his rights is a question of law, which we review de novo. State v. Ayer, 154 N.H. 500, 518, 917 A.2d 214 (2006).

In Miranda, the Supreme Court held that, if an accused is in police custody, has been informed of his Miranda rights, and "indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Miranda, 384 U.S. at 473–74, 86 S.Ct. 1602 ; see State v. Jeleniewski, 147 N.H. 462, 465, 791 A.2d 188 (2002) ("When a defendant invokes his right to remain silent, the police must ‘scrupulously honor’ that invocation."). Similarly, the Court held that "[i]f the individual states that he

169 N.H. 694

wants an attorney, the interrogation must cease until an attorney is present." Miranda, 384 U.S. at 474, 86 S.Ct. 1602 ; see State v. Grant–Chase, 140 N.H. 264, 267, 665 A.2d 380 (1995) (explaining that, if a defendant requests counsel after Miranda warnings have been given or after interrogation has begun, there is "an irrebuttable presumption that the defendant asked for the assistance of counsel for the purpose of having counsel present during any further questioning, and the police [cannot] reinitiate questioning until counsel [is] present"). As we have explained, "This right to counsel is a fundamental one which transcends the enforcement of the criminal law and should be liberally observed by those who have sworn to uphold the constitution, and no effort should be made to discourage the exercise of the right by our citizens." State v. Tapply, 124 N.H. 318, 325, 470 A.2d 900 (1983).

Subsequently, in Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), the Court held that "after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney." Davis, 512 U.S. at 461, 114 S.Ct. 2350. In so holding, the Court explained that, in order "[t]o avoid difficulties of proof and to provide guidance to officers conducting interrogations," the determination of whether an individual has "actually invoked his right to counsel" is based upon an objective inquiry. Id. at 458–59, 114 S.Ct. 2350 (quotation omitted). "Invocation of the Miranda right to counsel requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney." Id. at 459, 114 S.Ct. 2350 (quotation omitted). "Although a suspect need not speak with the discrimination of an Oxford don, he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Id. (quotation and citation omitted). "But if a suspect makes a reference to an attorney

156 A.3d 1017

that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that a suspect might be invoking the right to counsel," precedent does "not require the cessation of questioning." Id. To require officers to cease questioning in such a situation would force police officers "to make difficult judgment calls about whether the suspect in fact wants a lawyer even though he has not said so, with the threat of suppression if they guess wrong." Id. at 461, 114 S.Ct. 2350.

The Court went on to observe that "when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney." Id. "Clarifying questions help protect the rights of the suspect by ensuring that he gets an attorney if he wants one, and will minimize the chance of a confession being suppressed due to subsequent judicial

169 N.H. 695

second-guessing as to the meaning of the suspect's statement regarding counsel." Id. But "[i]f the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him." Id. at 461–62, 114 S.Ct. 2350. The Court has since extended these principles to the invocation of the right to remain silent. See Berghuis v. Thompkins, 560 U.S. 370, 381, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010) (stating that "there is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel").

The defendant maintains he invoked his right to remain silent and his right to counsel during the following exchange, which occurred approximately one hour after the interview began and the defendant had been read and waived his Miranda rights:

[The defendant]: I'm being accused of something that I didn't do and then I mean I guess the only thing I can do is probably stop talking and get a lawyer because obviously it seems like [the defendant's girlfriend] said whatever story. [The victim] is saying whatever story she's

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