State v. McDermott

• Court: New Hampshire Supreme Court
• Writing for the Court: BATCHELDER
• Citation: State v. McDermott, 554 A.2d 1302, 131 N.H. 495 (N.H. 1989)
• Decision Date: 06 March 1989
• Docket Number: No. 88-248,88-248
• Parties: The STATE of New Hampshire v. Mark McDERMOTT.

Page 1302

554 A.2d 1302

131 N.H. 495

The STATE of New Hampshire v. Mark McDERMOTT.

No. 88-248.

Supreme Court of New Hampshire.

March 6, 1989.

Stephen E. Merrill, Atty. Gen. (Barbara Keshen, Asst. Atty. Gen., on the brief and orally), for the State.

Joanne Green, Asst. Appellate Defender, Concord by brief and orally, for defendant.

BATCHELDER, Justice.

In this first degree murder case, the State has appealed an order of the Superior Court (Murphy, J.) suppressing statements the defendant made to federal drug agents concerning his involvement in the murder of a Meredith man. RSA 630:1-a, I(b); RSA 606:10. After reviewing the record in this case, we hold that the trial court's decision was not against the manifest weight of the evidence and therefore affirm.

In response to the defendant's motion to suppress, the trial court heard four days of testimony from witnesses Curtis Reid, a federal Drug Enforcement Administration (DEA) agent; David Hoyt, another DEA agent; Jerome Mattioli, the then-resident agent in charge of the DEA's Hartford, Connecticut office; Mark McDermott, the defendant; and Betsy Kizis, the chief investigator for the New Hampshire Public Defender. The testimony which was elicited during the hearing evidenced the following factual background.

The defendant, Mark McDermott, has a lengthy criminal background dating back to the early 1970's. He has embezzled funds from the Town of Derry, manufactured illegal drugs, and been involved in international drug smuggling and distribution. In 1977, while in the process of burglarizing the home of a Meredith man named Ronald Gallup, McDermott shot and killed Gallup. He carried the body into the woods and then fled the State. Between 1977 and 1985, McDermott spent much of his time dealing in drugs and engaging in international drug smuggling. In that period, he also served several years in prison, including two years in a Cuban jail.

Over the summer of 1985 McDermott, according to his testimony, decided to break away from his criminal activities. He then lived with a friend and her children in New London, Connecticut. By late summer, he needed cash, as profits from previous drug deals had been stolen. He spoke with several attorneys during the summer of 1985 to ask if they would contact the DEA on his behalf so that he could provide the agency with information pertaining to drug smuggling in exchange for immunity from prosecution. When he was unable to obtain the legal assistance he desired, he decided to contact the DEA himself. McDermott called the DEA's office in Hartford, Connecticut, on September 20, 1985, and spoke with agent Curtis Reid. In their conversation, McDermott divulged sufficient information about drug-related activities so that Reid agreed to meet with him. McDermott did not tell Reid his name over the telephone.

On September 23, 1985, Reid and agent David Hoyt met with McDermott in New London. At first, McDermott was reluctant to give them his name or any information until he received assurances that they would not prosecute him with the information he provided. The agents replied that neither one of them had ever seen a cooperating individual prosecuted by the DEA with his own information. Agent Reid also explained to McDermott the conditions he would have to satisfy before being accepted officially as a cooperating individual. These conditions included refraining from unauthorized criminal activities, testifying in court, resolving all outstanding warrants and charges, and submitting to a complete debriefing on his past criminal activities.

During their meeting, McDermott informed the agents of his desire to break away from his criminal past, and of his need for money. The agents told him that he would be paid for his information, but the amount would depend upon the quantity and quality of information given. McDermott began to comply with the DEA's conditions by giving the agents a briefing of his criminal involvement over the preceding ten to fifteen years, including his status as a suspect in the murder of Ronald Gallup. Based on the information provided, the agents arranged to meet with McDermott again on September 25, 1985, this time at the DEA's Hartford office.

In Hartford, McDermott underwent a thorough debriefing, except that he did not reveal his participation in the Gallup murder. McDermott was fingerprinted and photographed, and the agency conducted a full investigation into any pending criminal charges. He met again with agents Reid and Hoyt and discussed in much greater detail the information he had provided them on September 23. He also met with Jerome Mattioli, the resident agent in charge of the Hartford office. Mattioli questioned McDermott extensively about his criminal activities, including the Gallup homicide. Although McDermott admitted knowing who had committed the murder, he refused to discuss the matter further.

Despite McDermott's failure to discuss his involvement in the Gallup murder, the DEA immediately began to use him and his information to plan the arrests of certain drug dealers. In fact, on that day, McDermott tape recorded a telephone call, made at the request of the DEA agents, from Mattioli's office to one of his drug-smuggling associates. As a result of this call and the other information and documentation McDermott was furnishing, the agents gave him $400 for his efforts and for his living expenses. The agents also gave him a tape recording machine and told him to record all drug-related telephone calls. For the next nine days, McDermott was working full-time with the DEA to coordinate a large drug sale in Connecticut. During this time, McDermott recorded all his phone conversations pertaining to drug deals and contacts, and also kept in constant contact with agent Reid.

In his order granting the defendant's motion to suppress, the trial judge made the following findings of fact concerning the events of October 4, 1985, leading up to the defendant's confession to the murder of Ronald Gallup:

"On October 4, 1985 McDermott arrived at the DEA's Hartford offices at approximately 9:00 a.m. On arriving he informed Agent Reid that he was out of money and that he did not have enough gas in his car to return to New London that evening. McDermott told Reid that he needed at least $1,000 to cover his living expenses. Reid indicated he would check with Mattioli on his request some time during the day. McDermott and Reid then turned their attention to planning and documenting the upcoming transaction.

Later on the 25th [sic] McDermott reminded Reid of his financial situation. He also reminded Reid that his housemate was in Florida at the time which required him to return to New London in time to supervise his housemate's minor children when they returned from school. Agent Reid went to speak with Mattioli about McDermott's request for money. When he returned, Reid told McDermott that Mattioli had insisted McDermott reveal everything he knew about the Gallup murder or his relationship with DEA would be terminated. Reid also told McDermott that if he divulged the details of Gallup's death he would be paid $1,000. McDermott refused to talk and asked to see Mattioli.

Reid brought McDermott to Mattioli's office. When the two men entered the office Mattioli was counting a large amount of money. After McDermott sat down Mattioli placed the money in a pile on the table in front of McDermott and began to question him. During questioning Mattioli assured McDermott that the information he provided would not leave the office. He indicated the DEA would never get cooperation from informants if they were prosecuted for the information they provided and that the DEA simply needed the information in order to avoid surprises should McDermott be forced to testify in the future. Finally, Mattioli implored McDermott to reveal the details of Gallup's death and asked McDermott who pulled the trigger. The defendant paused and then responded by saying, 'I did.'

Following the defendant's confession Mattioli continued to question McDermott on the details of the shooting. Mattioli told McDermott that without 'Miranda warnings' his statements would not be used against him and that nothing would be done with his statements. McDermott proceeded to reveal the details of the shooting and told the agents that he buried the gun he used in a field on a farm in Pennsylvania. McDermott was paid $500 on October 4, 1985."

A few days after the...