State v. McKenna, No. 2013–009

CourtSupreme Court of New Hampshire
Writing for the CourtBASSETT, J.
Citation166 N.H. 671,103 A.3d 756
Parties The STATE of New Hampshire v. Timothy MCKENNA
Decision Date09 September 2014
Docket NumberNo. 2013–009

166 N.H. 671
103 A.3d 756

The STATE of New Hampshire
v.
Timothy MCKENNA

No. 2013–009

Supreme Court of New Hampshire.

Argued: November 21, 2013
Opinion Issued: September 9, 2014


Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State.

Andrew F. Cotrupi, of Hampton, by brief and orally, and Samdperil & Welsh, PLLC, of Exeter (Richard E. Samdperil on the brief), for the defendant.

BASSETT, J.

166 N.H. 673

Following a jury trial in Superior Court (McHugh, J.), the defendant, Timothy McKenna, was convicted of six counts of aggravated felonious sexual assault. RSA 632–A:2 (2007). Prior to trial, the defendant moved to suppress his statements to the police on the ground that he was subject to a custodial interrogation without being informed of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After an evidentiary hearing, the Superior Court (Delker, J.) denied the motion. The defendant appeals the trial court's denial of his motion to suppress. We reverse and remand.

166 N.H. 674

The following facts are drawn from the trial court's order or from uncontroverted testimony at the pretrial suppression hearing. In October 2010, the Newmarket Police Department received a report that K.L. had been sexually abused by the defendant approximately nine to fourteen years earlier. Lieutenant Kyle True and Sergeant Tara Laurent investigated the allegations and obtained a warrant for the defendant's arrest. On October 22, 2010, True and Laurent, accompanied by New Hampshire State Trooper Rella, drove in two vehicles—one fully-marked State Police cruiser and one unmarked Ford Expedition—to a campground and restaurant owned by the defendant in Errol. The restaurant is located at the end of a one-eighth mile driveway and is not visible from the road. The driveway ends in a large clearing, surrounded by woods, which includes a one-acre field where the parking lot and restaurant are located.

Rella, dressed in his State Police uniform and armed with his service weapon, sought out the defendant to request that he speak to the officers. The Newmarket officers waited outside the restaurant. They wore jackets with the Newmarket police badge and their names embroidered on the front. Although both Newmarket officers were also armed, their jackets covered their weapons. The officers had an arrest warrant in their possession, and it was their intention to arrest the defendant that day, unless the defendant provided the officers information that established that he could not have committed the crime—for example, if the defendant had evidence that he had been outside of the country during the alleged incidents. True testified that he was looking to elicit a confession from the defendant.

103 A.3d 760

Rella and the defendant met with the two officers. True then asked the defendant to speak with him and Laurent without either the defendant's girlfriend or Rella present. True explained that the subject that they intended to discuss was private. He suggested that they sit in the unmarked Ford Expedition because the outside temperature was thirty-five degrees and the officers were not dressed for the outdoors. Laurent testified that the defendant was hesitant, and asked whether they could walk and talk instead. The officers agreed, and the two officers and the defendant began walking. Laurent testified that Rella and the defendant's girlfriend walked in the opposite direction. Rella then returned to his cruiser, which he had parked in a location from which he was able to watch the defendant, True, and Laurent as they walked in the clearing.

The officers began by informing the defendant that they were there to "discuss [him] molesting [K.L.]." The defendant responded by saying that he "did not remember that." Laurent then pulled out a picture of K.L. and showed it to the defendant. The defendant said he remembered her and that she was a "cute girl." Laurent told the defendant that he was not under

166 N.H. 675

arrest, and that the officers had come to see him because they wanted to get his side of the story. Laurent noticed that the defendant began to shake when the officers said that they were from Newmarket, and that as they spoke, he looked very nervous and was shaking even harder, so she asked him whether he was cold. The defendant responded that he was not cold, as he had just been working. The interrogation continued.

For approximately one hour and fifteen minutes, the defendant walked to different parts of the clearing, and the officers followed him. They did not allow the defendant to leave Rella's line of sight. At one point, when the defendant began to walk into the woods, True said: "Hold it Tim, we're not walking out there. I don't want to leave the sight of the trooper." Although the defendant did not verbally respond, he stopped walking into the woods and changed direction. The officers continued to follow the defendant and ask questions. When the defendant walked to his truck to get more cigarettes, the officers again followed him. While he sat in the driver's seat of the truck with his feet hanging out of the open door, the officers stood outside the vehicle and continued the questioning.

The two officers and the defendant spoke in a conversational tone. The defendant never unequivocally denied molesting K.L.; however, he denied having an "inappropriate relationship" with her, and repeatedly told the officers that he did not remember molesting K.L. The defendant often responded to the officers with questions of his own about the investigation. On multiple occasions during the interrogation, the officers told the defendant that they did not believe him, urging him to tell the truth. Many of the questions asked by the officers were premised upon the assumption that the defendant was guilty. The officers also posited numerous reasons as to why the defendant might have committed the crime—that he was emotionally attached to K.L., that he was sexually attracted to her, or that he wanted to hurt her. The defendant continued to shake as the interrogation continued. He was chain smoking, and at one point his breathing became shallow.

There is no evidence in the record that before or during the interrogation the defendant was told that he was free to leave the property or informed of his Miranda rights. Nor is there evidence that the officers informed him that he was free to ask them to leave the property, or that he

103 A.3d 761

was not required to answer their questions.

After approximately one hour of questioning, Laurent asked whether the defendant had had an emotional relationship with K.L. The defendant denied it. True then said, "You just wanted to come." The defendant nodded his head and responded, "Yes, that was probably it." True then asked if the defendant had had oral sex with K.L. The defendant responded, "Yes." He thereafter made additional incriminating statements. After the defendant

166 N.H. 676

made these admissions, the police accompanied him into the restaurant, where he spoke to his girlfriend. Shortly thereafter, he was arrested.

Prior to trial, the defendant moved to suppress his statements, arguing that the officers violated his rights under both the New Hampshire and United States Constitutions by subjecting him to a custodial interrogation without informing him of his Miranda rights. Following an evidentiary hearing during which the only witnesses were the two Newmarket officers, the trial court denied the defendant's motion. The court concluded that the defendant was not in custody as he "was familiar with his surroundings, there were only two officers present, and the defendant was not physically restrained." The court stated that the "type of freedom afforded the defendant during the interview bears none of the hallmarks of a formal arrest." After a three-day jury trial, the defendant was convicted of six counts of aggravated felonious sexual assault. This appeal followed.

On appeal, the defendant argues that his rights under Part I, Article 15 of the New Hampshire Constitution and the Fifth and Sixth Amendments to the United States Constitution were violated. Specifically, he contends that the trial court erred in not suppressing his statements because, given that a reasonable person in his position would have believed himself to be in custody, the police should have advised him of his rights under Miranda.

We first address the defendant's claim under the State Constitution and rely upon federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, 231–33, 471 A.2d 347 (1983). Before the defendant's responses made during a custodial interrogation may be used as evidence against him, the "State must prove, beyond a reasonable doubt, that it did not violate [his] constitutional rights under Miranda. " State v. Gribble, 165 N.H. 1, 10, 66 A.3d 1194 (2013) ; cf. State v. Rathbun, 132 N.H. 28, 30, 561 A.2d 505 (1989) (ruling State's burden to demonstrate defendant's statement was spontaneous, and thus outside Miranda's ambit, subject to...

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10 practice notes
  • State v. Castillo, SC 19777
    • United States
    • Supreme Court of Connecticut
    • July 3, 2018
    ...130 L.Ed.2d 1095 (1995), quoting Stansbury v. California , 511 U.S. 318, 325, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) ; State v. McKenna , 166 N.H. 671, 683, 103 A.3d 756 (2014) ("accusatory statements made by the officers and directed at the defendant also weigh in favor of custody&quo......
  • State v. Carrier, No. 2018-0575
    • United States
    • Supreme Court of New Hampshire
    • April 7, 2020
    ...692. Custody analyses, however, are rarely based upon a static set of circumstances. Id. at 160, 211 A.3d 692 ; accord State v. McKenna, 166 N.H. 671, 677, 103 A.3d 756 (2014). Interrogations are fluid: what may begin as noncustodial questioning may evolve over time into custodial questioni......
  • In re B.C., No. 2013–542
    • United States
    • Supreme Court of New Hampshire
    • January 29, 2015
    ...111 A.3d 694 the degree to which the suspect was physically restrained, and the interview's duration and character. State v. McKenna, 166 N.H. 671, 677, 103 A.3d 756 (2014). Like the analysis used by other courts, our custody analysis is binary: we determine whether the suspect either is un......
  • People v. Barritt, No. 333206
    • United States
    • Court of Appeal of Michigan (US)
    • February 14, 2017
    ...told he was free to terminate the interrogation supports a finding of custody at some point during the interrogation. [ State v. McKenna , 166 N.H. 671, 680, 103 A.3d 756 (2013).]See also People v. Elmarr , 181 P.3d 1157, 1163 (Colo. 2008) (finding it "[i]mportant[ ]" that the def......
  • Request a trial to view additional results
10 cases
  • State v. Castillo, SC 19777
    • United States
    • Supreme Court of Connecticut
    • July 3, 2018
    ...130 L.Ed.2d 1095 (1995), quoting Stansbury v. California , 511 U.S. 318, 325, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) ; State v. McKenna , 166 N.H. 671, 683, 103 A.3d 756 (2014) ("accusatory statements made by the officers and directed at the defendant also weigh in favor of custody" [emphas......
  • State v. Carrier, No. 2018-0575
    • United States
    • Supreme Court of New Hampshire
    • April 7, 2020
    ...692. Custody analyses, however, are rarely based upon a static set of circumstances. Id. at 160, 211 A.3d 692 ; accord State v. McKenna, 166 N.H. 671, 677, 103 A.3d 756 (2014). Interrogations are fluid: what may begin as noncustodial questioning may evolve over time into custodial questioni......
  • In re B.C., No. 2013–542
    • United States
    • Supreme Court of New Hampshire
    • January 29, 2015
    ...111 A.3d 694 the degree to which the suspect was physically restrained, and the interview's duration and character. State v. McKenna, 166 N.H. 671, 677, 103 A.3d 756 (2014). Like the analysis used by other courts, our custody analysis is binary: we determine whether the suspect either is un......
  • People v. Barritt, No. 333206
    • United States
    • Court of Appeal of Michigan (US)
    • February 14, 2017
    ...told he was free to terminate the interrogation supports a finding of custody at some point during the interrogation. [ State v. McKenna , 166 N.H. 671, 680, 103 A.3d 756 (2013).]See also People v. Elmarr , 181 P.3d 1157, 1163 (Colo. 2008) (finding it "[i]mportant[ ]" that the defendant "wa......
  • Request a trial to view additional results

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