State v. Pouliot, 011321 NHSC, 2019-0322

Docket Nº:2019-0322
Opinion Judge:BASSETT, J.
Attorney:Gordon J. MacDonald, attorney general (Zachary L. Higham, attorney, on the brief and orally), for the State. Anthony J. Naro, assistant appellate defender, of Concord, on the brief and orally, for the defendant.
Judge Panel:HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.
Case Date:January 13, 2021
Court:Supreme Court of New Hampshire




No. 2019-0322

Supreme Court of New Hampshire, Rockingham

January 13, 2021

Argued: September 9, 2020

Gordon J. MacDonald, attorney general (Zachary L. Higham, attorney, on the brief and orally), for the State.

Anthony J. Naro, assistant appellate defender, of Concord, on the brief and orally, for the defendant.


The defendant, Joshua Pouliot, appeals convictions, following a jury trial, on three counts of aggravated felonious sexual assault, see RSA 632-A:2 (Supp. 2019), and one count of felonious sexual assault, see RSA 632-A:3 (Supp. 2019). On appeal, the defendant argues that the Superior Court (Delker, J.) erred by denying his motion to exclude evidence that he answered "no comment" in response to police questioning about the sexual assaults during a non-custodial interview over the phone. He contends that, through his "no comment" response, he invoked his Fifth Amendment privilege against compelled self-incrimination. See U.S. CONST. amends. V, XIV. He also argues that the trial court may have erred when, after conducting an in camera review of confidential records pertaining to the victim, the court ordered that only certain portions of those records be disclosed to the defendant. We affirm the trial court's denial of the defendant's motion to exclude, and remand to the trial court for further in camera review of the records.

The following facts are taken from the trial court's order denying the defendant's motion to exclude, are established by the evidence submitted at the hearing on the motion, or are otherwise undisputed. The defendant and the victim are cousins, and the defendant is approximately six years older than the victim. During the summer of 2017, the victim reported that the defendant had sexually assaulted him multiple times when the victim was between 9 and 13 years old.

In August 2017, an officer for the Londonderry Police Department began investigating the allegations against the defendant. At the time of the investigation, the defendant was attending college in Rochester, New York. The officer contacted the defendant's parents and asked them to have the defendant call him. Thereafter, the defendant called the police station to speak with the officer. The officer then interviewed the defendant.

At the start of the interview, the defendant confirmed his name, address, date of birth, and that he was the victim's cousin. Approximately two to five minutes into the interview, the officer asked the defendant about an allegation that he had sexually assaulted the victim. He responded, "No comment." The officer then asked the defendant additional questions about his home and family life, such as whether he was safe at home and whether he was the only child staying at his parents' house. He confirmed that those details were true.

After the initial "no comment" response, the officer asked the defendant multiple times about the sexual assault allegations. Each time, the defendant responded either by remaining silent or stating that he had "nothing else to say." On each occasion when the defendant refused to answer questions about the allegations, the officer redirected the conversation and asked questions about the defendant's family, school, and social life. The defendant willingly answered those questions.

The interview ended when, after approximately 40 minutes, the officer again asked the defendant about the sexual assault allegations. The defendant stated, "I have nothing more to say," and hung up the phone.

Before trial, the defendant moved to exclude his "no comment" statement, as well as other evidence that he did not respond to the officer's questions about the sexual assaults. He argued that use of his pre-arrest "silence" in the State's case-in-chief would violate his rights under Part I, Article 15 of the State Constitution and the Fifth and Fourteenth Amendments to the Federal Constitution. See N.H. CONST. pt. I, art. 15; U.S. CONST. amends. V, XIV. During the first day of trial, the trial court held an evidentiary hearing on the motion. The officer, who was the only witness to testify during the hearing, recounted his interview with the defendant.

The trial court issued an oral ruling from the bench, granting the motion in part and denying it in part. First, the court observed that the defendant had refused to answer only some of the officer's questions. The court correctly noted that whether a defendant may "selectively invoke" the Fifth Amendment "right to silence" - refusing to answer certain questions, while answering others - is an "unsettled area of the law." Compare Hurd v. Terhune, 619 F.3d 1080, 1086-87 (9th Cir. 2010) (stating that, after a suspect has received Miranda warnings, the suspect "may remain selectively silent by answering some questions and then refusing to answer others without taking the risk that his silence may be used against him at trial"), with Dillon v. Smith, No. 07-CV-10728 (ALC)(RLE), 2015 WL 13745783, at *12 (S.D.N.Y. Dec. 22, 2015) ("While some circuit courts support the view that Fifth Amendment rights may be selectively invoked during a police interrogation after a defendant has voluntarily responded to law enforcement's questions[, ] neither the Supreme Court, nor the Second Circuit, has adopted selective invocation of the right to remain silent." (footnote omitted)). In its analysis, the trial court assumed that the defendant may selectively invoke the right to remain silent.

The court granted the defendant's motion in regard to his statements that he had "nothing else to say" and "nothing more to say," and with respect to hanging up the phone. The court denied the motion with respect to the defendant's "no comment" statement, and his silence in response to certain questions, ruling that those responses were not invocations of the right to remain silent. Following a three-day trial, the jury convicted the defendant.

The trial court later issued a written order which "supplement[ed] its oral ruling." The court ruled that the defendant had waived his State Constitutional argument, and limited its analysis to the defendant's claim under the Federal Constitution. The court found that the defendant was not in custody during the phone interview, and that he was not provided with Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 444 (1966) (stating that, before government officers may interrogate a person who is in custody, officers must warn the person that "he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney"). The court ruled that, when a defendant is not in custody and does not receive Miranda warnings, in order for the defendant's invocation of the right to remain silent to be effective, it must be unambiguous. The court explained that it had denied the defendant's motion with respect to his silence and "no comment" statement because those responses were not unambiguous invocations of his Fifth Amendment rights. This appeal followed.

We first address the defendant's argument that his "no comment" statement was an effective invocation of the Fifth Amendment privilege against compelled self-incrimination. The Fifth Amendment provides, in relevant part, that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." U.S. CONST. amend. V. The privilege against compelled self-incrimination is "an exception to the general principle that the Government has the right to everyone's testimony." Garner v. United States, 424 U.S. 648, 658 n.11 (1976). "[A] witness who desires the protection of the privilege must claim it at the time he relies on it." Salinas v. Texas, 570 U.S. 178, 183 (2013) (quotations and ellipsis omitted) (plurality opinion).

At the outset, we note, as did the trial court, that the defendant was not in custody at the time of the interview, and that he did not receive Miranda warnings. See Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (stating that government officers are not required to provide Miranda...

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