State v. Rezk, No. 2002-618 (N.H. 1/30/2004)
| Decision Date | 30 January 2004 |
| Docket Number | No. 2002-618,2002-618 |
| Parties | THE STATE OF NEW HAMPSHIRE v. MICHAEL REZK. |
| Court | New Hampshire Supreme Court |
Peter W. Heed, attorney general (Michael A. Delaney, senior assistant attorney general, on the brief and orally), for the State.
Christopher M. Johnson, chief appellate defender, of Concord, by brief and orally, for the defendant.
The defendant, Michael Rezk, appeals his convictions by a jury on one count of theft by receiving stolen property, see RSA 637:7 (1996) (amended 2001), one count of attempted burglary, see RSA 635:1 (1996); RSA 629:1 (Supp. 2003), two counts of felon in possession of a dangerous weapon, see RSA 159:3 (2002), and one count of felonious use of a firearm, see RSA 650-A:1 (1996). On appeal, he contends that the Superior Court (McHugh, J.) erroneously denied his motion to suppress his confessions. We affirm in part, reverse in part, vacate in part and remand for resentencing.
The following facts were adduced at the suppression hearing. On March 29, 2001, a warrant was issued for the defendant's arrest for an armed robbery he allegedly committed in January 2001. The police planned to execute the warrant by stopping the defendant while he was en route to rob the same victim again. State and local police from several towns stopped the car in which the defendant was a passenger at approximately 8:00 p.m. that night. The police arrested and searched him, finding that he had multiple firearms in his possession. The police transported the defendant to the Kingston Police Department. Once there, the police advised him of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1966). He was again advised of his Miranda rights when he was taken into a conference room. Each time, the officer read the Miranda rights to the defendant one at a time and, after each right, asked him if he understood it, to which the defendant responded affirmatively.
After reading the defendant his Miranda rights in the conference room, the officer asked him if he wished to speak. The defendant said he would and then asked the officer "what was in it for him." The officer replied that if he cooperated, the officer "wouldn't charge him with all the felonies." Specifically, the officer said that he would not charge the defendant with the January 2001 crime or with an attempted burglary that the defendant allegedly committed against the same victim in February 2001. The officer also told the defendant that, if he were willing to cooperate, the officer would not charge the other man who was with the defendant when he was stopped. Following these representations, the defendant confessed orally and in writing to the January 2001 crime.
Because the police wanted to videotape his statements, they transported the defendant to the Exeter Police Department, which had the necessary equipment, approximately two hours after his arrest. Once there, the police again advised the defendant of his Miranda rights. This time, in addition to saying that he understood each Miranda right after it was read to him, the defendant signed a form acknowledging that he understood and waived those rights.
The police then videotaped their interview of the defendant. They began by advising the defendant of his Miranda rights once more. On tape, the defendant again indicated that he understood those rights and wished to speak with the police. The videotaped interview began at approximately 1:00 a.m. and ended at approximately 2:00 a.m.
During the interview, the defendant first discussed the January 2001 crime. He explained that he had been offered $100,000 either to collect a debt from Russell Thomas, or to kill Thomas if he refused to repay the debt. On January 26, 2001, the defendant went to Thomas' residence and threatened him with a weapon. Approximately two and one-half weeks later, after he had learned that Thomas had not repaid the debt, the defendant threatened him again. The defendant returned to Thomas' home a third time when Thomas was away. On that occasion, he broke in and took some deeds. Approximately one week before his arrest, the defendant and his associate, Philip Simard, went to Thomas' home, where the defendant cut the lines to Thomas' phone and kicked in his door.
With respect to the events of March 29, the defendant said that he and Simard were en route to Thomas' home, intending to either kill Thomas or bring him to Massachusetts to meet the person who had hired the defendant.
The State charged the defendant only for the crimes he allegedly committed on March 29. They did not charge Simard.
The defendant argues that his confessions were involuntary and, therefore, their admission at trial violated his due process rights under the State and Federal Constitutions. See N.H. CONST. pt. I, art. 15; U.S. CONST. amend. XIV. We first address the defendant's arguments under the State Constitution. See State v. Ball, 124 N.H. 226, 231 (1983). We rely upon federal opinions for guidance only. See id. at 232-33.
Under Part I, Article 15 of our State Constitution, the State must prove that the defendant's statements were voluntary beyond a reasonable doubt. State v. Hammond, 144 N.H. 401, 404 (1999). Whether a confession is voluntary is initially a question of fact for the trial court. Id. We will not overturn a trial court's determination that a confession is voluntary unless it is contrary to the manifest weight of the evidence, as viewed in the light most favorable to the State. State v. Spencer, 149 N.H. 622, 627 (2003).
"In determining whether a confession is voluntary, we look at whether the actions of an individual are the product of an essentially free and unconstrained choice or are the product of a will overborne by police tactics." Hammond, 144 N.H. at 405 (). In making this determination, "[w]e examine the totality of all surrounding circumstances - both the characteristics of the accused and the details of the interrogation." Id. (quotation omitted).
Relying principally upon our decision in State v. McDermott, 131 N.H. 495, 501 (1989), the defendant argues that we need not examine the totality of the circumstances to find his confessions involuntary because they were induced by the police officer's promise not to charge him with certain offenses and not to charge his associate, Simard. In McDermott, although we cited the totality of the circumstances test, we focused solely upon the existence of a police promise of confidentiality to find the defendant's confession involuntary. See McDermott, 131 N.H. at 500-01.
The facts of McDermott were unusual. In that case, the defendant was told by a federal drug enforcement agent that information he provided about a murder "would not leave the office." Id. at 496, 499. The agent told the defendant that his agency "simply needed the information . . . to avoid surprises" at trial and that it could never obtain cooperation from informants if it prosecuted them for the information they provided. Id. at 499. The defendant then confessed that he committed the murder. Id. Following his confession, the agent informed the defendant that because he confessed to the murder without having first been advised of his Miranda rights, his statements could not be used against him. Id. Despite these promises, the defendant was charged with committing the murder to which he confessed. Id.
We held that the voluntariness of the defendant's confession turned solely upon the agent's promises. Id. at 501. "In this case," we ruled, "to allow the government to revoke its promise after obtaining incriminating information obtained in reliance on that promise would be to sanction governmental deception in a manner violating due process." Id. We noted that the agent's promises were "categorically different" from other kinds of promises, which were not dispositive of the issue of voluntariness, such as a promise to inform other authorities that a defendant cooperated or a promise to recommend reduced bail. Id. Accordingly, we limited our per se rule of involuntariness to promises of confidentiality and promises of immunity from prosecution. Id.
The genesis for our decision in McDermott was the United States Supreme Court's decision in Bram v. United States, 168 U.S. 532 (1897). In that case, the court stated that a voluntary confession is one that was "not . . . extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence." Bram, 168 U.S. at 542-43 (quotation omitted). In Arizona v. Fulminante, 499 U.S. 279, 285 (1991), the court expressly rejected Bram's prohibition against any direct or implied promise, "however slight," approving in its stead a totality of the circumstances test for determining the voluntariness of a confession. See Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973); see also State v. Carroll, 138 N.H. 687, 691 (1994).
Modern cases have identified a variety of factors relevant to whether police promises or threats make a confession involuntary, including: (1) the nature of the promise; (2) the context in which it was made; (3) the characteristics of the individual defendant; (4) whether the defendant was informed of his Miranda rights; and (5) whether counsel was present. See United States v. Pinto, 671 F. Supp. 41, 57 (D. Me 1987). State v. Reynolds, 124 N.H. 428, 434 (1984) (citation omitted).
"[W]hen considering what impact a promise had in overbearing the will of a suspect, courts must give qualitative, rather than quantitative weight to the promise." State...
To continue reading
Request your trial