State v. Richardson
| Decision Date | 02 December 2014 |
| Docket Number | NO. 218-2014-CR-00461,218-2014-CR-00461 |
| Parties | STATE OF NEW HAMPSHIRE . v. MARK RICHARDSON |
| Court | New Hampshire Superior Court |
The defendant Mark Richardson is charged with one count of simple assault by an on-duty law enforcement officer. He has moved to dismiss the indictment, arguing that he is entitled to transactional immunity for the charge under the New Hampshire Constitution. Alternatively, he requests a hearing pursuant to Kastigar v. United States, 406 U.S. 441 (1972), in order to determine whether the State has made use or derivative use of certain compelled statements he made. On October 24, 2014, the Court held a hearing on the issues of whether the New Hampshire Constitution requires that the defendant be given transactional immunity in exchange for the compelled statements and, if not, whether he is entitled to a pretrial Kastigar hearing under these circumstances. For the reasons set forth herein, the Court answers both questions in the negative. The defendant's motion to dismiss is therefore DENIED.
The following facts are taken from the defendant's motion to dismiss. In November 2009, while the defendant was employed as an officer with the Seabrook Police Department, he allegedly assaulted Michael Bergeron, Jr., who was being held in custody. Mot. Dismiss ¶3. On April 4, 2014, the defendant was indicted on one count of simple assault by an on-duty law enforcement officer. Id. ¶1.
As part of its own internal investigation of the incident, the Seabrook Police Department hired Municipal Resources Inc. ("MRI") in 2014 to investigate the incident and publish its findings, Id. ¶4. MRI interviewed the defendant on May 22. Id. ¶6. On threat of termination, the defendant was required to answer MRI's questions relating to the incident, Id. Before answering any questions, the defendant was required to sign a form titled "GARRITY WARNING," which stated in part:
This is to inform you that I have been engaged, on behalf of McKittrick Law Offices, which represents the Town, to question you regarding the events and circumstances concerning the motor vehicle stop, arrest, and detention of Michael J. Bergeron on November 11, 2009 and any matters pertaining thereto. This questioning will concern administrative matters relating to the official business of the Seabrook Police Department. I am not about to question you for the purpose of instituting a criminal prosecution against you. . . . [NJeither your self-incriminating statements nor the fruits of any self-incriminating statements you make will be used against you in any criminal legal proceedings. ... If you refuse to answer my questions or if you attempt to provide false, untrue, or deliberately erroneous information, or attempt to hamper the investigation in any way, this, in itself, is a violation of the rules and regulations of the Seabrook Police Department and will result in your dismissal.
Id. Ex. F (emphasis in original). After completing its investigation, MRI published its report, which was subsequently released to the public, Id. ¶13 & n.3; see generally id. Ex. C. The report contains statements made by the defendant to MRI. See id. Ex. C. On July 23, officials with the Town of Seabrook held a televised press conference toannounce the termination of the defendant based on the results of the MRI report, Id. ¶12. An Assistant Attorney General involved in prosecuting the defendant's case requested and received a copy of the report from the Town's attorney on that same day.1 See State's Ex. 1.
At the outset, the Court notes that the parties do not dispute that the defendant is entitled to some form of immunity for the statements he made to MRI after he was threatened with termination. See Mot. Dismiss 6; Obj. Mot. Dismiss ¶11. This conclusion is compelled by the United States Supreme Court's decision in Garrity v. New Jersey, 385 U.S. 493, 497-98 (1967), in which the court held that a public employer violates an employee's right against self-incrimination when it compels him to making incriminatory statements under threat of termination. See also State v. Litvin, 147 N.H. 606, 608-09 (2002) (discussing Garrity). Consequently, compelled statements "obtained under threat of removal from office" may not be used against the employee "in subsequent criminal proceedings . . . ." Garrity, 385 U.S. at 500. Courts now interpret Garrity to "stand for the proposition that a government employee who has been threatened with an adverse employment action by her employer for failure to answer questions put to her by her employer receives immunity from the use of her statements or their fruits in subsequent criminal proceedings . . . ." Sher v. U.S. Dep't of Veterans Affairs, 488 F.3d 489, 501 (1st Cir. 2007).
As Kastigar v. United States makes clear, the Fifth Amendment only prohibits theprosecution's use or derivative use of testimony given under grant of immunity at a criminal proceeding; an employee is not entitled to transactional immunity, which is a total "grant [of] immunity from prosecution for offenses to which [the] compelled testimony relates." 406 U.S. at 443. Under the Fifth Amendment, the government is permitted to prosecute the employee for the alleged misconduct, so long as "the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony." Id. at 460.2
Although the nature of the protection afforded pursuant to the Federal Constitution is well-settled, the New Hampshire Supreme Court has yet to determine whether use and derivative use immunity is sufficiently protective of a public employee's privilege against self-incrimination under Part I, Article 15 of the State Constitution. See N.H. CONST, pt. I, art. 15 (). In deciding this question, the guiding inquiry is whether the immunity granted to the witness is coextensive with the privilege displaced, See Kastigar, 406 U.S. at 449 (); see also Wyman v. De Gregory, 101 N.H. 171, 175 (1957). The defendant asks the Court to interpret Part I, Article 15 to require transactional immunity in exchange for a statement compelled under threat of termination, arguing that only transactional immunity is sufficient to protect the privilege. See Mot. Dismiss 6-9. The State objects and responds that "the New Hampshire Constitution does not require that a witness be granted transactional immunity beforebeing compelied to testify." Obj. Mot. Dismiss ¶32.
Assuming that the Court were to hold that the State Constitution is no more protective than the Federal Constitution in this area, there would be a question as to whether the State has made or intends to make impermissible use of the defendant's compelled statements. The parties disagree on this issue as well. See Mot. Dismiss at 10-13; Obj. Mot. Dismiss at 6-11, ¶¶15-29. They further dispute whether the defendant is entitled to a pretrial Kastigar hearing, at which the State would bear the "heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources." Kastigar, 406 U.S. at 461-62. The State asserts that a hearing is unnecessary because it has not made any impermissible use of the defendant's compelled statements. Obj. Mot. Dismiss ¶65.
The Court examines each of these matters in turn. For analytical purposes, the Court begins by examining and rejecting the defendant's contention that transactional immunity is required under the State Constitution. The Court then proceeds to set forth its reasoning as to why use and derivative use immunity, as articulated in Kastigar, is sufficient to protect the defendant's Article 15 right against self-incrimination. Applying Kastigar to the facts presented, the Court concludes that no hearing is necessary at this stage of the proceedings.
I. New Hampshire and Massachusetts Case Law Analyzing Immunity Statutes
Enacted in 1784, Part I Article 15 provides in relevant part that "[n]o subject shall be . . . compelled to accuse or furnish evidence against himself." N.H. CONST, pt. I, art. 15, This right against self-incrimination permits an individual "to refuse to testify against himself at a criminal trial in which he is a defendant, [and] also privileges himnot to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Knowles v. Warden, N.H. State Prison, 140 N.H. 387, 391 (1995) (quoting Minnesota v. Murphy, 465 U.S. 420, 426 (1984)). The purpose of the right is to prevent the unlawful acquisition and subsequent use of a defendant's testimony to establish his guilt in a criminal case. See State v. Marchand, 164 N.H. 26, 32 (2012).
In 1878, the New Hampshire Supreme Court first had occasion to consider whether an immunity statute violated Article 15. See State v. Nowell, 58 N.H. 314 (1878). The statute at issue stated:
No clerk, servant, or agent of any person accused of a violation of this chapter shall be excused from testifying against his principal for the reason that he may thereby criminate himself; but no testimony shall, in any prosecution, be used as evidence, either directly or indirectly, against him, nor shall he be thereafter prosecuted for any offence so disclosed by him.
N.H. Laws 1858, ch. 99, §20. In Nowell, a clerk had been held in contempt for refusing to testify before a grand jury regarding whether his employer had sold intoxicating liquor. Nowell, 58 N.H. at 314. Nowell appealed the contempt decree to the Supreme Court. Id. The question presented to the court was "whether the provisions of Gen. St., c. 99, s. 20, are consistent" with Article 15. Id....
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