State v. Spencer

• Decision Date: 30 June 2003
• Docket Number: No. 2002–288.,2002–288.
• Citation: State v. Spencer, 826 A.2d 546, 149 N.H. 622 (N.H. 2003)
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire, v. Geraldine SPENCER.

149 N.H. 622

826 A.2d 546

The STATE of New Hampshire,

v.Geraldine SPENCER.

No. 2002–288.

Supreme Court of New Hampshire.

Argued: April 10, 2003.

Opinion Issued: June 30, 2003.

Peter W. Heed, attorney general (Susan P. McGinnis, attorney, on the brief and orally), for the State.

Landya McCafferty, assistant appellate defender, of Dover, by brief and orally, for the defendant.

DALIANIS, J.

The defendant, Geraldine Spencer, appeals from her conviction of one count of forgery, see RSA 638:1 (1996), and one count of theft by unauthorized taking, see RSA 637:3 (1996). She argues that the Superior Court (Smukler , J.) erred by denying her motions to suppress her pre-Miranda statement and silence and her post-Miranda confession. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We affirm.

The following facts were adduced at the suppression hearing. Detective Kristian Kelley and Sergeant Kevin Keenan went to the defendant's house to arrest her for forging checks stolen from a customer at a grocery store. After the defendant was told that she was being arrested for forgery, she stated that "she didn't know anything about it," and "didn't know why she was being arrested." The defendant professed her innocence and told the officers that they had better know what they were doing. She was taken into custody, handcuffed and escorted to a police cruiser. Sergeant Keenan testified that the defendant was "yelling that we had the wrong person" while "trying to pull away from us" because "[s]he didn't want to be taken into custody."

In response, Sergeant Keenan showed the defendant bank surveillance photographs in which a person who appeared to be the defendant was cashing a check and said, "[T]his is your picture." The defendant calmed down and told the police that she had children and did not want to go to jail. Detective Kelley testified that at that point, Sergeant Keenan stated that "if you're cooperative with us, we will explain the fact that you do have three kids and do what we can to try to make sure that you get back to those kids, make that recommendation to the judge when [you go] for arraignment." The defendant was calm and quiet for the remainder of the trip to the police station.

At the police station, the defendant was read her Miranda rights and given a Miranda waiver form on which she marked that she understood each right. She then waived her rights. She was interviewed for approximately one hour and confessed to the charged crimes.

Prior to trial, the defendant filed a motion to suppress her post-Miranda confession, claiming that her waiver was not a knowing, voluntary and intelligent waiver because "the Gilford police threatened that unless she gave a statement she would not be released, so that her children would be left uncared for." The defendant asserted that she would not have given her statements had she not been threatened.

At the suppression hearing, the defendant also argued that the police violated Miranda by not giving her warnings prior to showing her the bank surveillance photographs. The trial court denied the motion to suppress, finding that the police did not threaten the defendant, but it did not address the issue of the bank surveillance photographs. The defendant filed a motion to reconsider arguing that the showing of the photographs was tantamount to interrogation for the purposes of Miranda because it was likely to elicit an incriminating response. Accordingly, the defendant argued that "everything [she] said subsequent to her being shown the photographs should be suppressed." The trial court denied the motion. The defendant was convicted, and this appeal followed.

On appeal, the defendant argues that her rights under Part I, Article 15 of the State Constitution and the Fifth Amendment of the Federal Constitution were violated. She argues that her statements and silence in the police cruiser after being shown the bank surveillance photographs should have been suppressed because Sergeant Keenan violated Miranda by engaging in the functional equivalent of interrogation in eliciting her response. She further argues that her Miranda waiver and subsequent confession at the police station should have been suppressed because neither was voluntary. She argues that either the first Miranda violation tainted her waiver and subsequent confession or a police promise coerced her into waiving her rights and confessing.

We first address each of the defendant's arguments under the State Constitution, State v. Ball, 124 N.H. 226, 231–33, 471 A.2d 347 (1983), and cite federal opinions only to aid in our analysis. Id.

I. Pre–Miranda statement and silence

Before the defendant's responses made during a custodial interrogation may be used as evidence against her, the State must prove, beyond a reasonable doubt, that she was warned of her constitutional rights, that she waived those rights, and that any subsequent statements were made knowingly, voluntarily and intelligently. See State v. Johnson, 140 N.H. 573, 577, 669 A.2d 222 (1995). There is no question that the defendant was in custody at the time she was shown the surveillance photographs. Thus, the first issue we review is whether Sergeant Keenan interrogated the defendant by showing her the bank surveillance photographs.

In reviewing a determination of interrogation, we have deferred to the trial court if it applied the appropriate legal standard, and its factual findings were sufficient and not contrary to the manifest weight of the evidence. See State v. Dedrick, 132 N.H. 218, 226, 564 A.2d 423 (1989),cert . denied , 494 U.S. 1007, 110 S.Ct. 1305, 108 L.Ed.2d 481 (1990). In light of our holding in State v. Ford, 144 N.H. 57, 738 A.2d 937 (1999), however, we find it necessary to clarify our standard of review. In Ford , we held that "[b]ecause the ultimate determination of custody [in Miranda cases] requires an application of a legal standard to historical facts, it is not merely a factual question but a mixed question of law and fact," id. at 62, 738 A.2d 937, and accordingly reviewed the trial court's ultimate determination of custody de novo , id. at 63, 738 A.2d 937.

Likewise, whether the defendant was subjected to interrogation is a mixed question of law and fact. See , e.g. , United States v. Moreno–Flores, 33 F.3d 1164, 1168 (9th Cir.1994) ; State v. Juarez, 120 N.M. 499, 903 P.2d 241, 244 (App.1995). Thus, while we will continue to defer to the trial court's factual findings unless they are contrary to the manifest weight of the evidence, we will review the ultimate determination of interrogation de novo . See Juarez, 903 P.2d at 244; see also Ford, 144 N.H. at 63, 738 A.2d 937.

Interrogation for Miranda purposes occurs where "a person in custody is subjected to either express questioning or its functional equivalent." Rhode Island v. Innis, 446 U.S. 291, 300–01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The functional equivalent of interrogation includes "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Id. at 301, 100 S.Ct. 1682 (footnote omitted).

The defendant argues that Sergeant Keenan's use of the bank surveillance photographs was the functional equivalent of interrogation. We disagree. Sergeant Keenan's action in response to the defendant's repeated questions about the basis for her arrest and claims of innocence cannot be considered interrogatory. Courts have held that a police officer's response to certain inquiries by the defendant does not constitute interrogation under Innis . See , e.g. , United States v. Briggs, 273 F.3d 737, 740–41 (7th Cir.2001) ; United States v. Conley, 156 F.3d 78, 83 (1st Cir.1998) ; United States v. Benton, 996 F.2d 642, 644 (3d Cir.), cert . denied , 510 U.S. 1016, 114 S.Ct. 613, 126 L.Ed.2d 577 (1993) ; United States v. Taylor, 985 F.2d 3, 8 (1st Cir.1993). In Benton , for example, the court admitted the defendant's response to a police officer's explanation of why the defendant was being arrested because the explanation was a response to the defendant's questions about his arrest. Benton, 996 F.2d at 643, 644. In Taylor , the court concluded that the defendant's question—"why is this happening to me?"—was a direct request for an explanation as to why she was under arrest. Taylor, 985 F.2d at 8. Thus, the court held that the police officer's response to the question was not the functional equivalent of interrogation. Id.

In the present case, the defendant stated that "she didn't know why she was being arrested," "that she didn't know anything about forgery," and that the officers "had better know what they were doing." Sergeant Keenan testified at the suppression hearing that the defendant was " trying to pull away from us" and "didn't want to be taken into custody." The officers testified that she was shown the photographs in an attempt to calm her down and explain the basis for her arrest, not to elicit an incriminating response. Cf . United States v. Crisco, 725 F.2d 1228, 1232 (9th Cir. 1984) (where agent commented on incriminating evidence to explain the arrest, action not the functional equivalent of interrogation). While the officer's intent in showing the photographs is not conclusive, it is relevant in determining whether the action was the functional equivalent of interrogation. See United States v. Lynch, 813 F.Supp. 911, 916 (D.N.H.1993).

We cannot say that Sergeant Keenan should have known that showing the defendant the photographs was reasonably likely to elicit an incriminating response. The photographs were not shown in a way that required an affirmative response from the defendant, cf . Shedelbower v. Estelle, 885 F.2d 570, 573 (9th Cir.1989), cert . denied , 498 U.S. 1092, 111 S.Ct. 975, 112 L.Ed.2d 1060 (1991), but rather were shown in response to the defendant's apparent confusion over being arrested, cf . B...