The opinion of the court was delivered by: Hicks, J.
a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme.
Hillsborough-northern judicial district
Argued: November 16, 2011
The defendant, Roscoe White, appeals his convictions, by a jury, of one count of first-degree murder, see RSA 630:1-a (2007), and one count of attempted first-degree assault, see RSA 631:1 (2007); RSA 629:1 (2007). On appeal, he argues that the Trial Court (Tucker, J.) erred in denying his motion to suppress inculpatory statements he made to an informant. We affirm.
On January 2, 2007, Aaron Kar was shot to death while standing with friends outside an apartment building in Manchester. The Manchester police suspected that the defendant was involved and questioned him about the incident on several occasions shortly after the shooting. During the following year, the police continued to investigate the crime.
Between October 1 and November 8, 2007, an undercover officer with the New Hampshire Drug Task Force purchased crack cocaine from the defendant six times as part of an ongoing investigation into the defendant's drug trafficking. However, the defendant was not arrested or charged with these crimes at this time.
Subsequently, on November 24, a sergeant with the Manchester Police Department received information from the informant, an inmate at the Hillsborough County House of Corrections, that he knew something about the January 2 shooting. Over the next few weeks, members of the Manchester Police Department met with the informant to discuss what he knew. The informant offered, in exchange for leniency on his pending charges, to provide the police with information about who shot Kar and the person who provided the murder weapon. The informant then provided the police with specific details about the shooting, including that he knew the defendant and that the defendant had claimed to be the person who shot Kar.
On February 4, 2008, the informant met with police and prosecutors to discuss recording a conversation between himself and the defendant. The police planned for this conversation to occur at the Hillsborough County House of Corrections after the defendant's arrest on drug charges. During this meeting, the police suggested ways in which the informant could get the defendant to talk about the murder. They also specifically told the informant not to talk to the defendant about the drug charges for which he was to be arrested.
On February 7, 2008, the defendant was arrested for the sale of controlled drugs and detained at the Hillsborough County House of Corrections. He was arraigned the next day and counsel was appointed for him on February 9.
On February 11, an assistant attorney general authorized a one-party intercept to make an audio recording of a conversation between the informant and the defendant that day. See RSA 570-A:2, II(d) (2001). While the authorization stated that there was "reasonable suspicion that evidence of the crime of drug sales and/or homicide w[ould] be derived from this interception," the assistant attorney general later testified that the language referring to the crime of drug sales was "a typo" and the authorization "was intended to only be issued for the homicide." She further stated that she "was very clear" that during the conversation the informant was "not to go near the drug sales for which the [d]efendant was . . . incarcerated."
After obtaining the authorization, the police arranged to have the informant and the defendant placed in the same cell. They met with the informant once more and reiterated the instruction that he not discuss the defendant's drug charges. Upon being placed in the cell together, the defendant and the informant began conversing. Notwithstanding the explicit instructions to the contrary, the informant began discussing the defendant's drug charges and intermittently discussed them throughout the conversation. As the conversation continued, the defendant made statements implicating himself in Kar's murder, including admitting that he was the shooter. On February 13, the Manchester Police Department obtained an arrest warrant for the defendant for the charge of first-degree murder; he was indicted on the murder and attempted first-degree assault charges on May 16, 2008.
Prior to trial, the defendant moved to suppress the recorded statements, arguing that any statements he made in response to the informant's questions about the drug charges were elicited in violation of his right to counsel on those charges. He contended that any statements made after this violation, including statements about the shooting, were the fruit of that violation and, therefore, must be suppressed as the "fruit of the poisonous tree." He further argued that "[t]he [S]tate's conduct in this case was fundamentally unfair and thus a violation of due process." (Bolding omitted.)
The State conceded that the defendant's right to counsel had attached with respect to the drug charges and, thus, any discussion between the informant and the defendant relating to the drug charges would be inadmissible at a trial on those charges. The State later represented that it would not introduce any portions of the conversation related to the drug charges at trial on the charges related to the shooting. The State maintained, however, that because the defendant's right to counsel had not yet attached on the charges related to the shooting, there had been no violation of his right to counsel on those charges and the statements related to the shooting were admissible. The State also argued that its actions did not constitute a due process violation.
Following a hearing, the trial court denied the defendant's motion. The court found that the defendant's right to counsel had attached on the drug charges and, "[a]s a result, [the informant's] inquiries constituted impermissible interrogation with respect to that case." Nevertheless, the court found that when the defendant spoke with the informant, he was not charged with any crime related to the shooting and, "since the right to counsel is 'offense specific,' the right to counsel had not attached in connection with the murder charges." (Citation omitted.) The court further found that the defendant's statements to ...