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State v. McKenna

Supreme Court of New Hampshire

September 9, 2014

The State of New Hampshire
Timothy McKenna

Argued November 21, 2013.

Petition for certiorari filed at, 01/08/2015.

Editorial Note:

Under New Hampshire procedural rule this decision is subject to motion for rehearing, as well as formal revision before publication in the New Hampshire reports.


Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State.

Andrew F. Cotrupi, of Hampton, by brief and orally, and Samdperil & Welsh, PLLC, of Exeter (Richard E. Samdperil on the brief), for the defendant.

BASSETT, J. HICKS and CONBOY, JJ., concurred; LYNN, J., with whom DALIANIS, C.J., joined, dissented.


Bassett, J.

Following a jury trial in Superior Court (McHugh, J.), the defendant, Timothy McKenna, was convicted of six counts of aggravated felonious sexual assault. RSA 632-A:2 (2007). Prior to trial, the defendant moved to suppress his statements to the police on the ground that he was subject to a custodial interrogation without being informed of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). After an evidentiary hearing, the Superior Court (Delker, J.) denied the motion. The defendant appeals the trial court's denial of his motion to suppress. We reverse and remand.

The following facts are drawn from the trial court's order or from uncontroverted testimony at the pretrial suppression hearing. In October 2010, the Newmarket Police Department received a report that K.L. had been sexually abused by the defendant approximately nine to fourteen years earlier. Lieutenant Kyle True and Sergeant Tara Laurent investigated the allegations and obtained a warrant for the defendant's arrest. On October 22, 2010, True and Laurent, accompanied by New Hampshire State Trooper Rella, drove in two vehicles -- one fully-marked State Police cruiser and one unmarked Ford Expedition -- to a campground and restaurant owned by the defendant in Errol. The restaurant is located at the end of a one-eighth mile driveway and is not visible from the road. The driveway ends in a large clearing, surrounded by woods, which includes a one-acre field where the parking lot and restaurant are located.

Rella, dressed in his State Police uniform and armed with his service weapon, sought out the defendant to request that he speak to the officers. The Newmarket officers waited outside the restaurant. They wore jackets with the Newmarket police badge and their names embroidered on the front. Although both Newmarket officers were also armed, their jackets covered their weapons. The officers had an arrest warrant in their possession, and it was their intention to arrest the defendant that day, unless the defendant provided the officers information that established that he could not have committed the crime -- for example, if the defendant had evidence that he had been outside of the country during the alleged incidents. True testified that he was looking to elicit a confession from the defendant.

Rella and the defendant met with the two officers. True then asked the defendant to speak with him and Laurent without either the defendant's girlfriend or Rella present. True explained that the subject that they intended to discuss was private. He suggested that they sit in the unmarked Ford Expedition because the outside temperature was thirty-five degrees and the officers were not dressed for the outdoors. Laurent testified that the defendant was hesitant, and asked whether they could walk and talk instead. The officers agreed, and the two officers and the defendant began walking. Laurent testified that Rella and the defendant's girlfriend walked in the opposite direction. Rella then returned to his cruiser, which he had parked in a location from which he was able to watch the defendant, True, and Laurent as they walked in the clearing.

The officers began by informing the defendant that they were there to " discuss [him] molesting [K.L.]." The defendant responded by saying that he " did not remember that." Laurent then pulled out a picture of K.L. and showed it to the defendant. The defendant said he remembered her and that she was a " cute girl." Laurent told the defendant that he was not under arrest, and that the officers had come to see him because they wanted to get his side of the story. Laurent noticed that the defendant began to shake when the officers said that they were from Newmarket, and that as they spoke, he looked very nervous and was shaking even harder, so she asked him whether he was cold. The defendant responded that he was not cold, as he had just been working. The interrogation continued.

For approximately one hour and fifteen minutes, the defendant walked to different parts of the clearing, and the officers followed him. They did not allow the defendant to leave Rella's line of sight. At one point, when the defendant began to walk into the woods, True said: " Hold it Tim, we're not walking out there. I don't want to leave the sight of the trooper." Although the defendant did not verbally respond, he stopped walking into the woods and changed direction. The officers continued to follow the defendant and ask questions. When the defendant walked to his truck to get more cigarettes, the officers again followed him. While he sat in the driver's seat of the truck with his feet hanging out of the open door, the officers stood outside the vehicle and continued the questioning.

The two officers and the defendant spoke in a conversational tone. The defendant never unequivocally denied molesting K.L.; however, he denied having an " inappropriate relationship" with her, and repeatedly told the officers that he did not remember molesting K.L. The defendant often responded to the officers with questions of his own about the investigation. On multiple occasions during the interrogation, the officers told the defendant that they did not believe him, urging him to tell the truth. Many of the questions asked by the officers were premised upon the assumption that the defendant was guilty. The officers also posited numerous reasons as to why the defendant might have committed the crime -- that he was emotionally attached to K.L., that he was sexually attracted to her, or that he wanted to hurt her. The defendant continued to shake as the interrogation continued. He was chain smoking, and at one point his breathing became shallow.

There is no evidence in the record that before or during the interrogation the defendant was told that he was free to leave the property or informed of his Miranda rights. Nor is there evidence that the officers informed him that he was free to ask them to leave the property, or that he was not required to answer their questions.

After approximately one hour of questioning, Laurent asked whether the defendant had had an emotional relationship with K.L. The defendant denied it. True then said, " You just wanted to come." The defendant nodded his head and responded, " Yes, that was probably it." True then asked if the defendant had had oral sex with K.L. The defendant responded, " Yes." He thereafter made additional incriminating statements. After the defendant made these admissions, the police accompanied him into the restaurant, where he spoke to his girlfriend. Shortly thereafter, he was arrested.

Prior to trial, the defendant moved to suppress his statements, arguing that the officers violated his rights under both the New Hampshire and United States Constitutions by subjecting him to a custodial interrogation without informing him of his Miranda rights. Following an evidentiary hearing during which the only witnesses were the two Newmarket officers, the trial court denied the defendant's motion. The court concluded that the defendant was not in custody as he " was familiar with his surroundings, there were only two officers present, and the defendant was not physically restrained." The court stated that the " type of freedom afforded the defendant during the interview bears none of the hallmarks of a formal arrest." After a three-day jury trial, the defendant was convicted of six counts of aggravated felonious sexual assault. This appeal followed.

On appeal, the defendant argues that his rights under Part I, Article 15 of the New Hampshire Constitution and the Fifth and Sixth Amendments to the United States Constitution were violated. Specifically, he contends that the trial court erred in not suppressing his statements because, given that a reasonable person in his position would have believed himself to be in custody, the police should have advised him of his rights under Miranda.

We first address the defendant's claim under the State Constitution and rely upon federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, 231-33, 471 A.2d 347 (1983). Before the defendant's responses made during a custodial interrogation may be used as evidence against him, the " State must prove, beyond a reasonable doubt, that it did not violate [his] constitutional rights under Miranda." State v. Gribble, 165 N.H. 1, 10, 66 A.3d 1194 (2013); cf. State v. Rathbun, 132 N.H. 28, 30, 561 A.2d 505 (1989) (ruling State's burden to demonstrate defendant's statement was spontaneous, and thus outside Miranda 's ambit, subject to preponderance standard). Compare State v. Lantagne, 165 N.H. 774, 776-777, 83 A.3d 397, 399 (2013) (explaining State bears burden on motion to suppress), with, e.g., United States v. Davis, 792 F.2d 1299, 1309 (5th Cir. 1986) (stating that the defendant " had the burden of proving that he was under arrest or in custody" ). Here, it is undisputed that the defendant was interrogated, and that he did not receive Miranda warnings; accordingly, the sole issue before us is whether that interrogation was custodial.

" Custody entitling a defendant to Miranda protections requires formal arrest or restraint on freedom of movement of the degree associated with formal arrest." State v. Jennings, 155 N.H. 768, 772, 929 A.2d 982 (2007) (quotation omitted). " In the absence of formal arrest, we must determine whether a suspect's freedom of movement was sufficiently curtailed by considering how a reasonable person in the suspect's position would have understood the situation." Id. " The location of questioning is not, by itself, determinative: a defendant may be in custody in his own home but not in custody at a police station." Id. (quotation omitted). " To determine whether a reasonable person in the defendant's position would believe himself in custody, the trial court should consider the totality of the circumstances of the encounter," id. (quotation omitted), " including, but not limited to, factors such as the number of officers present, the degree to which the suspect was physically restrained, the interview's duration and character, and the suspect's familiarity with his surroundings." Id. at 773.

For purposes of appellate review, the trial court's findings of historical facts relevant to the question of custody, that is, its determinations of " what happened," are entitled to the deference we normally accord its factual findings. State v. Ford, 144 N.H. 57, 62, 738 A.2d 937 (1999) (quotation omitted). Because the ultimate determination of custody 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. In a custody analysis, " the crucial question entails an evaluation made after determination of the historical facts: if encountered by a 'reasonable person,' would the identified circumstances add up to custody as defined in Miranda ?" Id. at 63 (quoting Thompson v Keohane, 516 U.S. 99, 113, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)) (brackets omitted). The trier of fact is not in an appreciably better position than we are to answer that question. Id. Therefore, although we will not overturn the factual findings unless they are contrary to the manifest weight of the evidence, we review the ultimate determination of custody de novo. Id.

Here, the trial court's findings of historical facts relating to custody are not in dispute: the material facts are based upon the uncontroverted testimony of the two Newmarket officers. Moreover, neither party challenges the trial court's underlying factual findings. Accordingly, in our custody analysis we accept and rely upon the historical facts as set forth in the suppression order.

We begin by observing that our analysis of whether a defendant was in custody during police interrogation is rarely based upon a static set of circumstances. Interrogations are fluid: What may begin as noncustodial questioning may evolve over time into custodial questioning. See, e.g., State v. Dedrick, 132 N.H. 218, 225, 564 A.2d 423 (1989), abrogated on other grounds by Ford, 144 N.H. at 62-63 and State v. Spencer, 149 N.H. 622, 625, 826 A.2d 546 (2003).

A number of factors must be balanced in determining whether, and at what point, a defendant was in custody during police interrogation. See, e.g., Jennings, 155 N.H. at 772, 773. Here, we first examine the degree to which the officers restrained the defendant's movement. As we observed in Jennings, the lack of handcuffs or similar devices is not dispositive, see id. at 773; indeed, effective restrictions on a defendant's movement can be a product of verbal, psychological, or situational restraint. See United States v. Beraun-Panez, 812 F.2d 578, 580 (9th Cir.) (" Although not physically bound, [the suspect] was subjected to psychological restraints just as binding." ), modified, 830 F.2d 127 (1987). This is so because the " likely effect on a suspect of being placed under guard during questioning, or told to remain in the sight of interrogating officials, is to associate these restraints with a formal arrest." United States v. Griffin, 922 F.2d 1343, 1350-51 (8th Cir. 1990); see id. at 1354 (finding defendant's freedom restrained to degree associated with formal arrest because " he was accompanied by an officer when he retrieved cigarettes from other rooms in [his home] and was told to remain in view of the agents at all times" ); cf. United States v. Hughes, 640 F.3d 428, 436 (1st Cir. 2011) (finding no custody when officers escorted defendant outside to smoke a cigarette, but did not limit his movement, and " defendant was not unduly intimidated by the interrogating officers," as shown by his pausing during cigarette break).

In United States v. Mittel-Carey, the First Circuit Court of Appeals concluded that the level of control that the officers exercised over the defendant during the interrogation conducted at the defendant's home carried the most weight in its custody analysis -- officers ordered the defendant to dress and go downstairs, told him where to sit, and followed the defendant on the three occasions that he was permitted to move within his home. United States v. Mittel-Carey, 493 F.3d 36, 40 (1st Cir. 2007). The court explained that this factor weighed heavily in favor of custody, despite the defendant's familiarity with the surroundings. Id. Here, similarly, the officers accompanied the defendant wherever he walked around his property. True agreed that, from the moment that the officers first spoke with the defendant, True knew that he was not going to allow the defendant to leave his sight. Although True did not verbally disclose his intent to the defendant, his actions -- following the defendant everywhere he walked, including when he went to his truck to get more cigarettes -- would have conveyed to a reasonable person the reality that the officers did not intend to allow the defendant to leave their sight. See Stansbury v. California, 511 U.S. 318, 325, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (" An officer's knowledge or beliefs may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned." ).

Moreover, the officers also intervened to prevent the defendant from freely moving about his property. When he began walking into the woods, True said, " Hold it Tim, we're not walking out there. I don't want to leave the sight of the trooper." Throughout the interrogation, the officers and the defendant stayed within forty to fifty yards of Rella, and the defendant was aware of Rella's presence. Although the defendant was generally determining the direction of the perambulation, as the trial court found, " the officers did not allow the defendant to enter the woods, or leave Trooper Rella's line-of-sight."

True's testimony that the reason that the defendant was told not to enter the woods was officer safety does not impact our analysis: " [I]t is often the case that suspects are escorted or chaperoned during questioning for reasons unrelated to custody," including for safety reasons, but " the relevant inquiry is the effect on the suspect." Griffin, 922 F.2d at 1350 (quotation omitted). Compare id. at 1354, with United States v. Lifshitz, No. 03 Cr. 572 (LAP), at *21-22 (S.D.N.Y. Sept. 15, 2004) (finding no custody despite restrictions on defendant because agent specifically explained to defendant that restrictions were for safety reasons). In Griffin, the court noted that, although the officers may have escorted the defendant from room to room for safety reasons, that purpose was not disclosed to the defendant, and, therefore, did not influence the analysis. Griffin, 922 F.2d at 1354. Similarly, here, although the officers may have had safety concerns, because those concerns were never communicated to the defendant, they do not influence our analysis of custody.

Custody for Miranda purposes can arise because of a formal arrest or the functional equivalent of arrest; accordingly, the fact that a suspect is not " under arrest" does not preclude a finding of custody. See, e.g., Jennings, 155 N.H. at 772, 775-76 (defendant was in custody despite not being under arrest). Nor is a statement to a suspect that he is not under arrest sufficient, by itself, to establish a lack of custody. Although such a statement generally weighs in favor of a finding of non-custody, see, e.g., United States v. Salvo, 133 F.3d 943, 951 (6th Cir. 1998), it is not dispositive; rather it is but one factor to be weighed in the custody analysis.

Given that informing the defendant that he is not under arrest does not end the custody inquiry, we also consider the fact that there is no evidence that the defendant was informed that he was free to terminate the interrogation. See United States v. Colonna, 511 F.3d 431, 435-36 (4th Cir. 2007) (finding that although the defendant was told that he " was not under arrest," which weighed in favor of a conclusion of no custody, the defendant was in custody, in part because he " was never told that he was free to leave or that he did not have to respond to questions" ); see also United States v. Griffin, 7 F.3d 1512, 1518 (10th Cir. 1993) (" [T]he extent to which the suspect is made aware that he or she is free to refrain from answering questions or to end the interview at will often defines the custodial setting. ... Conversely, the lack of a police advisement that the suspect is at liberty to decline to answer questions or free to leave is a significant indication of a custodial detention." (citations omitted)). Indeed, our cases reflect that we have consistently regarded as a significant factor in our custody analysis whether a suspect is informed that he or she is at liberty to terminate the interrogation. See State v. Locke, 149 N.H. 1, 7, 813 A.2d 1182 (2002) (" Given the repeated advice that he was free to leave, we conclude that a reasonable person in the defendant's position would not believe that he was restrained to the degree associated with formal arrest." ); State v. Hammond, 144 N.H. 401, 404, 742 A.2d 532 (1999) (finding no custody, based, in part, upon fact that officers informed the defendant several times that he was not under arrest and that he was free to leave at any time); State v. Johnson, 140 N.H. 573, 578, 669 A.2d 222 (1995) (finding no custody, in part, based upon fact that trooper informed defendant he was free to leave).

Here, the question is whether the restraint on the defendant's movement was akin to a formal arrest. Consequently, whether the defendant was told that he was at liberty to terminate the interrogation provides strong evidence as to whether a reasonable person in the defendant's position would feel free to leave. Thus, notwithstanding the fact that the defendant was told that he was not under arrest, the lack of evidence that he was told ...

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