Argued: September 21, 2016
A. Foster, attorney general (Sean R. Locke, assistant
attorney general, on the brief and orally), for the State.
Stephanie Hausman, deputy chief appellate defender, of
Concord, on the brief and orally, for the defendant.
defendant, Kevin Lynch, appeals his conviction, following a
jury trial, of misdemeanor simple assault. See RSA
631:2-a (2016). He argues that the Superior Court
(Wageling, J.) erred by denying his motion to
suppress his statements to police allegedly obtained in
violation of his Miranda rights. See Miranda v.
Arizona, 384 U.S. 436 (1966). He also argues that the
Superior Court (Schulman, J.) erred by permitting
hearsay testimony from a pediatrician at trial. The State
cross-appeals the trial court's order dismissing two
indictments post-trial on double jeopardy grounds. We affirm.
following facts are taken from the trial court's order
denying the defendant's motion to suppress, are
established by the evidence submitted at the suppression
hearing-which includes the videotaped recording and
transcript of the defendant's police interview-or are
otherwise undisputed. On March 7, 2014, Detective Sergeant
Munck of the Exeter Police Department interviewed the
defendant at the police station regarding an allegation that
he had assaulted his girlfriend's three-year-old daughter
earlier that day. At the beginning of the interview, Munck
informed the defendant that the interview was being audio-
and video-recorded and read him his Miranda rights.
The defendant waived his rights and agreed to speak with
Munck. During the interview, the defendant made incriminating
to trial, the defendant sought to suppress his incriminating
statements. The State objected. Following a hearing, at which
the parties made arguments and introduced the recording of
the defendant's interview as the only evidence in support
of each party's position, the court denied the
defendant's motion. In doing so, the court noted that the
State conceded that the defendant was subjected to custodial
appeal, the defendant argues that, under the State and
Federal Constitutions, the trial court erred in denying his
motion because he invoked his right to remain silent and his
right to counsel after receiving Miranda warnings,
and Munck failed to honor his invocation. See N.H.
CONST. pt. I, art. 15; U.S. CONST. amends V, XIV. We will
address the defendant's state constitutional claim first,
citing federal law only to aid in our analysis. State v.
Ball, 124 N.H. 226, 231-33 (1983).
a defendant's responses made during custodial
interrogation may be used against him, the State must prove,
beyond a reasonable doubt, that the interrogation did not
violate his constitutional rights under Miranda.
State v. Gribble, 165 N.H. 1, 10 (2013). On appeal,
in reviewing the trial court's finding that the State met
its burden, we view the evidence in the light most favorable
to the State. State v. Chapman, 135 N.H. 390, 394
defendant does not dispute that he initially waived his
Miranda rights during the March 7 custodial
interrogation. Nor does he assert that his statements were
involuntary. Rather, he argues that he invoked his right to
silence and his right to counsel during the interview,
thereby requiring Munck to cease questioning. To determine
whether, after initially waiving his constitutional rights
under Miranda, the defendant subsequently invoked
those rights, we examine his statements under the totality of
the circumstances. See id.; see also Mayes v.
State, 8 S.W.3d 354, 359 (Tex. App. 1999). Although we
review a trial court's findings concerning which words a
defendant used to invoke his Miranda rights under
the clearly erroneous standard, whether the defendant's
words constitute an invocation of his rights is a question of
law, which we review de novo. State v.
Ayer, 154 N.H. 500, 518 (2006).
Miranda, the Supreme Court held that, if an accused
is in police custody, has been informed of his
Miranda rights, and "indicates in any manner,
at any time prior to or during questioning, that he wishes to
remain silent, the interrogation must cease."
Miranda, 384 U.S. at 473-74; see State v.
Jeleniewski, 147 N.H. 462, 465 (2002) ("When a
defendant invokes his right to remain silent, the police must
'scrupulously honor' that invocation.").
Similarly, the Court held that "[i]f the individual
states that he wants an attorney, the interrogation must
cease until an attorney is present." Miranda,
384 U.S. at 474; see State v. Grant-Chase, 140 N.H.
264, 267 (1995) (explaining that, if a defendant requests
counsel after Miranda warnings have been given or
after interrogation has begun, there is "an irrebuttable
presumption that the defendant asked for the assistance of
counsel for the purpose of having counsel present during any
further questioning, and the police [cannot] reinitiate
questioning until counsel [is] present"). As we have
explained, "This right to counsel is a fundamental one
which transcends the enforcement of the criminal law and
should be liberally observed by those who have sworn to
uphold the constitution, and no effort should be made to
discourage the exercise of the right by our citizens."
State v. Tapply, 124 N.H. 318, 325 (1983).
in Davis v. United States, 512 U.S. 452 (1994), the
Court held that "after a knowing and voluntary waiver of
the Miranda rights, law enforcement officers may
continue questioning until and unless the suspect clearly
requests an attorney." Davis, 512 U.S. at 461.
In so holding, the Court explained that, in order "[t]o
avoid difficulties of proof and to provide guidance to
officers conducting interrogations, " the determination
of whether an individual has "actually invoked
his right to counsel" is based upon an objective
inquiry. Id. at 458-59 (quotation omitted).
"Invocation of the Miranda right to counsel
requires, at a minimum, some statement that can reasonably be
construed to be an expression of a desire for the assistance
of an attorney." Id. at 459 (quotation
omitted). "Although a suspect need not speak with the
discrimination of an Oxford don, he must articulate his
desire to have counsel present sufficiently clearly that a
reasonable police officer in the circumstances would
understand the statement to be a request for an
attorney." Id. (quotation and citation
omitted). "But if a suspect makes a reference to an
attorney that is ambiguous or equivocal in that a reasonable
officer in light of the circumstances would have understood
only that a suspect might be invoking the right to
counsel, " precedent does "not require the
cessation of questioning." Id. To require
officers to cease questioning in such a situation would force
police officers "to make difficult judgment calls about
whether the suspect in fact wants a lawyer even though he has
not said so, with the threat of suppression if they guess
wrong." Id. at 461.
Court went on to observe that "when a suspect makes an
ambiguous or equivocal statement it will often be good police
practice for the interviewing officers to clarify whether or
not he actually wants an attorney." Id.
"Clarifying questions help protect the rights of the
suspect by ensuring that he gets an attorney if he wants one,
and will minimize the chance of a confession being suppressed
due to subsequent judicial second-guessing as to the meaning
of the suspect's statement regarding counsel."
Id. But "[i]f the suspect's statement is
not an unambiguous or unequivocal request for counsel, the
officers have no obligation to stop questioning him."
Id. at 461-62. The Court has since extended these
principles to the invocation of the right to remain silent.
See Berghuis v. Thompkins, 560 U.S. 370, 381 (2010)
(stating that "there is no principled reason to adopt
different standards for determining when an accused has
invoked the Miranda right to remain silent and the
Miranda right to counsel").
defendant maintains he invoked his right to remain silent and
his right to counsel during the following exchange, which
occurred approximately one hour after the interview began and
the defendant had been read and waived his Miranda
[The defendant]: I'm being accused of something that I
didn't do and then I mean I guess the only thing I
can do is probably stop talking and get a lawyer because
obviously it seems like [the defendant's girlfriend] said
whatever story. [The victim] is saying whatever story
she's saying and I am not a vicious person. I have times
where I do get frustrated and all that, but I always take
time to take a minute to get away from the situation so I
don't do anything I regret. So, I mean, I didn't
touch her. I didn't even see her this morning that I
[Munck]: Well, you just mentioned now that you want to stop
talking and get a lawyer. Is that what you want? Or do you
want to keep talking?
[The defendant]: I mean it just seems like I'm being
accused of this.
[Munck]: Well, you are and it's not necessarily, I'm
the, I guess the face of the person that's accusing but
there's other stuff behind me that's backing that up.
[The defendant]: And I get what you're saying but why
would I do something to risk losing my kids?
[Munck]: Well, first of all before we keep going, do you want
to stop talking and get an attorney or do you want to keep
talking with me? That's what I need to know.
[The defendant]: Well, I can't afford an attorney so . .
[Munck]: Well, you can stop talking and that has no play in
it. If you want to stop talking to me you can stop talking to
me. The fact that you don't have any money for an
attorney you know the Miranda Rights talk about one being
provided at your own . . . be provided later. That's not
going to be tonight. That's going to be down the line.
[The defendant]: Yeah, so if you guys decide to put me in
jail because of this then I'm screwed.
[Munck]: Well, I just need to know, I just need to know from
you do you want to stop talking to me now and get an attorney
or do you want to stop, keep talking to me? That's the
decision that you need to make, not me. You need to make that
and let me know.
[The defendant]: Uh, I don't, I don't, I don't
[Munck]: Okay, well I can't make it for you. That's
something I can't give you advice. I can't do
anything like that. You need to make your decision, you need
[to] make a decision ...