Argued: January 25, 2018
J. MacDonald, attorney general (Sean R. Locke, assistant
attorney general, on the brief and orally), for the State.
│ Perroni, P.C., of North Chelmsford, Massachusetts
(Peter J. Perroni on the brief and orally), for the
defendant, David Burris, has been indicted on three counts of
felony reckless conduct. See RSA 631:3 (2016). The
Superior Court (Delker, J.) denied the
defendant's motion to dismiss the charges but approved
this interlocutory appeal from ruling. Sup. Ct. R.
8. Because we conclude that the defendant is not entitled to
transactional immunity under Part I, Article 15 of the New
Hampshire Constitution, we affirm and remand.
facts as presented in the interlocutory appeal statement are
as follows. At the time of the events giving rise to the
indictment, the defendant was employed as a probation and
parole officer with the New Hampshire Department of
Corrections (Department). The indictment alleges that on
December 1, 2015, the defendant engaged in reckless conduct
when, during a home visit to a probationer he was
supervising, he discharged a firearm three times at a motor
vehicle operated by the probationer.
Department investigated the incident. According to the
defendant, as part of that investigation he was ordered, on
at least two occasions, "under threat of immediate
termination to provide a written statement regarding the
events [that later gave] rise to the indictment." Before
providing a written statement, and again prior to submitting
to an interrogation by the director of the Department, the
defendant made the following assertion:
I have been ordered by the NH Department of Corrections to
participate in this interview/meeting and/or to provide this
statement. I do so at this order as a condition of my
employment. Failure for me to abide by this order would lead
to immediate severe discipline in the form of automatic
dismissal and/or job forfeiture. As such, I have no
alternative but to abide by this order. It is my belief and
understanding that the Chief and the Department requires
[sic] my participation solely and exclusively for
internal purposes and will not release it [sic] to
any other agency. It is my further belief that any statements
will not and cannot be used against me in any subsequent
criminal proceedings. I authorize release of any statements
to my attorney or designated union representative. I retain
the right to amend or change this statement upon reflection
to correct any unintended mistake without subjecting myself
to a charge of untruthfulness. For any and all other
purposes, I hereby reserve my constitutional right to remain
silent under the Fifth and Fourteenth Amendments to the
United States Constitution and Part 1, Article 15 of the New
Hampshire Constitution and any other rights prescribed by
law. I specifically rely on the [principles] and protections
afforded to me by State v. Norwell [sic],
58 N.H. 314 (1878). Further, I rely upon the protection
afforded me under the doctrines set forth in Garrity v.
New Jersey, 385 U.S. 493 (1967); Spevack v.
Klein, 385 U.S.  ; State v. Litvin,
147 NH 606 (2002) and any other rights afforded under New
Hampshire law and/or the New Hampshire Constitution, should
this report/statement be used for any other purpose of
whatsoever kind or description.
defendant then provided a compelled statement regarding the
events of December 1, 2015. The director subsequently issued
an investigative report to the commissioner of the Department
that quoted and directly relied upon both the defendant's
written statement and his interview.
State avers that the prosecuting entity in this case, the
Strafford County Attorney's Office, "was provided
with a redacted version of the [investigative report] and
other materials from [the] New Hampshire Department of
Corrections, that did not reference or include [the
defendant's] statement or the fruits therefrom." For
purposes of this interlocutory appeal, the defendant accepts
the State's representations regarding the materials to
which the Strafford County Attorney's Office has had
access. In October 2016, the defendant was indicted on three
counts of felony reckless conduct.
defendant moved to dismiss the indictment, arguing that he is
entitled to transactional immunity under Part I, Article 15
of the New Hampshire Constitution. He asserted that the State
Constitution provides broader protection against
self-incrimination than the Fifth Amendment to the United
States Constitution and that, pursuant to State v.
Nowell, 58 N.H. 314 (1878), only transactional immunity
is sufficient to protect the privilege against
self-incrimination provided by the State Constitution. The
trial court denied the defendant's motion.
question transferred for our review is: "Whether Article
15 of the New Hampshire Constitution, as construed by [this
court] in State v. Nowell, 58 N.H. 314 (1878),
requires a public employee be given transactional immunity
when he is compelled to furnish statements against himself by
his public employer?" The protection afforded by Part I,
Article 15 in this context is strictly a question of law, and
thus our review of the trial court's ruling is de
novo. State v. Roache, 148 N.H. 45, 46-47
(2002); see Petition of State of N.H. (State v.
Johanson), 156 N.H. 148, 151 (2007).
Article 15 of the State Constitution provides in part that
"[n]o subject shall be . . . compelled to accuse or
furnish evidence against himself." N.H. CONST. pt. I,
art. 15. This privilege 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 him not 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) (quotation omitted).
The purpose of the right is to prevent the compulsion and
subsequent use of the defendant's testimony to establish
his guilt in a criminal case. See State v. Marchand,
164 N.H. 26, 32 (2012).
defendant argues that Part I, Article 15 "requires that
a public employee be afforded transactional immunity to
displace the right to be free from providing compelled
statements against one's self, " and that
"[b]ecause full transactional immunity . . . is the
price the State must pay for compelling his testimony, the
indictment[s] must be dismissed." The defendant further
contends that the trial court erroneously determined that the
holding in Nowell is dicta. In addition, he asserts
that even if we determine that transactional immunity ...