Argued: September 27, 2018
J. MacDonald, attorney general (Stephen D. Fuller, senior
assistant attorney general, on the brief and orally), for the
Shaheen & Gordon, P.A., of Concord (James D. Rosenberg on
the brief and orally), for the defendant.
a jury trial in Superior Court (Temple, J.), the
defendant, Abhishek Sachdev, was convicted on two counts of
aggravated felonious sexual assault, see RSA
632-A:2, I(f), (m) (Supp. 2017), and one count of simple
assault, see RSA 631:2-a, I(a) (2016). On appeal,
the defendant argues that the trial court erred when it
denied his motion to suppress upon finding that: (1) he was
not in custody for Miranda purposes when he was
questioned by detectives about the alleged assault, see
Miranda v. Arizona, 384 U.S. 436 (1966); and (2) his
consent to search the store and his person were
"voluntary and free of duress and coercion." We
following facts are drawn from the trial court's order.
In July 2016, K.L. reported to Detective Lombardi of the
Nashua Police Department that someone she described "as
a thin, darker skin man named 'Abi'" had
sexually assaulted her inside of a new wireless store in
Nashua. On July 13, at approximately 4:45 p.m., Lombardi and
his colleague, Detective DiTullio, went to the store. They
wore plain clothes with their badges around their necks and
their guns displayed on their hips. Even though the store was
not yet open to the public, the detectives were able to enter
through the main entrance. The detectives informed the
defendant and another man, Diego Gomez, that they were
investigating a female's complaint about the prior night,
and asked if they would be willing to give statements at the
police station "voluntarily." The defendant and
Gomez agreed. The conversation "was cordial, polite, and
short, lasting five minutes."
four men then left the store and Gomez locked the doors.
Lombardi suggested that the defendant and Gomez take separate
vehicles in case one of them finished his interview early. A
patrol officer then arrived to secure both entrances to
ensure that no one entered the store in their absence. The
defendant and Gomez drove to the police station in their own
vehicles and the detectives drove in an unmarked cruiser. The
four men entered the station through the front lobby. Both
Gomez and the defendant were signed in as visitors at 5:15
p.m. The detectives did not take any items from the
defendant, such as his keys or cell phone.
signing in the two men, the detectives brought them to a
waiting area in the detectives' bureau located on the
second floor. The detectives decided to first interview Gomez
and asked the defendant to remain in the waiting room. The
defendant agreed. The detectives told the defendant to let
them know if he needed anything during the wait. The
defendant was alone and unsupervised and was not restrained
in any manner while in the waiting area. The door to the exit
remained unlocked and the defendant could have left at any
time without the assistance of the detectives or any other
detectives interviewed Gomez for approximately twenty-five
minutes, after which Lombardi met the defendant in the
waiting room and brought him to a small interview room. The
room contained a table and three chairs. Lombardi gave the
defendant a "victim/witness background sheet" and
asked him to complete it. Lombardi then left the room.
both DiTullio and Lombardi entered the room, and they began
interviewing the defendant at 5:52 p.m. The interview was
audio and video recorded. At the beginning of the interview,
Lombardi told the defendant the following:
No one forced you to come in here, right? You're not
under arrest right now. . . . [T]hat door is shut just for
our privacy. It's not locked. If at any time you
don't want to talk to us, you just let us know and we
will bring you back outside and you can get in your car and
the questioning began, the defendant received a call on his
cell phone. The defendant answered the phone and had a brief
conversation with the caller. After the call, the defendant
completed the "victim/witness background sheet."
The detectives then began to question the defendant about the
night of July 12. The trial court found that the tone of the
interview was conversational, the detectives did not raise
their voices, and the defendant gave long narrative responses
rather than "yes" or "no" answers.
the interview, the defendant acknowledged that he met K.L. at
the wireless store the previous night. He stated that after
he saw her walking barefoot near the store, he asked her if
she wanted help. She agreed to go into the store. The
defendant, K.L., and Gomez then drank together in the store.
The defendant indicated that he left the store to buy more
beer and a package of condoms, in case something might
"happen." The defendant represented that when he
returned, the three of them continued to drink and, at some
point, K.L. vomited and fell asleep.
defendant denied that anything sexual happened with K.L. He
stated that he left the store when his wife called him around
12:30, and when he did, K.L. was outside on the sidewalk with
Gomez. The defendant also reported that K.L. tried kissing
him but he did not reciprocate because she was vomiting and
was too impaired.
thirteen minutes into the interview, the following exchange
occurred, as recited in the trial court's
Lombardi: And what happened after she was kissing you?
Lombardi: That was it? You're positive?
Lombardi: Well, what if I told you that I had some evidence
to suggest otherwise? Would you say that that was inaccurate
evidence? Like I said, I just want the truth from you. Okay?
Defendant: I am telling the truth.
Lombardi: She's an adult. She's not a kid or anything
like that, okay? You know, it is what it is. I just want you
to be truthful with me.
Defendant: I have a wife. You have to understand that.
Lombardi: We're not going to talk to your wife. This is a
private conversation just between us, okay? No one outside of
this room is going to hear this. I just want you to be
truthful with me. If . . . what happens between you and your
wife, that's your own thing.
Defendant: Can I consult a lawyer by any chance?
Lombardi: If you want to talk to a lawyer, . . . that's
fine. Okay, I'm just trying to talk to you man to man.
Um, let me lay out what we have right here, okay. Basically,
um, your store - we're going to need to take some
pictures of the inside of it. We're gonna need to look
through it for some beer cans and some things like that.
[Gomez] told us that she was bleeding in there and that he
had like cleaned her up with some [inaudible]. We want to be
able to get those things. So there is a couple of ways for us
to go about doing that. Okay. We can get a search warrant or
we can get consent from you. It's entirely . . .
Defendant: You can go ahead. You can ...