Argued: October 24, 2018
J. MacDonald, attorney general (Erin E. Fitzgerald, attorney,
on the brief and orally), for the State.
Christopher M. Johnson, chief appellate defender, of Concord,
on the brief and orally, for the defendant.
a bench trial in Superior Court (Temple, J.), the
defendant, Katlyn Gage Marin, was convicted of the second
degree murder of her three-year-old daughter, Brielle Gage.
See RSA 630:1-b, I(a) (2016). Prior to trial, the
defendant moved to suppress statements she made to the police
prior to being advised of her Miranda rights.
See Miranda v. Arizona, 384 U.S. 436, 444, 479
(1966). The defendant's pre-Miranda statements
consist of three sets of statements - given at her home, in a
police cruiser, and in a family waiting room at the police
station - each of which contained a different version of the
circumstances giving rise to Brielle's fatal injuries.
She also argued that other statements that she made after she
had been advised of her Miranda rights should be
suppressed because they were tainted by the
illegally-obtained pre-Miranda statements. After
concluding that the defendant was not in custody until after
she was advised of her Miranda rights, the trial
court denied the defendant's motion. The defendant
appeals. We affirm.
pertinent facts are as follows. On November 25, 2014, the
defendant called 911 and reported that Brielle was
unconscious. Officer Santiago of the Nashua Police Department
responded to the defendant's home at approximately 11:30
a.m. He discovered other first responders providing emergency
medical treatment to Brielle, who was unconscious on the
bathroom floor. Santiago asked the defendant, who was
standing near the bathroom door with her two other children,
to step into the adjacent bedroom so he could obtain
information about Brielle for the purpose of facilitating
inside the bedroom, Santiago initially stood near the open
doorway while the defendant moved around the bedroom with her
children. At some point, Santiago closed the door. Santiago
asked the defendant what happened to Brielle, and for
information that would aid the first responders. In response,
the defendant told Santiago that Brielle had experienced two
seizure-like episodes - one that morning, and one the prior
evening - and that Brielle's injuries were caused by
roughhousing with her other children.
Santiago began speaking with the defendant, Brielle was
transferred to the hospital. Around that same time, Captain
Bailey arrived at the home. He introduced himself to the
defendant and asked her what happened to Brielle. After the
defendant stated that she distrusted the police and wanted to
go to the hospital, Bailey repeated his question. The
defendant responded that she wanted to see Brielle. Bailey
explained that the defendant could not see Brielle at that
time because she was being treated at the hospital.
thereafter, Bailey left the bedroom, and, while he was away,
the defendant began using her cell phone. When Bailey
returned, he told the defendant that she could not use the
phone, and Santiago took it from her. Bailey then told the
defendant that she had to leave the home because it was being
secured as a crime scene. The defendant said that she wanted
to go upstairs to change her pants, which were wet because
Brielle had urinated on her. Bailey did not let her go
upstairs. Bailey also told the defendant that her children
would be taken to the Nashua Police Department, and that he
would prefer the defendant go with her children. Bailey then
left the home.
Bailey departed, Sergeant Greene and Detective Hannon entered
the bedroom. They reiterated that the home would be secured
as a crime scene, and escorted the defendant and her children
downstairs, helping gather belongings. Greene told the
defendant that her children would be in police custody until
the police could determine what had happened. Greene asked
the defendant to come to the police station. The defendant
said that she wanted to go to the hospital to see Brielle.
Greene told the defendant that she probably would not be able
to see Brielle at the hospital at that time. The defendant
agreed to accompany the officers to the police station.
the five-minute drive to the police station, Greene asked the
defendant to explain what happened to Brielle. In response,
the defendant told Greene that Brielle's first
seizure-like episode occurred the prior evening as Brielle
began descending the stairs, and that, as the defendant
reached out to catch Brielle, they both fell down the stairs.
The defendant also described a second seizure-like episode
which occurred that morning. She explained that, after this
second episode, she attempted to carry Brielle downstairs,
but because Brielle was heavy and unconscious, they both fell
down the stairs again. The defendant stated that Brielle may
have hit her head during each fall.
arrival at the police station, the defendant and her children
were escorted to the family waiting room. There, Greene and
the defendant continued to converse while the defendant's
children ate snacks and played. After approximately a
half-hour, Hannon joined the conversation. The defendant
again described Brielle's seizure-like episodes and two
ensuing falls. However, in contrast to her earlier version of
events, the defendant told Greene that Brielle "fell
face first and did hit her head on the floor" during the
second fall, adding that one of Brielle's siblings had
shaken Brielle the previous night.
Hannon, and the defendant continued their conversation in the
family waiting room for several hours. At approximately 5:00
p.m., the New Hampshire Division for Children, Youth, and
Families took custody of the defendant's children. Greene
then moved the defendant to a special investigations room.
Greene requested the defendant's consent to review her
cell phone, take photographs of her home, collect her
clothing, and examine and photograph her body for injuries in
order to verify her account of falling down the stairs with
Brielle. The defendant was at first hesitant to consent.
However, she ultimately consented to the photographs and the
collection of her clothing, but not to a search of her phone,
and she agreed with the officers that she was at the police
police then took a break and left the interview room. When
they returned, the defendant told Hannon that she was bored
and wanted to talk. Hannon informed her that she was no
longer free to leave, and that the police were obtaining a
warrant to examine her and the clothing she had been wearing
that morning. He explained to the defendant that they could
continue talking if she waived her Miranda rights,
and asked if she would consent to an audio and video
recording of the interrogation. The defendant did not consent
to a ...