State v. Ford

738 A.2d 937, 144 N.H. 57, 1999 N.H. LEXIS 71
CourtSupreme Court of New Hampshire
DecidedJuly 21, 1999
DocketNo. 97-617
StatusPublished
Cited by43 cases

This text of 738 A.2d 937 (State v. Ford) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ford, 738 A.2d 937, 144 N.H. 57, 1999 N.H. LEXIS 71 (N.H. 1999).

Opinion

HORTON, J.

The defendant, Scott Ford, was convicted, inter alia, of one count of robbery armed with a deadly weapon, see RSA 636:1 (1997), and two counts of theft by unauthorized taking, see RSA 637:3 (1997). He appeals, arguing that the Superior Court (Murphy, J.) erred in denying his motion to suppress confessions made while he was in prison and in both convicting and sentencing him for robbery and theft as separate offenses. We affirm.

[59]*59In August 1995, the defendant agreed to participate in a staged robbery of a jewelry store in Hampton Beach, with the cooperation of the store owner, as part of an insurance fraud scheme. On August 22, the defendant entered the store and indicated interest in purchasing jewelry. In response to the store clerk’s inquiry as to method of payment, he pulled out a gun and ordered her to put jewelry stored in a display case into a duffel bag. He then ordered the clerk and store owner to lie on the floor and began emptying other jewelry cases himself. After directing the owner and clerk at gunpoint to surrender the jewelry that they were wearing, the defendant pushed them into the bathroom and closed the door. He continued taking jewelry from the store and finally escaped through a back window.

The defendant was indicted for the theft of the jewelry and robbery of the store clerk. After a jury trial in June 1997, he was convicted of robbery and two counts of theft. Upon motion by the defendant, the trial court consolidated the two counts of theft for the purposes of sentencing. It entered a final sentence of two seven and a half to fifteen years terms for the robbery conviction and consolidated theft convictions, resulting in a fifteen to thirty year prison sentence.

On appeal, the defendant first argues that incriminating statements he made to police on two occasions that led to his arrest for the Hampton robbery were obtained involuntarily and admitted in violation of Part I, Article 15 of the State Constitution and the Fifth and Fourteenth Amendments of the Federal Constitution.

On November 7, 1995, the defendant was arrested for passing a bad check and detained at a correctional facility in Rutland, Vermont. He was not then a suspect in the Hampton Beach robbery. He contacted the Federal Bureau of Investigation and met with special agent Michael Rosanova on November 8. After executing a written waiver of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436 (1966), the defendant advised Rosanova he had information about an armed robbery in Hampton Beach. Rosanova subsequently notified the Hampton Police Department. At the time, the Hampton police already had a suspect in custody charged with the robbery.

On November 10, Officer Lynn Charleston and Detective Philip Russell of the Hampton Police Department met with the defendant at the Rutland prison. At first, the defendant denied having spoken with the FBI, and the officers began to leave. After Russell commented on Rosanova’s written report of the November 8th interview, however, the defendant admitted meeting with Rosanova and agreed to speak to the officers. The defendant initially spoke [60]*60generally about the robbery, referring to the gunman in the third person. When he began to refer to himself as the gunman, the officers attempted to administer Miranda warnings, but the defendant insisted on disclosing specific details of his participation in the robbery. He then informed the officers that he and his family had been subject to threats from organized crime in Massachusetts and that he was also in danger as a result of testimony he had given against prison guards in Maine. He requested protection for himself and his family. He eventually signed a written waiver of his Miranda rights and proceeded to supply further incriminating details of the Hampton Beach crime.

On November 14, the defendant telephoned Detective Russell and requested another interview, agreeing to provide a formal taped statement. They met the next day, along with Charleston and Rosanova, at the Rutland prison. Again, the defendant initially refused to cooperate, prompting the officers to gather their equipment and prepare to leave. Again, the defendant changed his mind and consented to the interview. He executed a written waiver of his Miranda rights and a consent to tape form. He then gave a detailed, extensive account of the Hampton Beach robbery. He repeatedly expressed concerns about his safety and the safety of his family and attempted to negotiate agreements regarding the location and duration of his prospective prison sentence.

Prior to trial, the defendant moved to suppress his November 10 and November 15 statements, claiming that they were involuntary and given in violation of his Miranda rights. After a hearing, the trial court denied the motion.

We address the State constitutional claim first, citing to federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983). Because our State Constitution affords greater protection to a criminal defendant than the Federal Constitution in requiring the State to prove the voluntariness of the defendant’s statements beyond a reasonable doubt rather than by a preponderance of the evidence, we need not undertake a separate federal analysis. See State v. Beland, 138 N.H. 735, 737, 645 A.2d 79, 80 (1994); Colorado v. Connelly, 479 U.S. 157, 158 (1986).

A statement is voluntary if it is “the product of an essentially free and unconstrained choice.” State v. Carroll, 138 N.H. 687, 691, 645 A.2d 82, 84 (1994). “In determining the voluntariness of the confession, the trial court must examine the totality of the surrounding circumstances.” State v. Monroe, 142 N.H. 857, 864, 711 A.2d 878, 883 (1998).

[61]*61We are aware that, in contrast to our traditional deferential review of voluntariness of confessions, the federal courts apply a de novo review. See, e.g., Miller v. Fenton, 474 U.S. 104, 110-11 (1985). We do not, however, think that the de novo rule has been made binding on the States, see State v. Jenner, 451 N.W.2d 710, 716 (S.D. 1990), cert. denied, 510 U.S. 822 (1993), and we would not reach a different result here even if that rule were adopted. A finding of voluntariness, based ultimately on the fact finder’s comprehension of the totality of the facts, cf. Commissioner v. Duberstein, 363 U.S. 278, 289 (1960), relies on the unique position of the fact finder, who assesses first-hand all of the verbal and nonverbal aspects of evidence presented, cf. State v. Little, 138 N.H. 657, 661, 645 A.2d 665, 667 (1994). Words printed on the sterile pages of a transcript do not convey the intangible dynamics or full sensory experience of trial that may influence evaluation of the facts. Cf. id. Hence, while the legal standard to be applied is a question of law, cf. In re Cusumano, 162 F.3d 708, 713 (1st Cir. 1998), the facts underlying the finding of whether a statement is voluntary present a question of fact, Carroll, 138 N.H.

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Bluebook (online)
738 A.2d 937, 144 N.H. 57, 1999 N.H. LEXIS 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ford-nh-1999.