State v. Velez

842 A.2d 97, 150 N.H. 589, 2004 N.H. LEXIS 35
CourtSupreme Court of New Hampshire
DecidedFebruary 27, 2004
DocketNo. 2003-078
StatusPublished
Cited by1 cases

This text of 842 A.2d 97 (State v. Velez) 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. Velez, 842 A.2d 97, 150 N.H. 589, 2004 N.H. LEXIS 35 (N.H. 2004).

Opinion

DALIANIS, J.

The defendant, Denis Velez, was convicted by a jury of one count of robbery, see RSA 636:1 (1996). He appeals his conviction, arguing that the Trial Court (Hicks, J.) erred in permitting the State to: (1) introduce his tape-recorded confession; and (2) read a transcript of a witness’s testimony during trial. We affirm.

On the evening of May 23, 2001, Frances Loscocco was working behind the counter at the Churchside Market in Nashua, when a yoúng man wearing a dark colored bandanna covering the lower half of his face and “something tight” covering his head, entered the store, pointed 'a gun at her, and said, “This is a stick up.” Loscocco said, “Excuse me?” to which the man responded, “Give it up.” Loscocco, thinking that someone was playing a “bad joke” on her, responded by banging her fist on the counter and ordering the man to get out.

The man said again, in a slightly louder tone, “Give it up.” Loscocco, at this point realizing that it wasn’t a joke, again, in a more forceful tone, ordered the man to get out, while reaching for the phone to dial 911. At this point Loscocco noticed that another man with a gun and “something over his face” had entered the store; however, after Loscocco repeated her demand for the second time, both men fled. Loscocco called 911 and spoke with officers about the incident.

Two days later, on May 25, the police met with Loscocco at the Churchside Market to show her a photographic array of eight “head shots” of possible suspects. Using her hand to cover the bottom portion of each face, Loscocco identified the defendant as a 60% to 70% match for the man who pointed the gun at her.

Three days later, on May 28, the police located the defendant. Detectives Dennis Linehan and Todd Therrien asked him if he was willing to speak with them at the police station. The defendant agreed to do so and accompanied the detectives to the police station.

The detectives began interviewing the defendant at 8:50 p.m. and soon began to ask him about the robbery. For thirty minutes, the defendant denied any involvement with the robbery, but at 9:30 p.m. he admitted involvement. Detective Linehan testified at trial that the defendant stated that he had entered the Churchside Market with a “BB” gun, pointed the gun at the clerk, and told her to “give it up.” Detective Linehan also testified that the defendant stated' that he saw that the clerk was scared, had second thoughts, and ran from the store. The detectives then, at 9:43 p.m., read the defendant his Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1966).

The defendant waived his Miranda rights at 9:49 p.m., at which point the detectives asked him if he was willing to allow them to record a [591]*591statement regarding the robbery. The detectives recorded the defendant’s statement from 9:54 p.m. to 10:13 p.m. During the recorded statement the defendant explained how he had held the “BB” gun during the robbery and how he had disguised himself.

After the defendant’s statements were recorded, he was arrested. Immediately thereafter, the police attempted, with the defendant’s cooperation, to locate the “BB” gun and jacket used in the robbery, but were unable to find either piece of evidence.

The defendant was subsequently indicted for one count of robbery. See B.SA 636:1. His first trial resulted in a hung jury. After a four-day retrial, he was convicted.

Before the second trial, the defendant filed a motion in limine to suppress his tape-recorded statement, which the trial court denied. Additionally, the State moved to admit a transcript of the testimony of Lawrence Nelson, who had testified at the previous trial, but was allegedly unavailable for the second trial. The trial court granted the State’s motion and allowed Nelson’s testimony to be read to the jury. Nelson’s brief testimony was that the defendant told him, a few days after the robbery, that he had used a gun to rob the Churchside Market.

The defendant raises two issues on appeal. First he argues that the trial court erred by denying his motion to suppress his tape-recorded statement. The defendant contends that the trial court failed to follow our recording rule as laid out in State v. Barnett, 147 N.H. 334 (2001), and violated his right to due process under the Fifth Amendment of the Federal Constitution and Part I, Article 15 of the State Constitution. Second, the defendant argues that the trial court erred in granting the State’s motion to admit Nelson’s testimony from the previous trial because the State failed to demonstrate Nelson’s unavailability for trial. The defendant contends that the trial court violated his right to due process and confrontation under the Fifth and Sixth Amendments of the Federal Constitution and Part I, Article 15 of the State Constitution.

We first address the defendant’s claims under the State Constitution and cite federal opinions for guidance only. State v. Ball, 124 N.H. 226, 231-33 (1983).

I. Tape Recorded Confession

In Barnett we established the clear rule that in order to admit into evidence the taped recording of an interrogation, which occurs after Miranda, rights are given, the recording must be complete. See Ba/rnett, 147 N.H. at 338. The defendant argues that our holding in Barnett must be extended to include pre-Miranda statements.

[592]*592When reviewing a trial court’s ruling on a motion to suppress, we accept the trial court’s findings unless they lack support in the record or are clearly erroneous. Our review of the trial court’s legal conclusions, however, is de novo. State v. MacElman, 149 N.H. 795, 797 (2003).

We created the recording rule in Barnett to prevent the practice of selective recording and the dangers attached therewith. See Barnett, 147 N.H. at 337-38. In doing so, we addressed the inequities inherent in selectively recording a post -Miranda custodial interrogation and held that all of a defendant’s statement following the waiver of Miranda rights must be recorded for trial, if the recording is to be admitted into evidence at trial. See id. In this case, the State introduced a complete recording of the defendant’s post -Miranda custodial statement. Therefore, the problem of selective recording present in Barnett is not present in this case.

The defendant next argues that we should expand Barnett to cover his pre-Miranda statements, pointing to our statement in Barnett that “listening to a defendant be inculpated by his or her own voice has a persuasive power unrivaled by contradictory testimonial evidence.” The defendant contends that the same principle exists in his case because the State introduced tape-recorded evidence of his post-Miranda inculpatory statements, which he could contradict only with testimonial evidence of his pre-Miranda exculpatory statements.

We see no need to extend our recording rule in Barnett to encompass the full recording of both post-Miranda and pre-Miranda statements as a prerequisite for the State’s introducing a complete recording of a defendant’s post -Miranda statement. See State v. Conger, 652 N.W.2d 704, 707-08 (Minn.

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Bluebook (online)
842 A.2d 97, 150 N.H. 589, 2004 N.H. LEXIS 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-velez-nh-2004.