State v. Cloutier

167 N.H. 254

110 A.3d 10

The STATE of New Hampshire

v.Elizabeth CLOUTIER

No. 2013-637

Supreme Court of New Hampshire.

Argued: October 16, 2014

Opinion Issued: January 13, 2015

Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant attorney general, on the brief and orally), for the State.

Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

CONBOY, J.

The defendant, Elizabeth Cloutier, appeals her conviction by jury on one count of burglary. See RSA 635:1 (2007) (amended 2014). On appeal, she argues that the Superior Court (Bornstein, J.) erroneously denied her motion to suppress her confession. We affirm.

The following facts are drawn from the trial court's findings and rulings or are otherwise supported in the record, which includes a video-recorded interrogation of the defendant. On July 11, 2012, the defendant went to the Berlin Police Department to take a polygraph test in connection with an investigation of an alleged burglary of the victim's home. The defendant was a friend of the victim and had recently helped the victim locate a safe that had been stolen from her home. The defendant met with retired New Hampshire State Police Lieutenant Healy who explained the voluntary nature of the polygraph test and informed the defendant that she could leave the police station at any time. Healy also informed the defendant that the entire polygraph test and accompanying interview would be audio- and video-recorded and advised her of her Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The defendant then signed a form acknowledging that she had read the enumerated rights and understood them. She also signed a form stating that she agreed to take the polygraph test.

Before the polygraph examination began, Healy asked the defendant whether she was involved in the burglary and theft of the safe. The defendant denied any involvement. Healy then explained the polygraph test procedure and administered the polygraph test. The entire polygraph test procedure took nearly four hours after which the defendant was given a short break.

When they returned from the break, Healy, joined by Detective Poulin and Lieutenant Plourde of the Berlin Police Department, questioned the defendant about the crime. Healy informed her that, "All those rights I explained to you earlier, ... they still apply. This is still voluntary. You still have the right to remain silent. Nothing has changed." Healy then told the defendant that based upon his review of the polygraph test results, he knew she was "withholding significant information." Healy and Poulin repeatedly confronted her with their belief that she was involved in the burglary and theft of the safe and told her that they wanted to know why. The defendant initially stated that she did not "have anything to say" about the polygraph test results, but then denied any involvement in the crime. At one point, the defendant agreed with Plourde that video surveillance footage would show her and her daughter "over there." Poulin asked the defendant whether her daughter was involved in the burglary, which the defendant denied. Healy stated that he did not "want anybody making false accusations against" the defendant's daughter. He explained that while he was "not suggesting they will, ... she's always with you." He suggested that the footage could be problematic for the defendant because it would place her and her daughter "where the safe was found."

Approximately thirty minutes after the break, Plourde began questioning the defendant. He repeatedly told her that he was "100 percent certain" that she was involved in the burglary and implored her to explain why. She said that she had "been hearing a few things" but that she was "not going to say any more about anything that [she had] heard." Plourde continued to question the defendant and tell her that he was certain she was involved in the crime. Plourde then stated:

I'm telling you that I don't think [the victim] would want us to handle this like we handle people who steal all the time.... I don't think you're this huge thief. It was an indiscretion, and it happened, and we deal with it from here. But if we leave here today, then, you know, we're not going to handle it that way. Whether what [the victim] says, ... whether what she says or not. We'll handle it like we handle ... like somebody who's done this many times.

(Emphasis added.) The defendant responded that she did not know what to say.

Plourde and Poulin continued to confront the defendant with their belief that she was involved in the burglary and urged her to tell them what had happened. At one point, one of the officers suggested that a possible reason the defendant took the safe was because of "an addiction" and that she needed money for pills. When she repeatedly told them that she did not have anything to say and continued to deny her involvement, they told her that they thought she was lying and that she was not a true friend of the victim. Shortly thereafter, the defendant stated, "Okay, I'll say I was involved, if that's going to make anything better.... No, I wasn't, but I'll say I was." When asked why she would admit involvement falsely, the defendant responded, "Just so I can go on my merry way, I guess. I don't know."

The interview continued and the officers again accused the defendant of being involved in the burglary. Plourde accused her of insulting his intelligence by telling them that she had some information, but continuing to deny involvement in the crime. One of the officers told the defendant, "You're not a prisoner here. The same rights apply right now as when you came in here. You're gonna leave here either way." She responded by telling them that she had taken the safe, but that she did not "know how [she] got it out of [the victim's] house" and "into [her] vehicle." She said, "I don't know how I banged the door open, but I got that open too. I don't know what you want me to say." At one point, she asked the officers, "What else do you guys want me to say?" The officers responded that they wanted her to tell the truth.

The defendant eventually admitted her involvement in the burglary, explaining to the officers how she and two others had taken the safe, opened it, and stolen its contents. She stated that she decided to admit her involvement "to get it off [her] chest ... help [the victim], pay her back, go forward." Shortly after admitting her involvement, the defendant "express[ed] remorse" and began to "tear up and sob[ ]." Aside from this portion of the interview, the defendant "look[ed] relaxed" and "appeared lucid and self-possessed." She answered questions and made statements "in a normal conversational way," and did not appear "intimidated." After nearly six hours, the interview ended and the defendant left the police station. She was later charged with burglary.

Before trial, the defendant moved to suppress the statements she made following the polygraph test, arguing, in part, that they were involuntary, and, as a result, their admission at trial would violate her right to due process under the State and Federal Constitutions. Following a hearing, at which the parties presented legal arguments based upon the defendant's taped interview, the trial court denied the motion. The defendant's statements were admitted at trial through the videotape and Poulin's testimony. At the close of evidence, the defendant "renew[ed]" her arguments under the State and Federal Constitutions, and moved to dismiss the burglary charge on the basis that the State had failed to meet its "burden of proof beyond a reasonable doubt that [her] confession was voluntary." The trial court denied her motion.

On appeal, the defendant argues that the trial court erred in failing to find her confession was involuntary and, therefore, the admission of her statements at trial violated her right to due process under Part I, Article 15 of the New Hampshire Constitution and the Fourteenth Amendment to the United States Constitution. We first consider the defendant's argument under the State Constitution and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231–33, 471 A.2d 347 (1983).

Under Part I, Article 15 of the New Hampshire Constitution, for a defendant's statement to be admissible at trial, the State must prove beyond a reasonable doubt that it was voluntary. State v. Wilmot, 163 N.H. 148, 151, 37 A.3d 422 (2012). Whether a confession is voluntary is initially a question of fact for the trial court. State v. Rezk, 150 N.H. 483, 486, 840 A.2d 758 (2004). We will not overturn a trial court's determination that a confession is voluntary unless it is contrary to the manifest weight of the evidence, as viewed in the light most favorable to the State. Id.

To be considered voluntary, a confession must be the product of an essentially free and unconstrained choice and not extracted by threats, violence, direct or implied promises of any sort, or by exertion of any improper influence. State v. Zwicker, 151 N.H. 179, 186, 855 A.2d 415 (2004) ; see also State v. Copeland, 124 N.H. 90, 92, 467 A.2d 238 (1983). Thus, a confession is involuntary if it is "the product of a will overborne by police tactics, or of a mind incapable of conscious choice." State v. Hernandez, 162 N.H. 698, 706, 34 A.3d 669 (2011) (quotation omitted). In determining the voluntariness of a confession, we examine the totality of the circumstances, including "the characteristics of the accused and the details of the interrogation." State v. Belonga, 163 N.H. 343, 351, 42 A.3d 764 (2012) (quotation omitted).

Here, the defendant argues that Plourde's statement, "[I]f we leave here today, ... [w]e'll handle it like we handle ... like somebody who's done this many times," constituted " ‘a threat of harsher punishment should [she] remain silent,’ " and asserts that the remaining circumstances of the...