State v. Hinkley

174 N.H. 414

265 A.3d 1

The STATE of New Hampshire

v.Seth HINKLEY

No. 2019-0680

Supreme Court of New Hampshire.

Argued: March 18, 2021

Opinion Issued: September 10, 2021

Gordon J. MacDonald, 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.

HANTZ MARCONI, J.

The State appeals an order of the Superior Court (Bornstein, J.) granting defendant Seth Hinkley's motion to suppress his confession and subsequent statements made during an interview with the police. See RSA 606:10, II(a) (2001). On appeal, the State argues that the trial court erred in finding that the defendant's confession was involuntary because the police officer's statements constituted a promise of immunity and the defendant's confession was induced by the officer's statements. Because we find no error, we affirm and remand.

I

The following relevant facts are taken from the trial court's order or from the suppression record. See State v. Pseudae, 154 N.H. 196, 200, 908 A.2d 809 (2006). In December 2017, a report was made to the Berlin Police Department that the defendant, who was then eighteen years old, sexually assaulted the complainant, who was then seventeen years old. After witnessing the complainant's interview with the Child Advocacy Center, Officer Marsh asked the defendant to come to the police station to talk. The defendant reported to the police department that same day. He was not accompanied by counsel or by anyone else. The defendant was interviewed in a conference room by Marsh and another Berlin police officer, though Marsh primarily conducted the interview, which lasted a total of forty-one minutes.

At the beginning of the interview, the defendant agreed to have the interview recorded.¹ Marsh told the defendant that the conference room door was unlocked, but closed for privacy, and that the defendant was free to leave at any time, for any reason. Marsh then reviewed the defendant's Miranda rights with him, and the defendant acknowledged that he understood his rights and signed a waiver of rights form. See Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In response to Marsh's questions, the defendant explained that the complainant used to be his girlfriend and that someone made a false accusation that he touched her sexually.

Marsh asked if the defendant and the complainant had been "intimate" with one another when they were alone together, and the defendant initially responded that they had not. Marsh asked whether the defendant had kissed or hugged the complainant, to which the defendant replied, "Yes," and then explained, "Sorry. I thought you meant sexually." Marsh asked, "Okay. Well, I mean did you ever have intercourse with her?," and the defendant answered, "No ... She was too young, and I didn't want to. ... She was 17, and I was 18."

Marsh asked, "Is there anything illegal about that?" The defendant replied, "I didn't know, but I just wanted to be on the safe side." Marsh then made the following assertions to the defendant:

Okay. I'll — I'll be honest with you, okay. I told you I want to be up-front with you, and I want you to do the same with me. ... Um — we're being told something completely different. Okay? And there's no reason why — um —unless they were trying to cover something up.

And at this point I told you you're not in trouble if you had sex with her, okay. It's your girlfriend. She's over the age of 16. That's the age of consent.

Um — and so, I mean, she's telling us that yeah, we had sex on a few occasions, so I'm just trying to kind of delve into that and then some other stuff that we were told — um — because you're not gonna be in trouble from me if you told me that you had sex with her.

Because she's being very specific about dates, times, occasions when you two did have sex, so I want to — I want to stop before we go too far because I want you to get ahead of this before this rests on your shoulders and — and eventually hurts you — um — because we're the police here.

This isn't — I'm not your dad, okay? Um — I'm not [the complainant's] dad, okay. I'm a police officer. So before you go lying and/or half-truths or whatever, okay, I need you to be up — up-front and straight up — straight up with me, okay?

(Emphases added.) Marsh then stated, "there were occasions when you had intercourse with her." The defendant answered, "Yeah." Marsh continued with the interview, and the defendant made several other incriminating statements, both orally and in writing.

The defendant was thereafter charged with five counts of aggravated felonious sexual assault. See RSA 632-A:2, I(a), (m) (2016). The defendant moved to suppress his statements made during the interview, arguing that he made them involuntarily. The State objected. Following a two-day evidentiary hearing, the trial court found that the defendant's confession to having sex with the complainant was per se involuntary because two of Marsh's statements, emphasized above, constituted a promise of immunity from prosecution, and the defendant relied upon that promise when he confessed to having sex with the complainant.

In making its finding, the court agreed with the State that Marsh had made accurate "statements of fact" regarding the age of consent in New Hampshire — that persons sixteen years of age and older can consent to sexual intercourse — and that these assertions "were in direct response to the defendant's apparent misunderstanding about the age of consent." However, the trial court explained, the State "overlook[ed] the fact that Officer Marsh went far beyond making accurate statements of fact when he twice assured the defendant that the defendant would ‘not ... be in trouble from me if you told me that you had sex with her.’ " The court reasoned:

While it may be true that the defendant could not be prosecuted for engaging in consensual intercourse with the complainant, sexual penetration is one of the elements of each of the charged offenses in this case. At trial, the State will be required to prove, beyond a reasonable doubt, that the defendant engaged in sexual penetration with the complainant. Therefore, Officer Marsh's assertions that the defendant would not be in trouble if he confessed to having sex with the complainant were not simply statements of fact. Instead, Officer Marsh's assertions constituted promises of immunity from at least one element of the charged offenses. Because the State is required to prove all the elements of the charged offenses beyond a reasonable doubt, Officer Marsh's promise of immunity from at least one of the elements was tantamount to a promise of immunity from the offenses themselves.

Additionally, the Court finds it significant that Officer Marsh did not tell the defendant that he would not be in trouble if he admitted to having "consensual" sex with the complainant, as the State contends. Rather, Officer Marsh unequivocally asserted, without qualification or limitation, that the defendant would not be in trouble if he confessed to having sex with the complainant. Immediately thereafter, and plainly relying upon Officer Marsh's assertions, the defendant confessed to having intercourse with the complainant.

(Citations omitted.)

The trial court ordered that the defendant's confession that he had sex with the complainant be suppressed for violating his rights under the State Constitution. See N.H. CONST. pt. I, art. 15. It also found "that the statements the defendant made after he first confessed to having intercourse with the complainant were derivatively obtained through a prior violation of the defendant's constitutional rights." Thus, the court also suppressed the defendant's subsequent oral and written statements made during the interview as fruit of the poisonous tree. The trial court denied the State's motion for reconsideration, and this appeal followed.

II

Because the State Constitution provides greater protection to a criminal defendant with respect to the voluntariness of confessions than the Federal Constitution, State v. Carroll, 138 N.H. 687, 690-91, 645 A.2d 82 (1994), we decide this case under the State Constitution with reference to federal cases only to aid our analysis, see State v. Ball, 124 N.H. 226, 232, 471 A.2d 347 (1983). Part I, Article 15 of the New Hampshire Constitution provides that "[n]o subject shall be ... compelled to accuse or furnish evidence against himself" and guarantees every citizen due process of law. N.H. CONST. pt. I, art. 15. Under the New Hampshire Constitution, the State must prove that a defendant's confession is voluntary beyond a reasonable doubt.² State v. Parker, 160 N.H. 203, 207-08, 999 A.2d 314 (2010) ; see N.H. CONST. pt. I, art. 15. "A determination of the voluntariness of a confession is a question of fact for the trial court to decide." State v. Carrier, 173 N.H. 189, 205 n.4, 238 A.3d 1018 (2020) (quotation and ellipsis omitted). Thus, "[w]e will not overturn a trial court's determination that a confession was not voluntary unless it is contrary to the manifest weight of the evidence, as viewed in the light most favorable to the defendant." Id. at 205, 238 A.3d 1018.

To be voluntary, a confession must be the product of an essentially free and unconstrained choice and not be extracted by threats, violence, direct or implied promises of any sort, or by the exertion of any improper influence or coercion. Id. Generally, in making a determination of voluntariness, the trial court examines "the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation." Parker, 160 N.H. at 208, 999 A.2d 314 (quotation omitted). "The totality of the circumstances test, however, does not apply to promises of confidentiality or promises of immunity from prosecution."³ Id. at 209, 999 A.2d 314 ; cf. State v. Rezk, 150 N.H. 483, 486-88, ...