State v. Sachdev

171 N.H. 539

199 A.3d 249

The STATE of New Hampshire

v.Abhishek SACHDEV

No. 2017-0599

Supreme Court of New Hampshire.

Argued: September 27, 2018

Opinion Issued: November 28, 2018

Gordon J. MacDonald, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State.

Shaheen & Gordon, P.A., of Concord (James D. Rosenberg on the brief and orally), for the defendant.

DONOVAN, J.

Following a jury trial in Superior Court (Temple, J.), the defendant, Abhishek Sachdev, was convicted on two counts of aggravated felonious sexual assault, see RSA 632-A:2, I(f), (m) (Supp. 2017), and one count of simple assault, see RSA 631:2-a, I(a) (2016). On appeal, the defendant argues that the trial court erred when it denied his motion to suppress upon finding that: (1) he was not in custody for Miranda purposes when he was questioned by detectives about the alleged assault, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ; and (2) his consent to search the store and his person were "voluntary and free of duress and coercion." We affirm.

The following facts are drawn from the trial court's order. In July 2016, K.L. reported to Detective Lombardi of the Nashua Police Department that someone she described "as a thin, darker skin man named ‘Abi’ " had sexually assaulted her inside of a new wireless store in Nashua. On July 13, at approximately 4:45 p.m., Lombardi and his colleague, Detective DiTullio, went to the store. They wore plain clothes with their badges around their necks and their guns displayed on their hips. Even though the store was not yet open to the public, the detectives were able to enter through the main entrance. The detectives informed the defendant and another man, Diego Gomez, that they were investigating a female's complaint about the prior night, and asked if they would be willing to give statements at the police station "voluntarily." The defendant and Gomez agreed. The conversation "was cordial, polite, and short, lasting five minutes."

All four men then left the store and Gomez locked the doors. Lombardi suggested that the defendant and Gomez take separate vehicles in case one of them finished his interview early. A patrol officer then arrived to secure both entrances to ensure that no one entered the store in their absence. The defendant and Gomez drove to the police station in their own vehicles and the detectives drove in an unmarked cruiser. The four men entered the station through the front lobby. Both Gomez and the defendant were signed in as visitors at 5:15 p.m. The detectives did not take any items from the defendant, such as his keys or cell phone.

After signing in the two men, the detectives brought them to a waiting area in the detectives' bureau located on the second floor. The detectives decided to first interview Gomez and asked the defendant to remain in the waiting room. The defendant agreed. The detectives told the defendant to let them know if he needed anything during the wait. The defendant was alone and unsupervised and was not restrained in any manner while in the waiting area. The door to the exit remained unlocked and the defendant could have left at any time without the assistance of the detectives or any other officer.

The detectives interviewed Gomez for approximately twenty-five minutes, after which Lombardi met the defendant in the waiting room and brought him to a small interview room. The room contained a table and three chairs. Lombardi gave the defendant a "victim/witness background sheet" and asked him to complete it. Lombardi then left the room.

Thereafter, both DiTullio and Lombardi entered the room, and they began interviewing the defendant at 5:52 p.m. The interview was audio and video recorded. At the beginning of the interview, Lombardi told the defendant the following:

No one forced you to come in here, right? You're not under arrest right now.... [T]hat door is shut just for our privacy. It's not locked. If at any time you don't want to talk to us, you just let us know and we will bring you back outside and you can get in your car and leave.

Before the questioning began, the defendant received a call on his cell phone. The defendant answered the phone and had a brief conversation with the caller. After the call, the defendant completed the "victim/witness background sheet." The detectives then began to question the defendant about the night of July 12. The trial court found that the tone of the interview was conversational, the detectives did not raise their voices, and the defendant gave long narrative responses rather than "yes" or "no" answers.

During the interview, the defendant acknowledged that he met K.L. at the wireless store the previous night. He stated that after he saw her walking barefoot near the store, he asked her if she wanted help. She agreed to go into the store. The defendant, K.L., and Gomez then drank together in the store. The defendant indicated that he left the store to buy more beer and a package of condoms, in case something might "happen." The defendant represented that when he returned, the three of them continued to drink and, at some point, K.L. vomited and fell asleep.

The defendant denied that anything sexual happened with K.L. He stated that he left the store when his wife called him around 12:30, and when he did, K.L. was outside on the sidewalk with Gomez. The defendant also reported that K.L. tried kissing him but he did not reciprocate because she was vomiting and was too impaired.

Approximately thirteen minutes into the interview, the following exchange occurred, as recited in the trial court's order:¹

Lombardi: And what happened after she was kissing you?

Defendant: Nothing.

Lombardi: That was it? You're positive?

Defendant: Yes.

Lombardi: Well, what if I told you that I had some evidence to suggest otherwise? Would you say that that was inaccurate evidence? Like I said, I just want the truth from you. Okay?

Defendant: I am telling the truth.

Lombardi: She's an adult. She's not a kid or anything like that, okay? You know, it is what it is. I just want you to be truthful with me.

Defendant: I have a wife. You have to understand that.

Lombardi: We're not going to talk to your wife. This is a private conversation just between us, okay? No one outside of this room is going to hear this. I just want you to be truthful with me. If ... what happens between you and your wife, that's your own thing.

Defendant: Can I consult a lawyer by any chance?

Lombardi: If you want to talk to a lawyer, ... that's fine. Okay, I'm just trying to talk to you man to man. Um, let me lay out what we have right here, okay. Basically, um, your store — we're going to need to take some pictures of the inside of it. We're gonna need to look through it for some beer cans and some things like that. [Gomez] told us that she was bleeding in there and that he had like cleaned her up with some [inaudible]. We want to be able to get those things. So there is a couple of ways for us to go about doing that. Okay. We can get a search warrant or we can get consent from you. It's entirely ...

Defendant: You can go ahead. You can do that.

DiTullio: Let me go get the consent form.

[Detective DiTullio leaves the room]

Lombardi: All right, so what we are going to do is review a consent to search form. As I said, we are going to go in there, we're going to take pictures, we're going to get those items that we need to get, and then you can have your store back. Okay. Um. All right. So.

[Detective DiTullio returns with form]

Defendant: I mean what happened to her? Is she in trouble?

Lombardi: She's not in trouble. Like you said, she had some cuts and scrapes on her. We were trying to figure out where those came from. That kind of stuff.

Defendant: [inaudible] [W]e feel bad because she was walking barefoot. That's why we took her in. I'll be helping you. You can go in and take a look. Whatever you want. So but tomorrow can we do the sales over there or no?

Lombardi: Assuming that we can just go in there and take pictures ... As soon as we are done [inaudible as they talk over each other]

...

Lombardi: All right. This is basically our standard consent to search form. Okay, so we have everyone fill this out when we are searching something. So I'll read it and then you can read it with me as I am reading it to you.... So "I ... have been informed of my constitutional right not to have a search made of my ... premise."

Defendant: Not to have?

Lombardi: Yes. So you have the right to not let us do this, and have us get a search warrant, which means we'll close down your business until ...

Defendant: No, you can go ahead ...

Lombardi: So you have the right to not let us take these pictures and not search your building. Okay? You have that right.... Hold on one second, let me start again here ... So I, your name, have been informed of my constitutional right not to have a search made of my premise um without a search warrant and of my right to refuse to consent to ... such a search ... do hereby authorize the below listed individuals, who have identified themselves to me as law enforcement officers, to conduct a complete search of my premise situated at your business 83 Main Street. They are also authorized to remove any letters, papers, materials or other property which they may desire. I understand that anything discovered may be used against me in a criminal proceeding. This consent to search has been given by me voluntarily without threats or promises of any kind. Okay, so I'm not threatening you, I'm not telling you that I'm going to do anything that I'm not going to do.... Do you have any questions about it first of all?

Defendant: Nope.

Lombardi: If you agree to that, you can sign right there and then date and time.

[Defendant signs form] Lombardi: All right. And then. You said nothing sexual happened with you and her, right? Nothing like that.

Defendant: [inaudible]

Lombardi: I was going to fill out another one of these and ask for buccal

...