No. 2018-0575
April 7, 2020

Affirmed and Remanded


  • Whether the trial court erred in suppressing the first recorded statement made by defendant as the product of a custodial interrogation without having given the required Miranda warnings.

    Counsel for First
    American Law
    Group, a division
    of First American
    Title Insurance
    Company, in
    Boston, MA.

  • Whether the trial court erred in suppressing the second recorded statement made by defendant because the State did not prove beyond a reasonable doubt that the defendant gave it voluntarily.

Defendant lived with his mother, his mother’s fiancé, and the fiancé’s 13-year-old daughter (the victim) in an apartment in Nashua.  After defendant left for work one day, the victim told her father that defendant had touched her inappropriately while she slept.  Defendant was ultimately charged with one count of aggravated felonious sexual assault.

The trial court granted defendant’s motion to suppress incriminating statements made by defendant during two separate interviews by police. The first statement was suppressed as the product of custodial interrogation without defendant having been given his Miranda warnings. The second statement was suppressed because the trial court found that the State had not adequately proved the statement to have been voluntary. The Supreme Court affirmed the trial court’s suppression of both statements.

As to the first, even though defendant had not been arrested, the Court nevertheless found that the circumstances of the interview would have led a reasonable defendant to consider himself as under police custody.  Defendant was prohibited from entering his home; was forced to stand on the porch, in the cold, without a jacket, with two, armed and uniformed officers in close proximity; he was pat-frisked and his personal cell phone was confiscated by officers, leaving him without any means of communication to the outside world; questioning continued by plain-clothed, but nevertheless badged and armed, detectives, in a closed, unmarked car in view of the uniformed officers. The total length of the questioning by officers on the porch and detectives in the car was nearly two hours, and the questions asked and statements made by police to defendant were accusatory in nature.

Thus, even though defendant was not physically restrained by handcuffs, was on the porch of his home, and in a car parked on his street, the overall nature of the interrogation would have led a reasonable defendant to consider himself in custody and unable to leave.

As to the second interview, even though the defendant was given his Miranda rights and waived his right to remain silent, the Court nevertheless found that the State did not adequately demonstrate that the waiver of defendants’ rights was voluntary. Post-Miranda confessions that follow earlier confessions given in violation of the Miranda protections are scrutinized to ensure that the defective confession does not taint the later one. The Court clarified that time between confessions; defendant’s opportunity for contact with family and friends during that time; the degree of police influence exerted over the defendant; and how defendant was advised as to whether his prior confession could be used against him are all factors the courts consider in determining the validity of such confessions, see State v. Fleetwood, 149 N.H. 396, 405-06 (2003), but they are not the only factors that a trial court may consider.

Here the Court found that the trial court properly looked at the totality of the circumstances, including the Fleetwood factors, to find that the State failed to adequately prove the second confession was voluntary. Despite an 11 hour period between confessions, during which defendant was home with his father, the Court agreed with the trial court that the interviewing detectives immediate use of defendant’s prior, improperly obtained statements into his questioning at the second interview, weighed heavily in favor of a finding of involuntariness.


Gordon J. MacDonald, attorney general (Sean R. Locke, assistant attorney general, on the brief and orally), for the State.  Stephanie Hausman, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.