2008-033, STATE of NH v. GLADYS DURGIN

Webster Police Department went to the defendant’s home with an arrest The following is undisputed. In August 2007, three members of the

I(a). We reverse. constitute harboring or concealing another within the meaning of RSA 642:3, because lying to the police about the whereabouts of her daughter did not 642:3, I(a) (2007). She argues that the evidence was insufficient to convict her apprehension or prosecution by harboring or concealing another. See RSA following a bench trial in Franklin District Court (Gordon, J.) for hindering DALIANIS, J. The defendant, Gladys Durgin, appeals her conviction

orally), for the defendant. Pizzimenti & Immen, of Concord (Dennis Pizzimenti on the brief and

assistant attorney general, orally), for the State. attorney general, on the memorandum of law, and Susan P. McGinnis, senior to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2008-033 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Franklin District Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 “harboring or concealing” within the meaning of RSA 642:3, I(a).

framed by the parties, is whether lying to the police, without more, constitutes

convict her of “habor[ing] or conceal[ing]” her daughter. Thus, the issue, as allow them to enter without a warrant, . . . [her] outright lie” was sufficient to information to the police unbidden . . . [or] to answer the officers’ questions or

one who ‘receives, relieves, comforts or assists’ a felon.”

guilt beyond a reasonable doubt. inferences from it in the light most favorable to the State, could have found The State counters that, while the defendant “had no obligation to volunteer that no rational trier of fact, viewing all of the evidence and all reasonable

derives from section 242.3 of the Model Penal Code. defined. “[H]elp of any kind sufficed at common law.” Id. at 231. Thus, at common law,

Code § 242.3 cmt. 1, at 224. “At common law the accessory after the fact was accessory after the fact but breaks decisively from that tradition.” Model Penal Model Penal Code section 242.3 “covers the common-law offense of

for guidance. See State v. Donohue, 150 N.H. 180, 183 (2003). Prosecution” statute, therefore, we look to the Model Penal Code commentaries conceal her daughter by lying to the police about the daughter’s whereabouts. Revised Comments 1980). To interpret our “Hindering Apprehension or upon her challenge to the sufficiency of the evidence, the defendant must prove 164, 166 (2007); see Model Penal Code § 242.3, at 223 (Official Draft and

New Hampshire’s “Hindering Apprehension or Prosecution” statute Harbors or conceals the other.” The phrase “harbors or conceals” is not conviction or punishment of another for the commission of a crime, he: (a) purpose to hinder, prevent or delay the discovery, apprehension, prosecution,

The defendant argues that, as a matter of law, she did not harbor or convict the defendant of harboring and concealing her daughter. To prevail

arrested.

RSA 642:3, I(a) provides: “A person is guilty of an offense if, with a

defendant said that she would not allow this absent a search warrant. The there. One of the officers asked if he could check inside the home; the

The sole issue for our review is whether the evidence was sufficient to

her son-in-law went to the Webster police station, where the daughter was time. Less than an hour after the police left, the defendant, her daughter and The defendant’s daughter was, in fact, in the defendant’s home at the

had a warrant for her daughter’s arrest, she denied that her daughter was warrant for her daughter. When the officers informed the defendant that they p. 3 3 active conduct of hiding or secreting contemplated by [section 1071]”);

offender.”

about the whereabouts of a fugitive.”),

not seen fugitive for many years, “standing alone . . . could not constitute the merely lying in response to police inquiries about another’s whereabouts.

Foy, 416 F.2d at 941 (quotations omitted); see Model Penal Code

assistance does not constitute harboring); secrete or keep out of sight” or “to lodge, to care for after secreting the (quotation omitted; emphasis added). Harboring or concealing means “to hide, against persons interviewed in the course of investigating crime.” affirmative physical action” by the defendant. Mitchell, 177 F. p. 3 3d at 239 police about another’s whereabouts. To “harbor or conceal” under the federal statute requires “some the phrase “harbor or conceal” to require something more than lying to the federal analog to Model Penal Code section 242.3, have similarly interpreted cert. denied, 528 U.S. 917 (1999). harbor or conceal in violation of [section 1071] merely by lying to the police States v. Mitchell, 177 F.3d 236, 239 (4th Cir.) (“A person does not actually

976, 978 (9th Cir. 1972) (false statement to an FBI agent that defendant had 242. p. 3 3, the drafters intended the terms “harbor or conceal” to require more than

(7th Cir. 1992) (failing to disclose fugitive’s location and giving financial 941 (7th Cir. 1969); see also United States v. Lockhart, 956 F.2d 1418, 142 p. 3 3 on the fear that a wider reach . . . would invite abusive charges by police See United States v. Foy, 416 F.2d 940,

an offender. giving misleading or even false answers to inquiries initiated by the police.” Federal courts interpreting 18 U.S.C.A. § 1071 (West Supp. 2008), the

Model Penal Code section 242. p. 3 3, not paragraph (1). id.

These commentaries indicate that, in crafting Model Penal Code section

offense of harboring or concealing a fugitive.” Id.

at 2 p. 3 35. “This solution represents a delicate policy judgment, premised in part

prohibited aid rather than to proscribe generally all forms of aid that could help (5), however, “[m]ere failure to report crime is not proscribed . . . . Neither is (5) prohibits volunteering false information to the police. Id. Under paragraph could be guilty of being an accessory after the fact. See id. at 2 p. 3 35. Paragraph Providing false information to the police is covered by paragraph (5) to

lodge or care for him after secreting.” Id. (emphasis added). requires proof that the defendant acted to hide or secrete the other person or to

Paragraph (1) of Model Penal Code section 242. p. 3 3 “states the traditional

Id.

reason, the drafters of the Model Penal Code chose to specify the types of

fugitive or who provided bail or who failed to report the commission of a crime arguably a person who simply refused to answer police questions about a p. 4 4 in

contrast, in

constitute[d] harboring or concealing under the federal statute,” the defendant fact, in the same apartment at the time. in that case was not whether lying to the police, without more, was sufficient to denied, p. 4 479 U.S. 1056 (1987). Donaldson is not on point, however. The issue statute, United States v. Donaldson, 793 F.2d 498, 502 (2d Cir. 1986), cert. another’s whereabouts constitutes harboring or concealing under the federal The State cites a single case to support its assertion that lying about purchased a car for him under a false name to use as a getaway vehicle. By

statute. Id. defendant in Maloney were sufficient to constitute “harboring” as used in the warrant and hiding him upstairs. the phrase “harbor or conceal” as used in RSA 6 p. 4 42:3, I(a). Id. Therefore, we held that the acts of the Maloney “rendered actual aid to the fugitive” by telling him about the

statement of the defendant that he did not know where the criminal was . . . fugitive since the day before, even though the fugitive and defendant were, in had relied. Id. at 237. Whereas in Foy, “the only issue was whether the false distinguished this case from Foy, p. 4 416 F.2d at 941, upon which the defendant and secreted him upstairs. Id. We held that these additional acts not at home. Id. at 236. She then informed her husband about the warrant in a different city, schemed to get him medical care without suspicion, and The defendant in Maloney lied to the police, telling them that her husband was whether the defendant’s acts constituted “harboring” under the statute. Id. Maloney, 126 N.H. 235, 237 (1985). In Maloney, we were asked to decide closed and locked the fugitive’s front door. Similarly, in See State v. We have previously been guided by federal precedent when interpreting

fugitive when he lied to the police, telling them that he had not seen the

Foy, p. 4 416 F.2d at 941, the defendant did not harbor or conceal a statute.”

identification, has been held sufficient to support a conviction under the the defendants harbored or concealed a fugitive when they took him to a hotel Yarbrough, 852 F.2d 1522, 15 p. 4 43 (9th Cir.), cert. denied, 488 U.S. 866 (1988), detection and apprehension.” United States v. including food, shelter, and other assistance to aid the prisoner in avoiding knowing that the police were driving by looking for the fugitive, the defendant the court ruled that the defendant harbored or concealed the fugitive when, In United States v. Stacey, 896 F.2d 75, 77 (5th Cir. 1990), for instance,

Magness, p. 4 456 F.2d at 978. after learning of the arrest warrant for the other person is punishable, however.

Id. (citations omitted). Only conduct in which the defendant engaged

rented apartments and shopped for a fugitive, or provided a fugitive with false “For example, evidence that a defendant arranged for hotels and vehicles,

“[g]enerally, the Government must prove a physical act of providing assistance, § 2 p. 4 42.3 cmt. 4, at 233. To obtain a conviction under the federal statute, the defendant’s conviction.

p. 5 insufficient to convict her of “harboring or concealing” her daughter, we reverse the defendant’s lie in response to police inquiries, standing alone, is warrant did not constitute harboring or concealing under the statute. Because

turn herself in. The State concedes that requiring the police to obtain a

“harboring or concealing” her daughter beyond a reasonable doubt.

left, went with her daughter to the police station so that the daughter could them to obtain a warrant before entering her home but, soon after the police warrant for her daughter’s arrest, the defendant lied to the police and required

the light most favorable to the State, could have found the defendant guilty of

response to police inquiries about the other’s whereabouts. BRODERICK, C.J., and DUGGAN, GALWAY and HICKS, JJ., concurred. favorable to the State, the evidence in this case is that, upon learning of the follow federal precedent and now make explicit what we implied in Reversed.

to let the police enter without a warrant. trier of fact, viewing all of the evidence and all reasonable inferences from it in

I(a) requires proof of a physical act of assistance beyond merely lying in

We hold that the evidence was insufficient. Viewed in the light most from the same Model Penal Code section as the federal statute, we elect to 150 N.H. at 424.

defendant lied about the fugitive being in his apartment, and he then refused “harbor or conceal” as used in RSA 642:3, I(a), we examine whether a rational at 941; Lockhart, 956 F.2d at 1423. With this understanding of the phrase

convicting a defendant of harboring or concealing another under RSA 642:3,

Given that our “Hindering Apprehension or Prosecution” statute derives

building, they saw the defendant scan the neighborhood from his porch, the probable cause because they knew that the fugitive was in the defendant’s fugitive. Donaldson, 793 F.2d at 502. The court ruled that the police had provided probable cause to arrest the defendant for harboring and concealing a convict a defendant of harboring or concealing another, but, rather, whether it