2009-024, STATE OF NEW HAMPSHIRE v. ELIZABETH FLOOD

The defendant, Elizabeth Flood, appeals a ruling of the

brief and orally, for the defendant. David M. Rothstein, deputy chief appellate defender, of Concord, on the

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. THE STATE OF NEW HAMPSHIRE

No. 2009-024 editorial errors in order that corrections may be made before the opinion goes Hillsborough-northern judicial district Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

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 including imprisonment. By remaining silent, the defendant cannot personally

p. 2 prosecution, or to remain silent and be exposed to an adverse decision,

Constitution and cite federal opinions for guidance only. weigh whether to testify and risk incrimination in the underlying criminal proceeding. We disagree. We first address this argument under the State imposition hearing prior to a related criminal prosecution. The defendant must one’s own behalf becomes particularly acute when the trial court holds an

incarceration.

witnesses at a hearing to impose is left to the defendant; it is a strategic choice.

decision.

imposition hearing and her right to remain silent at the trial in the criminal We recognize that the decision whether to remain silent or to testify on

I, art. 15; U.S. CONST. amend. V. hearing before a court can impose a suspended or deferred sentence of proceeding, the defendant has the right to remain silent. See N.H. CONST. pt. See Stapleford, 122 N.H. at 1088. At a hearing to impose, as in any criminal sentence and ordered the defendant to serve the underlying ninety days. evidence and arguments from counsel, the trial court imposed the suspended compelled to testify. The decision whether to testify or to present evidence and defendant in May 2008. The defendant chose not to testify. After hearing the Coleman, 533 P.2d 1024, 1031 (Cal. 1975). Nevertheless, a defendant is not

See Moody v. Cunningham, 127 N.H. 550, 554 (1986); People v.

seek to ensure an accurate fact-finding process as well as an informed and just 145 N.H. 240, 243 (2000). By affording a defendant this opportunity, courts forced her to choose between two due process rights: her right to testify at the person and to present witnesses and evidence.” Id.; see also State v. Dumont, hearing, the court must afford the defendant “the opportunity to be heard in

Stapleford v. Perrin, 122 N.H. 1083, 1088 (1982). At this

There is no question that a defendant has a due process right to a

law, we review it de novo. State v. Abram, 156 N.H. 646, 651 (2008). N.H. 226, 231-33 (1983). Because the issue before us is one of constitutional hearing. The trial court heard testimony from the officer who arrested the State v. Ball, 124

process. Specifically, she asserts that the trial court’s ruling unconstitutionally in May 2008 for operating after being certified as a habitual offender. motion to continue the hearing until after her criminal trial violated due impose the suspended sentence because a Derry police officer had arrested her On appeal, the defendant contends that the trial court’s denial of her did in April 2008. The State objected to the defendant’s petition and moved to

were resolved. The trial court denied the motion, and proceeded with the for a continuance until the criminal charges arising from the May 2008 arrest At the hearing on the motion to impose sentence, the defendant moved

court to show why the deferred commitment should be suspended, which she behavior. Near the end of the deferral period, the defendant could petition the p. 3 3 and one’s right to remain silent to be of constitutional magnitude or import.

necessary.” mandated and a continuance in the present case was not constitutionally

hearing. In

tension between one’s right to testify at an imposition or revocation hearing A deferred sentence or probation is a conditional grant of liberty that is subject imposition hearing until after resolution of the underlying charges. Id. at 14. reasoned that public policy considerations may advise against continuing an forbid requiring him to choose.”).

Wahlert, p. 3 379 N.W.2d at 13. The Iowa Supreme Court also

prosecution prior to a probation revocation hearing is not constitutionally Wahlert, the Iowa Supreme Court held that “the disposition of a criminal 1980); State v. Wahlert, p. 3 379 N.W.2d 10, 13 (Iowa 1985). For example, in defendant must make whether to testify or remain silent at a probable cause See, e.g., Coleman, 533 P.2d at 1030; Dail v. State, 610 P.2d 1193, 1194 (Nev.

Indeed, no court that has recently addressed this issue has found the at future court proceedings and to avoid unnecessary deprivations of liberty.

continue an imposition hearing. follow whichever course he chooses, the Constitution does not by that token (“Although a defendant may have a right, even of constitutional dimensions, to constitutional compulsion to testify at the probable cause hearing. Id. at 442 imposition hearing. hearing was admissible at a subsequent trial because a defendant is under no

Williams, we held that a defendant’s testimony at a probable cause innocence throughout the criminal process.

The strategic choice the defendant faces here is similar to the decision a

proceeding is a constitutional violation. In Id. at 44 p. 3 3. imposition hearing until after the resolution of the underlying criminal was based upon public policy, specifically to insure the defendant’s appearance

testimony at a bail hearing does not constitutionally require a trial court to prohibited”). Williams, 115 N.H. 4 p. 3 37 (1975), to grant immunity to a defendant for his

Here, there is no presumption attendant upon the defendant’s silence at the election between two constitutional rights. Burgess, 156 N.H. at 757-58, 760. one. This choice does not force the defendant to make an impermissible factor signifying lack of remorse when the defendant had maintained his sentencing court could not consider a defendant’s silence at sentencing as a

156 N.H. 746 (2008), does not dictate that a trial court’s failure to continue an Contrary to the defendant’s assertion, our decision in State v. Burgess,

process that discourages the exercise of constitutional rights . . . is 2 p. 3 38 (2004) (noting that “[n]ot every government-imposed choice in the criminal

committing the alleged violations. While difficult, this decision is a strategic present mitigating circumstances at the imposition hearing or personally deny defense. p. 4 the State’s witnesses and to present evidence and witnesses in her own Even though she chose not to testify, she retained her rights to cross-examine

conditional freedom by a preponderance of the evidence.

use immunity. We do note that a trial court cannot grant use immunity defendant had the option to testify at her imposition hearing. Here, she did. therefore, we do not decide today whether public policy would dictate a grant of

constitutionally required),

maintained the burden of proving that the defendant violated the terms of her

See Stapleford, 122 N.H. at 1088. Moreover, the State still rebuttal purposes.

Nevertheless, for constitutional purposes, all that matters is whether the not preserve an argument based upon public policy at the trial court level and,

violation hearing after the criminal trial but holding that this result was not using testimony from a probation or revocation hearing in a later criminal trial. (finding that it would have been preferable to have held the supervised release prosecution in a proper case. See Flint v. Mullen, 499 F.2d 100, 105 (1st Cir.) defendant for perjury for that testimony. imposition hearing until after the resolution of the underlying criminal (2009). Nothing herein, however, prevents a trial court from continuing an the State. See, e.g., State v. Rogers, 159 N.H.___, ___, 977 A.2d 493, 499 testimony may not be used against the defendant except for impeachment or sponte under the immunity statutes; the power to give use immunity lies with

The defendant, here, advances only a constitutional argument. She did

hearing. these exclusionary rules is based upon a constitutional prohibition against testimony that the defendant has given in an earlier probation revocation Begins, 514 A.2d at 723. Neither of fruits may never be used against the defendant except in a prosecution of the

P.2d at 1041-42. The defendant’s testimony or any evidence derived from this chooses to testify at a probation hearing use immunity. See Coleman, 533 exclusionary rule takes two forms. California grants the defendant who 721-23 (Vt. 1986); State v. Evans, 252 N.W.2d 664, 668-69 (Wis. 1977). This DeLomba, 370 A.2d 1273, 1275-77 (R.I. 1977); State v. Begins, 514 A.2d 719, 1980); People v. Rocha, 272 N.W.2d 699, 706-07 (Mich. Ct. App. 1978); State v.

Id. at 1042; McCracken v. Corey, 612 P.2d 990, 997-98 (Alaska

employed their supervisory powers to create a judicial rule excluding at trial against self-incrimination.” Coleman, 533 P.2d at 1032. These courts have criminal charges adversely affects the public “policies underlying the privilege revocation or imposition proceeding prior to the disposition of the related At most, several jurisdictions have held that the practice of holding a

left at liberty.” Wahlert, 379 N.W.2d at 14. prompt determination of the issue because the “defendant may pose a danger if defendant violates his or her conditional liberty, society has an interest in the to deprivation; it is not a right. See Stapleford, 122 N.H. at 1088. If a p. 5 5

does the State Constitution under these circumstances.

imposition hearing until after the criminal prosecution. BRODERICK, C.J., and DALIANIS and DUGGAN, JJ., concurred.

Constitution as we do under the State Constitution. N.H. at 442. Accordingly, we reach the same result under the Federal 10 p. 5 5; Hearns, 151 N.H. at 238; Stapleford, 122 N.H. at 1088; Williams, 115

The Federal Constitution offers the defendant no greater protection than

did not violate the defendant’s due process rights by failing to continue the imposition of her deferred sentence. Accordingly, we hold that the trial court standard did not compel or require the defendant to testify or face certain standard of beyond a reasonable doubt that applies in criminal cases, this also State v. Gibbs, 1 p. 5 57 N.H. 538, 542 (2008). While easier to meet than the