2010-321 The State of New Hampshire v. Ivonne Hernandez

Michael A. Delaney

No. 2010-321

Hillsborough–southern judicial district

Court (Lynn conduct, RSA 631:3 (2007). On appeal, the defendant argues that the Trial of second degree assault, RSA 631:2, I(b), (c) (2007), and one count of reckless of one count of second degree murder, RSA 630:1-b, I(a), (b) (2007), two counts DUGGAN, J. The defendant, Ivonne Hernandez, was convicted by a jury

Pamela E. Phelan

testify. We affirm. made to the police and by finding one of the State’s witnesses competent to

, C.J.) erred by denying her motion to suppress statements she

and orally, for the defendant.

THE SUPREME COURT OF NEW HAMPSHIRE general, orally), for the State. attorney general, on the brief, and Susan G. Morell, senior assistant attorney

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as approximately two hours. p. 2 her breakfast bars, juice boxes and cigarettes. The interview lasted was allowed to bring a blanket with her to the interview and the detectives gave explained that the interview would be audio and video recorded. Hernandez Hernandez from the holding cell to a room for an interview. The detectives At around 11:00 a.m., Detectives Molinari and Testaverde escorted

was booked and placed in a holding cell. a.m., Hernandez was taken from the hospital to the police station where she wheel. She was taken to the hospital for treatment. At approximately 6:30 bleeding from a laceration to her nose caused by her face striking the steering Hernandez was visibly distraught, crying and apologizing. She was also kneeled by the front of her car. The police arrived at the scene within minutes. After the crash, Hernandez immediately called 911 and then got out and

died later that morning at 10:30. and then crashed into a parking meter. Beaudoin was severely injured, and but the car hit her knee, causing a minor injury. The car also struck Beaudoin and accelerated towards the group. Hughes attempted to jump out of the way, the group. At trial, one witness testified that Hernandez then revved her engine 2 walking home, Hernandez turned her car around and drove directly towards a narrow dirt parking lot. As the group left the City Hall parking lot and began his hand. Hernandez left the parking lot, drove across Elm Street and entered away, the group continued to yell at her and Beaudoin banged on her car with out of the parking space. One witness testified that as Hernandez was driving After this exchange, Hernandez got into her car, started it and backed

had on her car. swearing at Hernandez and ridiculing her for a New York Yankees decal she Garger in the face. At some point, the rest of the group also began yelling and yelled back, and there was testimony at trial that Hernandez then slapped that Hernandez started yelling at them, saying things like “f--- you.” Garger approached her car, she saw the group. One of the State’s witnesses testified the bar and walked to her car in the City Hall parking lot. As Hernandez Hernandez’s car, talking and laughing. While they were talking, Hernandez left and gathered in the City Hall Parking lot. They stood in the parking lot near Around 1:00 a.m., Beaudoin, Garger, Goodspeed and Hughes left the bar

socializing. and Mariah Hughes were at a different bar near City Hall, drinking and Karaoke. Meanwhile, Matthew Beaudoin, Robert Goodspeed, Brooke Garger, nearby bar where she drank four beers and spent several hours watching parked her car in the City Hall parking lot in Nashua. She then walked to a supports the following. On the evening of May 1, 2008, Ivonne Hernandez Viewing the evidence in the light most favorable to the State, the record heart . . . did you want to run that [sic p. 3 Molinari], OK, the three of us in this room, OK, inside, inside your

DETECTIVE TESTAVERDE: Between you and me, and [Detective

HERNANDEZ: No. No.

DETECTIVE TESTAVERDE: Not close?

HERNANDEZ: Not… pff…

[Beaudoin]? DETECTIVE TESTAVERDE: [H]ow close did you want to come to

occurred: About fifty-six minutes into the interview, the following exchange

we’re talking about here?” Hernandez responded, “Ya.” . . . I’m a better Yankee’s fan. And I’m going to say screw you. Is that what “You turn around, you’re gonna say . . . you think you’re a good Red Sox fan that she didn’t want to hit anyone. However, when Detective Testaverde said, only because she wanted to go home, that the incident was an accident, and Throughout the interview, Hernandez claimed that she turned her car around she got into her car and drove to the dirt parking lot, she was scared. altercation that occurred in the parking lot. She told the detectives that after

During the remainder of the interview, Hernandez described the

actually “friendly.” He also stated that this interview was not at all confrontational, and that it was testified that during interviews, he generally employs minimization techniques. Beaudoin’s injuries, he had not been aware that the victim was dead. Molinari trial, Testaverde testified that although he did downplay the extent of replied, “He’s getting some treatment . . . . We hope that he’s gonna be OK.” At this point, Beaudoin had already been pronounced dead, but Testaverde Shortly thereafter, Hernandez inquired whether Beaudoin “[was] OK.” By

and Hernandez signed a waiver of her rights. here’s what happened.” Testaverde then finished reviewing her Miranda rights in court . . . we write all our reports up, and, and we just present it . . . and say charged um, with a crime . . . . Anything you say, OK, can be used against you against her.” In response, Testaverde told Hernandez, “Last night you were was explaining these rights, Hernandez asked whether the detectives would “go four beers that night. Testaverde then explained her Miranda rights. As he on the day of the incident she had smoked marijuana; and that she had drunk she could read and understand English; that she had obtained her GED; that At the beginning of the interview, Hernandez informed the detectives that totality of all the surrounding circumstances. Parker p. 4 Generally, we determine the voluntariness of a statement in light of the

the circumstances. We address each argument separately. she contends that the statements were involuntary based upon the totality of statements were made in reliance upon a promise of confidentiality. Second, as involuntary based upon two separate grounds. First, she contends the

confidentiality.” Id The defendant asserts that her statements should have been suppressed. at 209. Instead, the rule is that a statement “made in However, the totality of the circumstances test “does not apply to promises of Constitutions. See, 160 N.H. at 208-09. violated her right to due process under the New Hampshire and Federal the police interrogation were involuntary and, therefore, their admission On appeal, the defendant argues that the statements she made during

reasonable doubt that the statement was voluntary. State v. Parker I defendant’s statement to be admissible at trial, the State must prove beyond a suppressed. The trial judge denied the motion. Under Part I, Article 15 of the New Hampshire Constitution, for a Before trial, the defendant moved to have these inculpatory statements

Id. manifest weight of the evidence, viewed in the light most favorable to the State. court’s determination of voluntariness unless the determination is against the be determined by the trial court. Id. at 208. We will not reverse the trial 203, 207-08 (2010). Whether a statement is voluntary is a question of fact to

Rezk, 150 N.H. 483, 486 (2004). Am I wrong?” first review the defendant’s arguments under the State Constitution. State v. Hernandez responded, “No you’re not.” on these people and you gun it, and you start going, you get that feeling, F-U. U.S. CONST., amend. XIV; N.H. CONST. pt. I, art. 15. We when she was driving toward the group. He asked, “[W]hen you get that sight she replied, “Ya.” A few minutes after that, Testaverde inquired how she felt Testaverde then asked, “Ivonne, for that split second, wasn’t that true?” and told Testaverde that witnesses would think she wanted to run Beaudoin over. that she did not want to hit anyone. However, a few minutes later, Hernandez Hernandez then continued to explain that the incident was an accident and

HERNANDEZ: No. No. God no. p. 5 5

agents against him at trial. See with first degree murder and attempted to use his statements to the DEA A few months later, New Hampshire authorities charged the defendant

enforcement may not use a promise of confidentiality to obtain incriminating id. at 496-99. On appeal, we held law

because he was running out of money. Id details of the murder. Id. Later, the defendant had another meeting with a federal DEA agent receive Miranda warnings. Id. The defendant proceeded to elaborate on the his statements would not be used against him in court because he did not in the homicide. After the defendant confessed, the agent told the defendant information they provided. Id We first addressed the issue of police promises of confidentiality in State. The defendant then confessed his involvement obtain cooperation from informants if it prosecuted them based upon the information . . . to avoid surprises” at trial and that the DEA would never leave the office.” Id. at 499. The agent explained “that the DEA simply needed agent then assured the defendant that the information he provided “would not insisted on knowing the details of the unsolved homicide. Id. at 498-99. The agent placed a “pile of money” on the table in front of the defendant and

homicide. Id. at 497-98. unsolved homicide, but refused to elaborate on his involvement in the most of his criminal past and even admitted to knowing who committed an cooperating individual prosecuted by the DEA. Id. The defendant disclosed criminal past. Id. The agents assured him that they had never seen a informant, he was reluctant to provide information about himself or his 497. When he initially met with DEA agents to discuss becoming an her Miranda an informant for the federal Drug Enforcement Administration (DEA). Id. at disagrees, noting that prior to the interrogation, the defendant was informed of his statements would remain confidential. Id. at 498-99. The defendant was . . .” constitutes an impermissible promise of confidentiality. The State McDermott, federal drug agents repeatedly misled the defendant into believing and [Molinari]. OK, the three of us in this room, OK, inside, inside your heart involuntary under the State Constitution. McDermott, 131 N.H. at p. 5 501. In The defendant argues that Testaverde’s statement “[b]etween me and you v. McDermott, where we determined that such a promise renders statements

language.” criminally and after using the phrase in question, he “quickly changed his defendant, or implied, that her statements would not be used against her used against her in court. Further, the State argues, Testaverde never told the

rights, including an express warning that what she said could be

Constitution.” State v. McDermott, 131 N.H. 49 p. 5 5, 501 (1989). reliance upon a promise of confidentiality is involuntary under the State p. 6 6

confidentiality, but did not explicitly promise it. In Parker involuntary under the State Constitution. His statement hinted at the kind of impermissible promise of confidentiality that renders statements promise of confidentiality is involuntary, Testaverde’s statement here was not Although the law remains that a statement made in reliance upon a

Parker, 1 p. 6 60 N.H. at 211. In McDermott, the officer not only promised that the suggested that the defendant would only be required to get “a little counseling.” the defendant’s statements would not be revealed to his mother, and later would “stay between” the defendant and the officers, specifically promised that promised that all of the defendant’s statements “in [the interrogation room]”

remain confidential, id uttered by Testaverde during the interrogation – implies that what is said will Although the plain meaning of “between me and you” – the phrase

her. statements could, and incriminating statements would, be used to prosecute prosecuted for the crime. Indeed, he made it clear from the beginning that her interview. Nor did he ever imply or state that Hernandez would not be not use any language implying confidentiality at any other point during the reassure Hernandez that her statements would remain confidential, and he did In this case, the phrase was used only once. Testaverde did not repeatedly be prosecuted. Id. at 211, this case differs from McDermott and Parker. detective encouraged him to confess by implying that the defendant would not When the defendant did not immediately divulge information, the

defendant’s statements were involuntary. Id. constituted an impermissible promise of confidentiality and, as a result, the at 210 (quotation omitted). We reversed, finding that the detective’s statement detective’s statements merely suggested an atmosphere of confidentiality.” Id. counseling and, and it’s over.” Id. The trial court determined “that the decent guy. He crossed the line once. . . . It’s behind him. . . . Get a little needed to know the truth “before [he could] say hey, you know what? This is a In Parker. at 20 p. 6 6. Specifically, the detective told the defendant that he

have to go to [your mother].” Id. at 205 (quotation omitted). confidentiality by saying to the defendant “what you tell me in here . . . doesn’t (quotation omitted). The detective then further confirmed the promise of me and what we deal with in here can stay between me and you.” Id. at 211 hours into the interview, the detective told the defendant that “[w]hat you tell warnings before the interview began. Parker, 1 p. 6 60 N.H. at 205. About two informed that the interview would be recorded and was given Miranda , we applied the McDermott rule. The defendant in Parker was

promise involuntary and inadmissible. See id. promise of confidentiality renders statements made in reliance upon that information. Id. at 501. We determined that under the State Constitution, a p. 7 7

necessarily imply that the defendant cannot make a meaningful choice. Cf unconstrained choice . . . .” Rezk While lack of police experience is certainly a factor to be considered, it does not the actions of an individual are the product of an essentially free and not have any prior experience with police, she is of at least average intelligence. “In determining whether a [statement] is voluntary, we look at whether blanket, and was given food and drink. Although the defendant apparently did to the police were voluntary. At the interview, the defendant was allowed a defendant was inebriated at the time of confession). The evidence supports the determination that the defendant’s statements State v. Chapman, 135 N.H. 390, 401 (1992) (confession voluntary even though that she was drunk or significantly impaired at the time of the interview. Cf. that the defendant had been drinking the night before, there was no evidence render a confession involuntary as a matter of law). Further, despite the fact State v. Damiano, 124 N.H. p. 7 742, 747 (1984) (holding mental illness does not

characteristics of the accused and the details of the interrogation. Id. considers the totality of all surrounding circumstances, including the (quotation omitted). In making a voluntariness determination, the court tactics, or of a mind incapable of a conscious choice.” Parker, 160 N.H. at 208 confession is involuntary if it is “the product of a will overborne by police , 150 N.H. at 48 p. 7 7 (quotation omitted). A

minimization and other similar techniques. before the interrogation, and during the interrogation, the police employed before the interrogation, there was no evidence as to whether she had any sleep on the steering wheel during a serious car accident less than twelve hours were coerced because she had no prior experience with police, she hit her head Specifically, among other things, the defendant argues that her statements circumstances surrounding the interview rendered the statements involuntary. in addition to the statement alluding to confidentiality, the totality of the other The defendant also argues that her statements were involuntary because

denied the defendant’s motion to suppress. you and me” did not rise to the level of such a promise. The trial court properly the narrow circumstances of this case, Testaverde’s use of the phrase “between examine possible police promises of confidentiality closely, we conclude that in discourage the police from using this type of language, and will continue to phrase one time that, at most, implied confidentiality. While we continue to defendant. McDermott, 131 N.H. at 499. Here, however, Testaverde used a without Miranda warnings, these statements would not be used against the defendant’s statements would not leave the room, but also promised that babies taken out of the delivery room. Hake also testified that she believed her p. 8 pregnant with only one child, but when she gave birth, she saw “about six” children she had, and that when she was pregnant, her doctor told her she was example, at the hearing Hake testified that she did not know how many evidence that Hake had mental health issues and delusional beliefs. For In her motion and at the competency hearing, the defendant presented

than does the Federal Constitution, see 8 In light of the fact that the State Constitution affords greater protection

allowed that his ruling could be revisited. hearing at which the trial judge found the witness competent to testify, but on the grounds that Hake was not competent. The court held a competency finding that the defendant’s statements were voluntary. witness at trial. Before trial, the defendant moved to exclude Hake’s testimony the steps of City Hall. The State deposed Hake and planned to call her as a the manifest weight of the evidence. Accordingly, we affirm the trial court’s Hake, characterized by the parties as a “homeless woman,” was sleeping near this evidence, we cannot say that the trial court’s determination was against During the initial confrontation in the City Hall parking lot, Colleen statements were the product of a free and unconstrained choice. Based upon In this case, the evidence supports the conclusion that the defendant’s II

the same result under the Federal Constitution.

405-06 (1 p. 9 999). voluntariness of a defendant’s statements. State v. Hammond, 144 N.H. 401, from misleading a suspect, id., and friendly police conduct does not alter the techniques and were “friendly” to the defendant, the police are not prohibited 671, 673 (2003). Although the detectives admittedly used minimization detectives treated her with respect throughout. See State v. Hall, 148 N.H. 135 N.H. at 401. At the end of the interview, even Hernandez agreed that the entire interrogation. Further, the interrogation was not hostile. See Chapman, we explained above, the single reference to confidentiality did not taint the 759, 764 (2010). The detectives never promised the defendant leniency and, as it is one of the factors the trial court may consider. State v. Bilodeau, 159 N.H. conclusively establish that a defendant’s subsequent statement was voluntary, rights and obtained a waiver. While compliance with Miranda does not interview, Testaverde read and carefully explained the meaning of her Miranda a half hour interview was not oppressive or inordinate). At the beginning of the lasted less than two hours. See Chapman, 135 N.H. at 401 (finding a two and The interview itself was “not an inordinate or oppressive length” – it 9

witness’s testimony and later conducted voir In this case, the trial court held a hearing on the motion to exclude the

witness understood her duty to tell the truth and the trial judge’s he [understands the duty to tell the truth].”). The record supports that the the present rule is that one who is insane . . . may testify if the trial judge finds an unsustainable exercise of discretion. State v. Mills (1 p. 9 974) (“[A]lthough at one time an insane person was incompetent to testify, determination of competency, we will not overturn that determination absent because a witness may be mentally ill. State v. Keyes, 114 N.H. 487, 490-91 delusional beliefs, the presumption of competency is not rebutted merely witnesses are competent. See witness. Although the witness had mental health problems and some trial. At both the hearing and voir New Hampshire Rule of Evidence 601 creates a presumption that dire, the court was able to observe the dire of the witness during the

possesses such an understanding. (2010). The focus of a competency determination is whether the witness the distinction between the truth and a lie. State v. Horak, 15 p. 9 9 N.H. 576, 579 Implicit in an understanding of the duty to tell the truth is an understanding of conducted a voir remember and narrate as well as understand the duty to tell the truth.” Id When the record contains evidence to support the trial court’s After the hearing, but before Hake testified at trial, the trial judge. overcome by findings that the witness “lacks sufficient capacity to observe,

conclusion that the witness is competent is entitled to great deference.” Id. in the unique position of being able to directly observe the witness, “its witness.” State v. Briere, 138 N.H. 617, 620 (1 p. 9 994). Because the trial court is (1992). “[M]uch depends on the trial court’s firsthand observations of the

argues that the trial court erred when it found Hake competent to testify. obligation to tell the truth and her ability to do so.” On appeal, the defendant explaining, “I have no question as to this witness’ understanding of her The trial judge again concluded the witness was competent to testify, about her mental health problems or her delusional beliefs during voir dire. the difference between the truth and a lie. Hake was not further questioned accurately answered questions aimed at determining whether she understood voir dire, Hake testified that she understood that she was under oath and dire outside the jury’s presence to revisit competency. During

mother. mother was abducted and replaced by an imposter who looked like her real p. 10 10

Affirmed

DALIANIS, C.J.