2009-072 The State of New Hampshire v. Robinson Garcia

Michael A. Delaney

No. 2009-072

Hillsborough-northern judicial district

and convicted of one count of second-degree murder, see HICKS, J. The defendant, Robinson Garcia, was certified as an adult

Lisa L. Wolford

him from testifying about statements made by the victim. We affirm. suppress; (2) excluded the testimony of a defense witness; and (3) prohibited that the Superior Court (O’Neill, J.) erroneously: (1) denied his motions to (2007), and one count of riot, see RSA 644:1, I (2007). On appeal, he argues RSA 630:1-b, I(b)

and orally, for the defendant.

general, on the brief and orally), for the State.

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 from the group. p. 2 “agreed readily” and walked with the officers approximately twenty feet away told the defendant that they would like to speak with him. The defendant to go for a canoe ride with a group of people. They introduced themselves and Bear Brook State Park, where they found the defendant on the beach preparing Park in Allenstown. The officers thereafter drove an unmarked police cruiser to girlfriend’s house and was told that the defendant was at Bear Brook State

While the officers were there, Gonzalez telephoned the defendant’s

with any details. that day, and he told her there had been a “little fight” but did not provide her three days. Several days later she spoke with him about what had happened minutes later, immediately changed his clothes and did not leave the house for was missing from her porch. The defendant returned approximately fifteen children that a fight was about to occur. She later realized a red baseball bat left the house with Randal Rodriguez after being informed by a group of Gonzalez told the officers that, on the day of the beating, the defendant

I. Suppression

wearing plain clothes and a side-arm with a visible badge. Michael Biron went to Gonzalez’s home to speak with her. Both officers were involved in Raymond’s beating. Shortly thereafter, Flanagan and Detective Gonzalez, who said that she believed her son, then sixteen years old, was Department received a telephone call from the defendant’s mother, Marisol On August 17, 2005, Sergeant James Flanagan of the Manchester Police

police that he claimed were obtained in violation of his Miranda First, it denied his motions to suppress statements he made to the Manchester The trial court made a number of rulings unfavorable to the defendant.

arguments in turn. The defendant appeals these rulings. We address each of the defendant’s grounds testimony by the defendant of statements made to him by the victim. implicating himself in Raymond’s death. Finally, it excluded on hearsay of a defense witness regarding statements made by co-defendant Barbosa Miranda v. Arizona, 384 U.S. 436 (1966). Next, at trial, it excluded testimony rights. See

with others with the purpose of causing Raymond to suffer serious injuries. with three alternative theories of felony-level riot, alleging that he assembled Raymond in the head with a baseball bat. The defendant was also charged manifesting extreme indifference to the value of human life by striking with Larry Barbosa, he caused the death of Raymond under circumstances defendant was charged with second-degree murder, in that, acting in concert Stephen Raymond in Manchester. After Raymond’s death in 2006, the The defendant’s convictions arise out of the August 11, 2005 beating of defendant. p. 3 when you’re done,” and that she gave him permission to speak with the part in the interview. He testified that Gonzalez said “no . . . just give me a call Gonzalez and asked her if she wanted to come to the police station and take an interview room in the juvenile unit. Flanagan testified that he called Upon arriving at the police station, the officers escorted the defendant to

mother or any other interested adult. no time did the officers ask the defendant if he would like to consult with his defendant “seemed completely satisfied” and agreed to go with the officers. At present when we talk to you, and you can ask her. It will be up to her.” The officers told him that they would call his mother “and see if she wants to be the condition that he be allowed to return to Bear Brook State Park. The he would go to the police station to continue to speak with them. He agreed on After approximately twenty minutes, the officers asked the defendant if

victim with the bat. “check swings,” before running away, but that he did not know who hit the what.” The defendant then said that he had used the bat defensively, making the altercation, which would enable the police “to find out who did exactly Flanagan falsely told the defendant that an area resident had videotaped

ran away. group of people attacked the man. The defendant then threw his bat down and challenged him to fight. The defendant said that as he was being challenged, a house with a baseball bat. This time he was confronted by an older man who came to his house and told him there was about to be a fight. He again left his involved, he left and returned home. Later that day, another group of children older man confronted him; however, after learning that his brother was not baseball bat to find out what was going on. When he arrived at the scene, an older man and the defendant’s brother. He left his house with an aluminum children came to his house and told him there was a problem involving an The defendant told the officers that on the day of the beating, some

of rights portion of the form and that he was willing to speak with the officers. indicated that he understood. He also indicated that he understood the waiver portion of the form with the defendant, who initialed each portion and form, see State v. Benoit, 126 N.H. 6, 22-2 p. 4 4 (1985). Flanagan reviewed each him his Miranda rights, using a simplified form for juveniles known as a Benoit and they understood that he might have some information. They then read were investigating Raymond’s beating, that they had spoken with his mother, speak with him, and he indicated that he did not. They explained that they The officers then asked the defendant if he knew why they wanted to 4

the methods of interrogation; (9) the length of interrogation; (10) explanation of rights; (7) the language of the warnings given; (8) with the police or court appearances; (6) the extent of the

juvenile’s physical condition; (5) the juvenile’s previous dealings age of the juvenile; (3) the educational level of the juvenile; ( p. 4 4) the (1) the chronological age of the juvenile; (2) the apparent mental

In Benoit

waived this right.” Farrell reasonable doubt that a defendant knowingly, intelligently, and voluntarily juvenile’s purported waiver: We adopted a fifteen-factor test for trial courts to utilize when evaluating a normally forfeit this constitutional protection, the State must prove beyond a determine whether a juvenile has validly done so. Benoit art. 15. Thus, “to overcome the presumption that a defendant would not, 126 N.H. at 15-17. and ruled that a totality of the circumstances approach should be used to compelled to accuse or furnish evidence against himself.” N.H. CONST. pt. I, The New Hampshire Constitution provides that “[n]o subject shall be . . ., we addressed the capacity of juveniles to waive their rights

(quotation omitted); see also State v. Plch, 1 p. 4 49 N.H. 608, 617 (2003). when viewed in the light most favorable to the State, is to the contrary.” Id. finding on the issue of waiver “unless the manifest weight of the evidence, position to weigh the credibility of witnesses, we will not reverse a trial court’s Miranda, 145 N.H. at 736. As the trial court is in the best United States Constitution. Specifically, he alleges that he was in custody for New Hampshire Constitution and the Fifth and Fourteenth Amendments to the violation of his right against self-incrimination under Part I, Article 15 of the On appeal, the defendant argues that his statements were obtained in

cases only to aid in our analysis. State v. Ball, 12 p. 4 4 N.H. 226, 231-33 (1983). address the defendant’s claims under the State Constitution and look to federal conformity with Benoit and State v. Farrell, 145 N.H. 733 (2001). We first wanted to speak with him and that he did not waive his constitutional rights in

purposes at Bear Brook State Park once the officers told him they

defendant. The entire interview at the police station lasted about one hour. further to say. The officers then concluded the interview and arrested the the officers that he realized they did not believe him and that he had nothing stronger” about inconsistencies in his version of events. At this point, he told in the interview room. When they returned, they questioned him “a little At one point, the officers took a five-to-ten-minute break and left the defendant Throughout the interview, the defendant maintained his version of the events. asking him.” He waived his rights and initialed the form accordingly. and “seemed to have a complete understanding as to what [the officers] were and asked if he understood. He read the waiver portion of the form out loud The officers again reviewed a Benoit form line by line with the defendant p. 5 5

The defendant does not dispute that a simplified juvenile Miranda

Id had no prior dealings with the police or court appearances, it found that his physical condition (factor four). While the court noted that the defendant further found that the defendant did not allege that anything was wrong with inconsistent with that of a sixteen year old (factors two and three). The court support a finding that his apparent mental age or educational level were from his seventeenth birthday (factor one) and that the evidence did not The trial court found that the defendant was less than two months away

certification to stand trial as a criminal defendant.

not contrary to the manifest weight of the evidence. that the trial court’s finding of a knowing, intelligent and voluntary waiver is Brook State Park when the officers said they wanted to speak to him, we hold waived his rights. Assuming, without deciding, that the defendant was in custody at Bear which indicated that the defendant knowingly, intelligently and voluntarily court made findings on each of the above-enumerated factors, at least twelve of voluntarily waived his right against self-incrimination. We disagree. The trial support the trial court’s determination that” he knowingly, intelligently and used. Rather, he argues that “there were an insufficient number of findings to which included the warning that he could be certified as an adult, was twice adult, the juvenile must be informed of the consequences of a if facing charges that would constitute a felony if committed by an form, intelligently and with full knowledge of the consequences, and (4), number of favorable findings that the waiver was made voluntarily, the statement, (3) the judge . . . must be persuaded by an adequate each of the factors enumerated . . . above surrounding the giving of his or her rights, (2) the court must review and make findings on or she must be informed, in language understandable to a child, of . at 18-19. under part I, article 1 p. 5 5 of the New Hampshire Constitution, (1) he intelligently waived his or her fundamental constitutional rights before a juvenile can be deemed to have voluntarily, knowingly and

Id

whether the juvenile later repudiated the statement. juvenile was warned of possible transfer to adult court; and (1 p. 5 5)

. at 1 p. 5 5. We ultimately concluded that:

juvenile’s understanding of the offense charged; (14) whether the afforded the opportunity to consult with an adult; (13) the juvenile was held incommunicado; (12) whether the juvenile was the length of time the juvenile was in custody; (11) whether the p. 6 6

Park or the Manchester Police Department.” In Farrell afforded the opportunity to consult with an adult at either Bear Brook State The defendant also points to factor twelve and argues that he “was not

opportunity to speak with him. Cf interested adult. Moreover, at no time was the defendant’s mother denied the time was he prevented from speaking with a lawyer, his mother or any other with the defendant outside, in a public setting, at Bear Brook State Park. At no does not support the defendant’s argument. Here, the officers initially spoke sequestered while the officers obtained his statements. The record, however, The defendant points to factor eleven and argues that he was effectively circumstances analysis.” Id. at 739. failure alone tips the scale in favor of the defendant under a totality of the greater weight.” Id. at 738. However, we “express[ed] no opinion whether this waiver, “the absence of an opportunity to consult with an adult shall be given when considering the totality of the circumstances surrounding a juvenile , we made clear that possible transfer to adult court through the use of two Benoit defendant (factor thirteen). Further, it found that the defendant was warned of noting that Flanagan and Biron explained why they wanted to speak with the The court found that the defendant understood the offense charged, to get there before [they] interviewed” the defendant. interview, he would have “welcomed her into the interview” and “waited for her room). Indeed, Flanagan testified that had Gonzalez wanted to attend the with him or make any effort to allow the defendant’s father into the interview the defendant and did not inform the defendant that his father wanted to speak the defendant after his father arrived at the police station and requested to see defendant’s Miranda waiver invalid where the police did not cease interrogating

did not later repudiate his statement (factor fifteen). jail or state prison (factor fourteen). The court also found that the defendant through the adult criminal system and, as a result, he could go to the county indicated that if his case was transferred to adult court, he would have to go forms that

incommunicado (factor eleven). was over an hour (factors nine and ten) and the defendant was not held trial court further found that the length of the entire custodial interrogation interview did not “get out of hand or completely aggressive or anything.” The and even when they decided to question the defendant “a little stronger,” the Indeed, Flanagan testified that the tenor of the interview was “pretty cordial” however, it found that the interrogation was generally cordial (factor eight). Flanagan lied to the defendant about having a videotape of the altercation; he had regarding the form (factors six and seven). The court noted that Flanagan twice reviewed a Benoit form with him, and answered any questions p. 7 Nanan and James Soucy of the Manchester Police Department. She told the On February 14, 2008, the defense witness met with Detectives Richard

II. Exclusion of Testimony of Defense Witness doubt. We agree. erred by excluding the testimony, any error was harmless beyond a reasonable the United States Constitution. The State argues that even if the trial court the New Hampshire Constitution and the Fifth and Fourteenth Amendments to trial court’s ruling violated his right to due process under Part I, Article 15 of than the State Constitution under these circumstances, see interest pursuant to New Hampshire Rule of Evidence 804(b)(3), and that the Because the Federal Constitution is no more protective of the defendant that the hearsay statements were admissible as statements against penal statements inculpating himself in Raymond’s death. The defendant contends testimony of a defense witness regarding co-defendant Barbosa’s out-of-court The defendant next argues that the trial court erred in excluding the

We intend no erosion of our holding in Farrell

same conclusion under the Federal Constitution. Miranda protections only by a preponderance of the evidence), we reach the Colorado v. Connelly, 479 U.S. 157, 168-69 (1986) (State need prove waiver of

invalid. we cannot say that this failure rendered the defendant’s Miranda waiver the defendant under a totality of the circumstances analysis. Here, however, juvenile the opportunity to consult with an adult may tip the scale in favor of there may be circumstances in which the failure of the police to afford the totality of the circumstances surrounding a juvenile waiver. See id. Indeed, the absence of an opportunity to consult with an adult when assessing the

the evidence. defendant’s waiver was valid in this case was contrary to the manifest weight of of the consequences, we cannot say that the trial court’s finding that the defendant’s waiver was made voluntarily, intelligently and with full knowledge Nonetheless, in light of the remaining number of favorable findings that the informed that he could consult with Gonzalez or another interested adult. the police station and take part in the interview, at no time was the defendant while Flanagan testified that he called Gonzalez to see if she wanted to come to was afforded the opportunity to consult with an adult. See id. at 738. Here, consult with an adult. Under this factor, the question is whether the juvenile improper analysis of whether the defendant was afforded the opportunity to the defendant’s “mother declined to come to the police station.” This was an the defendant did not have the opportunity to consult with an adult because In this case, the trial court found that it “was not the officers’ fault” that same bat as his mother’s and testified that it was the bat he brought to the p. 8 Sanders identified this baseball bat at trial. The defendant later identified the aluminum baseball bat in a dumpster near the scene of the altercation. Christopher Sanders testified that, on the day in question, he located a red ran by him with a bat and dropped the bat in a nearby dumpster. Detective ground. He testified that at this point everyone “took off” and one of the men saw two men hit Raymond with a bat and then saw Raymond fall to the The alternative evidence also included testimony from one witness who

saw the defendant run towards Raymond and hit Raymond “in the back of the the row next to her in algebra class the previous year. She testified that she down by his side. She stated that she knew the defendant because he sat in immediately recognized the defendant standing nearby holding a baseball bat fighting with two kids. She testified that as she approached the scene, she of Krystal Case that she witnessed a group of people around Raymond who was The alternative evidence of second-degree murder included the testimony

extreme indifference to the value of human life.” RSA 630:1-b, I(b). defendant “cause[d] such death recklessly under circumstances manifesting an murder, the State was required to prove, beyond a reasonable doubt, that the overwhelming nature. For the jury to convict the defendant of second-degree

because the alternative evidence of the defendant’s guilt was of an testimony of the defense witness, we conclude that this error was harmless Assuming, without deciding, that the trial court erred in excluding the

The State bears the burden of proving that an error was harmless. State

Id. at 417. presented at trial as well as the character of the inadmissible evidence itself. (2011). In making this determination, we consider the alternative evidence strength of the State’s evidence of guilt. State v. Gordon, 161 N.H. 410, 416-17 inadmissible evidence is merely cumulative or inconsequential in relation to the a defendant’s guilt is of an overwhelming nature, quantity or weight and if the error may be harmless beyond a reasonable doubt if the alternative evidence of proves beyond a reasonable doubt that it did not affect the verdict. Id. An v. Fox, 150 N.H. 623, 624 (2004). Error is not harmless unless the State

told her that he took the bat from the defendant and hit Raymond with it. told her that he hit Raymond with the bat. She further stated that Barbosa witness also told the detectives that after Barbosa was released from jail, he seen me with the bat,” “I did it” and “he knew I did do this and he knows.” The allegedly had emboldened words, such as “I hit the dude with the bat,” “he provided them with letters she alleged were written by Barbosa. The letters detectives that she had been writing to Barbosa while he was incarcerated and p. 9 This evidence included the testimony of a witness who saw the defendant at the Here, the alternative evidence of riot was of an overwhelming nature.

same purpose.

believing that 2 or more other persons in the assembly have the another whom he supposes to be guilty of a violation of the law, purpose of committing an offense against the person or property of

(c) . . . assemble[d] with 2 or more other persons with the

have the same purpose; or

conduct, believing that 2 or more other persons in the assembly

purpose of engaging soon thereafter in tumultuous or violent

(b) . . . assemble[d] with 2 or more other persons with the

or or recklessly create[d] a substantial risk of causing public alarm; engage[d] in tumultuous or violent conduct and thereby purposely

(a) [s]imultaneously with 2 or more other persons, . . .

prove that the defendant Finally, as to the riot charge, pursuant to RSA 644:1, I, the State had to

bat and confessed to doing so would have been cumulative. Cf Moreover, the excluded evidence that Barbosa struck Raymond with the

with a bat and confessed to doing so. having a bat. Thus, the jury was made aware that Barbosa struck Raymond with a bat and one witness identified both the defendant and Barbosa as bat. Further, as mentioned above, another witness saw two men hit Raymond Martinez stated that Barbosa confessed to them that he hit Raymond with the that he witnessed Barbosa hit Raymond with a baseball bat. Both Urena and Raymond twice. Similarly, the jury heard a statement from Carlos Martinez bat to Barbosa. Urena further indicated that he witnessed Barbosa hit from Felix Urena that, on the day in question, he saw the defendant pass the offered the testimony at issue here, the jury had heard deposition testimony knew about crime scene from other various sources). Before the defendant defendant was able to introduce alternative evidence that uncharged party party concerning that party’s knowledge of crime scene was harmless where defendant from cross-examining officer about statements made by uncharged 144 N.H. 455, 457-58 (1999) (finding any error in trial court’s ruling precluding

the bat to make “check swing[s]” at Raymond. defendant’s own testimony that he was present at the scene and that he used scene when he confronted Raymond. Further, the evidence included the p. 10 Honor. Hearsay. Can we approach, Your Honor?

MR. CULBERSON [for the State]: Objection, Your

A: That if I wanted to --

Q: And what did he say?

A: Yes.

Q: Okay. Was he challenging you?

A: Challenging people with it.

Q: Okay. What was he doing with it?

A: I observed that he had a metal stake.

Q: What did you observe about this white person?

At trial, the defendant testified on direct examination as follows:

“check swings” at Raymond in self-defense. never struck Raymond with the bat and that he only used the bat to make physically attacking” Raymond. The defendant’s theory of defense was that he that the defendant assembled with other individuals for the purpose “of Raymond by striking him in the head with a baseball bat. It further alleged In this case, the State alleged that the defendant caused the death of

III. Victim’s Statements

even if the trial court erred, any error was harmless. from Raymond while checking his bat.” The State disagrees but argues that explain, that is, the reasonableness of [his] testimony that he backed away truth of any point,” but rather “to explain its effect on [his] state of mind; to defendant argues that Raymond’s statements were not being offered “for the fight, calling him a “chicken” and asking him why he was walking away. The hearsay his testimony about statements Raymond made challenging him to Finally, the defendant argues that the trial court erred in excluding as

the trial court’s error, if any, was harmless. other people who were arguing with Raymond. Accordingly, we conclude that saw the defendant at the scene with a baseball bat along with at least three also saw Barbosa at the scene with a bat. Another witness testified that she whom “started yelling at [Raymond] and surrounding him.” This same witness scene holding a baseball bat in a group of at least three other people all of p. 11 Assuming, arguendo

trial court sustained the State’s objection. that Raymond asked him where he was going and if he was a chicken. The grounds. The defendant’s counsel indicated that the defendant would testify saying. He sa[id] something about . . . .” The State then objected on hearsay stairs and -- yelling and screaming at me. . . . Meaning . . . [Raymond] was The defendant later again testified that Raymond “came down, down the

THE COURT: Sustained. Continue, counsel.

MR. CULBERSON: Objection. Hearsay.

Q: Okay. And what was he yelling?

A: Stephen Raymond.

Q: Okay. And who was that person?

the stairs.

and I seen the person that I was looking for running down heard somebody yelling. So I stopped and I turned around,

street. And when I crossed the street, I kept walking, and I

A: As I was walking to -- back to my house, I crossed the

Q: What was that?

A: Yes.

Q: Okay. Something happened after that?

A: Yes.

decided that you were going to turn around and go home. Q: Okay. And so you couldn’t find him, and you said you

court has erroneously excluded evidence, we must reverse unless the State can with the State that any error was harmless. As discussed above, when the trial

direct examination: Shortly thereafter, the following testimony ensued during the defendant’s

trial court sustained the State’s objection. defendant was going to say that Raymond was challenging him to fight. The

At the subsequent bench conference, defense counsel indicated that the p. 12 12

detailed form appended to our decision in State v. Benoit it is consonant with the judiciary’s role for this court to have devised the Affirmed LYNN, J., concurring specially. I have serious reservations as to whether

be willing to reconsider Benoit’s holding that Part I, Article 15 of the New be admitted into evidence at trial, see id. at 18. In an appropriate case, I would creates a presumption that any custodial statement given by a juvenile cannot not briefed, are deemed waived. In re Estate of King and to have announced that the failure to utilize that form or its equivalent The remaining issues raised by the defendant in his notice of appeal, but , p. 12 126 N.H. 6 (1985),

specially. DALIANIS, C.J., and DUGGAN, J., concurred; LYNN, J., concurred other points during his direct and cross-examination. See . The defendant testified to the substance of the excluded statements at several evidence, the testimony excluded by the trial court was merely cumulative. defendant’s guilt was of an overwhelming nature. Against this alternative, 149 N.H. 226, 230 (2003). Here, we have already determined that the alternative evidence of the

statements to the defendant was harmless beyond a reasonable doubt. has met its burden of proving that any error in excluding Raymond’s Accordingly, based upon our review of the record, we conclude that the State the bat to make “check swings” in self-defense. Cf. Dorval, 144 N.H. at 457. statements would not have added to the defendant’s theory that he only used him a chicken. Admission of more cumulative evidence of Raymond’s testified on cross-examination that he told the police that Raymond was calling after Raymond started “walking fast towards” him. Finally, the defendant at me.” The defendant also testified that he made “check swing[s]” with the bat testified that Raymond “came down . . . the stairs and -- yelling and screaming Raymond was “being aggressive” and “waving his stick.” The defendant later the defendant replied, “yes.” Shortly thereafter, the defendant testified that the defendant whether Raymond was challenging him with a metal stake and affected the jury’s verdict). Before the first objection, defense counsel asked met its burden of proving beyond a reasonable doubt that it would not have 334 (finding that the testimony excluded was cumulative and, thus, the State

(decided May p. 12 12, 2011). strength of the State’s evidence of guilt. State v. Peters, 162 N.H. ___, ___ improperly excluded is merely cumulative or inconsequential in relation to the overwhelming nature, quantity, or weight, and if the evidence that was reasonable doubt if the alternative evidence of the defendant’s guilt is of an State v. Gabusi, 149 N.H. 327, 334 (2003). An error may be harmless beyond a show beyond a reasonable doubt that such error did not affect the verdict. p. 13 13

in the result reached by the majority. However, inasmuch as these issues have not been raised in this case, I concur determining if the child was in custody when the questioning occurred). apparent to a reasonable officer, is a factor that must be considered in of a child subjected to police questioning, if known to the police or objectively Carolina, ___ U.S. ___, 79 U.S.L.W. 4504 (June 16, 2011) (holding that the age See Fare v. Michael C., 442 U.S. 707, 725-27 (1979); see also J.D.B. v. North statements made by at least older juveniles, such as the defendant in this case. the-circumstances analysis for determining the admissibility of custodial Hampshire Constitution requires something more than traditional totality-of-