2010-526, State of New Hampshire v. Roscoe White

The defendant, Roscoe White, appeals his convictions, by a

brief and orally, for the defendant. ___________________________ Stephanie Hausman, assistant appellate defender, of Concord, on the

attorney general, on the brief and orally), for the State. a.m. on the morning of their release. T , attorney general (Thomas E. Bocian, assistant 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:

THE SUPREME COURT OF NEW HAMPSHIRE

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

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as and the defendant that day. See p. 2 intercept to make an audio recording of a conversation between the informant

On February 11, an assistant attorney general authorized a one-party

on February 9. Corrections. He was arraigned the next day and counsel was appointed for him

controlled drugs and detained at the Hillsborough County House of

On February 7, 2008, the defendant was arrested for the sale of

arrested. not to talk to the defendant about the drug charges for which he was to be

defendant to talk about the murder. They also specifically told the informant

meeting, the police suggested ways in which the informant could get the of Corrections after the defendant’s arrest on drug charges. During this police planned for this conversation to occur at the Hillsborough County House

discuss recording a conversation between himself and the defendant. The

On February 4, 2008, the informant met with police and prosecutors to

defendant had claimed to be the person who shot Kar.

details about the shooting, including that he knew the defendant and that the

the murder weapon. The informant then provided the police with specific

the police with information about who shot Kar and the person who provided informant offered, in exchange for leniency on his pending charges, to provide Police Department met with the informant to discuss what he knew. The 2

January 2 shooting. Over the next few weeks, members of the Manchester

which the [d]efendant was . . . incarcerated.”

Hillsborough County House of Corrections, that he knew something about the Department received information from the informant, an inmate at the Subsequently, on November 24, a sergeant with the Manchester Police during the conversation the informant was “not to go near the drug sales for

issued for the homicide.” She further stated that she “was very clear” that crime of drug sales was “a typo” and the authorization “was intended to only be the assistant attorney general later testified that the language referring to the

crimes at this time. trafficking. However, the defendant was not arrested or charged with these six times as part of an ongoing investigation into the defendant’s drug crime of drug sales and/or homicide w[ould] be derived from this interception,” authorization stated that there was “reasonable suspicion that evidence of the

New Hampshire Drug Task Force purchased crack cocaine from the defendant

Between October 1 and November 8, 2007, an undercover officer with the

year, the police continued to investigate the crime.

incident on several occasions shortly after the shooting. During the following suspected that the defendant was involved and questioned him about the p. 3 3

defendant’s statements to the informant were not involuntary and that “the

murder charges.” (Citation omitted.) The court further found that the ‘offense specific,’ the right to counsel had not attached in connection with the with any crime related to the shooting and, “since the right to counsel is

found that when the defendant spoke with the informant, he was not charged

impermissible interrogation with respect to that case.” Nevertheless, the court charges and, “[a]s a result, [the informant’s] inquiries constituted court found that the defendant’s right to counsel had attached on the drug

Following a hearing, the trial court denied the defendant’s motion. The

process violation. admissible. The State also argued that its actions did not constitute a due

counsel on those charges and the statements related to the shooting were

the charges related to the shooting, there had been no violation of his right to

however, that because the defendant’s right to counsel had not yet attached on charges at trial on the charges related to the shooting. The State maintained, would not introduce any portions of the conversation related to the drug

inadmissible at a trial on those charges. The State later represented that it

informant and the defendant relating to the drug charges would be with respect to the drug charges and, thus, any discussion between the The State conceded that the defendant’s right to counsel had attached

violation of due process.” (Bolding omitted.) that “[t]he [S]tate’s conduct in this case was fundamentally unfair and thus a must be suppressed as the “fruit of the poisonous tree.” He further argued

statements about the shooting, were the fruit of that violation and, therefore,

charges. He contended that any statements made after this violation, including

about the drug charges were elicited in violation of his right to counsel on those arguing that any statements he made in response to the informant’s questions Prior to trial, the defendant moved to suppress the recorded statements,

murder and attempted first-degree assault charges on May 16, 2008. the defendant for the charge of first-degree murder; he was indicted on the February 1 p. 3 3, the Manchester Police Department obtained an arrest warrant for

himself in Kar’s murder, including admitting that he was the shooter. On

As the conversation continued, the defendant made statements implicating drug charges and intermittently discussed them throughout the conversation. instructions to the contrary, the informant began discussing the defendant’s

defendant and the informant began conversing. Notwithstanding the explicit

defendant’s drug charges. Upon being placed in the cell together, the informant once more and reiterated the instruction that he not discuss the informant and the defendant placed in the same cell. They met with the

After obtaining the authorization, the police arranged to have the p. 4 State v. Jeleniewski 4 a formal charge, preliminary hearing, indictment, information, or arraignment.

Constitutions attaches when adversary proceedings have commenced through A criminal defendant’s right to counsel under both the State and Federal

State v. Ball process.” We first address the defendant’s claims under the State Constitution, elicit incriminating statements is fundamentally unfair and violates due State to intentionally violate the constitutional rights of an accused in order to

N.H. CONST. pt. I, art 15.

excluded as “fruit of the poisonous tree.” He further argues that “[a]llowing the

the advocacy of the public prosecutor” (quotations and brackets omitted)). trial, when the accused is confronted with both the intricacies of the law and (recognizing “that the core purpose of the counsel guarantee is to assure aid at only after the matter has been thoroughly explained by the court. 147 N.H. at 468; United States v. Gouveia of the state if need is shown; this right he is at liberty to waive, but, 467 U.S. 180, 188-89 (1984) legal advice when making important decisions regarding his case. Jeleniewski deprivation of liberty shall have the right to counsel at the expense, U.S. 387, 398 (1977). This right is designed to give a defendant the benefit of

Constitution, and that his statements about the shooting should have been to the United States Constitution and Part I, Article 15 of the New Hampshire defence.” U.S. CONST. amend. VI; McNeil v. Wisconsin pending drug charges violated his right to counsel under the Sixth Amendment

de clearly erroneous. Our review of the trial court’s legal conclusions, however, is Every person held to answer in any crime or offense punishable by

provides: (1991). The State counterpart of the Sixth Amendment right to counsel

accused shall enjoy the right . . . to have the Assistance of Counsel for his motion to suppress. He asserts that the informant’s questions about his The Sixth Amendment provides that “[i]n all criminal prosecutions, the

only. Id. at 231-33.

, 124 N.H. 226, 231 (1983), and cite federal opinions for guidance

the trial court’s factual findings unless they lack support in the record or are “When reviewing a trial court’s ruling on a motion to suppress, we accept

The defendant argues on appeal that the trial court erred in denying his

novo.” State v. Matey, 153 N.H. 263, 268 (2006) (quotation omitted).

federal rights to due process.” investigative tactic used in this case did not violate the defendant’s state or p. 5 5

charges.” Thompson v. State offenses “might encroach on the defendant’s rights concerning the pending Moulton

, 474 U.S. at 176-80.

Nevertheless, there may be times when interrogation on uncharged meeting with the informant to gain information on a separate uncharged crime. crime for which he had been indicted, even though the police had recorded the Amendment right [to counsel] is ‘offense specific.’” Matey his codefendant, who was acting as a government informant, concerning the counsel was violated by the admission of incriminating statements he made to (1986) (discussing Moulton). The Court held that the defendant’s right to prosecutions.” McNeil indicted; for the other, he had not.” Moran v. Burbine, 47 p. 5 5 U.S. 412, 431 yielded evidence pertaining to two crimes. For one, the defendant had been “considered the constitutional implications of a surreptitious investigation that issue was recognized by the Supreme Court in Moulton. There, the Court is also “offense specific,” see, 93 S.W.3d 16, 24 (Tex. Crim. App. 2001). This

other charged offenses.” Matey The Supreme Court has made clear, however, that “the Sixth, 1 p. 5 53 N.H. at 270 (quotation omitted). notwithstanding the attachment of his Sixth Amendment right to counsel on presence of counsel, is improper, see regarding offenses for which he [has] not been charged [are] admissible pending charges.” United States v. Terzado-Madruga, 501 U.S. at 175. Thus, a “defendant’s statements any conversations with the accused and not to question him regarding the which prosecution has commenced and “cannot be invoked once for all future counsel. This means that the right to counsel attaches only to offenses for adopt, under our constitution, the “offense specific” nature of the right to

While we have implicitly held that the right to counsel under Part I, Article 1 p. 5 5 (quoting Texas v. Cobb, 532 U.S. 162, 164 (2001)); McNeil, 501 U.S. at 175. jailhouse” through the use of informants. United States v. Henry, 153 N.H. at 269

(11th Cir. 1990). government interrogation of a defendant after attachment, without the, 897 F.2d 1099, 1109

to a fair trial, Jeleniewski “even where the government expressly instructs its informant not to initiate violate[s]” a defendant’s right to counsel. Henry, 447 U.S. at 274. This is so incriminating statements without the assistance of counsel, the Government intentionally creating a situation likely to induce [a defendant] to make 264, 273 (1980) (quotation omitted); see Bruneau, 131 N.H. at 108. Thus, “[b]y

“indirect and surreptitious interrogations as well as those conducted in the (1988); Moulton, 474 U.S. at 176. This rule applies equally to direct and

170 (198 p. 5 5), and absent a waiver of this right by a defendant, any knowing

critical stages of criminal proceedings in order to preserve a defendant’s right Once the right has attached, the assistance of counsel is provided at p. 6 [Massiah v. United States

risks the evisceration of the Sixth Amendment right recognized in

Moulton

enforcement personnel in the form of fabricated investigations and legitimate reason for their surveillance invites abuse by law Amendment rights whenever the police assert an alternative, 6

counsel. knowingly circumventing the accused’s right to the assistance of this evidence, the State violated the Sixth Amendment by

evidence obtained from the accused in violation of his Sixth

State concedes that “during any proceedings on the drug charges, the evidence

that the police were also investigating other crimes, if, in obtaining

Amendment rights of the accused. To allow the admission of Government’s investigative powers are limited by the Sixth informant’s questioning of the defendant about those charges. Indeed, the In seeking evidence pertaining to pending charges, however, the

inadmissible at the trial of those charges, notwithstanding the fact incriminating statements pertaining to pending charges are the investigation of criminal activities. Consequently,

with respect to the drug charges and that this right was violated by the obviously seek to discover evidence useful at a trial of either crime. There is no dispute that the defendant’s right to counsel had attached

McNeil, 501 U.S. at 176. admissible at a trial limited to those charges.” Moran, 475 U.S. at 431; see in precisely the same manner from the identical suspect — would be the crime for which the defendant had not been indicted — evidence obtained when it explained that Moulton “made clear . . . that the evidence concerning those offenses.” Id. at 180 n.16. The Court reaffirmed this reasoning in Moran Amendment right has not yet attached, are, of course, admissible at a trial of at that time, would unnecessarily frustrate the public’s interest in “[i]ncriminating statements pertaining to other crimes, as to which the Sixth

, 474 U.S. at 179-80. The court noted in a footnote that crime and formally charged with having committed another crime officials investigating an individual suspected of committing one individuals already under indictment. Moreover, law enforcement

evidence was obtained, simply because other charges were pending Sixth Amendment right to counsel had not attached at the time the hand, to exclude evidence pertaining to charges as to which the

Investigations of either type of crime may require surveillance of

an interest in investigating new or additional crimes. for which formal charges have already been filed. They also have The police have an interest in the thorough investigation of crimes

In so doing, the Court stated: number of cases. See

p. 7 should have been suppressed. In making this argument, he relies upon a poisonous tree” doctrine and hold that his statements concerning the shooting to counsel” on those charges. Thus, he urges us to apply the “fruit of the 7

unnecessarily infringe on competing interests.” United States v. Morrison

and, as a result, “only occur[red] though [the] violation of [the defendant’s] right

charges. The appropriate remedy for this constitutional violation was to

recognition of the defendant’s right to counsel and to a fair trial.” Id tailored to the injury suffered from the constitutional violation and should not imposing a remedy in that proceeding, which can go forward with full This decision is consistent with “the general rule that remedies should be

such a rule.

effective assistance of counsel and a fair trial.” Id shooting followed [the informant’s] numerous references to the drug charges” Nonetheless, the defendant maintains that “[t]he statements about the The defendant’s right to counsel in this case was violated on the drug

“Absent such impact on the criminal proceeding, however, there is no basis for representation or has produced some other prejudice to the defense.” Id. or threatens some adverse effect upon the effectiveness of counsel’s right to counsel, constitute a “fruit” of that violation. And we decline to adopt Court has looked to whether “the constitutional infringement identified has had

tailoring relief appropriate in the circumstances to assure the defendant the of the Sixth Amendment has “been to identify and then neutralize the taint by U.S. 361, 364 (1981). The Supreme Court’s approach in addressing violations though defendant was already charged with witness tampering)., 449

shooting were admissible at the trial on those charges. See

regarding charged offenses for which there was a violation of a defendant’s regarding uncharged offenses, elicited at the same time as statements None of these cases, however, stands for the proposition that statements State v. Gravel, 135 N.H. 172 (1991); State v. Baillargeon, 124 N.H. 355 (1983). State v. Panarello, 157 N.H. 204 (2008); State v. Roache, 148 N.H. 45 (2002); States, 385 U.S. 293 (1966); Wong Sun v. United States, 371 U.S. 471 (1963); statements from the defendant about uncharged attempted murder even Henry, 447 U.S. 264; Gilbert v. California, 388 U.S. 263 (1967); Hoffa v. United United States, 540 U.S. 519 (2004); Nix v. Williams, 467 U.S. 431 (1984);

shooting did not violate his right to counsel and his statements as to the Accordingly, the informant’s questioning of the defendant regarding the shooting, his right to counsel had not attached as to those charges.

defendant’s Sixth Amendment right to counsel when informant elicited 176; State v. Kilgus, 128 N.H. 577, 593-94 (1986) (finding no violation of the

proceedings had not yet commenced against the defendant with respect to the that the informant elicited could not be used.” However, because judicial citizen due process of the law. State v. Damiano p. 8 comport with due process.” The New Hampshire Constitution guarantees every incriminating statements from a suspect,” and that “[s]uch a holding would not

would permit a knowing violation of the law for the purpose of eliciting

Finally, the defendant argues that “[s]anctioning the State’s actions here

decline to do either in this case.

that the use of an informant, in and of itself, violates our constitution. We

arising earlier than the Sixth Amendment right to counsel; nor have we found However, we have never construed the state constitutional right to counsel as “in a more protective manner than the Supreme Court.” We do not disagree.

contends that we have implemented the “fruit of the poisonous tree” doctrine

the drug charges. We do not find, however, that these facts demonstrate “the

to custodial interrogations and the right against self-incrimination. He further

conduct in this case violated the defendant’s right to counsel with respect to trust in an informant on a different charge.” Undoubtedly, the informant’s the right to counsel is a small price to pay in order to purchase the defendant’s

protective view of the right to counsel under the state constitution” with respect broadly-worded than the federal constitution” and that we have “taken a more maintains that the above-quoted provision of Part I, Article 15 is “more

and “may decide that foregoing use of a defendant’s statements in violation of

protective than the Federal Constitution under these circumstances. He The defendant argues that we should find the State Constitution more

one charge in order to elicit inculpatory statements about an uncharged crime” . . . has every incentive to intentionally violate a suspect’s right to counsel on The defendant contends that, under the decision in this case, “the State

fair play. State v. Mwangi

with respect to the statements concerning the shooting. procedure violates due process is whether it is fundamentally fair. State v.

government conduct conform to the community’s sense of justice, decency and Barnett, 147 N.H. 334, 336 (2001). Fundamental fairness requires that the argument is that, as discussed above, there was no right-to-counsel violation N.H. CONST. pt. I, art. 15. The standard for determining whether a law or

the right to counsel are not admissible in any case.” The simple answer to this

Citing Gilbert

and not unfairly convicted.” Id be purged to make certain that [the defendant] has been effectively represented Accordingly, “[t]here is no effect of a constitutional dimension which needs to

not affect application of the exclusionary rule: statements taken in violation of

However, there was no violation with respect to the shooting charges. exclude evidence obtained from this violation from trial on those charges. p. 9 9

Affirmed

substantive constitutional violations.” Lewis DALIANIS, C.J., and CONBOY and LYNN, JJ., concurred.

do under the State Constitution.

places himself at a disadvantage under circumstances in which there are no occur for purposes of the due process clause simply because a defendant .

U.S. at 432-34, we reach the same result under the Federal Constitution as we N.H. at 271; Barnett, 147 N.H. at 336; McNeil, 501 U.S. at 175; Moran, 475 than does our State Constitution under these circumstances, see Matey, 153 As the Federal Constitution offers the defendant no greater protection

(1 p. 9 987) (same). As we have previously stated, “fundamental unfairness does not informers is not per se unconstitutional”); State v. Lewis, 129 N.H. 787, 798 constitutional violation. See Hoffa, 385 U.S. at 311 (“the use of secret Moreover, the State’s use of an informant does not constitute a per se

constitute a due process violation. Moran, 475 U.S. at 433-34. kind of misbehavior that so shocks the sensibilities of civilized society” as to