2013-0637, State of New Hampshire v. Elizabeth Cloutier

Berlin Police Department to take a polygraph test in connect ion with an interrogation of the defendant. On July 11, 2012, the defendant went to the or are otherwise supported in the record, which includes a video - recorded The following facts are drawn from the trial court ’s findings and rulings

her motion to suppress her confession. We affirm. appeal, she argues that the Superior Court (Bornstein, J.) erroneously denied by jury o n one count of burglary. See RSA 635:1 (2007) (amended 2014). On CONBOY, J. The defendant, Elizabeth Cloutier, appeals her conviction

brief and orally, for the defendant. Thomas Barnard, senior assistant appellate defender, of Concord, on the

attorney general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant

No. 2013 - 637 Coos

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, Concor d, 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 p. 2 22 as 2

Plourde then stated: defendant and tell her that he was certain she was involved in the crime. more about anything that [she had] heard.” Plourde continued to question the that she had “been hearing a few things” but that she was “not going to say any she was involved in the burglary and implored her to explain why. She said the defendant. He repeatedly told her that he was “100 percent certain” that A pproximately thirty minutes after the break, Plourde began questioning

because it would place her and her daughter “where the safe was found.” you.” He suggested that the footage could be problematic for the de fendant He explained that while he was “not suggesting they will, ... she’s always with not “want anybody making false accusations against” the defendant’s daughter. involved in the burglary, which the defendant denied. Healy stated that he did daughter “over there.” Poulin asked the defendant whether her daughter was agreed with Plourde that video surv eillance footage would show her and her but then denied any involvement in the crime. At one point, the defendant stated that she did not “have anything to say” about the polygraph test results, of the safe and told her that they wanted to know why. The defendant initially confronted her with their belief that she was involved in the burglary and theft she was “withholding significant information.” Healy and Poulin repeatedly defendant that based upon his review of the pol ygraph test results, he knew have the right to remain silent. Nothing has changed.” Healy then t old the explained to you earlier,. . . they still apply. This is still voluntary. You still defendant about the crime. Healy informed her that, “All those rights I and Lieutenant Plourde of the Berlin Police Department, questioned the When they returned from the break, Healy, joined by Detective Poulin

nearly four hours after which the defendant was given a short break. and administ ered the polygraph test. The entire polygraph test procedure t ook denied any involvement. Healy then explained the polygraph test procedure whether she was involved in the burglary and theft of the safe. The defendant Before the polygraph examination began, Healy asked the defendant

stating that she agreed to take the polygraph test. had read the enumerated rights and understood them. She also signed a form U.S. 4 p. 3 36 (1966). The defendant then signed a form acknowledging that she reco rded and advised her of her Miranda rights. See Miranda v. Arizona, 384 polygraph test and accompanying interview would be audio - and video station at any time. Healy also informed the defendant that the entire polygraph test and informed the defendant that she could leave the police State Police L ieutenant Healy who explained the voluntary nature of the been stolen from her home. The defendant met with reti red New Hampshire f riend of the victim and had recently helped the victim locate a safe that had investigation of an alleged burglary of the victim’s home. The defendant was a 3

and the defendant left the police station. She was later charged with burglary. and did not appear “intimida ted.” After nearly six hours, the interview ended answered questions and made statements “in a normal conversational way,” defendant “look [ed] relaxed” and “appeared lucid and self - possessed.” She began to “tear up and sob[].” Asi de from this portion of the interview, the after admitting her involvement, the defendant “express[ed] remorse” a nd “to get it off [her] chest. . . help [the victim], pay her back, go forward.” Shortly and stolen its contents. She stated that she decided to admit her involvement explaining to the officers how she and two others had taken th e safe, opened it, The defendant eventually admitted her involvement in the burglary,

The officers responded that they wanted her to tell the truth. At one point, she asked the officers, “What else do you guys want me to say?” the door open, but I got that open too. I don’t know what you want me to say.” victim’s] house” and “into [her] vehicle.” She said, “I don’t know how I banged had ta ken the safe, but that she did not “know how [she] got it out of [the You’re gonna leave here either way.” She responded by telling them that she prisoner here. The same rights apply right now as when you came in here. involvement in the crime. One of the officers told the defendant, “You’re not a by telling them that she had some information, but continuing to deny being involved in the burglar y. Plourde accused her of insulting his intelligence The interview continued and t he officers again accuse d the defendant of

go on my merry way, I guess. I don’t know.” she would admit involvement falsely, the defendant responded, “Just so I can make anything better .... No, I wasn’t, but I’ll say I was.” When asked why thereafter, the defendant stated, “Okay, I’ll say I was involved, if that’s going to she was lying and that she was not a true friend of the victim. Shortly to say and continued to deny her involv e ment, they told her that they thought money for pills. When she repeatedly told them that she did not have anything the defendant took the safe was because of “an addiction” and that she need ed happened. At one point, one of the officers suggested that a possible reason that she was involved in the burglary and urged her to tell t he m what had Plou rde and Poulin continued to confront the defendant with their belief

say. (Emphasis added.) The defendant responded that she did not know what to

many times. We’ll handle it like we handle . . . like somebo dy who’s done this Whether what [the victim] says,. . . whether what she says or not. today, then, you know, we’re not going to handle it that way. happened, and we deal with it from here. But if we leave her e don’t think you’re this huge thief. It was an indiscretion, and it handle this like we handle people who steal all the time. . . . I I’m telling you that I don’t think [the victim] would want us to p. 4 4

mitigate the effect of this threat.” She contends that Plourde’s threat, in silent, ’” and asserts that the remaining circumstances of the interview “did not m any times,” constituted “‘a threat of harsher punishment should [she] remain today,... [w] e’ll handle it like we handle ... like somebo dy who’s done this Here, the defendant argues that Plourde’s statement, “[I]f we leave here

(quotation omitted). the details of the interrogation.” State v. Belonga, 163 N.H. 3 p. 4 43, 351 (2012) totality of the circumstances, including “the characteri stics of the accu sed and omitted). In determining the voluntariness of a confession, we examine the conscious choice.” State v. Hernandez, 162 N.H. 698, 706 (2011) (quotation product of a will overborne by police tactics, or of a mind incapable of Copeland, 124 N.H. 90, 92 (1983). Thus, a confession is in voluntary if it is “the influence. State v. Zwicker, 151 N.H. 179, 186 (2004); see also State v. violence, direct or implied promises of any sort, or by exertion of any improper essentially free and unconstrained choice and not extracted by threats, To be considered voluntary, a confession must be the product of an

State. Id. the manifest weight of the evidence, as viewe d in the light most favorable to the trial court’s determination that a confession is voluntary unless it is contrary to trial court. State v. Rezk, 150 N.H. p. 4 483, 486 (2004). We will not overturn a (2012). Whether a confession is vo luntary is initially a question of fact for the reasonable doubt that it was voluntary. State v. Wilmot, 163 N.H. 148, 151 defendant’s statement to be admissible at trial, the State must prove beyond a Under Part I, Article 15 of the New Hampshire Constitution, for a

Ball, 12 p. 4 4 N.H. 226, 231 - 33 (1983). State Constitution and rely upon federal law only to aid our analysis. State v. States Constitution. We first consider the defendant’s argument under the the New Hampshire Constitution and the Fourteenth Amendment to the United statements at trial violated her right to due process under Part I, Article 15 of find her confession was involunt ary and, therefore, the admission of her On appeal, t he defen dant argues that the trial court erred in failing to

[her] confession was voluntary.” The trial court denied her motion. State had failed to meet its “burden of proof beyond a reasonable doubt that Constitutions, and moved t o dismiss the burglary charge on the basis that the the defendant “renew[ed]” her arguments under the State and Federal trial through the videotape and Poulin’s testimony. At the close of evidence, trial court denied the motion. The defendant’s statements were admitted at presented legal arguments based upon the defendant’s taped interv iew, the the State and Federal Constitutions. Following a hearing, at which the parties as a result, the ir admission at trial would violate her right to due process under following the polygraph test, arguing, in part, that they were involuntary, and, Before trial, the defendant moved to suppress the statements she made p. 5 5

321 (Nev. 1987); State v. Tuttle, 6 p. 5 50 N.W.2d 20 (S.D. 2002). She maintains v. Strayhand, 911 P.2d 577 (Ariz. Ct. App. 1995); Passama v. State, 735 P.2d F.3d 886 (9 th Cir. 1994); Beavers v. State, 998 P.2d 1040 (Alaska 2000); State rendered an ensuing confession involuntary. See United States v. Harrison, 34 jurisdictions in which courts have found that threats of harsher punishment punishment should she not confess. She cites several cases from other contends that the nature of Plourde’s statement constituted a threat of harsher constituted an impermissible threat. As to the first factor, t he defendant With these factors in mind, we analyze whether Plourde’s stat ement

was present. Rezk, 1 p. 5 50 N.H. at 488; see also Jacques, 744 F.3d at 809 - 11. defendant was informed of his or her Miranda rights; and (5) whether counsel made; (3) the characteristics of the individual defendant; (4) whether the includ e: (1) the nature of the promise or threat; (2) the context in which it was determining whether police promises or threats render a confession involuntary 488 (quotation omitted); see also Jacques, 744 F.3d at 809. Factors releva nt to an influence on the defendant that his will was overborne.” Rezk, 150 N.H. at determine whether, in making the promise [or threat], the police exerted such at 364. “Rather, all the facts must be examined and th eir nuances assessed to confession involuntary), cert. denied, 135 S. Ct. 131 (2014); Portigue, 125 N.H. circumstances to determine whether officer’s threat of retaliation rendered Jacques, 744 F.3d 804, 810 - 11 (1st Cir. 2014) (examining the totality of promise or threat is not dispositive. See id. at 488; see also United States v. Under the totality of the circumstances test, however, the existence of a

omitted). State and federal cons titutional values.” Id. (quotations omitted and citation receive less favorable treatment. Both types of statements are antithetical to rights and receive more favorable treatment versus exercise your rights and types of statements are simply dif ferent sides of the same coin: waive your should the defendant remain silent. Id. at 490. We explained that “[b] oth leniency should the defendant confess to a threat of harsher punishment involuntary. Id. at 491. In our analysis, we likened a specific promise of confessions were induced by specific promis es of leniency and were 487 - 9 2. Based upon the facts in that case, we found that the defendant’s they may have had on the defendant’s decision to confess. Rezk, 1 p. 5 50 N.H. at Rezk, we exam in ed the nature of police promise s of leniency and the impact defendant’s will so as to vitiate voluntary nature of defendant’s statements), in circumstances, officer’s threat of future prosecution did not overbear Portigue, 125 N.H. 352, 364 - 65 (1984) (concluding that, under totality of of harsher punishment during police interrogation, cf. State v. Rodney Although we have never explicitly evaluated the impact of alleged threats

conclusion that her confession was voluntary beyond a reasonable doubt.” combination with cert ain other circumstances, “foreclosed any rational p. 6 6

friend of the victim. At one point the defendant stated, “Okay, I’ll say I was tell the defendant that they thought she was lying and that she was not a true e xplained how the crime occurred. During that time, t he officers continued to Plourde’s statem ent that the defendant fully admitted her involvement and anything.” Significantly, it was not until approximately fifty minutes after officers that she did not have anything to say and that she was “not sharing the crime. Following Plourde’s statement, the defendant continued to tell the involvement and refused to share any information she might have had about Before Plourde’s statement, the defendant consistently denied

(1994). Monroe, 142 N.H. 857, 8 p. 6 64 (1998); State v. Carroll, 138 N.H. 687, 692 - 93 Hernandez, 162 N.H. at 706; see also Jacques, 744 F.3d at 811; cf. State v. conduct during the interview so as to render her confession involuntary. See that this statement overbore the defendant’s will or had any impact upon her some sort of threat, our review of the video recording discloses no indication N onetheless, even were we to assume that Plourde’s statement constituted Indeed, it is unclear what Plourde meant by t his single statement. in the crime. Beavers, 998 P.2d at 1048; see also Harrison, 34 F.3d at 891. would be punished” if she remained silent and failed to admit her involvement Nor did his statement convey “an unmistakable message that [the defendant] the judge of” the defendant’s refusal to cooperate. Tuttle, 650 N.W.2d at 36. statement constituted a threat, it was not a threat “to inform the prosecutor or Unlike the statements in those cases, to the extent Plourde’s single

was not entirely truthful”). told defendant “he w ould go to the D.A. and see [defendant] went to prison if he that.’” Beavers, 998 P.2d at 1048. See also Passama, 735 P.2d at 323 (sheriff hide his conduct from [the trooper] and that ‘we’re going to have to talk about trooper told the defendant “that he would be ‘hammered’ if he attempted to it.” Tuttle, p. 6 650 N.W.2d at 35 (quotation omitted). Finally, in Beavers, a state “have to write it up that you’re not cooperating, you’re being a real jerk about omitted). Likewise in Tuttle, a detective told the defendant that he was going to the amount of time” the defenda nt would receive, id. at 583 (quotation s unless he cooperated” with the detectives, and that “his cooperation matters on [the defendant] in court,” that the defendant “was going to do some big time emphasis omitted), while another detective stated that he “was going to hang not going to cooperate with [him],” Strayhand, 911 P.2d at 582 (quotation and defendant that he would “ask for a lot of jail time because [the defendant was] Harrison, 34 F.3d at 890, 892. Similarly, in Strayhand, a detective warned the better if the judge were told that she had cooperated or had not cooperate d.” up to twenty years in prison” and then asked “whether she thought it would be In Harrison, a federal agent told the defendant “that she might be facing

issue” in t hose cases. We disagree. that Plourde’s statement in this case is indistinguishable from “the threat s at p. 7 7

defendant has not appealed that finding. found that the defendant did not invoke her right to remain silent and the and “the officers ignored her and continued the interrogation,” the trial court that on several occasions “she attempted t o invoke her right to remain silent” consider. Hernandez, 162 N.H. at p. 7 706. To the ex tent the defendant claims subsequent statement was voluntary, it is one of the factors the trial court may compliance with M iranda does not conclusively establish that a defendant’s defendant was twice reminded that those rights continued to apply. Although had read her rights and understood them. F ollowing the polygraph test, the beginning of the interview and the defendant signed a form indicating that she Moreover, Healy reviewed the defendant’s Miranda rights with her at the

confession. See id. that the officers impermissibly exploit ed her emotional state to coerce a after she had admitted her involvement in the crime, and the re is no evidence Belonga, 163 N.H. at 353. Here, the defendant’s emotional response occurred response to an interview does not render her confession involuntary. See overreaching, deception or coercion by the police, a defendant’s emotional “not the sign of a person . . . whose will h as been broken.” A bsent concluded, “the tears and the emotional disturbance” demonstrated “remorse,” began to “tear up and sob[],” this alone is not dispositive. As the trial court appear “intimidated.” Although at the end of the interview, the defendant questions and made statements “in a normal conversational way,” and did not relaxed” and “appeared lucid and self - possessed.” She an swered the officers’ finding her statements voluntary. The trial court found that she “look [ed] trial court found, the defendant ’s demeanor on the videotape is consistent w ith food, medical attention, or sleep.” Carroll, 138 N.H. at 695. Further, a s the Here, t here was no evidence that the defendant “needed or was deprived of What is of paramount importance is what occurred du ring the interview. Id. that six and on e - half hour interview did not render confession involuntary). not render a statement involuntary. See Belonga, 163 N.H. at 356 (holding station for nearly six hours, an interview of this length, in and of itself, does court’s finding of voluntariness. Although th e defendant was at the police Our review of t he record reveals no other factor that undermines the trial

determination.” Re zk, 150 N.H. at 4 p. 8 89 (quotation omitted). not serve to overbear the defendant’s will or strip her of her “capacity for self involvement. T he se circumstances support a finding that the statement did they wanted to know the truth, and the defendant eventually admitted her full here either way.” The y continued to question the defendant and to tell her tha t The same rights apply right now as when you came in here. You’re gonna leave Subsequently, t he officers reminded the defendant, “You’re not a prisoner here. responded, “Just so I can go on my merry way, I guess. I don’t know.” was.” When asked why she would admit involvement falsely, the defendant involved, if that’s going to make anything better . . .. No, I wasn’t, but I’ll say I 8

interview, the defendant could not have expected that her conversation with thought she may have taken the safe. U nder the circumstances of the defendant’s use of medication, they did so as a possible reason for why they questioning in a reasonable tone. To the extent the officers raised the Carpe ntier, 132 N.H. 123, 129 (19 p. 8 89), the interview consisted mainly of Although the officers were “not entirely friendly and sedate,” State v. and that she was “‘not a true friend of [the victim].’” (Brackets omitted.) and used profanity,” suggested that her “medication ‘affected her intellect,’” Finally, the defendant claims that the officers were, at times, “insulting

(quotation omitted). defendant’s compassion for a loved one to “extract a statement.” Id. at 353 “over there.” Thus, this is not a case in which the police impermissibly used a defendant agreed that video surveillance would sh ow he r and her daughter merely questioned whether the defendant’s daughter was involved after the cases). Here, however, the officers did not make such a threat. Rather, they when police make threats to arrest a suspect’s family member s. Id. (citing at 352. For example, courts have held that a confession may be involuntary unreasonably exploit a person’s com passion for a loved one. Belonga, 163 N.H. circumstances a confession may be rendered involuntary because the police confess could result in false accusations against her daughter. Under some The defendant also claims that the officer s suggested that her refusal to

comments were not so deceptive as to render the confession involuntary.”). misled the defendant into believing they had incri minating evidence, their also State v. Hall, 14 p. 8 8 N.H. 671, 673 (2002) (“Although the officers may have not prohibited from misleading a suspect.” Hernandez, 162 N.H. at 706; see officers misle d the defenda nt regarding the polygraph results, “the police are test that [she] voluntarily took.” Id. (quotation omitted). Even assuming the “cannot, therefore, persuasively argue that [her] confession was coerced by a 866. Here, the defendant voluntarily consented to the polygraph test and examining the circumstances surrounding a confession. Monroe, 142 N.H. at however, is not inherently coercive, but merely a factor to be considered in favor of her involuntariness claim. The use of polygraph results in questioning, “the polygraph was infallible, and conclusively established h er guilt” weigh in The defendant further argues that the officers’ repeated statements that

meaningful choice. See id. experience with police does not necessarily imply that she could not make a occasion that she was free to leave. Moreover, her apparent ly minimal prior defendant was not in custody and the officers reminded her on at least one the police when she confessed, without the benefit of counsel. However, the criminal justice system.” It is undisputed that the de fendant was alone with there “was no evidence suggesting that [she] was a hardened veteran of the to the fact that she “was alone, with no attorney present,” and claims that As evidence that her statements were involuntary, the defendant points p. 9 9

DALIANIS, C.J.