2016-0701, The State of New Hampshire v. Katlyn Marin

other statements that she made after she had been advised of her Miranda of the circums tances giving rise to Brielle ’s fatal injuries. She also argued that waiting room at the police station — each of which contained a differ ent version sets of statements — given at her home, in a police cruiser, and in a family 436, 444, 479 (1966). The defendant’s pre - Miranda statements consist of three prior to being advised of her Miranda rights. See Miranda v. Arizona, 384 U.S. to trial, the defendant moved to suppress statements she made to the police her three - year - old daughter, Brielle G age. See RSA 630:1 - b, I(a) (2016). Prior defendant, Katlyn Gage Marin, was convicted of the second degree murder of BASSETT, J. Following a bench trial in Superior Court (Temple, J.), the

brief and orally, for the defendant. Christopher M. Johnson, chief appellate d efender, of Concord, on the

the brief and orally), for the State. Gordon J. MacDonald, attorney general (Erin E. Fitzgerald, a ttorney, on

No. 2016 - 0701 Hillsborough - southern judicial district

address of the court ’ s home page is: http://www.courts.state.nh.us/supreme. available on the Internet by 9:00 a.m. on the morning of their release. The direct by e - mail at the following address: reporter@courts.state.nh. us. Opinions are corrections may be made before the opinion goes to press. Errors may be reported Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well as 2

custody until the police co uld determine what had happened. Greene asked belon gings. Greene told the defendant that her children would be in police scene, and escorted the defendant and her children downstairs, helping gather the bedroom. They reiterated that the home would be secured as a crime Af ter Bailey departed, Se rgeant Greene and Detec tive Hannon entered

prefer the defendant go with her childre n. Bailey then left the home. children would be taken to the Nashua Police Department, and that he would her. Bailey did not let her go upstairs. Bailey also told the defendant that her upstairs to change her pants, which were wet because Brielle had urinated on being secured as a crime scene. The defendant said that she wanted to go Bailey then told the defendant that she had to leave the home because it was defendant that she could not use the phone, and Santiago took it from her. defendant began using her cell phone. W hen Bailey returned, he told the Shortly thereafter, Bailey left the bedroom, and, w hile he was away, t he

could not see Brielle at that time because she was being treated at the hospital. responded that she wanted to see Brielle. Bailey explained that the defendant and wanted to go to the hospital, Bailey repeated his question. The defendant happened to Brielle. After the defendant stated that she distrusted the police the home. He introduced himself to the defendan t and asked her what transferred to the hospital. Around that same time, Captain Bailey arrived at A fter Santiago began speaking with the defendant, Brielle was

injuries were caused by roughhousing with her other children. episodes — one that morning, and one the prior evening — and that Brielle ’s the defendant told Santiago that Brielle had experienced two seizure - like to Bri elle, and for information that would aid the first responders. In response, point, Santiago closed the door. Santiago asked the defendant what happened while the defendant moved around the bedroom with her children. At some Once inside the bedroom, Santiago initially stood near the open doorway

treatment. obtain information about Brielle for the purpose of facili tating medical door with her two other children, to step into the adjacent bedroom so he could floor. Santiago asked the defendant, who was standing near the bathroom emergency medical treatment to Brielle, who was unconscious on the bathroom approximately 11:30 a.m. H e discovered other first responders providing Nashua Police Department responded to the defendant’s h ome at called 911 and report ed that Brielle was unconscious. Officer Santiago of the The pertinent facts are as follows. On November p. 2 25, 2014, the defendant

the defendant’s motion. The defendant appeals. W e affirm. custody until after she was advised of her Miranda rights, the trial court denied pre - Miranda statements. A fter concluding that the defendant was not in rights should be suppressed because they were tainted by the illegally - obtained p. 3 3

to a recording, but she did waive her Miranda rights. The officers then audio and video recording of the interrogation. The defendant d id not consent talking if she waived her Miranda rights, and asked if she would consent to an wearing that morning. He explained to the defendant that they coul d continue were obtaining a warrant to examine her and the clothing she had been Hannon informed her that she was no longer free to leave, and that the police returned, the defendant told Hannon that she was bored and wanted to talk. T he police then took a break and left the interview room. When they

she was at the police station voluntarily. clothing, but not to a search of her phone, and she agreed with the officers that H owever, she ultimately consented to the photographs and the collection of her down the stairs with Brielle. T he defendant was at first hesitant t o consent. and photograph her body for injuries in order to verify her account of falling cell phone, take photographs of her home, collect her clothing, and examine investigations room. Greene requested the defendant’s consent to review her defendant’s children. Greene then mo ved the defendant t o a special Hampshire Division for Children, Youth, and Families took custody of the family waiting room for several hours. At approximately 5:00 p.m., the New Greene, Hannon, and the defendant continued their conversation in the

fall, add ing that one of Brielle ’s siblings had shaken Brielle the previous night. that Brielle “fell face first and did hit her head on the floor” during the second However, i n contr ast to her earlier version of events, the defendant told Greene defendant again described Brielle ’s seizure - like episodes and two ensuing falls. After approximately a half - hour, Hannon joined the conversation. T he continued to converse while the defendant’s children ate snacks and played. escorted to the family waiting room. There, Greene and the defendant Upon arrival a t the police station, t he defen dant and her children were

fall. again. The defendant stated that Brielle may have hit her head during each b ecause Brielle was heavy and unconsci ous, they both fell down the stairs after this second episode, she attempted to carry Brielle down stairs, but second seizure - like episode which occurred that morning. She explained that, catch Brielle, they both fell down the stairs. The defendant also described a Brielle began descending the stairs, and that, as the defendant reached out to Greene that Brielle ’s first seizure - like episode occurred the prior evening as defendant t o explain what happened to Brielle. In response, t he defendant told During the five - minute drive to the police station, Greene asked t he

defendant agreed to accompany the officers to the police station. probably would not be able to see Brielle at the hospital at that time. T he wanted to go to the hospital to see Brielle. Greene told the defendant that she the defendant to come to the police station. The defendant said that she p. 4 4

suspect’ s position would have understood the situation.” Id. at 676 - 77 was sufficiently curtailed by considering how a r easonable person in the formal arrest, we m ust determine whether a suspect’ s freedom of movement arrest.” McKenna, 166 N.H. at 676 (quotation omitted). “In the absence of arrest or restraint on freedom of movement of the degree associated with formal “Custody entitling a defendant to Miranda protections requires formal

by the police, the issue before us is whether the interrogation was cu stodial. Here, because the parties do not dispute that the defendant was interrogated interrogation by the police.” State v. Hammond, 1 p. 4 44 N.H. 401, 403 (1999). “In order for Miranda warnings to be re quired there must be a custodial Miranda.” State v. McKenna, 166 N.H. 671, 676 (2014) (quotation omitted). reasonable doubt, that it did not violate [her] constitutional rights under may b e used as evidence against [her], the State must prove, beyond a “Before the defendant’s responses made during a custodial interrogation

federal law only to aid our analysis. State v. Ball, 12 p. 4 4 N.H. 226, 231 - 33 (1983). address the defendant’s claim under the State Constitution and rely upon erred. See U.S. CONST. amends V, XIV; N.H. CONST. pt. I, art. 15. We first United States Constitution in support of her arguments that the trial court The defe ndant cites both the New Hampshire Constitution and the

holding on one issue was dispositive). N.H. 298, 302 (2012) (declining to address parties’ other arguments where argument nor the State’s harmless error argument. See Antosz v. Allain, 163 made the statemen ts at issue, we need not address the defendant’s second advised of her Miranda rights, the defendant was not in custody when she the conviction. Because we agree with the trial court that, prior to being harmless because the State presented alternative evidence sufficient to uphold trial court did not err in either respect, but even if it did, any error was statements” tainted the post - Miranda statements. T he State counters that the (2) failed to address her argument that the “illegally - obtained pre - Miranda and therefore denied her motion to suppress her pre - Miranda statements; and found that she was not in custody prior to being advised of her Miranda rights, On appeal, the defendant argues that the trial court erred when it: (1)

followed. defendant was convicted of knowing second degree murder. This appeal custody prior to being advised of her Miranda rights. After a ten - day trial, t he T he trial court denied her motion, finding that the defendant was not in that she made to the police prior to her being advised of her Miranda rights. degree murder. Prior to trial, the defendant moved to suppress the statements The defendant was charged with manslaughter and two counts of second

9:11 p.m. contin ued q uestioning the defendant, st opping periodically for breaks, until p. 5 5

that the trial court did not err when it found that the defendant was not in time. Here, a fter considering the totality of the circumstances, we conclude Thus, there are some factors that evolve as the ci rcumstances change over noncustodial questioning may evolve over time into custodial questioning.” Id. static set of circumstances. Interrogations are fluid: What may begin as a defendant was in custody during police interrogation is rarely based upon a some that weigh against such a finding. Additionally, “our analysis of whether case, there are some factors that weigh in favor of a finding of custody, and We begin our custody analysis by observing that, as in virtually every

novo.” McKenna, 166 N.H. at 677. weight of the evidence, we review the ultimate determination of custody de not overturn the factual findings unless they are contrary to the manifest v. Keohane, p. 5 516 U.S. 99, 113 (1995)) (brackets omitted). “[A] lthough we will defined in Miranda ? ’” State v. Ford, 144 N.H. 57, 63 (1999) (quoting Thompson “reasona ble person,” would the identified circumstances add up to custody as evaluation made after determination of the histori cal facts: if encountered by a and fact.” Id. In a custody analysis, “‘t he crucial question entails an historical facts, it is not merely a factual question but a mixed question of law determination of custody requires an application of a legal standard to findings.” McKenna, 166 N.H. at 677. However, because “the ultimate custody. . . are entitled to the deference we normally accord its factual “[T] he trial court’s findings of historical facts relevant to the question of

J.D.B. v. North Carolina, p. 5 564 U.S. 261, 270 (2011) (quotation omitted).

of movement of the degree associated with formal arrest. ultimate inquiry: was there a formal arrest or restraint on freedom reconstructed, the court must apply an objective test to resolve the leave. Once t he scene is set and the players’ lines and actions are have felt he or she was at liberty to terminate the interrogation and and second, given those circumstances, would a reasonable person first, what were the circumstances surrounding the interrogation;

essential to the determination” o f whether a defendant is in custody: As t he United States Supreme Court has stated, “[t]wo discrete inquiries are a nd the suspect’ s fam iliarity with [her] surroundings.” Id. (quotation omitted). the suspect was physi cally restrained, the interview’ s duration and character, limited to, “factors such as the number of officers present, the degree to which the encounter.” Id. (quotation omitted). This inquiry includes, but is not in custody, the trial court should consider the totality of the circumstances of whether a rea sonable person in the defendant’ s position would believe [her] self custody at a police station.” Id. at p. 6 677 (quotation omitted). “To determine determinative: a defendant may be in custody in [her] own home but not in (quotation omitted). “The location of questioning is not, by itself, 6

an arrest.” Stansbury, 511 U.S. at 325. issue, for some suspects are free to come and go until the police decide to make interrogation is a prime suspect is not, in itself, dispositive of the custody Indeed, “[e] ven a clear statement from an officer that the person under associated with formal arrest.” McKenna, 1 p. 6 66 N.H. at 676 (quotation omitted). understand that his or her freedom of action had been restrained to “the degree questioning of the defendant, would have caused a reasonable person to not find that the officer’s comment, even when assessed in light of Santiago’s Stansbury v. California, 511 U.S. 318, 325 (1994) (quotation omitted). We do being questioned would gauge the breadth of his or her freedom of action.” they would affect how a reasonable person in the position of the individual to the individual being questioned,” such beliefs are “relevant only to the extent beliefs may bear upon the custody issue if they are conveyed, by word or deed, may be a scene” within earshot of her. A lthough “[a]n officer’s knowledge or understanding was reinforced when one of the officers in her home said “this have understood herself to be a suspect of a crime. She contends that this could have inflicted those injuries, a reasonable person in her position would Brielle ’s serious injuries, and because she appeared to be the only person who The defendant argues that because the police were questioning her about

(same). character of the interrogation); State v. Jennings, 155 N.H. 7 p. 6 68, 773 - 75 (2007) defendant was in custody in part due to the accusatory and confrontational against a finding of custody. See McKenna, 166 N.H. at 684 (holding that the defendant — here we find that the character of the interrogation weighs in which the police engaged in confrontational and accusatory questioning of again st a finding of custody). Thus, unlike in McKenna and Jennings — cases N.H. at 682 (observing that questioning of a purely general nature weighs of Brielle ’s injuries in order to aid the medical personnel. See McKenna, 166 general in character: primarily directed at learning about the nature and cause voices or use harsh language. Moreover, the police officers ’ questioning was non - confrontational and non - accusatory, and the officers did not raise their court found, and the defendant acknowledges, the tone of the interrogation was a finding of custody. State v. Locke, 149 N.H. 1, 6 - 7 (2002). Here, as the trial of shouting or harsh tones at any time during the interview,” it weighs against favor of custody.” Id. at 68 3 (emphasis omitted). W hen “[t]here [is] no evidence statements made by the office rs and directed at the defendant also weigh in guilt and the officer’s intent to arrest.” Id. at 681 - 82. L ikewise, “accusatory “[a]ccusatory questioning often conveys an officer’s belief in the defendant’s as a factor weighing in favor of a findi ng of police custody,” because finding of custody. “T he accusatory nature of questioning is widely recognized We first turn to the factors in this case that consistently weigh against a

police cruiser, and in the family waiting room at the police station. custody when she gave police the pre - Miranda statements in her home, in the p. 7 7

hospital to visit Brielle, at one point saying that “it likely wouldn’t be allowed.” possess ions. The officers repeatedly dissuaded the defendant from going to the officers escorted her downstairs and monitored her wh ile gathering her the third floor of her home, and eventually required her to leave the home. The the room while he questioned her. Bailey also denied the defendant access to step into another room, stood in the doorway, and eventually shut the door to Upon his arrival at the home, Santiago immediately asked the defendant to Here, the police curtail ed the defendant’s movements to some extent.

whether he went “unescorted to the men’s room”). “enjoyed freedom of movement throughout the police station,” including v. Carroll, 138 N.H. 68 p. 7 7, 696 - 97 (2014) (considering whether the defendant and scope of such restrictions still factors into our custody analysis. See State unlikely that a federal judge would fare any better.”). However, the existence wander through the FBI premises except under escort is no surprise; it is 451 F.3d 258, 263 (1st Cir. 2006) (“That [the defendant] was not allowed to freedom of movement are to be expected. S ee United States v. Pagan - Santini, its custody analysis). At a police station, some restrictions on a defendant’s F.3d at 810 (weighing “whether the individual was move d to another area,” in States v. Mittel - Carey, 493 F.3d 36, 40 (1st Cir. 2007); see also Thompson, 496 everywhere by the police, it weighs in favor of a finding of custody. United permitted freedom of movem ent within [her] own home,” and is escorted psychological, or situational restraint.” Id. at 678. When a defendant is “not effective restrictions on a defendant’s movement can be a product of verbal, station. “[T]he lack of handcuffs or similar devices is not dispositive, . . . in the three locations at issue: her home, the police cruiser, and the police first consider the degree to which the defendant ’s movements were restrained consistently we igh, at least to some extent, in favor of a finding of custody. We W e now turn to the factors that, throughout the entire encounter,

custody.” McKenna, 166 N.H. at 685. “[T] he involvement of only two officers in the interrogation would weigh against never more than two officers i nterrogating the defendant at any given time. Also weighing against a finding of custody is the fact that there were

weighs against a finding of custody. custody). Here, t he fact that the defendant initiated contact with the police police initiated contact with the defendant, it weighed in favor of a finding of to be questioned); cf. McKenna, 166 N.H. at 6 p. 8 84 - 85 (holding that when the warnings unnecessary when defendant invited agents into his home and agreed United States v. Thompson, 496 F.3d 80 p. 7 7, 811 (7th Cir. 2007) (finding Miranda arrive.” State v. Partridge, 122 S.W.3d 606, 610 (Mo. Ct. App. 2003); see also the police, that person should expect some sort of inquiry when the police called 911 and reported that Brielle was unconscious. “When someone calls home only because the defendant initiated contact with the police when she Next, we consider the fact that the police were present at the defendant’s 8

defendant’s familiarity with [her] surroundings . . . often weighs against a T he defendant gave the first set of statement s in her home. “[A]

custody. Id. at 677. a reasonable person in the defendant’s position would believe herself to be in at the time each statement was made, given the “totality of the circumstances,” N.H. at 677, 6 p. 8 85 - 86. We consider these evolvi ng factors in assessing whether, h er surroundings, and the duration of each interrogation. See McKenna, 166 changed during the defendant’s encounter with the police: her familiarity with There are also a number of factors that evolved as the circumstances

finding of custody. stated that she was attempt ing to contact her lawyer, weighs in favor of a T he officers’ confiscation of the defendant’s cell phone, especially after she was dependent upon them for . . . communication with the outside world.”). the defendant access to his . . . phones, the police effectively ensured that he with others, including her lawyer. See Jennings, 155 N.H. at 774 (“By denying defendant to use her phone, the police restricted her ability to communicate that she was sending a text message to her lawyer. By not allowing the could not use her cell phone. The police then took the phone after she said questioning at the defendant’s home, the police told the defendant that s he One additional factor weighs in favor of a finding of custody. D uring

this factor weighs slightly in favor of a finding of custody. in plain clothes, others were in uniform, and all were visibly armed. Therefore, Sachdev, 171 N.H. 539, 553 (201 p. 8 8). Here, although some of the officers were visibly armed tends to weigh in favor of a finding of custody. See State v. The fact that the interrogating pol ice officers are dressed in uniform and

finding of custody. never told that she was free to leave. Therefore, this factor weighs in favor of a defendant to continued questioning”). Additionally, h ere, the defendant was that case these “were not condition s created by the police to subject the police because his children were being examined there, but emphasizing that in (observing that the defendant was induce d to stay at the hospital with the freedom of movement. Cf. State v. Rodney Portigue, 125 N.H. 352, 362 (19 p. 8 84) the police could be understood by a reasonable person as a restraint on take the defendant’s children into custody, it is possible that such an action by custody. Although we do not doubt that it was appropriate for the police to interrogation at her home, they told her that her child ren would be taken into movement and pressured her to go to the police station when, during the in itial The defendant also argues that the police restrained her freedom of

remaining inside the bathroom while the defendant used a stall. while there, the officers escorted and monitored her trip s to the bathroom — With the defendant’s consent, t he officers drove her to the police station, and, p. 9 9

was at liberty to leave or refuse the requests of the police is evidenced by the required to go to the police stati on. That the defendant understood that she and non - accusatory in character. We also note that the defendant was not T he officers’ questioning remained normal in tone, and non - confrontational There were never more than two officers interrogating her at any given time. not physically restrained through the use of handcuffs or sim ilar devices. foregoing e ncounter, the defendant was not placed under arrest, and she was that is unusual inside a police station. As was the case throughout the restrict ed and m onitor ed the defendant’s movements, although not to a degree closest to the main exit, while the children ate snacks and played. T he officers questioning, Greene sat on the couch and the defendant sat on the chair questioned in the family waiting room at the police station. During The defendant made the third set of st atement s at issue when she was

was not in custody when she made the second set of statements. was free to leave. Nonetheless, o n balance, we conclude that the defendant presence of visibly armed police officers, and she had not been told that she hand, the police cruiser was an unfamiliar location, t he defendant was in the defendant received police transportation for his convenience). On the other See State v. Carpentier, 132 N.H. 123, 127 (1 p. 9 989) (finding no custody when ordered to ride in the cruiser — she chose to do so for her own convenience. t he ride was short, lasting about five minutes, and the defendant was not in tone, and non - confron tational and non - accusatory in character. Moreover, were two officers present in the cruiser, and the questioning remained normal physically restrained through the use of handcuffs or similar devices. There rode in the police cruiser. At that time, the defendant was not under arrest or T he second set of st atement s at issue was made by the defendant as she

with formal arrest. I d. at 676 - 77. on the defendant’s movement in the home were not of the degree associated circumstances are considered in the ir totality, we conclude that the restraints factors present here weigh in favor of a finding of custody, when the (quotation omitted)). Although w e agree with the defendant that some of the N.H. at 685 (considering “the degree to which the police dominated the scene” tends to support a finding of custody.” (Quotation omitted.) See McKen na, 166 here resulted in “the creation of the kind of police - dominated atmosphere that The defendant argues that, considered as a whole, the circumstances

against a finding of custody). an interrogation lasting one hour and fifteen minutes weighed neither for nor approximately fifteen minutes); cf. McKenna, 166 N.H. at 685 - 86 (finding that 154 N.H. 208, 226 (2006) (finding no custody when interview lasted was short, lasting approximately fifteen to t wenty minutes. See State v. Goupil, p. 9 911 and reported that Brielle was unconscious. Additionally, the interrogation her own home, but she initiated the encounter with the police when she called finding of custody.” Id. at 685. Here, n ot only was the defendant familiar with p. 10 10

concurred. LYNN, C.J., and HICKS, HANTZ MARCONI, and DONOVAN, JJ.,

deemed waived. See In re Estate of King, 149 N.H. 226, 230 (2003). raised in the defendant’s notice of appeal, but which were not briefed, are Constitution as we do under the State Constitution. T he additional issues Mittel - Carey, 493 F.3d at 39 - 40, we reach the same result under the Federal Constitution affords no greater protection than the State Constitution, see when it denied the defendant’s motion to suppress. Because the Federal was advised of her Miranda rights, we conclude t hat the trial court did not err H aving determined that the defendant was not in custody until after she

family waiting room. defendant was not in custody at the time she made the statement s in the regarding the family waiting room interrogation, we conclude that the leave. Nonetheless, after considering the totality of the circumstances finding of custody). Moreover, the defendant was not told that she was free to 774 (observing that an interrogation lasting nearly two hours supported a minutes to two hours supported a finding of custody); Jennings, 155 N.H. at Mittel - Carey, 493 F. 3d at 40 (observing that an interrogation lasting ninety various purposes — thus weigh ing in favor of a finding of custody. See, e.g., interrogation lasted approximately four and a half hours — with breaks for movements — even when she used the bathroom. T h e family waiting room visibly armed police officers continued to limit and monitor the defendant’s T he family waiting room was, however, an unfamiliar location, and t he

interrogation. denied police requests to search her phone and to make a recording of the agreed with the officers that she was at the police station voluntarily, and fact that, o nce the defendant was moved to the special investigations room, she