The defendant, James Aubuchont, appeals his conviction for first degree assault following a jury trial in Superior Court (Sullivan, J.). See RSA 631:1 (1996). The defendant contends that the trial court erred in admitting his statements to the police because they were involuntary and obtained in violation of his Miranda rights. See Miranda v. Arizona,
On January 28, 1999, the defendant and his wife, Patricia Aubuchont, brought their ten-week-old son, Tristan, to the Elliot Hospital emergency room complaining that he was not breathing. Tristan was transferred to the Dartmouth-Hitcheock Clinic in Lebanon due to the seriousness of his injuries. Hospital personnel informed the police that this was a likely case of shaken baby syndrome.
The next day, Manchester Police Detectives Peter Favreau and John Patti went to the hospital to speak to the Aubuchonts individually. Patricia Aubuchont was resistant to being questioned and stated that she distrusted the police and wished to speak with a lawyer. The defendant, on the other hand, was cooperative and after speaking to his wife convinced her to speak with the detectives. In a hospital conference room, the detectives first interviewed Patricia Aubuchont, who described Tristan’s deteriorating health during the preceding days. She also gave the detectives the names of three people, including Tina Maselli, who had been alone with Tristan. Patricia then ended the interview, stating that the detectives could call her attorney if they had more questions.
The detectives next questioned the defendant. He also described Tristan’s symptoms on the days prior to his hospitalization and his own attempts to stimulate the baby’s breathing on the way to the hospital. After approximately fifteen to thirty minutes, the defendant’s interview ended abruptly when Patricia entered the conference room and announced
Shortly thereafter, as the Aubuchonts were preparing to leave the hospital, the detectives asked them if they would answer additional questions in order to complete the interrupted interview. The defendant repeated that he had nothing further to say and would contact them if anything changed. The Aubuchonts agreed, however, to discuss the possible outcomes of the case. Detective Favreau then explained that they were the main suspects and he hoped they would be honest and that one of them would take responsibility, otherwise they could both end up suffering. The detective voiced concerns for the child’s safety and noted the defendant’s potential parole violation based upon being named a suspect. The defendant ended the discussion and reiterated that he had nothing further to say and would contact the detectives if that were to change.
That evening, the detectives went to the Aubuchonts’ residence to obtain contact information for the three people Patricia had identified as having had access to Tristan alone. Upon their arrival, Patricia yelled from within the house for the police to leave and to consult with the Aubuchonts’ attorney if they had more questions. After Favreau asked who their attorney was, the defendant gave the detectives the attorney’s name and telephone number and they departed.
On January 30, the next day, Detective Patti contacted the defendant’s parole officer, David White, to inform him of the investigation. As a consequence, Officer White went to the defendant’s home to arrest him for a 72-hour hold on a parole violation, based upon his failure to report his contact with the police. As the arresting officers were taking him away in handcuffs, the defendant instructed his wife to contact an attorney. Officer White then brought the defendant to the police station for processing.
That same day, Detectives Favreau and Patti interviewed Tina Maselli at the police station. Maselli told contrary stories, first stating that she had seen the defendant shake Tristan, then claiming that she shook the baby herself. She then waived her Miranda rights and gave a written statement that she had shaken Tristan. After writing the statement, however, she recanted her confession. Unsure of which story was true, Detective Favreau went to the defendant’s holding cell with Maselli’s statement.
Upon arriving at the defendant’s cell, Detective Favreau informed him that he had new information on the case and would show it to the defendant on the condition that he not react to it prior to waiving his Miranda rights. After the defendant read Maselli’s written statement, he agreed to waive his Miranda rights. The defendant told Favreau that he
Favreau brought the defendant to an interview room where he reminded him that he could stop talking at any time and that he was under arrest, but not for the particular incident involving Tristan. The defendant stated that he was thinking about calling his wife before answering any questions. After taking several minutes to decide whether to call his wife, the defendant stated that he was comfortable making an independent decision to speak with the police. Before the questioning began, however, the defendant changed his mind and called bis wife to inform her that he was talking to the police and had waived Ms Miranda rights.
At the outset of the interview, the defendant told Detective Favreau that Maselli falsely implicated herself to protect him because of her romantic interest in him. Favreau then said that Maselli bad seen the defendant shake the baby. The defendant started to cry and said, “What the f — ? I’m screwed now.” After relating to Favreau that he wanted to be honest but did not wish to go back to jail, the defendant decided to give a written statement. Favreau left the defendant alone to write his statement. When Favreau returned, he told the defendant that he would like to question him and offered to tape record the session. The defendant agreed to be questioned and opted to have the interview taped, explaining Ms mistrust of the police. He proceeded to give an account of the events leading up to Tristan’s hospital admittance where he administered compressions and hit the child on the back to induce breathing. The defendant stated that he wanted to bring Tristan to the hospital earlier, but was afraid of going back to jail. Following the interview, the defendant was arrested for first degree assault.
Prior to trial, the defendant moved to suppress the statements he made on January 30 to Detective Favreau at the police station, alleging that he involuntarily made them under coercive conditions and that the police obtained them in violation of his right to counsel. After an evidentiary hearing, the court denied the motion to suppress.
On appeal, the defendant argues that his written and oral statements were involuntary because he succumbed to the stress of coercive police tactics. He also maintains that the police failed to honor Ms request for an attorney, thus violating Ms right to counsel.
The defendant first argues that his statements were the result óf police coercion, which included: (1) numerous attempts by the police to question him; (2) threats that the defendant or his wife would be harmed by his failure to tell the truth; (3) being shown, prior to his Miranda waiver, Tina Maselli’s recanted statement; and (4) placement in a cold cell causing him to agree to interrogation in order to escape the extreme conditions. The defendant raises this argument under both Part I, Article 15 of our State Constitution and the Fifth Amendment of the United States Constitution. We address the State constitutional argument first, citing to federal law only as an aid to our analysis. State v. Ball,
Our State Constitution requires the State to prove beyond a reasonable doubt that the defendant’s statements were made voluntarily. State v. Hammond,
To be considered voluntary, a confession must be the product of an essentially free and unconstrained choice and not extracted by threats, violence, direct or implied promises of any sort, or by the exertion of any improper influencé. In determining the voluntariness of the confession, the trial court must examine the totality of the surrounding circumstances. Both the characteristics of the accused and the details of the interrogation are considered. The court should look at the factual circumstances surrounding the confession, the psychological impact on the defendant, and the legal significance of how the defendant reacted, in- order to determine whether the police exerted such an influence on the defendant that his will was overborne.
State v. Monroe,
The defendant argues that the detectives attempted to interrogate him a third time that evening at his home. The detectives’ purpose for this visit, however, was to obtain contact information on the three people Patricia had identified as having been alone with Tristan. The police never entered the defendant’s home and left promptly when Patricia asked them to leave.
The defendant contends that these contacts with the police, cumulatively, caused him to make incriminating statements the next day at the police station. We disagree. The police conducted two formal interviews and briefly contacted the defendant on two occasions. In State v. Laurie, even where the police conducted three actual interviews over five days, we did not find that the police had exercised coercive tactics to induce a confession. State v. Laurie,
Next, as further evidence of police coercion, the defendant points to: (1) Detective Favreau’s threat that if the defendant or his wife “did not confess, both would suffer”; and (2) his use of Maselli’s recanted written statement, where she incriminated herself in the crime against Tristan. Describing the charges that a suspect may face or the implications of his actions “is not inherently coercive and does not render a confession involuntary.” State v. Chapman,
The defendant contends that another factor which unduly induced him into giving a statement was the cold temperature of the cell in which he was held for four hours before his questioning at the police station. He argues that the “extreme physical discomfort” he endured in the cell was equivalent to a threat of physical violence, which renders a confession involuntary. Arizona v. Fulminante,
Lastly, the defendant’s outward characteristics support the finding that his statements were voluntary. Prior to and during interrogation, the defendant was “capable of rational and intelligent thought ... evaluating what was in his best interests and weighing his options.” Laurie,
II. Right to Counsel
The defendant argues that during his arrest on January 30, he invoked his right to counsel when he asked his wife to call an attorney during his arrest. Thus, the defendant contends that the police violated Part I, Article
To invoke the right to counsel, a defendant must “adequately indicate” that the purpose of a request for an attorney is to have counsel present during interrogation. State v. Grant-Chase,
In the instant case, when the defendant asked his wife to contact an attorney, he had no expectation that imminent interrogation would commence. Similarly, in Grant-Chase, while in custody and prior to any questioning, the defendant asked to call her attorney. Grant-Chase,
Affirmed.