Case Information
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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Rockingham
No. 2015-0358
THE STATE OF NEW HAMPSHIRE
v.
KEVIN LYNCH Argued: September 21, 2016 Opinion Issued: March 10, 2017 Joseph A. Foster, attorney general (Sean R. Locke, assistant attorney general, on the brief and orally), for the State.
Stephanie Hausman, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
CONBOY, J. The defendant, Kevin Lynch, appeals his conviction,
following a jury trial, of misdemeanor simple assault. See RSA 631:2-a (2016).
He argues that the Superior Court (Wageling, J.) erred by denying his motion to
suppress his statements to police allegedly obtained in violation of his Miranda
rights. See Miranda v. Arizona,
I. Defendant’s Appeal
A. Suppression Motion
The following facts are taken from the trial court’s order denying the defendant’s motion to suppress, are established by the evidence submitted at the suppression hearing—which includes the videotaped recording and transcript of the defendant’s police interview—or are otherwise undisputed. On March 7, 2014, Detective Sergeant Munck of the Exeter Police Department interviewed the defendant at the police station regarding an allegation that he had assaulted his girlfriend’s three-year-old daughter earlier that day. At the beginning of the interview, Munck informed the defendant that the interview was being audio- and video-recorded and read him his Miranda rights. The defendant waived his rights and agreed to speak with Munck. During the interview, the defendant made incriminating statements.
Prior to trial, the defendant sought to suppress his incriminating statements. The State objected. Following a hearing, at which the parties made arguments and introduced the recording of the defendant’s interview as the only evidence in support of each party’s position, the court denied the defendant’s motion. In doing so, the court noted that the State conceded that the defendant was subjected to custodial interrogation.
On appeal, the defendant argues that, under the State and Federal
Constitutions, the trial court erred in denying his motion because he invoked
his right to remain silent and his right to counsel after receiving Miranda
warnings, and Munck failed to honor his invocation. See N.H. CONST. pt. I,
art. 15; U.S. CONST. amends V, XIV. We will address the defendant’s state
constitutional claim first, citing federal law only to aid in our analysis. State v.
Ball,
Before a defendant’s responses made during custodial interrogation may
be used against him, the State must prove, beyond a reasonable doubt, that
the interrogation did not violate his constitutional rights under Miranda. State
v. Gribble,
The defendant does not dispute that he initially waived his Miranda
rights during the March 7 custodial interrogation. Nor does he assert that his
statements were involuntary. Rather, he argues that he invoked his right to
silence and his right to counsel during the interview, thereby requiring Munck
to cease questioning. To determine whether, after initially waiving his
constitutional rights under Miranda, the defendant subsequently invoked those
rights, we examine his statements under the totality of the circumstances. See
id.; see also Mayes v. State,
In Miranda, the Supreme Court held that, if an accused is in police
custody, has been informed of his Miranda rights, and “indicates in any
manner, at any time prior to or during questioning, that he wishes to remain
silent, the interrogation must cease.” Miranda,
held that “after a knowing and voluntary waiver of the Miranda rights, law
enforcement officers may continue questioning until and unless the suspect
clearly requests an attorney.” Davis,
The Court went on to observe that “when a suspect makes an ambiguous
or equivocal statement it will often be good police practice for the interviewing
officers to clarify whether or not he actually wants an attorney.” Id. “Clarifying
questions help protect the rights of the suspect by ensuring that he gets an
attorney if he wants one, and will minimize the chance of a confession being
suppressed due to subsequent judicial second-guessing as to the meaning of
the suspect’s statement regarding counsel.” Id. But “[i]f the suspect’s
statement is not an unambiguous or unequivocal request for counsel, the
officers have no obligation to stop questioning him.” Id. at 461-62. The Court
has since extended these principles to the invocation of the right to remain
silent. See Berghuis v. Thompkins,
The defendant maintains he invoked his right to remain silent and his right to counsel during the following exchange, which occurred approximately one hour after the interview began and the defendant had been read and waived his Miranda rights:
[The defendant]: I’m being accused of something that I didn’t do and then I mean I guess the only thing I can do is probably stop talking and get a lawyer because obviously it seems like [the defendant’s girlfriend] said whatever story. [The victim] is saying whatever story she’s saying and I am not a vicious person. I have times where I do get frustrated and all that, but I always take time to take a minute to get away from the situation so I don’t do anything I regret. So, I mean, I didn’t touch her. I didn’t even see her this morning that I remember.
[Munck]: Well, you just mentioned now that you want to stop talking and get a lawyer. Is that what you want? Or do you want to keep talking?
[The defendant]: I mean it just seems like I’m being accused of this. [Munck]: Well, you are and it’s not necessarily, I’m the, I guess the face of the person that’s accusing but there’s other stuff behind me that’s backing that up.
[The defendant]: And I get what you’re saying but why would I do something to risk losing my kids?
[Munck]: Well, first of all before we keep going, do you want to stop talking and get an attorney or do you want to keep talking with me? That’s what I need to know.
[The defendant]: Well, I can’t afford an attorney so . . .
[Munck]: Well, you can stop talking and that has no play in it. If you want to stop talking to me you can stop talking to me. The fact that you don’t have any money for an attorney you know the Miranda Rights talk about one being provided at your own . . . be provided later. That’s not going to be tonight. That’s going to be down the line.
[The defendant]: Yeah, so if you guys decide to put me in jail because of this then I’m screwed.
[Munck]: Well, I just need to know, I just need to know from you do you want to stop talking to me now and get an attorney or do you want to stop, keep talking to me? That’s the decision that you need to make, not me. You need to make that and let me know. [The defendant]: Uh, I don’t, I don’t, I don’t know.
[Munck]: Okay, well I can’t make it for you. That’s something I can’t give you advice. I can’t do anything like that. You need to make your decision, you need [to] make a decision whether you want to keep talking to me or not.
[The defendant]: I mean, honestly, at this point I just wanna go see my kids cause I’m supposed to be with them right now. I’ve never done that to [the victim]. I don’t see why she would say that. [Munck]: Do you want to keep talking to me or not? Without an attorney present? I will be more than happy to continue to talk to you and, and do that but I need you to tell me what you want to do.
[The defendant]: I, I, I, don’t understand, like what[.] [Munck]: Okay, what you need to make a decision whether you want to keep talking to me without an attorney or not and then we can keep talking.
[The defendant]: Ya, but if I talk to you, or keep talking, or if I stop talking do I get you [to] drop me back off and then you guys come arrest me? Is that what happens?
[Munck]: Well, what I’m asking you, before, you’re thinking four steps ahead. What I need to do is know whether you want to keep talking to me without a lawyer present. That’s what I need to know. If you do, then I’ll keep talking to you. If you don’t then I’ll stop talking to you. But, that’s a decision, I guess I need you to make that clear to me.
[The defendant]: I’m exhausted. I don’t know.
[Munck]: I think you made a mistake and I think you need to come clean on it. That’s what I think.
[The defendant]: But I don’t do stuff like that.
[Munck]: I know you don’t.
[The defendant]: And I wouldn’t do that to her.
[Munck]: And I don’t think [it’s] part of your nature.
[The defendant]: But either way I’m screwed cause even if you know we go to trial and all that and they say oh he really didn’t do it. Well, I still have to go through a trial, I gotta bring my kids through that. And then I have or go to trial and then they make mistakes, which has happened a lot in the court then I get screwed anyway. So I don’t . . .
[Munck]: I just want to know the truth behind what happened. That’s all I want and I’m not getting it.
[The defendant]: I mean, I don’t, I don’t know what [the defendant’s girlfriend] told you.
[Munck]: I know you . . . Well, before we continue I need to know, you went to school for criminal justice[.]
[The defendant]: Yeah[.]
[Munck]: I need to know that you want to keep talking or at least listening to me. But I need to know whether or not you want to continue without an attorney right now. That’s what I need to know from you.
[The defendant]: I mean, oh God, I never thought I’d be in this situation.
[Munck]: You need to make a definitive decision. You need to make a clear decision for me.
[The defendant]: I guess we’ll keep talking but I . . .
[Munck]: Okay, so your decision is that for now you’ll keep talking to me without a lawyer?
[The defendant]: Yes[.]
(Emphasis added.)
The trial court found that the defendant’s statement at the beginning of this exchange, “I guess the only thing I can do is probably stop talking and get a lawyer,” put Munck “on notice that [the d]efendant might wish to remain silent and might be seeking a lawyer,” but that it did not constitute “a completely unequivocal invocation” of those rights. The defendant contends that this was error because his statement “adequately conveyed to Munck that [he] wanted to stop talking and consult with a lawyer.” We disagree.
An expression of doubt or uncertainty cannot be considered unequivocal.
See State v. Gasteazoro-Paniagua,
Further, the defendant did not stop talking after making the statement.
He made the statement and then immediately continued to talk—explaining to
Munck that he did not commit the alleged assault. See Com. v. Vincent, 17
N.E.3d 1045, 1053, 1053-54 (Mass. 2014) (concluding trial judge did not err in
finding “defendant’s statements concerning possibly needing or wanting a
lawyer were ambiguous and equivocal” when defendant continued to talk about
incident without hesitation after making statements (quotation omitted)); cf.
Chapman,
Nonetheless, the defendant maintains that “Munck understood that [he]
was invoking his rights to silence and counsel” because Munck responded by
stating “you just mentioned now that you want to stop talking and get a
lawyer” and then asked the defendant, “Is that what you want? Or do you
want to keep talking?” Contrary to the defendant’s assertion, Munck’s
statement and subsequent questions demonstrate that it was not clear to
Munck whether the defendant had “actually invoked” his right to remain silent
or his right to counsel. Davis,
The defendant further argues that Munck did not “scrupulously honor”
his invocation of his right to remain silent and his right to counsel and,
instead, “repeatedly asked [the defendant] whether he wanted to continue
talking or to stop and get a lawyer.” (Quotation omitted.) In Tapply, law
enforcement officers, rather than eliminating any ambiguity or doubt that
existed as to whether the defendant wished to assert or waive his right to have
counsel present during the interrogation, actively discouraged the defendant
from asserting his right by diverting his attention to other matters. Tapply,
In the face of the defendant’s ambiguous statement, Munck asked the
defendant at least seven times whether he wished to continue talking without
an attorney before the defendant clearly stated that he would continue talking.
We see nothing improper about Munck’s responses to the defendant’s
ambiguous statement. See State v. Sundstrom,
Under these circumstances, we conclude that the defendant did not
unambiguously assert his right to remain silent or his right to counsel. See
Sundstrom,
B. Trial Testimony of Pediatrician
At trial, the State sought to introduce statements made by the victim to Gwendolyn Gladstone, M.D., a pediatrician certified in child-abuse medicine. The State argued that the statements were made for the purpose of medical diagnosis or treatment and, thus, were admissible under New Hampshire Rule of Evidence 803(4). Over the defendant’s objection, the court allowed Gladstone’s testimony.
Gladstone testified that she was called to Exeter Hospital on the date of the assault because an emergency room physician contacted her and told her that the victim “had been brought [to the hospital] because she had a rash on her face and bleeding in her eyes, and the doctor seeing her wanted to know if [Gladstone] could come and look at her because [the doctor] was concerned that this might not have been accidental.” Gladstone explained that, when she arrived at the hospital, she reviewed a CAT scan of the victim, spoke with “people in the emergency department,” and then met with the victim and her mother. Gladstone testified that the victim recognized her because they “had met not long before” at two prior unrelated appointments. Gladstone explained that her previous meetings with the victim had been at Gladstone’s “medical office where there’s medical equipment like lights to look in your eyes and ears and a stethoscope, scale, [and a] blood pressure cuff.” She stated that, on the *10 date of the assault, they met in an examination room in the emergency department at the hospital. She described the room as being “a small room that has a hospital bed in the middle” with a “bright light overhead” and “equipment lights such as the ones to look in eyes and ears,” and “oxygen tubing” on the back wall. She stated that the room also contained “a cart with emergency supplies in it.”
Gladstone explained that, in her first prior meeting with the victim, she asked the victim’s mother a number of questions relating to the victim’s health. She said that, on the date of the assault, she took “an interval medical history [from the victim’s mother] which is to ask about anything medical that had happened to [the victim] since the last time” Gladstone had taken such a medical history. Gladstone agreed with the prosecutor that each time she met with the victim, including the date of the assault, she had a conversation with the victim about the fact that Gladstone was a doctor for children. She further agreed that, on each occasion, the victim appeared to understand that she was talking to a doctor and why she was doing so.
Gladstone stated that after obtaining the interval medical history, she had the victim’s mother leave the room so she could speak with the victim alone. She testified that the victim “sat on the exam table” and Gladstone asked her if there was “anything that [she] wanted to tell [Gladstone] about.” She stated that the victim responded by telling Gladstone about four “physical things that had happened to her.” Gladstone explained that the first thing the victim said was that the defendant “did this” and then “put her hand over her mouth.” The victim also “pointed to a scratch on her arm and . . . said, ‘The kitty did that.’” Gladstone stated further that the victim “had an IV in one of her hands, and she told [Gladstone] that the doctor tied her up with a blue rope and did that.” Gladstone asked the victim if the “blue rope” was a “blue tourniquet on the table” in the room and the victim said “yes.” Gladstone agreed with the prosecutor that the fourth thing the victim told her related to the nature of the victim’s previous unrelated meetings with Gladstone. Gladstone described the victim as being “a pretty perceptive kid” and said that, on the day of the assault, she was “pretty talkative.” Gladstone videotaped the child’s injuries. Although at oral argument defense counsel stated that she believed Gladstone’s interview of the victim was videotaped, that videotape, if it exists, is not part of the appellate record.
On appeal, the defendant argues that the trial court erred when it permitted Gladstone to testify regarding the victim’s statement that the defendant “did this,” and that when the victim said this, the victim put “her hand over her [own] mouth.” The defendant contends that the victim’s statement constituted inadmissible hearsay and was not subject to the exception under New Hampshire Rule of Evidence 803(4).
We accord the trial court considerable deference in determining the
admissibility of evidence, and we will not disturb its decision absent an
unsustainable exercise of discretion. State v. Munroe,
“Hearsay is generally defined as an extrajudicial statement offered in
court to show the truth of the matter asserted in the statement.” Id. (quotation
omitted); N.H. R. Ev. 801(c). Hearsay evidence is generally inadmissible,
subject to certain well-delineated exceptions. Munroe,
[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances indicating their trustworthiness.
N.H. R. Ev. 803(4). The rationale for this exception is that statements made
with a purpose of obtaining medical attention are usually made with the
motivation to obtain an accurate diagnosis or proper treatment and, thus, they
are inherently reliable because there is normally no incentive to fabricate.
Munroe,
A three-part test must be met for evidence to be admissible under Rule 803(4). Id. at 627. First “a court must find that the declarant intended to make the statements to obtain a medical diagnosis or treatment.” Id. (quotation, brackets, and ellipsis omitted). Second, “the statements must describe medical history, or symptoms, pain, sensations, or their cause or source to an extent reasonably pertinent to diagnosis or treatment.” Id. (quotation omitted). Third, the court must find that the circumstances surrounding the statements support their trustworthiness. Id. Here, the defendant challenges the trial court’s ruling with respect to the first and third parts of the test.
With respect to the intent requirement of part one, “we require extra care
in determining the declarant’s intent” when the declarant is a child. State v.
Letendre,
The defendant argues that there was no evidence to show that the victim understood that she was meeting with Gladstone for the purpose of medical diagnosis or treatment. Specifically, he contends that there was no evidence that the victim “connected the environment to a medical purpose” or that she “relayed the allegation against [the defendant] as being for the purpose of diagnosing or treating, or [being] even related to, her injuries.” He further maintains that there was no evidence that Gladstone informed the victim that the information she was seeking “would help in the treatment of a medical problem.” He argues that all of this is especially significant given that the victim was three years old when she made the statement regarding the defendant.
We conclude that the trial court’s finding that the State had met its
burden to demonstrate that the victim made the statement for medical
diagnosis or treatment was not an unsustainable exercise of discretion. The
record demonstrates that the victim’s statement was made on the same day as
the alleged assault. See id. (stating that “temporal proximity [between assault
and examination] can indicate a declarant’s statements were made for the
purpose of seeking medical treatment”). As the trial court found, the statement
was made in a hospital—“the most formal of medical settings”—after the victim
had undergone “diagnostic tests up to and including a CAT scan.” See id.
(determining that victim’s statements were made for the purpose of medical
treatment or diagnosis, in part, because the examination was conducted “in a
medical office, with all the equipment that a young child would recognize as
indicative of a doctor’s visit”). In addition, the victim had an existing doctor-
patient relationship with Gladstone as she had met with her in Gladstone’s
medical office on two prior occasions in the previous six months. See State v.
Graf,
The defendant argues that the fact that Gladstone did not tell the victim that the information she was seeking would help in the treatment of the victim *13 precludes a finding that the statement was made for medical treatment. Although a doctor’s explanation that she is there to examine and treat any injuries of the declarant can support a finding that the declarant made a statement for the purpose of seeking medical treatment, see Letendre, 161 N.H. at 375, the fact that Gladstone did not specifically tell the victim that she was there to help with treatment is not dispositive of the issue of intent in this case. Here, Gladstone testified that she explained to the victim that she was a doctor for children and that the victim appeared to understand that she was talking to a doctor and why she was doing so. When Gladstone asked the victim a non- leading question regarding whether the victim had anything to tell her, the victim told Gladstone that the defendant “did this” and then the victim “put her hand over her [own] mouth,” that the cat scratched her, and that she had been tied with a rope, which, when asked by Gladstone, the victim identified as being a tourniquet. As the trial court noted, all of the victim’s responses related to her “injuries and their . . . alleged causes.”
The defendant contends, however, that there was no evidence that
Gladstone actually provided any treatment to the victim. We have explained
that diagnosis need not inevitably result in treatment for statements to qualify
under the rule; however, the diagnosis must have been sought with the
purpose of treatment, if necessary. State v. Wade,
The defendant further argues that there was no evidence that the victim “understood that what she was telling Gladstone needed to be truthful in order for her medical treatment to be effective.” We disagree.
With regard to a child declarant, it is important that there be affirmative
evidence of the child’s understanding of the purpose for which information is
*14
being obtained from her in order to preserve the trustworthiness guarantee
inherent in Rule 803(4). Wade,
II. State’s Cross-appeal
The defendant was charged with three counts of second-degree assault.
Each indictment alleged that the defendant “knowingly . . . caused bodily injury to [the victim] . . . specifically by causing non-accidental trauma . . . .” Each indictment then alleged a different injury: “by inflicting hemorrhaging in [the victim’s] eyes,” “by inflicting hemorrhaging in her face,” and “by inflicting hemorrhaging in her chest.” Before trial, the defendant moved to dismiss two of the three indictments, arguing that they violated double jeopardy principles because the injuries they alleged were caused by the same discrete act and, therefore, if convicted under multiple indictments, he would be subjected to multiple punishments for the same offense. The State objected.
Subsequently, the trial court issued an order concluding that “the appropriate units of prosecution for second degree assault are an act and a specific bodily injury” and, therefore, to support three convictions in this case, the State would “need to prove three actions and three bodily injuries.” It explained, however, that it would “not dismiss the indictments at this juncture” because “there [was] insufficient evidence before [it] to determine how many ‘acts’ occurred causing the alleged injuries.” In doing so, the court noted that “[t]he double jeopardy bar does not prevent a defendant from being tried on alternate theories of crimes—it merely prevents a person from being convicted of, and sentenced [for], multiple crimes for the same offense.” Thus, the court denied the defendant’s motion without prejudice to raise the double jeopardy argument after trial in the event that he was convicted under multiple indictments.
At the close of the evidence, the defendant requested a jury instruction on the lesser-included offense of simple assault, which the court granted. The jury acquitted the defendant of the second degree assault charges and convicted him of the simple assault charges. Following the verdict, the court stated that it would issue an order regarding the defendant’s double jeopardy claim, but that it considered there to be “one offense charged three different ways.” The State objected, arguing that the defendant was convicted of three separate offenses and, therefore, his convictions did not violate double jeopardy principles under either the State or Federal Constitutions. The court issued an order dismissing two of the three simple assault convictions on the basis that “there was a single criminal act that caused three arguably disparate injuries.” The court explained that “[t]he unit of prosecution for simple assault by means of recklessly causing bodily injury is an act that results in bodily injury of any type. Thus, a single act that causes two or more medically distinct ‘injuries’ (such as, for example a two handed push that causes two separate contusions) is a single offense.” (Citation omitted.)
On appeal, the State argues that the trial court erred in dismissing two of
the simple assault charges. Noting that “[t]he primary issue in the double
jeopardy challenge was the appropriate unit of prosecution,” the State contends
that the unit of prosecution for simple assault is “each individual injury that
the defendant recklessly caused, even if the injuries were caused by only a
single act.” Because each indictment alleged a discrete bodily injury, the State
maintains that the defendant’s convictions did not violate double jeopardy
principles. The issue of double jeopardy presents a question of constitutional
law and, therefore, our review is de novo. State v. Fischer,
Part I, Article 16 of the New Hampshire Constitution and the Fifth and Fourteenth Amendments to the United States Constitution protect a defendant from being punished twice for the same offense. N.H. CONST. pt. I, art. 16; U.S. CONST. amends. V, XIV.
Multiple punishment cases come in two varieties. First, there are the so-called “double-description” cases, in which the issue is whether two statutes describe two separate offenses or are merely different descriptions of the same offense. Second, there are “unit of prosecution” cases in which the problem is not that the same course of conduct is proscribed by more than one statute but that a defendant’s continuing course of conduct is fragmented into more than one violation of a single statutory provision.
State v. Ramsey,
Our test, which we have referred to as the ‘same evidence’ test, provides: Two offenses will be considered the same for double jeopardy purposes unless each requires proof of an element that the other does not. We focus upon whether proof of the elements of the crimes as charged will in actuality require a difference in evidence.
Id. (quotation omitted). Because we have applied this test inconsistently and because we have expressed doubt that our double jeopardy law can be reconciled, we invited “parties in future cases to ask us to reconsider our double jeopardy jurisprudence consistent with the principles of stare decisis and to suggest a formulation of the double jeopardy test to be applied under our State Constitution.” Id. at 353 (citation omitted).
The parties here have not asked us to reconsider our double jeopardy jurisprudence. Although in its brief the State applies the “same evidence” test, it also utilizes a statutory interpretation analysis, looking to the legislature’s intent as expressed in the words of the simple assault statute to determine the proper unit of prosecution in this case. At oral argument, the State further recognized that a unit of prosecution analysis involves looking to the language of the statute to determine the legislature’s intent.
Analyzing the legislature’s intent to determine the proper unit of
prosecution is an inquiry that we have often utilized when addressing a federal
double jeopardy challenge. See State v. Cobb,
Thus, in determining whether a defendant is subject to multiple
punishments for the same offense, we must determine the unit of prosecution
intended by the legislature. State v. Jennings,
The simple assault statute provides, in pertinent part, that “[a] person is guilty of simple assault if he . . . [r]ecklessly causes bodily injury to another.” RSA 631:2-a, I(b). The State does not dispute that the defendant’s simple assault convictions stemmed from only one act. Nonetheless, the State contends that this is immaterial because the statutory language demonstrates that the legislature intended “to make the unit of prosecution each individual injury that the defendant recklessly caused, even if the injuries were caused by only a single act.” We disagree.
The plain language of the statute establishes that the legislature has
criminalized the act of recklessly causing bodily injury—not each individual
injury. Cf. State v. Greene,
Finally, any issues raised in the defendant’s notice of appeal that he has
not briefed are deemed waived. See State v. Blackmer,
DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.