State of New Hampshire v. Daniel Perez

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0271, State of New Hampshire v. Daniel
Perez, the court on August 1, 2017, issued the following order:

Having considered the brief, memorandum of law, and record submitted
on appeal, we conclude that oral argument is unnecessary in this case. See
Sup. Ct. R. 18(1). We affirm.

The defendant, Daniel Perez, appeals his convictions, following a jury
trial, on one count of aggravated felonious sexual assault, one count of
attempted aggravated felonious sexual assault, and three counts of felonious
sexual assault, see RSA 629:1 (2016); RSA 632-A:2, I(l), II (2016); RSA 632-A:3,
III (2016), arguing that the Superior Court (Schulman, J.) erred in denying his
motion to suppress statements allegedly obtained in violation of his Miranda
rights, see Miranda v. Arizona, 384 U.S. 436 (1966), under the State and
Federal Constitutions. He also argues that the Superior Court (Anderson, J.)
may have erred in failing to disclose certain documents that it reviewed in
camera.

We first address the suppression issue under the State Constitution and
rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-
33 (1983). “Before a statement can be admitted into evidence, the State has
the burden of proving beyond a reasonable doubt that the defendant was
apprised of his or her constitutional rights and that the subsequent waiver was
voluntary, knowing and intelligent.” State v. Pyles, 166 N.H. 166, 168 (2014)
(quotation omitted). “On appeal, we will not reverse the trial court’s finding on
the issue of waiver unless the manifest weight of the evidence, when viewed in
the light most favorable to the State, is to the contrary.” Id. (quotation
omitted).

The defendant asserts that although the officer who interviewed him at
the police station “carefully read the rights portion of the [Miranda] form” to
him and “ascertained that he understood each right,” the officer did not read
the waiver section to the defendant or ascertain that he understood it.
Therefore, the defendant argues, the evidence failed to show that he knowingly
and intelligently waived his Miranda rights.

Officer Geha of the Salem Police Department testified at the suppression
hearing that he spoke with the defendant in English, and that the defendant
did not appear to have any difficulty understanding him. Geha also testified
that the defendant spoke in English, in complete sentences, and that he did
not have any difficulty understanding the defendant. Geha testified that he
read the Miranda rights aloud to the defendant “line-by-line,” that he asked the
defendant if he understood each right, and that he proceeded to the next line
on the form only after the defendant confirmed that he understood what the
officer had just read to him. Geha testified that after reading all of the
defendant’s Miranda rights aloud, the defendant “acknowledge[d] that he
understood them all.” The officer gave the form to the defendant for him to
read and sign and told him to disregard the line regarding custody because he
was not in custody.

Officer Geha testified that he did not read aloud the waiver section of the
form, which follows the statement of rights, and which begins: “HOWEVER
You may waive the right to advice of counsel and your right to remain silent
and answer questions or make a statement without consulting a lawyer if you
so desire.” The waiver section also states that the defendant waives his
Miranda rights “freely and voluntarily, without threat or intimidation and
without any promise of reward or immunity.” The defendant, as instructed,
disregarded the line regarding custody, signed the form, dated it, and wrote
down the time, all in the correct places on the form. When Geha was asked if
he explained to the defendant the significance of signing the form, Geha
testified that he “asked [the defendant] [if] he was willing to speak with me
about this incident and [he] says okay.”

In his motion to suppress, the defendant alleged that he has “an 8th
grade education and left school because of a learning disability which
interfered with his ability to read and write.” However, the defendant did not
testify at the suppression hearing, and no evidence of a learning disability or
inability to read and write English was introduced at the hearing. At trial, the
defendant testified that he “can’t read and write that good,” and then testified
that he does not “know how to read.” On cross-examination, he testified that
he told Geha that he “can’t read,” and that Geha told him to sign the form
anyway. The defendant does not contend that he renewed his motion to
suppress at trial; therefore, we limit our review to the suppression record upon
which the trial court based its decision. State v. Gonzalez, 143 N.H. 693, 697
(1999); accord State v. Pseudae, 154 N.H. 196, 200 (2006). No evidence
introduced at the suppression hearing suggests that the defendant could not
read and understand the waiver form that he signed. On the contrary, Geha’s
testimony supports the trial court’s conclusion that the defendant waived his
Miranda rights. Based upon this record, we conclude that the State met its
burden of proving beyond a reasonable doubt that the defendant’s waiver was
voluntary, knowing and intelligent. See State v. Pyles, 166 N.H. at 168.
Because the Federal Constitution affords the defendant no greater protection
than does the State Constitution under these circumstances, see id.; Colorado
v. Connelly, 479 U.S. 157, 168 (1986), we reach the same result under the
Federal Constitution as we do under the State Constitution.

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 The defendant next argues that the trial court may have erred in failing
to disclose certain documents that it reviewed in camera. The record shows
that the trial court ordered records from the victim’s school and the
Massachusetts Department of Children and Family Services to be submitted for
in camera review. After conducting its in camera review, the court ordered
disclosure of certain records that it deemed were essential and reasonably
necessary to the defense, subject to a protective order. See State v. Guay, 162
N.H. 375, 385 (2011) (defendant entitled to information “essential and
reasonably necessary to the defense at trial”). The defendant argues that the
trial court may have erred in failing to disclose records it reviewed in camera
that it deemed were not essential and reasonably necessary to the defense. He
argues that any information in the undisclosed records relating to the victim’s
motivation to lie, her knowledge about custody determinations, and “her mood
during late May 2014,” would be “essential and reasonably necessary” to his
defense.

We review a trial court’s ruling on whether to disclose confidential
records after an in camera review for an unsustainable exercise of discretion.
State v. Aldrich, 169 N.H. 345, 354 (2016). Based upon our review of the
records, we are satisfied that the portions withheld contain no information that
was essential and reasonably necessary to the defense. See id. Thus, we
conclude that the trial court sustainably exercised its discretion in declining to
disclose additional records.

Affirmed.

Dalianis, C.J., and Hicks, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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