State of New Hampshire v. Richard Moore

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0315, State of New Hampshire v. Richard
Moore, the court on September 14, 2021, issued the following
order:

Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
defendant, Richard Moore, appeals his convictions, following a jury trial, for
first degree murder, see RSA 630:1-a, I(a) (2016), second degree murder, see
RSA 630:1-b, I(b) (2016), and arson, see RSA 634:1, II(a) (2016). The defendant
argues that the Superior Court (Delker, J.) erred by denying his motion to
suppress, and admitting into evidence, statements he made to police during
custodial interrogation after having unequivocally invoked his right to be silent.
We affirm.

The trial court found, and the defendant does not dispute, the following
facts. The defendant was subject to custodial interrogation in September 2016
following his arrest for the victim’s murder. He was read his Miranda rights,
indicated that he understood them, and expressly waived them before the
interview began. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). Almost
exactly one hour after the interview began, the defendant made the following
statement that he argues constituted an unequivocal invocation of his right to
remain silent: “Nothing happened. So I don’t even -- honestly if you guys are
automatically charging me, I don’t see why there’s any point to continue
talking.” After the defendant made this statement, there was a brief pause
before he was asked another question. The defendant then continued to speak
with the officers, professing his innocence. Approximately eight minutes after
making the statement, the defendant asked for a cigarette break. After
arranging for the defendant to smoke cigarettes, the interview continued for an
additional hour and a half. During that time, the defendant confessed.

Before trial, but after the deadline to file such motions had passed, the
defendant moved to suppress the statements he made after his alleged
invocation of his right to remain silent. The State objected. The defendant
waived any claim to an evidentiary hearing on his motion. Accordingly, despite
the late-filed motion and impending trial date, the trial court agreed to rule on
the motion based upon the videotaped recording and transcript of the police
interview. Thereafter, the trial court denied the defendant’s motion, ruling that
“the defendant’s statement . . . was not even an invocation of his right to
remain silen[t],” but rather “was merely a passing express[ion] of frustration
that the police were not accepting his protestations of innocence.”
 The sole question on appeal is whether, by so ruling, the trial court
erred. Although, ordinarily, “[w]e review a trial court’s findings concerning
which words [an accused] used to invoke his [or her] rights under the clearly
erroneous standard,” in this case we accept those findings because the
defendant does not challenge the accuracy of the quoted language. State v.
Pouliot, 174 N.H. 15, 19 (2021). The only issue for our review, therefore, is
whether the defendant effectively invoked his right to remain silent, an issue
that we review de novo because it raises a question of law. See id.

The defendant argues under both the Federal and State Constitutions.
We address his arguments under the State Constitution first, citing federal law
only to aid in our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).

Both Part I, Article 15 of the State Constitution and the Fifth Amendment
to the Federal Constitution establish a privilege against self-incrimination. See
N.H. CONST. pt. I, art. 15; U.S. CONST. amends. V, XIV. Although neither
constitution requires any specific procedures for protecting the privilege
against self-incrimination during custodial interrogation, State v. Watson, 170
N.H. 720, 724 (2018), the Supreme Court in Miranda developed rules for
safeguarding it, see Miranda, 384 U.S. at 467-73. Under Miranda, “when a
person is taken into custody or deprived of his freedom in any significant way,
and prior to interrogating him, the police must tell him that he has a right to
remain silent, that anything he says can and will be used against him, and that
he has a right to counsel.” Watson, 170 N.H. at 724 (quotation omitted); see
Miranda, 384 U.S. at 467-73. If, after having been informed of his Miranda
rights, an accused in police custody “indicates in any manner, at any time
prior to or during questioning, that he wishes to remain silent, the
interrogation must cease.” Miranda, 384 U.S. at 473-74 (footnote omitted); see
State v. Lynch, 169 N.H. 689, 693 (2017). Subsequent decisions have made
clear that “an accused who wants to invoke his or her right to remain silent
[must] do so unambiguously.” Berghuis v. Thompkins, 560 U.S. 370, 381
(2010); see Watson, 170 N.H. at 726-27.

To determine whether an accused unambiguously invoked his or her
right to remain silent, we examine the accused’s statements under the totality
of the circumstances. Pouliot, 174 N.H. at 19. To be an effective invocation of
the right to remain silent, the accused “must articulate his desire . . .
sufficiently clearly that a reasonable police officer in the circumstances would
understand the statement to be” an invocation of the right to remain silent.
Davis v. United States, 512 U.S. 452, 459 (1994) (concerning the right to have
an attorney present during custodial interrogation); see Berghuis, 560 U.S. at
381-82 (holding that the clarity required of an effective invocation of the right
to counsel applies to determining whether an accused has effectively invoked
the right to remain silent).

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 The defendant argues that “[s]everal considerations combine to compel
the conclusion that [he] unambiguously invoked his right to silence,” including
the fact that he did not use “words of equivocation, such as ‘I guess,’ or
‘maybe,’”; his statement “sought to end the conversation”; and he “did not
follow up his invocation with any further unprompted statement.” We are not
persuaded.

Here, the defendant “neither said that he wanted to remain silent nor
that he did not want to speak with the police.” Watson, 170 N.H. at 727; see
Berghuis, 560 U.S. at 382. “Had he made either of these simple, unambiguous
statements, he would have invoked his right to cut off questioning.” Berghuis,
560 U.S. at 382 (quotation omitted); see Watson, 170 N.H. at 727. Rather, his
statement, “I don’t see why there’s any point to continue talking,” was
conditioned upon his statement that “if you guys are automatically charging
me.” In addition, it was made in the context of continued professions of
innocence, i.e., “Nothing happened.” See State v. Chapman, 135 N.H. 390,
396-98 (1992). A reasonable officer in the circumstances would not have
understood the defendant’s statement to be an invocation of the right to remain
silent. Moreover, the defendant did not, in fact, remain silent, but rather
continued to speak with the officers for another hour and a half. See Lynch,
169 N.H. at 698 (observing, when concluding that the defendant did not
unequivocally invoke his right to remain silent, that he “did not stop talking
after making the statement”). Under the totality of the circumstances, we
conclude that the defendant’s statement did not constitute an unambiguous
invocation of the right to remain silent. See Pouliot, 174 N.H. at 23. Because
the Federal Constitution affords the defendant no greater protection than does
the State Constitution under these circumstances, we reach the same result
under the Federal Constitution as we do under the State Constitution. See
Watson, 170 N.H. at 727. Any question in the notice of appeal that the
defendant did not brief is deemed waived. See State v. Stanin, 170 N.H. 644,
652 (2018).

Affirmed.
HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.

Timothy A. Gudas,
Clerk

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