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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________


Hillsborough-southern judicial district
No. 2016-0701


                        THE STATE OF NEW HAMPSHIRE

                                          v.

                                  KATLYN MARIN

                           Argued: October 24, 2018
                          Opinion Issued: May 10, 2019

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


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

       BASSETT, J. Following a bench trial in Superior Court (Temple, J.), the
defendant, Katlyn Gage Marin, was convicted of the second degree murder of
her three-year-old daughter, Brielle Gage. See RSA 630:1-b, I(a) (2016). Prior
to trial, the defendant moved to suppress statements she made to the police
prior to being advised of her Miranda rights. See Miranda v. Arizona, 384 U.S.
436, 444, 479 (1966). The defendant’s pre-Miranda statements consist of three
sets of statements — given at her home, in a police cruiser, and in a family
waiting room at the police station — each of which contained a different version
of the circumstances giving rise to Brielle’s fatal injuries. She also argued that
other statements that she made after she had been advised of her Miranda
rights should be suppressed because they were tainted by the illegally-obtained
pre-Miranda statements. After concluding that the defendant was not in
custody until after she was advised of her Miranda rights, the trial court denied
the defendant’s motion. The defendant appeals. We affirm.

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

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

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

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

      After Bailey departed, Sergeant Greene and Detective Hannon entered
the bedroom. They reiterated that the home would be secured as a crime
scene, and escorted the defendant and her children downstairs, helping gather
belongings. Greene told the defendant that her children would be in police
custody until the police could determine what had happened. Greene asked


                                        2
the defendant to come to the police station. The defendant said that she
wanted to go to the hospital to see Brielle. Greene told the defendant that she
probably would not be able to see Brielle at the hospital at that time. The
defendant agreed to accompany the officers to the police station.

       During the five-minute drive to the police station, Greene asked the
defendant to explain what happened to Brielle. In response, the defendant told
Greene that Brielle’s first seizure-like episode occurred the prior evening as
Brielle began descending the stairs, and that, as the defendant reached out to
catch Brielle, they both fell down the stairs. The defendant also described a
second seizure-like episode which occurred that morning. She explained that,
after this second episode, she attempted to carry Brielle downstairs, but
because Brielle was heavy and unconscious, they both fell down the stairs
again. The defendant stated that Brielle may have hit her head during each
fall.

       Upon arrival at the police station, the defendant and her children were
escorted to the family waiting room. There, Greene and the defendant
continued to converse while the defendant’s children ate snacks and played.
After approximately a half-hour, Hannon joined the conversation. The
defendant again described Brielle’s seizure-like episodes and two ensuing falls.
However, in contrast to her earlier version of events, the defendant told Greene
that Brielle “fell face first and did hit her head on the floor” during the second
fall, adding that one of Brielle’s siblings had shaken Brielle the previous night.

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

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



                                        3
continued questioning the defendant, stopping periodically for breaks, until
9:11 p.m.

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

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

      The defendant cites both the New Hampshire Constitution and the
United States Constitution in support of her arguments that the trial court
erred. See U.S. CONST. amends V, XIV; N.H. CONST. pt. I, art. 15. We first
address the defendant’s claim 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 the defendant’s responses made during a custodial interrogation
may be used as evidence against [her], the State must prove, beyond a
reasonable doubt, that it did not violate [her] constitutional rights under
Miranda.” State v. McKenna, 166 N.H. 671, 676 (2014) (quotation omitted).
“In order for Miranda warnings to be required there must be a custodial
interrogation by the police.” State v. Hammond, 144 N.H. 401, 403 (1999).
Here, because the parties do not dispute that the defendant was interrogated
by the police, the issue before us is whether the interrogation was custodial.

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


                                       4
(quotation omitted). “The location of questioning is not, by itself,
determinative: a defendant may be in custody in [her] own home but not in
custody at a police station.” Id. at 677 (quotation omitted). “To determine
whether a reasonable person in the defendant’s position would believe [her]self
in custody, the trial court should consider the totality of the circumstances of
the encounter.” Id. (quotation omitted). This inquiry includes, but is not
limited to, “factors such as the number of officers present, the degree to which
the suspect was physically restrained, the interview’s duration and character,
and the suspect’s familiarity with [her] surroundings.” Id. (quotation omitted).
As the United States Supreme Court has stated, “[t]wo discrete inquiries are
essential to the determination” of whether a defendant is in custody:

      first, what were the circumstances surrounding the interrogation;
      and second, given those circumstances, would a reasonable person
      have felt he or she was at liberty to terminate the interrogation and
      leave. Once the scene is set and the players’ lines and actions are
      reconstructed, the court must apply an objective test to resolve the
      ultimate inquiry: was there a formal arrest or restraint on freedom
      of movement of the degree associated with formal arrest.

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

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

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



                                        5
custody when she gave police the pre-Miranda statements in her home, in the
police cruiser, and in the family waiting room at the police station.

       We first turn to the factors in this case that consistently weigh against a
finding of custody. “The accusatory nature of questioning is widely recognized
as a factor weighing in favor of a finding of police custody,” because
“[a]ccusatory questioning often conveys an officer’s belief in the defendant’s
guilt and the officer’s intent to arrest.” Id. at 681-82. Likewise, “accusatory
statements made by the officers and directed at the defendant also weigh in
favor of custody.” Id. at 683 (emphasis omitted). When “[t]here [is] no evidence
of shouting or harsh tones at any time during the interview,” it weighs against
a finding of custody. State v. Locke, 149 N.H. 1, 6-7 (2002). Here, as the trial
court found, and the defendant acknowledges, the tone of the interrogation was
non-confrontational and non-accusatory, and the officers did not raise their
voices or use harsh language. Moreover, the police officers’ questioning was
general in character: primarily directed at learning about the nature and cause
of Brielle’s injuries in order to aid the medical personnel. See McKenna, 166
N.H. at 682 (observing that questioning of a purely general nature weighs
against a finding of custody). Thus, unlike in McKenna and Jennings — cases
in which the police engaged in confrontational and accusatory questioning of
the defendant — here we find that the character of the interrogation weighs
against a finding of custody. See McKenna, 166 N.H. at 684 (holding that
defendant was in custody in part due to the accusatory and confrontational
character of the interrogation); State v. Jennings, 155 N.H. 768, 773-75 (2007)
(same).

       The defendant argues that because the police were questioning her about
Brielle’s serious injuries, and because she appeared to be the only person who
could have inflicted those injuries, a reasonable person in her position would
have understood herself to be a suspect of a crime. She contends that this
understanding was reinforced when one of the officers in her home said “this
may be a scene” within earshot of her. Although “[a]n officer’s knowledge or
beliefs may bear upon the custody issue if they are conveyed, by word or deed,
to the individual being questioned,” such beliefs are “relevant only to the extent
they would affect how a reasonable person in the position of the individual
being questioned would gauge the breadth of his or her freedom of action.”
Stansbury v. California, 511 U.S. 318, 325 (1994) (quotation omitted). We do
not find that the officer’s comment, even when assessed in light of Santiago’s
questioning of the defendant, would have caused a reasonable person to
understand that his or her freedom of action had been restrained to “the degree
associated with formal arrest.” McKenna, 166 N.H. at 676 (quotation omitted).
Indeed, “[e]ven a clear statement from an officer that the person under
interrogation is a prime suspect is not, in itself, dispositive of the custody
issue, for some suspects are free to come and go until the police decide to make
an arrest.” Stansbury, 511 U.S. at 325.



                                        6
       Next, we consider the fact that the police were present at the defendant’s
home only because the defendant initiated contact with the police when she
called 911 and reported that Brielle was unconscious. “When someone calls
the police, that person should expect some sort of inquiry when the police
arrive.” State v. Partridge, 122 S.W.3d 606, 610 (Mo. Ct. App. 2003); see also
United States v. Thompson, 496 F.3d 807, 811 (7th Cir. 2007) (finding Miranda
warnings unnecessary when defendant invited agents into his home and agreed
to be questioned); cf. McKenna, 166 N.H. at 684-85 (holding that when the
police initiated contact with the defendant, it weighed in favor of a finding of
custody). Here, the fact that the defendant initiated contact with the police
weighs against a finding of custody.

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

       We now turn to the factors that, throughout the entire encounter,
consistently weigh, at least to some extent, in favor of a finding of custody. We
first consider the degree to which the defendant’s movements were restrained
in the three locations at issue: her home, the police cruiser, and the police
station. “[T]he lack of handcuffs or similar devices is not dispositive, . . .
effective restrictions on a defendant’s movement can be a product of verbal,
psychological, or situational restraint.” Id. at 678. When a defendant is “not
permitted freedom of movement within [her] own home,” and is escorted
everywhere by the police, it weighs in favor of a finding of custody. United
States v. Mittel-Carey, 493 F.3d 36, 40 (1st Cir. 2007); see also Thompson, 496
F.3d at 810 (weighing “whether the individual was moved to another area,” in
its custody analysis). At a police station, some restrictions on a defendant’s
freedom of movement are to be expected. See United States v. Pagan-Santini,
451 F.3d 258, 263 (1st Cir. 2006) (“That [the defendant] was not allowed to
wander through the FBI premises except under escort is no surprise; it is
unlikely that a federal judge would fare any better.”). However, the existence
and scope of such restrictions still factors into our custody analysis. See State
v. Carroll, 138 N.H. 687, 696-97 (2014) (considering whether the defendant
“enjoyed freedom of movement throughout the police station,” including
whether he went “unescorted to the men’s room”).

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


                                         7
With the defendant’s consent, the officers drove her to the police station, and,
while there, the officers escorted and monitored her trips to the bathroom —
remaining inside the bathroom while the defendant used a stall.

       The defendant also argues that the police restrained her freedom of
movement and pressured her to go to the police station when, during the initial
interrogation at her home, they told her that her children would be taken into
custody. Although we do not doubt that it was appropriate for the police to
take the defendant’s children into custody, it is possible that such an action by
the police could be understood by a reasonable person as a restraint on
freedom of movement. Cf. State v. Rodney Portigue, 125 N.H. 352, 362 (1984)
(observing that the defendant was induced to stay at the hospital with the
police because his children were being examined there, but emphasizing that in
that case these “were not conditions created by the police to subject the
defendant to continued questioning”). Additionally, here, the defendant was
never told that she was free to leave. Therefore, this factor weighs in favor of a
finding of custody.

       The fact that the interrogating police officers are dressed in uniform and
visibly armed tends to weigh in favor of a finding of custody. See State v.
Sachdev, 171 N.H. 539, 553 (2018). Here, although some of the officers were
in plain clothes, others were in uniform, and all were visibly armed. Therefore,
this factor weighs slightly in favor of a finding of custody.

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

      There are also a number of factors that evolved as the circumstances
changed during the defendant’s encounter with the police: her familiarity with
her surroundings, and the duration of each interrogation. See McKenna, 166
N.H. at 677, 685-86. We consider these evolving factors in assessing whether,
at the time each statement was made, given the “totality of the circumstances,”
a reasonable person in the defendant’s position would believe herself to be in
custody. Id. at 677.

      The defendant gave the first set of statements in her home. “[A]
defendant’s familiarity with [her] surroundings . . . often weighs against a


                                        8
finding of custody.” Id. at 685. Here, not only was the defendant familiar with
her own home, but she initiated the encounter with the police when she called
911 and reported that Brielle was unconscious. Additionally, the interrogation
was short, lasting approximately fifteen to twenty minutes. See State v. Goupil,
154 N.H. 208, 226 (2006) (finding no custody when interview lasted
approximately fifteen minutes); cf. McKenna, 166 N.H. at 685-86 (finding that
an interrogation lasting one hour and fifteen minutes weighed neither for nor
against a finding of custody).

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

       The second set of statements at issue was made by the defendant as she
rode in the police cruiser. At that time, the defendant was not under arrest or
physically restrained through the use of handcuffs or similar devices. There
were two officers present in the cruiser, and the questioning remained normal
in tone, and non-confrontational and non-accusatory in character. Moreover,
the ride was short, lasting about five minutes, and the defendant was not
ordered to ride in the cruiser — she chose to do so for her own convenience.
See State v. Carpentier, 132 N.H. 123, 127 (1989) (finding no custody when
defendant received police transportation for his convenience). On the other
hand, the police cruiser was an unfamiliar location, the defendant was in the
presence of visibly armed police officers, and she had not been told that she
was free to leave. Nonetheless, on balance, we conclude that the defendant
was not in custody when she made the second set of statements.

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


                                       9
fact that, once the defendant was moved to the special investigations room, she
agreed with the officers that she was at the police station voluntarily, and
denied police requests to search her phone and to make a recording of the
interrogation.

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

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

                                                 Affirmed.

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




                                      10
