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                  THE SUPREME COURT OF NEW HAMPSHIRE

                            ___________________________

Hillsborough-southern judicial district
No. 2018-0575


                        THE STATE OF NEW HAMPSHIRE

                                          v.

                               DOMINIC CARRIER

                           Argued: November 6, 2019
                          Opinion Issued: April 7, 2020

      Gordon J. MacDonald, 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.

       HANTZ MARCONI, J. The State brings this appeal pursuant to RSA
606:10, II(a), arguing that the Superior Court (Colburn, J.) erred in
suppressing two sets of recorded statements made by the defendant, Dominic
Carrier. See RSA 606:10, II (2001). The trial court ruled that the defendant
was subject to custodial interrogation at the time he gave the first set of
statements, and, because he was not given the warnings required by Miranda
v. Arizona, 384 U.S. 436 (1966), those statements were obtained in violation of
his right against self-incrimination. The court suppressed the second set of
statements because it found that the State did not prove beyond a reasonable
doubt that the defendant gave them voluntarily. We affirm and remand.
                                        I

      The trial court found or the record reflects the following facts. As of
November 19, 2017, the defendant, his mother, the alleged victim, and her
father lived together in a Nashua apartment. The defendant’s mother and the
alleged victim’s father were engaged to be married. The apartment is located in
a multi-unit building with a partially enclosed front porch. At 5:00 a.m. on
November 20, the defendant left for work. After he left, the alleged victim (AV),
who was thirteen years old at the time, told her father that the defendant had
entered her bedroom during the early hours of the morning and touched her
genitals while she slept.

       AV’s father called the police, and Officer Kekejian of the Nashua Police
Department arrived at the residence around 7:00 a.m. Kekejian wore a full
uniform, with badge and gun visible. AV’s father relayed his daughter’s
allegation to Kekejian, who then contacted additional officers. Kekejian was
directed to remain at the residence with AV, her father, and the defendant’s
mother until the Child Advocacy Center (CAC) could conduct AV’s forensic
interview later that day.

       Kekejian and the family waited in the living room of the apartment. At
9:09 a.m., the defendant returned. He walked through the front door, which
entered into the living room, without knocking. Kekejian immediately ordered
the defendant to leave, then followed the defendant outside to the front porch
and closed the door behind him, leaving the family inside. Kekejian stood in
front of the door, preventing the defendant from reentering his home. He told
the defendant that the police were “investigating a matter” and that the
apartment was “being held as a scene.” Kekejian also pat-frisked the
defendant. In addition, when the defendant began using his phone, Kekejian
took it from him, gave no explanation for why he did so, and never returned it.

      Kekejian proceeded to question the defendant about AV’s allegations. He
asked the defendant “what he had done” that morning and whether he had
entered AV’s bedroom. He also asked about the defendant’s living
arrangements at the apartment. Kekejian did not tell the defendant that he
could refuse to answer his questions, that he was not under arrest, or that he
was free to leave. It was cold and windy that day, but the defendant did not
have a coat.

       This initial interaction on the porch lasted approximately ten minutes,
until Officer Ciszek arrived. Ciszek arrived in a fully marked police cruiser and
wore a police uniform. After Ciszek arrived, Kekejian called Detective Hallam.
Hallam initially told Kekejian that he would “get in contact with” the defendant
at a later time. Kekejian provided the defendant with Hallam’s contact
information. As Kekejian and the defendant were discussing where the
defendant would go in light of the weather and the fact that he would not be


                                        2
allowed to return to the home, Hallam called Kekejian back. Hallam instructed
Kekejian to ask the defendant to remain at the residence for an interview. The
defendant said he would wait for Hallam; however, the defendant was not told
that he was not required to wait for Hallam or that he could refuse to speak
with him. Kekejian, Ciszek, and the defendant remained on the front porch
until approximately 10:00 a.m., when Hallam arrived with Detective McIver.
During that time, Kekejian again questioned the defendant about his
whereabouts that morning while also making “small talk” about other topics,
such as the defendant’s employment and cars. There is no evidence that either
Kekejian or Ciszek left the porch during the time that the three men waited for
Hallam and McIver.

       Hallam subsequently arrived with McIver in an unmarked police car, a
Chevrolet Impala, and parked across the street from the apartment. The
Impala had government license plates and a police radio, but was otherwise
similar to a non-police vehicle. Hallam and McIver wore dress shirts and dress
pants, but their badges and guns were visible. Upon their arrival, Hallam and
McIver walked to the front porch and asked the defendant to speak with them
in their car. The detectives accompanied the defendant to the car and all three
got inside, closing the doors behind them. Hallam sat in the driver’s seat,
McIver sat in back, and the defendant sat in the front passenger’s seat.

       Hallam turned on an audio recording device shortly after entering the
car. The defendant stated he was “fine” with Hallam doing so. Hallam asked
the defendant if he was “giving a statement voluntarily” and stated that he
didn’t want the defendant to feel “forced” to speak with him. Hallam also
demonstrated to the defendant that the doors to the car were not locked and
said that he should “feel free” to leave. However, the defendant and Hallam
were talking over each other when Hallam made all of these statements.

      The detectives began questioning the defendant about AV’s allegations.
The defendant denied that he had ever left his bedroom the previous night.
However, over the course of the approximately one-hour interrogation, the
detectives repeatedly accused the defendant of lying and of being “deceptive.”
They told the defendant that they were not interested in hearing the
defendant’s denials and that all they wanted to hear from the defendant were
explanations for his conduct. The detectives told the defendant that they
“wouldn’t be here” investigating AV’s allegations if they were not true, that AV
had no reason to lie, and that they believed the defendant had touched AV’s
vagina. Despite the nature of the detectives’ accusations, the trial court found
that the overall tone of the interrogation was generally polite.1


1
 The trial court based its findings regarding the interrogation in the car upon the audio recording.
On appeal, the State has not provided us with this audio recording.



                                                 3
       As the interrogation inside the Impala progressed and the detectives
repeatedly accused the defendant of lying and of sexually assaulting AV, the
defendant made incriminating statements. The doors to the car remained
closed throughout this encounter. Kekejian and Ciszek were within viewing
distance the entire time. The defendant was not given or offered a break at any
point.

      After the interrogation concluded, the defendant apparently used
Hallam’s phone to call his father. The defendant arranged for his father to pick
him up at a nearby convenience store. The defendant told the detectives he
would be staying with his father and gave them his father’s address. The
detectives then drove the defendant to the convenience store.

       After AV’s CAC interview later that day, a warrant was issued for the
defendant’s arrest. Hallam arrested the defendant at his father’s home at 8:20
p.m., and the defendant was brought to the Nashua police station. Hallam
approached the defendant in the booking area around 10:00 p.m. and asked
the defendant to speak with him. The defendant agreed and was brought
upstairs to an interview room. Hallam read the defendant his Miranda rights,
and the defendant said he would waive them. Less than twenty seconds after
giving the defendant Miranda warnings, however, Hallam invoked the
defendant’s statements in the Impala that morning, telling the defendant that
there were “inconsistencies” in his first set of statements and that this time he
wanted to “skip all that B.S. that we were doing out there.” Hallam continued
to bring up the defendant’s first set of statements throughout this second
interrogation; the defendant made additional incriminating statements.

       The defendant was charged with one count of aggravated felonious
sexual assault (AFSA). See RSA 632-A:2 (2016) (amended 2017, 2018). He
moved to suppress the recorded statements he made inside the Impala as well
as his subsequent recorded statements at the police station. The trial court
held a hearing, at which it heard testimony from Kekejian and Hallam. The
recorded statements themselves, as well as transcripts of each set of
statements, were submitted to the trial court by agreement. As to the Impala
statements, the court ruled that the defendant was in “custody” for Miranda
purposes when, approximately sixteen minutes into the recording, Detective
Hallam repeatedly accused him of lying. As to the statements at the police
station, the court found that the State failed to meet its burden of proving
beyond a reasonable doubt that the defendant gave those statements
voluntarily. Accordingly, the court granted the defendant’s motion. The State
filed a motion to reconsider, to which the defendant objected. The court denied
the State’s motion, and this appeal followed.




                                        4
                                        II

       We begin with the Miranda issue. The State argues that the defendant
was not in custody at any point before he was formally arrested at his father’s
home; thus he was not entitled to Miranda warnings before or at any point
during the questioning in the Impala. The defendant contends that the trial
court correctly ruled that he was in custody because a reasonable person in his
position would have felt constraints on his freedom consistent with formal
arrest. The parties raise their arguments under both the State and Federal
Constitutions. We first address them 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 defendant’s responses made during a custodial interrogation
may be used as evidence against him, the State must prove, beyond a
reasonable doubt, that it did not violate his constitutional rights under
Miranda. State v. Marin, 172 N.H. 154, 159 (2019). Correspondingly, Miranda
warnings are not required if the defendant was not subject to a custodial
interrogation. State v. Carroll, 138 N.H. 687, 696 (1994); see State v. Sachdev,
171 N.H. 539, 548 (2018) (“[T]wo conditions must be met before Miranda
warnings are required: (1) the suspect must be ‘in custody’; and (2) he must be
subject to ‘interrogation.’”). Here, there is no dispute that Hallam and McIver
interrogated the defendant in the Impala. The only issue before us is whether
he was in custody when they did so.

      Custody entitling a defendant to Miranda protections requires formal
arrest or restraint on freedom of movement to the degree associated with
formal arrest. In re B.C., 167 N.H. 338, 342 (2015); accord State v. Jennings,
155 N.H. 768, 772 (2007). In the absence of formal arrest, the court 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. Marin, 172 N.H. at 159; see also Stansbury v.
California, 511 U.S. 318, 323 (1994) (per curiam) (“[T]he initial determination of
custody depends on the objective circumstances of the interrogation, not on the
subjective views harbored by either the interrogating officers or the person
being questioned.”). To determine whether a reasonable person in the
suspect’s position would believe himself to be in custody, the trial court should
consider the totality of the circumstances of the encounter, including but not
limited to such factors 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 his surroundings. Marin, 172 N.H. at 159-
60. Custody analyses, however, are rarely based upon a static set of
circumstances. Id. at 160; accord State v. McKenna, 166 N.H. 671, 677 (2014).
Interrogations are fluid: what may begin as noncustodial questioning may
evolve over time into custodial questioning. McKenna, 166 N.H. at 677.



                                        5
       The trial court’s findings regarding “‘the circumstances surrounding the
interrogation’” are entitled to the deference we normally accord factual findings.
Marin, 172 N.H. at 160 (quoting J.D.B. v. North Carolina, 564 U.S. 261, 270
(2011)); see also State v. Ford, 144 N.H. 57, 62 (1999) (explaining that “the trial
court’s findings of historical facts relevant to the question of custody, that is,
its determinations of ‘what happened,’” are entitled to the deference normally
given to factual findings). However, because the ultimate determination of
custody requires an application of a legal standard to historical facts, that
determination is not merely a factual question, but a mixed question of law and
fact. Marin, 172 N.H. at 160. “Unlike voluntariness, custody is a law-
dominated mixed question in which ‘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?’” Ford, 144 N.H. at 62-63 (brackets omitted) (quoting
Thompson v. Keohane, 516 U.S. 99, 113 (1995)). Accordingly, although we will
not overturn the trial court’s findings of historical facts unless they are
contrary to the manifest weight of the evidence, we review the ultimate
determination of custody de novo. In re E.G., 171 N.H. 223, 230 (2018).

       In addition to challenging the trial court’s custody ruling, the State
challenges certain factual findings made by the trial court. The trial court
stated in its order that it “was left with the impression that Officer Kekejian
was essentially ‘guarding’ the defendant on the porch.” The State asserts that
this “conclusion[] either stretched reasonable inference to its limit or [was]
wholly unsupported by the record” because “[t]he defendant never elicited this
fact or any fact that implied it . . . during cross-examination.” We question
whether the trial court’s conclusion that Kekejian was essentially “guarding”
the defendant is a finding of historical fact rather than an application of facts
to the legal question of whether a reasonable person in the defendant’s position
would have felt restraints on his freedom of movement consistent with formal
arrest. See McKenna, 166 N.H. at 677-79. Even assuming, however, that the
State correctly characterizes this as a factual finding, it is not against the
manifest weight of the evidence. See E.G., 171 N.H. at 230. The trial court’s
“impression that Officer Kekejian was essentially ‘guarding’ the defendant” is
supported by evidence in the record that, among other things, Kekejian ordered
the defendant to leave his home, followed him outside, blocked the door to the
home to prevent him from reentering, and did not leave the defendant’s side
until Hallam and McIver arrived.

       The State also takes issue with the court’s observation, in a footnote,
that Kekejian did not disclose in his report that he took the defendant’s phone
or pat-frisked him. The court noted that Kekejian acknowledged these
omissions from his report only on cross-examination. The court’s observation
is plainly supported by Kekejian’s testimony at the suppression hearing; our
review of the transcript confirms that Kekejian did not acknowledge the
omission of this information from his report until cross-examination. We have


                                        6
reviewed the State’s remaining assertions regarding the trial court’s factual
findings and find them to be without merit. See Vogel v. Vogel, 137 N.H. 321,
322 (1993). Thus, we turn to our custody analysis.

       There are numerous circumstances surrounding the defendant’s
encounter with the police that weigh in favor of a finding that he was in
custody at some point during the first recorded interrogation. For example,
“the degree to which the defendant’s movements were restrained” suggests he
was in custody. Marin, 172 N.H. at 162; see Jennings, 155 N.H. at 773-74.
“The lack of handcuffs or similar devices is not dispositive, . . . effective
restrictions on a defendant’s movement” need not be derived from such devices,
but instead “can be a product of verbal, psychological, or situational restraint.”
Marin, 172 N.H. at 162 (quotation and brackets omitted). “When a defendant
is ‘not permitted freedom of movement within [his] own home,’ and is escorted
everywhere by the police, it weighs in favor of a finding of custody.” Id.
(quoting United States v. Mittel-Carey, 493 F.3d 36, 40 (1st Cir. 2007)); see
McKenna, 166 N.H. at 678-79.

       Here, “although the defendant may not have been placed in handcuffs or
any similar device, he was restrained from early on in the encounter.”
Jennings, 155 N.H. at 773. Kekejian ordered the defendant to leave as soon as
he walked in the front door to his home, immediately followed the defendant
outside to the partially enclosed porch, shut the door behind him, and
positioned himself in front of it to block the defendant’s reentry. Kekejian
remained by the defendant’s side the entire time he was on the porch, and was
joined by Ciszek, who occupied the porch almost the entire time the defendant
did. Both officers remained with the defendant in the cold until Hallam and
McIver arrived. Hallam and McIver then escorted the defendant to their
vehicle, in view of Kekejian and Ciszek. We agree with the trial court that these
actions “‘would have conveyed to a reasonable person . . . that the officers did
not intend to allow the defendant to leave their sight.’” (Quoting McKenna, 166
N.H. at 678.); see Stansbury, 511 U.S. at 324-25.

      In addition, Kekejian pat-frisked the defendant and seized his phone.
These factors weigh in favor of custody. See Jennings, 155 N.H. at 773-74; see
also Tankleff v. Senkowski, 135 F.3d 235, 244 (2d Cir. 1998). The seizure of
the defendant’s phone is an especially weighty factor: “[b]y denying the
defendant access to his . . . phone[], the police effectively ensured that he was
dependent upon them for any . . . communication with the outside world.”
Jennings, 155 N.H. at 774; accord Marin, 172 N.H. at 163-64; see State v.
McMillan, 55 P.3d 537, 539-40 (Or. Ct. App. 2002) (officer’s actions of
preventing defendant from using his cell phone would have reasonably
suggested to defendant that “the officers could exert control over his means of
communication”).




                                        7
       We next consider the “duration and character” of the interrogation.
Marin, 172 N.H. at 160 (quotation omitted). “[T]he length of questioning can be
a relatively undeterminative factor in the analysis of custody,” at least when
police do not engage in “the ‘marathon’ routine of questioning a suspect,” with
which “Miranda was most obviously concerned.”2 E.G., 171 N.H. at 237
(quotation omitted). Here, the defendant was questioned about AV’s allegations
over a period of approximately two hours. See Jennings, 155 N.H. at 774
(concluding that an interview length of “nearly two hours” weighed in favor of
custody); see also, e.g., Mittel-Carey, 493 F.3d at 40 (interrogation length of
ninety minutes to two hours weighed in favor of custody). Kekejian began
questioning the defendant about the sexual assault allegation shortly after
ejecting him from his apartment, and continued to ask the defendant questions
about his whereabouts that morning until Hallam and McIver arrived
approximately an hour later. See Sachdev, 171 N.H. at 551 (concluding that
trial court did not err in determining length of interview by length of
“substantive questioning” rather than by length of overall interaction with
police). Hallam and McIver then interrogated the defendant for an additional
hour in the Impala. Thus, the duration of the police interrogation in this case
suggests that the defendant was in custody. See Jennings, 155 N.H. at 774.

       In evaluating the character of the interrogation, we consider the presence
or absence of both accusatory questions and accusatory statements.
McKenna, 166 N.H. at 681. Accusatory questioning weighs in favor of custody
because such questioning often conveys that the questioning officer believes
the defendant is guilty and that he or she intends to arrest. See id. at 681-82.
Accusatory questioning stands in contrast to “questioning of a purely general
nature,” which does not weigh in favor of custody. Id. at 682. In addition to
accusatory questioning, the presence or absence of accusatory statements is
relevant to our analysis because “‘a reasonable person understands that the
police ordinarily will not set free a suspect when there is evidence strongly
suggesting that the person is guilty of a serious crime.’” Id. at 683 (quoting
State v. Muntean, 12 A.3d 518, 528 (Vt. 2010)). Therefore, “confronting the

2 In analyzing whether an interrogation is custodial, we note that the character of an
interrogation may impact whether the interrogation’s duration is a reliable indicator of custody.
See E.G., 171 N.H. at 237; State v. Dedrick, 132 N.H. 218, 225 (1989), abrogated on other
grounds by Ford, 144 N.H. at 62-63, and State v. Spencer, 149 N.H. 622, 625 (2003).
Although the brevity of an interrogation generally weighs against a finding of custody, Sachdev,
171 N.H. at 551, a particular interrogation might only have been brief because the officers’
questions were so accusatory that the defendant recognized the futility of resistance and
confessed in short order, see E.G., 171 N.H. at 237. Indeed, “custody has been found in
relatively brief interrogations where the questioning is of a sort where the detainee is aware
that questioning will continue until he provides his interrogators the answers they seek.” Id.
(quotation omitted); see also Dedrick, 132 N.H. at 225 (explaining that, when defendant was
“accused of untruths,” “confronted with damning information,” and officers ignored defendant’s
“vehement denials,” the character of interrogation signaled that period of questioning would
continue until defendant confessed or asked to speak with an attorney). Thus, an
interrogation’s character is often a more reliable barometer for custody than its duration.


                                               8
defendant with evidence of guilt weighs in favor of custody.” Id. Finally, the
extent to which the officers “raise[d] their voices or use[d] harsh language” is
also relevant to our analysis of the interrogation’s character. Marin, 172 N.H.
at 161.

       In this case, as noted, Kekejian began questioning the defendant about
AV’s allegations shortly after ejecting him from his home. Kekejian asked the
defendant whether he had gone inside AV’s bedroom that morning, about his
living arrangements at the home, and about “what he had done” that morning.
Kekejian also told the defendant, while blocking him from entering the home,
that it was “being held as a scene.” Later, when Kekejian, Ciszek, and the
defendant were waiting on the porch for Hallam and McIver to arrive, Kekejian
renewed questioning the defendant as to his whereabouts that morning.
Although some of Kekejian’s questions were general or non-accusatory in
nature, we conclude that, on balance, the character of Kekejian’s discussions
with the defendant weighs slightly in favor of custody. Cf. E.G., 171 N.H. at
233-35 (contrasting accusatory questioning weighing in favor of custody from
questioning that may lawfully occur during investigatory stop).

      Weighing much more decisively in favor of custody is the overwhelmingly
accusatory nature of the detectives’ questioning and statements inside the
Impala. Hallam and McIver repeatedly and doggedly accused the defendant of
dishonesty and of sexually assaulting AV. “On numerous occasions
throughout the interrogation the [detectives] asked the defendant why he had
sexually abused [AV] and posited reasons for his actions.” McKenna, 166 N.H.
at 683. For example, at one point Hallam said,

      you were rubbing her f**king vagina. What, what were you doing it
      for? What was the purpose? . . . I, I’ll tell you straight up, I know
      why [inaudible] is because I’m f**king turned on and s**t and
      you’ve got to be straight up with me. I know why guys f**king do
      that s**t so I need you to be straight up with me with why you were
      doing it man, because I’m not stupid.

As the above excerpt makes clear, the detectives’ “questions were premised
upon the assumption that the defendant had committed the crime,” and would
have communicated that assumption to a reasonable person in the defendant’s
position. Id. at 682-83; see Stansbury, 511 U.S. at 325. In other words, the
detectives’ questions “would have signaled [to] a reasonable [person] in the
same circumstances that . . . as often as he made denials, they would renew
their accusations.” Dedrick, 132 N.H. at 225. In addition, Hallam and McIver
repeatedly confronted the defendant with AV’s allegations, telling him that they
were certain that the allegations were true. See McKenna, 166 N.H. at 683
(discussing facts of Jennings); Jennings, 155 N.H. at 769, 774 (explaining that
interrogation’s character weighed in favor of custody when “[w]ithin minutes of
being inside the interview room . . . [a police officer] confronted the defendant


                                        9
with [the victim’s] allegations of sexual assault and said he was certain she was
telling the truth,” and when defendant was “repeatedly confronted . . . in this
manner”). “Coupled with the control exercised by the police from the beginning
of the encounter, this clear indication that the police believed the defendant to
be guilty of sexual assault would have signaled to a reasonable person that his
freedom of movement was curtailed to the degree associated with formal
arrest.”3 Jennings, 155 N.H. at 774; see Dedrick, 132 N.H. at 225.

       Several additional circumstances support the conclusion that the
defendant was in custody during the Impala interview. “The number of officers
present is a relevant factor in a custody determination — when multiple officers
isolate and question a defendant, it is more likely that the defendant is in
custody.” E.G., 171 N.H. at 237. Here, the defendant was in the presence of
four visibly armed police officers, some of whom were in uniform. See Marin,
172 N.H. at 163 (fact that officers were in uniform and were visibly armed
weighed in favor of custody); Jennings, 155 N.H. at 773 (“The fact that three
officers and a prosecutor went to meet the defendant certainly bolsters the trial
court’s custody determination.”). Although no more than two officers
questioned the defendant at any given time, Kekejian and Ciszek were within
viewing distance from the Impala. See McKenna, 166 N.H. at 685. We also
note, as did the trial court, that the fact that the defendant had remained for
an hour on a partially enclosed porch on a cold and windy day, without a
jacket, suggests that a reasonable person in his position would believe he was
in custody.

       Moreover, although Hallam’s car was parked in front of the defendant’s
home, a location which was familiar to the defendant, the car itself was an
unfamiliar location. See Marin, 172 N.H. at 164 (noting that police cruiser was
an unfamiliar location); cf. Jennings, 155 N.H. at 774 (fact that interview took
place in “closed-door, confined atmosphere” suggested custody). In addition,
the defendant was never told that he was not under arrest, and Kekejian did
not tell the defendant he could refuse to answer his questions, that he could
refuse to wait for Hallam, or that he could refuse to speak with Hallam. See
McKenna, 166 N.H. at 679-80. These factors weigh in favor of custody.

      To be sure, not all of the circumstances of the defendant’s encounter
with the police suggest that he was in custody during the Impala interrogation.
Here, “as in virtually every case, there are some factors that weigh in favor of a

3
  We note that the trial court had the benefit of reviewing the recording of the interrogation inside
the Impala. The court determined, based upon this audio recording, that “the tone of the
interview was, for the most part, polite.” The State has not provided us with the recording on
appeal. However, even assuming that the trial court’s finding as to the tone of the interview is
supported by the recording, see Sachdev, 171 N.H. at 548-49, “[n]either the absence of hostility on
the part of the [detectives], nor the polite tone of the interrogation, neutralizes the content or
import of the accusatory questions and statements, nor diminishes the weight which we accord to
them,” McKenna, 166 N.H. at 684.


                                                10
finding of custody, and some that weigh against such a finding.” Marin, 172
N.H. at 160. Hallam and McIver wore plain clothes, not police uniforms. See
Sachdev, 171 N.H. at 553. Neither Kekejian nor Ciszek physically prevented
the defendant from leaving the porch, the defendant was not placed in
handcuffs or other similar devices, and the porch of the defendant’s home was
a familiar location. See Marin, 172 N.H. at 164; State v. Locke, 149 N.H. 1, 6-7
(2002). But see McKenna, 166 N.H. at 677 (“The location of questioning is not,
by itself, determinative: a defendant may be in custody in his own home but
not in custody at a police station.” (quotation omitted)).

       The State emphasizes that Hallam told the defendant he should “feel
free” to leave at the outset of the interrogation in the Impala. “[O]ur cases
reflect that we have consistently regarded as a significant factor in our custody
analysis whether a suspect is informed that he or she is at liberty to terminate
the interrogation.” McKenna, 166 N.H. at 680. Thus, a “person who is clearly
advised that he is free to leave is ordinarily not in custody.” Jennings, 155
N.H. at 775 (emphasis added). Here, however, the defendant was not clearly
advised that he was free to leave. Rather, based upon the recording of the
Impala interrogation, the trial court found that Hallam and the defendant were
talking over each other when Hallam stated that the defendant should “feel
free” to leave. As such, the trial court discounted the effectiveness of Hallam’s
statement. In light of the State’s failure to provide us with this recording on
appeal, we must assume that the recording supports the trial court’s
determination as to this statement’s effectiveness. See State v. Thiel, 160 N.H.
462, 464 (2010).

        Finally, we do not view as especially significant, in the context of this
case, Hallam’s statement to the defendant that he did not want him to feel
“forced” to speak with the detectives, or Hallam’s invocation of the word
“voluntarily” at the interrogation’s outset. In light of all the circumstances of
the defendant’s encounter with the police that morning, “we cannot turn a
blind eye toward a custodial relationship simply because the police made a[n]
. . . attempt to clothe their custody of the defendant in the language of
voluntariness.” Jennings, 155 N.H. at 772 (brackets omitted).

             There are times when actions speak louder than words.
      Ultimately, police conduct should be judged in terms of what was
      done rather than what the officer may have called it at the time.
      Here, as noted above . . . , many indicia of custody were present,
      and the accusatory nature of the interview is undeniable. By the
      time the police confronted the defendant in the closed-door
      interview . . . with both [the victim’s] accusations and their own
      certainty that the accusations were true, a reasonable person in
      the defendant’s position would have found his freedom curtailed to
      the extent that Miranda warnings were required. Thus, we think it
      implausible that the defendant could have risen from his seat and


                                        11
       freely exited the interview . . . in the middle of an escalating period
       of interrogation and gone along his merry way . . . .

Id. at 775 (quotations and citation omitted).

      Based upon the totality of the circumstances, we conclude that a
reasonable person in the defendant’s position would have believed himself to be
in custody at the point specified by the trial court in its suppression order.
Therefore, we hold that the defendant was in custody for Miranda purposes at
that point, and the defendant’s statements made after the interrogation became
custodial must be suppressed. Because the defendant prevails under the State
Constitution, there is no need to analyze the parties’ arguments under the
Federal Constitution. See Jennings, 155 N.H. at 776; Ball, 124 N.H. at 237.

                                                  III

       We turn now to the defendant’s statements at the police station. The
trial court suppressed these statements because it found that the State did not
prove beyond a reasonable doubt that they were voluntarily given. The State
argues that the court erred in so finding. Again, we first address the
voluntariness issue under the State Constitution and rely upon federal law
only to aid our analysis. See Ball, 124 N.H. at 231-33.

       Our State Constitution requires the State to prove beyond a reasonable
doubt that a defendant’s confession is voluntary. State v. Ruiz, 170 N.H. 553,
559 (2018); see N.H. CONST. pt. I, art. 15. To be voluntary, a confession must
be the product of an essentially free and unconstrained choice and not be
extracted by threats, violence, direct or implied promises of any sort, or by the
exertion of any improper influence or coercion. Ruiz, 170 N.H. at 560. We will
not overturn a trial court’s determination that a confession was not voluntary
unless it is contrary to the manifest weight of the evidence, as viewed in the
light most favorable to the defendant. See State v. Cloutier, 167 N.H. 254, 258
(2015). 4

4 The State, quoting Ruiz, asserts that we must review the evidence of voluntariness in the light
most favorable to the State. We stated in Ruiz that the trial court’s ruling – that the defendant’s
confession was voluntarily given – would “not be overturned unless it was contrary to the manifest
weight of the evidence, as viewed in the light most favorable to the State.” Ruiz, 170 N.H. at 560;
see also Cloutier, 167 N.H. at 258 (specifying that we “will not overturn a trial court’s
determination that a confession is voluntary unless it is contrary to the manifest weight of the
evidence, as viewed in the light most favorable to the State” (emphasis added)); State v. Rezk, 150
N.H. 483, 486 (2004) (same). That standard of review applied in Ruiz because the defendant was
the appealing party with the burden of demonstrating that the court’s voluntariness ruling was
erroneous. See Ruiz, 170 N.H. at 555, 559-60. See generally Gallo v. Traina, 166 N.H. 737, 740
(2014) (“[A]ppealing parties . . . have the burden of demonstrating reversible error.”). Here,
however, the trial court ruled that the defendant’s second set of statements was not voluntarily
given, and the State is the party appealing that ruling. “A determination of the voluntariness of a
confession is a question of fact for the trial court to decide . . . .” State v. Chapman, 135 N.H. 390,


                                                 12
       When, as in this case, a defendant’s post-Miranda confession is preceded
by an earlier confession that violated his Miranda rights, we have articulated
five factors which guide our analysis under part I, article 15 as to whether the
second confession was voluntary in light of the Miranda violation: (1) the time
lapse between the initial confession and the subsequent statements; (2) the
defendant’s contacts, if any, with friends or family members during that period
of time; (3) the degree of police influence exerted over the defendant; (4)
whether the defendant was advised that his prior admission could not be used
against him; and (5) whether the defendant was advised that his prior
admission could be used against him. State v. Fleetwood, 149 N.H. 396, 405-
06 (2003); accord Ruiz, 170 N.H. at 560. No single factor is dispositive. Ruiz,
170 N.H. at 560.

      The State argues that the trial court committed legal error when it
“looked beyond the five factors” highlighted above in analyzing the
voluntariness of the defendant’s second set of statements. The State further
contends that the trial court committed legal error by applying the “cat out of
the bag” theory to the defendant’s claim, a theory which we rejected under the
New Hampshire Constitution in State v. Aubuchont, 141 N.H. 206, 208-09
(1996).

       We begin with the latter contention. “Under Federal constitutional law
prior to . . . Oregon v. Elstad, 470 U.S. 298 (1985), . . . an admission or
confession of guilt obtained from an accused person in violation of the Miranda
requirements was presumed to taint any subsequent confession made by the
accused . . . .” Com. v. Smith, 593 N.E.2d 1288, 1291 (Mass. 1992). This
presumption came to be known as the “cat out of the bag” theory, based on the
United States Supreme Court’s use of that phrase in United States v. Bayer,
331 U.S. 532, 540 (1947). See State v. Smith, 834 S.W.2d 915, 919 (Tenn.
1992). See generally Katherine E. McMahon, “Cat-Out-of-the-Bag” & “Break-
in-the-Stream-of-Events”: Massachusetts’ Rejection of Oregon v. Elstad for
Suppression of Warned Statements Made After a Miranda Violation, 20 W. New
Eng. L. Rev. 173, 185-87 (1998). In Elstad, however, the United States
Supreme Court disclaimed the notion that a Miranda violation renders
subsequent confessions, obtained after the administration of Miranda
warnings, presumptively involuntary. See Elstad, 470 U.S. at 314. Instead the
Court concluded that, “absent deliberately coercive or improper tactics in
obtaining the initial statement, the mere fact that a suspect has made an
unwarned admission does not warrant a presumption” that a subsequent,
post-Miranda confession was involuntary. Id.



399 (1992) (quotation omitted). That factual determination, made after considering the totality of
the relevant evidence, “is entitled to stand” unless the appealing party demonstrates that it is
contrary to the manifest weight of the evidence as viewed in the light most favorable to the
appellee, which, in this case, is the defendant. Id.


                                                13
       In Aubuchont, the defendant argued that, in interpreting part I, article
15 of the New Hampshire Constitution, we should reject the Elstad Court’s
holding. Aubuchont, 141 N.H. at 208. “The defendant assert[ed] that instead,
we should follow those jurisdictions which hold that, pursuant to state
constitutional law, ‘extraction of an illegal, unwarned confession from a
defendant raises a rebuttable presumption that a subsequent confession, even
if preceded by proper Miranda warnings, is tainted by the initial illegality’ . . . .”
Id. at 208-09 (quoting Smith, 834 S.W.2d at 919). We declined to apply such a
presumption under our State Constitution. Id. at 209. Instead, we explained
that we would “apply our traditional part I, article 15 due process
voluntariness inquiry and ask whether[,] considering the totality of the
circumstances, the second confession [was] the product of an essentially free
and unconstrained choice.” Id. (quotations and citation omitted).

       We refined our approach to determining the voluntariness of post-
Miranda-violation confessions in State v. Fleetwood. See Fleetwood, 149 N.H.
at 402-06. In Fleetwood, unlike in Aubuchont, “there was one continuous
interrogation by the same detectives at one location interrupted by only a
fifteen-minute break to comply with Miranda.” Id. at 404; see Aubuchont, 141
N.H. at 206-07. These facts, we said, “br[ought] into sharp focus the concern
that Elstad may ‘give a green light to law enforcement officers to ignore the
requirements of Miranda until after such time as they are able to secure a
confession.’” Fleetwood, 149 N.H. at 404 (quoting United States v. Carter, 884
F.2d 368, 373 (8th Cir. 1989)). In light of this concern, we articulated specific
factors that the traditional part I, article 15 voluntariness inquiry “‘necessarily
encompasses’” as applied to post-Miranda-violation confessions:

      “[T]he time lapse between the initial confession and the subsequent
      statements; the defendant’s contacts, if any, with friends or family
      members during that period of time; the degree of police influence
      exerted over the defendant; whether the defendant was advised
      that her prior admission could not be used against her; or whether
      the defendant was told that her previous statement could be used
      against her.”

Id. at 405-06 (quoting United States v. Wauneka, 770 F.2d 1434, 1440-41 (9th
Cir. 1985)) (brackets and ellipsis omitted); accord Ruiz, 170 N.H. at 560. We
did not hold in Fleetwood, however, that courts should consider only these
factors to the exclusion of all others. See Fleetwood, 149 N.H. at 402-08.
Rather, we reaffirmed that, “as we stated in Aubuchont . . . , the proper
analysis is a totality of the circumstances test.” Id. at 405.

      In this case, the trial court properly conducted a totality of the
circumstances analysis. The court discussed and applied the factors
articulated in Fleetwood, as well as other factors we have found relevant when
conducting voluntariness analyses, such as whether the police complied with


                                         14
Miranda in obtaining the second confession, see State v. Bilodeau, 159 N.H.
759, 764 (2010), and whether the police made promises, threats, or engaged in
displays of force, see Ruiz, 170 N.H. at 560. In ruling that the State failed to
prove beyond a reasonable doubt that the defendant’s second confession was
voluntary, the court accorded significant weight to “the manner in which
Detective Hallam utilized the defendant’s ‘prior confession in obtaining [the]
second confession.’” (Quoting Wauneka, 770 F.2d at 1440.)

       However, contrary to the State’s assertions on appeal, the trial court’s
decision to accord significant, even determinative, weight to this factor did not
equate to the application of a presumption that the defendant’s second
confession was involuntary due to the earlier Miranda violation. Rather than
presuming that the defendant’s unwarned confession rendered the second
involuntary, the trial court carefully considered the specific manner in which
Hallam deployed the defendant’s first confession to obtain the second. The
court noted, for example, that “Hallam began the second interrogation by
incorporating the defendant’s [first confession] into his questions,” which the
court found “even more troublesome” in this particular case because Hallam
“was only able to extract the first confession after repeatedly accusing the
defendant of lying and ignoring his consistent denials.” Because the trial
court’s decision to accord substantial weight to this circumstance in its
analysis of the totality of the circumstances did not amount to the application
of a legal presumption, we reject the State’s argument that the trial court erred
as a matter of law by applying the “cat out of the bag” theory in considering the
voluntariness of the defendant’s second set of statements.

       The State further argues that the trial court erred as a matter of law
because the manner in which a police officer uses a defendant’s first,
unwarned confession to obtain a second is, essentially, legally irrelevant to the
question of whether the second was involuntary, insofar as such a
consideration requires law enforcement to predict whether a judge would grant
a motion to suppress the first confession on Miranda grounds. We disagree.
Although we have cautioned, in analyzing the voluntariness of post-Miranda-
violation confessions, that it would be “impractical to require the police to
determine the admissibility of an unwarned confession,” Ruiz, 170 N.H. at 561-
62 (quotation omitted), we have never gone so far as to hold that “the manner
in which the officers utilized this prior confession in obtaining a second
confession,” Wauneka, 770 F.2d at 1440, is irrelevant to whether the second
was given voluntarily, see Aubuchont, 141 N.H. at 209-10.

        Indeed, in Aubuchont we affirmed the trial court’s finding that the
defendant’s post-Miranda-violation confession was voluntary. Aubuchont, 141
N.H. at 209. In reaching that conclusion, however, we considered the fact that
the officers “scheduled the [second] interview to ‘go over’” the defendant’s first,
unwarned statements. Id. While we were not convinced that “this [fact] alone
. . . g[a]ve rise to the conclusion that the second confession was involuntary,”


                                        15
we nevertheless considered this factor under our “traditional part I, article 15
due process voluntariness inquiry.” Id. (emphasis added); see Wauneka, 770
F.2d at 1440. There is ample justification for the trial court’s consideration of
Hallam’s use of the first confession to obtain the second as a relevant factor in
the totality of the circumstances. See Aubuchont, 141 N.H. at 209; Wauneka,
770 F.2d at 1440 (noting that courts should evaluate how officers used a
confession obtained in violation of Miranda to obtain a second confession); see
also Joshua I. Rodriguez, Note, Interrogation First, Miranda Warnings
Afterward: A Critical Analysis of the Supreme Court’s Approach to Delayed
Miranda Warnings, 40 Fordham Urb. L.J. 1091, 1121 (2013) (“Most courts
evaluate whether post-Miranda questioning referenced pre-Miranda statements
and ask whether the police confronted the suspect with her prior statements.”).

       Finally, the State argues that the trial court’s determination is against
the manifest weight of the evidence. Viewing the evidence in the light most
favorable to the defendant, we disagree. See Cloutier, 167 N.H. at 258. The
trial court found, and we concur, that “[t]his case presents a close call.” On
the one hand, for example, over eleven hours lapsed between the defendant’s
first and second confessions. During most of that time the defendant was not
in police custody, spending at least some of that time with his father and at his
father’s home. These facts tend to support a finding of voluntariness. See
Aubuchont, 141 N.H. at 209.

       On the other hand, based on the trial court’s review of the video
recording of the second set of statements, the court found that “less than
twenty seconds after Detective Hallam finished the Miranda process,” he
brought up the defendant’s first set of inculpatory statements.5 See id. Almost
immediately after Hallam administered Miranda warnings, he told the
defendant that he “wanted to talk to him again,” and that “we went over this
already and . . . we talked about it in the car out at the . . . scene.” Hallam told
the defendant that there were “inconsistencies” in the defendant’s first set of
statements, and that Hallam thought the defendant had “led [him] in the wrong
direction” despite the fact that the defendant had “said [he] gave [Hallam] the
truth the first time, 100 percent.” Hallam told the defendant, “[i]t is what it is,”
and that, because the defendant had “been arrested,” he wanted the defendant
to be “100 percent honest” this time. Hallam continued to bring up the
defendant’s first set of inculpatory statements at multiple points throughout
the second interrogation, telling the defendant to “skip all that B.S. that we
were doing out there,” and that they “had . . . a 50 minute conversation about
B.S. until we got to the truth . . . .” We agree with the trial court that Hallam’s
use of the first set of statements in obtaining the second weighs in favor of a

5
 On appeal, the State has not provided us with this video recording. Therefore, we must assume
that the evidence was sufficient to support the trial court’s factual findings as they relate to the
second interrogation. See Sachdev, 171 N.H. at 548-49.



                                                 16
finding that the latter statements were not voluntary. See id.; see also United
States v. Gonzalez-Lauzan, 437 F.3d 1128, 1139 (11th Cir. 2006) (concluding
that second confession was not involuntary because, in part, “the officers did
not have prewarned incriminating statements with which to cross-examine [the
defendant] in order to pressure him to repeat them”).

       After balancing these and other factors, the trial court was left with “a
reasonable doubt as to the voluntariness” of the defendant’s second set of
statements. Accordingly, the court determined that the State had failed to
carry its burden to prove that these statements were voluntary. See Ruiz, 170
N.H. at 559 (noting that the State has the burden of proving voluntariness
beyond a reasonable doubt). From our review of the record, viewed in the light
most favorable to the defendant, we cannot say that the trial court’s
determination is against the manifest weight of the evidence. See Cloutier, 167
N.H. at 258. Accordingly, we affirm the court’s ruling as to the involuntariness
of the defendant’s second set of statements and its order suppressing those
statements. Because the defendant prevails under the State Constitution,
there is no need to address the parties’ arguments under the Federal
Constitution. See Jennings, 155 N.H. at 776; Ball, 124 N.H. at 237.

                                           Affirmed and remanded.
      HICKS, BASSETT, and DONOVAN, JJ., concurred.




                                      17
