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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________


Coos
No. 2013-637


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                             ELIZABETH CLOUTIER

                           Argued: October 16, 2014
                       Opinion Issued: January 13, 2015

      Joseph A. Foster, attorney general (Elizabeth C. Woodcock, assistant
attorney general, on the brief and orally), for the State.


      Thomas Barnard, senior assistant appellate defender, of Concord, on the
brief and orally, for the defendant.

      CONBOY, J. The defendant, Elizabeth Cloutier, appeals her conviction
by jury on one count of burglary. See RSA 635:1 (2007) (amended 2014). On
appeal, she argues that the Superior Court (Bornstein, J.) erroneously denied
her motion to suppress her confession. We affirm.

      The following facts are drawn from the trial court’s findings and rulings
or are otherwise supported in the record, which includes a video-recorded
interrogation of the defendant. On July 11, 2012, the defendant went to the
Berlin Police Department to take a polygraph test in connection with an
investigation of an alleged burglary of the victim’s home. The defendant was a
friend of the victim and had recently helped the victim locate a safe that had
been stolen from her home. The defendant met with retired New Hampshire
State Police Lieutenant Healy who explained the voluntary nature of the
polygraph test and informed the defendant that she could leave the police
station at any time. Healy also informed the defendant that the entire
polygraph test and accompanying interview would be audio- and video-
recorded and advised her of her Miranda rights. See Miranda v. Arizona, 384
U.S. 436 (1966). The defendant then signed a form acknowledging that she
had read the enumerated rights and understood them. She also signed a form
stating that she agreed to take the polygraph test.

      Before the polygraph examination began, Healy asked the defendant
whether she was involved in the burglary and theft of the safe. The defendant
denied any involvement. Healy then explained the polygraph test procedure
and administered the polygraph test. The entire polygraph test procedure took
nearly four hours after which the defendant was given a short break.

       When they returned from the break, Healy, joined by Detective Poulin
and Lieutenant Plourde of the Berlin Police Department, questioned the
defendant about the crime. Healy informed her that, “All those rights I
explained to you earlier, . . . they still apply. This is still voluntary. You still
have the right to remain silent. Nothing has changed.” Healy then told the
defendant that based upon his review of the polygraph test results, he knew
she was “withholding significant information.” Healy and Poulin repeatedly
confronted her with their belief that she was involved in the burglary and theft
of the safe and told her that they wanted to know why. The defendant initially
stated that she did not “have anything to say” about the polygraph test results,
but then denied any involvement in the crime. At one point, the defendant
agreed with Plourde that video surveillance footage would show her and her
daughter “over there.” Poulin asked the defendant whether her daughter was
involved in the burglary, which the defendant denied. Healy stated that he did
not “want anybody making false accusations against” the defendant’s daughter.
He explained that while he was “not suggesting they will, . . . she’s always with
you.” He suggested that the footage could be problematic for the defendant
because it would place her and her daughter “where the safe was found.”

      Approximately thirty minutes after the break, Plourde began questioning
the defendant. He repeatedly told her that he was “100 percent certain” that
she was involved in the burglary and implored her to explain why. She said
that she had “been hearing a few things” but that she was “not going to say any
more about anything that [she had] heard.” Plourde continued to question the
defendant and tell her that he was certain she was involved in the crime.
Plourde then stated:




                                         2
      I’m telling you that I don’t think [the victim] would want us to
      handle this like we handle people who steal all the time. . . . I
      don’t think you’re this huge thief. It was an indiscretion, and it
      happened, and we deal with it from here. But if we leave here
      today, then, you know, we’re not going to handle it that way.
      Whether what [the victim] says, . . . whether what she says or not.
      We’ll handle it like we handle . . . like somebody who’s done this
      many times.

(Emphasis added.) The defendant responded that she did not know what to
say.

      Plourde and Poulin continued to confront the defendant with their belief
that she was involved in the burglary and urged her to tell them what had
happened. At one point, one of the officers suggested that a possible reason
the defendant took the safe was because of “an addiction” and that she needed
money for pills. When she repeatedly told them that she did not have anything
to say and continued to deny her involvement, they told her that they thought
she was lying and that she was not a true friend of the victim. Shortly
thereafter, the defendant stated, “Okay, I’ll say I was involved, if that’s going to
make anything better . . . . No, I wasn’t, but I’ll say I was.” When asked why
she would admit involvement falsely, the defendant responded, “Just so I can
go on my merry way, I guess. I don’t know.”

       The interview continued and the officers again accused the defendant of
being involved in the burglary. Plourde accused her of insulting his intelligence
by telling them that she had some information, but continuing to deny
involvement in the crime. One of the officers told the defendant, “You’re not a
prisoner here. The same rights apply right now as when you came in here.
You’re gonna leave here either way.” She responded by telling them that she
had taken the safe, but that she did not “know how [she] got it out of [the
victim’s] house” and “into [her] vehicle.” She said, “I don’t know how I banged
the door open, but I got that open too. I don’t know what you want me to say.”
At one point, she asked the officers, “What else do you guys want me to say?”
The officers responded that they wanted her to tell the truth.

       The defendant eventually admitted her involvement in the burglary,
explaining to the officers how she and two others had taken the safe, opened it,
and stolen its contents. She stated that she decided to admit her involvement
“to get it off [her] chest . . . help [the victim], pay her back, go forward.” Shortly
after admitting her involvement, the defendant “express[ed] remorse” and
began to “tear up and sob[].” Aside from this portion of the interview, the
defendant “look[ed] relaxed” and “appeared lucid and self-possessed.” She
answered questions and made statements “in a normal conversational way,”
and did not appear “intimidated.” After nearly six hours, the interview ended
and the defendant left the police station. She was later charged with burglary.


                                          3
       Before trial, the defendant moved to suppress the statements she made
following the polygraph test, arguing, in part, that they were involuntary, and,
as a result, their admission at trial would violate her right to due process under
the State and Federal Constitutions. Following a hearing, at which the parties
presented legal arguments based upon the defendant’s taped interview, the
trial court denied the motion. The defendant’s statements were admitted at
trial through the videotape and Poulin’s testimony. At the close of evidence,
the defendant “renew[ed]” her arguments under the State and Federal
Constitutions, and moved to dismiss the burglary charge on the basis that the
State had failed to meet its “burden of proof beyond a reasonable doubt that
[her] confession was voluntary.” The trial court denied her motion.

       On appeal, the defendant argues that the trial court erred in failing to
find her confession was involuntary and, therefore, the admission of her
statements at trial violated her right to due process under Part I, Article 15 of
the New Hampshire Constitution and the Fourteenth Amendment to the United
States Constitution. We first consider the defendant’s argument under the
State Constitution and rely upon federal law only to aid our analysis. State v.
Ball, 124 N.H. 226, 231-33 (1983).

       Under Part I, Article 15 of the New Hampshire Constitution, for a
defendant’s statement to be admissible at trial, the State must prove beyond a
reasonable doubt that it was voluntary. State v. Wilmot, 163 N.H. 148, 151
(2012). Whether a confession is voluntary is initially a question of fact for the
trial court. State v. Rezk, 150 N.H. 483, 486 (2004). 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. Id.

       To be considered voluntary, a confession must be the product of an
essentially free and unconstrained choice and not extracted by threats,
violence, direct or implied promises of any sort, or by exertion of any improper
influence. State v. Zwicker, 151 N.H. 179, 186 (2004); see also State v.
Copeland, 124 N.H. 90, 92 (1983). Thus, a confession is involuntary if it is “the
product of a will overborne by police tactics, or of a mind incapable of
conscious choice.” State v. Hernandez, 162 N.H. 698, 706 (2011) (quotation
omitted). In determining the voluntariness of a confession, we examine the
totality of the circumstances, including “the characteristics of the accused and
the details of the interrogation.” State v. Belonga, 163 N.H. 343, 351 (2012)
(quotation omitted).

       Here, the defendant argues that Plourde’s statement, “[I]f we leave here
today, . . . [w]e’ll handle it like we handle . . . like somebody who’s done this
many times,” constituted “‘a threat of harsher punishment should [she] remain
silent,’” and asserts that the remaining circumstances of the interview “did not
mitigate the effect of this threat.” She contends that Plourde’s threat, in


                                        4
combination with certain other circumstances, “foreclosed any rational
conclusion that her confession was voluntary beyond a reasonable doubt.”

      Although we have never explicitly evaluated the impact of alleged threats
of harsher punishment during police interrogation, cf. State v. Rodney
Portigue, 125 N.H. 352, 364-65 (1984) (concluding that, under totality of
circumstances, officer’s threat of future prosecution did not overbear
defendant’s will so as to vitiate voluntary nature of defendant’s statements), in
Rezk, we examined the nature of police promises of leniency and the impact
they may have had on the defendant’s decision to confess. Rezk, 150 N.H. at
487-92. Based upon the facts in that case, we found that the defendant’s
confessions were induced by specific promises of leniency and were
involuntary. Id. at 491. In our analysis, we likened a specific promise of
leniency should the defendant confess to a threat of harsher punishment
should the defendant remain silent. Id. at 490. We explained that “[b]oth
types of statements are simply different sides of the same coin: waive your
rights and receive more favorable treatment versus exercise your rights and
receive less favorable treatment. Both types of statements are antithetical to
State and federal constitutional values.” Id. (quotations omitted and citation
omitted).

       Under the totality of the circumstances test, however, the existence of a
promise or threat is not dispositive. See id. at 488; see also United States v.
Jacques, 744 F.3d 804, 810-11 (1st Cir. 2014) (examining the totality of
circumstances to determine whether officer’s threat of retaliation rendered
confession involuntary), cert. denied, 135 S. Ct. 131 (2014); Portigue, 125 N.H.
at 364. “Rather, all the facts must be examined and their nuances assessed to
determine whether, in making the promise [or threat], the police exerted such
an influence on the defendant that his will was overborne.” Rezk, 150 N.H. at
488 (quotation omitted); see also Jacques, 744 F.3d at 809. Factors relevant to
determining whether police promises or threats render a confession involuntary
include: (1) the nature of the promise or threat; (2) the context in which it was
made; (3) the characteristics of the individual defendant; (4) whether the
defendant was informed of his or her Miranda rights; and (5) whether counsel
was present. Rezk, 150 N.H. at 488; see also Jacques, 744 F.3d at 809-11.

       With these factors in mind, we analyze whether Plourde’s statement
constituted an impermissible threat. As to the first factor, the defendant
contends that the nature of Plourde’s statement constituted a threat of harsher
punishment should she not confess. She cites several cases from other
jurisdictions in which courts have found that threats of harsher punishment
rendered an ensuing confession involuntary. See United States v. Harrison, 34
F.3d 886 (9th Cir. 1994); Beavers v. State, 998 P.2d 1040 (Alaska 2000); State
v. Strayhand, 911 P.2d 577 (Ariz. Ct. App. 1995); Passama v. State, 735 P.2d
321 (Nev. 1987); State v. Tuttle, 650 N.W.2d 20 (S.D. 2002). She maintains



                                        5
that Plourde’s statement in this case is indistinguishable from “the threats at
issue” in those cases. We disagree.

       In Harrison, a federal agent told the defendant “that she might be facing
up to twenty years in prison” and then asked “whether she thought it would be
better if the judge were told that she had cooperated or had not cooperated.”
Harrison, 34 F.3d at 890, 892. Similarly, in Strayhand, a detective warned the
defendant that he would “ask for a lot of jail time because [the defendant was]
not going to cooperate with [him],” Strayhand, 911 P.2d at 582 (quotation and
emphasis omitted), while another detective stated that he “was going to hang
[the defendant] in court,” that the defendant “was going to do some big time
unless he cooperated” with the detectives, and that “his cooperation matters on
the amount of time” the defendant would receive, id. at 583 (quotations
omitted). Likewise in Tuttle, a detective told the defendant that he was going to
“have to write it up that you’re not cooperating, you’re being a real jerk about
it.” Tuttle, 650 N.W.2d at 35 (quotation omitted). Finally, in Beavers, a state
trooper told the defendant “that he would be ‘hammered’ if he attempted to
hide his conduct from [the trooper] and that ‘we’re going to have to talk about
that.’” Beavers, 998 P.2d at 1048. See also Passama, 735 P.2d at 323 (sheriff
told defendant “he would go to the D.A. and see [defendant] went to prison if he
was not entirely truthful”).

      Unlike the statements in those cases, to the extent Plourde’s single
statement constituted a threat, it was not a threat “to inform the prosecutor or
the judge of” the defendant’s refusal to cooperate. Tuttle, 650 N.W.2d at 36.
Nor did his statement convey “an unmistakable message that [the defendant]
would be punished” if she remained silent and failed to admit her involvement
in the crime. Beavers, 998 P.2d at 1048; see also Harrison, 34 F.3d at 891.
Indeed, it is unclear what Plourde meant by this single statement.
Nonetheless, even were we to assume that Plourde’s statement constituted
some sort of threat, our review of the video recording discloses no indication
that this statement overbore the defendant’s will or had any impact upon her
conduct during the interview so as to render her confession involuntary. See
Hernandez, 162 N.H. at 706; see also Jacques, 744 F.3d at 811; cf. State v.
Monroe, 142 N.H. 857, 864 (1998); State v. Carroll, 138 N.H. 687, 692-93
(1994).

       Before Plourde’s statement, the defendant consistently denied
involvement and refused to share any information she might have had about
the crime. Following Plourde’s statement, the defendant continued to tell the
officers that she did not have anything to say and that she was “not sharing
anything.” Significantly, it was not until approximately fifty minutes after
Plourde’s statement that the defendant fully admitted her involvement and
explained how the crime occurred. During that time, the officers continued to
tell the defendant that they thought she was lying and that she was not a true
friend of the victim. At one point the defendant stated, “Okay, I’ll say I was


                                        6
involved, if that’s going to make anything better . . . . No, I wasn’t, but I’ll say I
was.” When asked why she would admit involvement falsely, the defendant
responded, “Just so I can go on my merry way, I guess. I don’t know.”
Subsequently, the officers reminded the defendant, “You’re not a prisoner here.
The same rights apply right now as when you came in here. You’re gonna leave
here either way.” They continued to question the defendant and to tell her that
they wanted to know the truth, and the defendant eventually admitted her full
involvement. These circumstances support a finding that the statement did
not serve to overbear the defendant’s will or strip her of her “capacity for self-
determination.” Rezk, 150 N.H. at 489 (quotation omitted).

       Our review of the record reveals no other factor that undermines the trial
court’s finding of voluntariness. Although the defendant was at the police
station for nearly six hours, an interview of this length, in and of itself, does
not render a statement involuntary. See Belonga, 163 N.H. at 356 (holding
that six and one-half hour interview did not render confession involuntary).
What is of paramount importance is what occurred during the interview. Id.
Here, there was no evidence that the defendant “needed or was deprived of
food, medical attention, or sleep.” Carroll, 138 N.H. at 695. Further, as the
trial court found, the defendant’s demeanor on the videotape is consistent with
finding her statements voluntary. The trial court found that she “look[ed]
relaxed” and “appeared lucid and self-possessed.” She answered the officers’
questions and made statements “in a normal conversational way,” and did not
appear “intimidated.” Although at the end of the interview, the defendant
began to “tear up and sob[],” this alone is not dispositive. As the trial court
concluded, “the tears and the emotional disturbance” demonstrated “remorse,”
“not the sign of a person . . . whose will has been broken.” Absent
overreaching, deception or coercion by the police, a defendant’s emotional
response to an interview does not render her confession involuntary. See
Belonga, 163 N.H. at 353. Here, the defendant’s emotional response occurred
after she had admitted her involvement in the crime, and there is no evidence
that the officers impermissibly exploited her emotional state to coerce a
confession. See id.

      Moreover, Healy reviewed the defendant’s Miranda rights with her at the
beginning of the interview and the defendant signed a form indicating that she
had read her rights and understood them. Following the polygraph test, the
defendant was twice reminded that those rights continued to apply. Although
compliance with Miranda does not conclusively establish that a defendant’s
subsequent statement was voluntary, it is one of the factors the trial court may
consider. Hernandez, 162 N.H. at 706. To the extent the defendant claims
that on several occasions “she attempted to invoke her right to remain silent”
and “the officers ignored her and continued the interrogation,” the trial court
found that the defendant did not invoke her right to remain silent and the
defendant has not appealed that finding.



                                          7
       As evidence that her statements were involuntary, the defendant points
to the fact that she “was alone, with no attorney present,” and claims that
there “was no evidence suggesting that [she] was a hardened veteran of the
criminal justice system.” It is undisputed that the defendant was alone with
the police when she confessed, without the benefit of counsel. However, the
defendant was not in custody and the officers reminded her on at least one
occasion that she was free to leave. Moreover, her apparently minimal prior
experience with police does not necessarily imply that she could not make a
meaningful choice. See id.

       The defendant further argues that the officers’ repeated statements that
“the polygraph was infallible, and conclusively established her guilt” weigh in
favor of her involuntariness claim. The use of polygraph results in questioning,
however, is not inherently coercive, but merely a factor to be considered in
examining the circumstances surrounding a confession. Monroe, 142 N.H. at
866. Here, the defendant voluntarily consented to the polygraph test and
“cannot, therefore, persuasively argue that [her] confession was coerced by a
test that [she] voluntarily took.” Id. (quotation omitted). Even assuming the
officers misled the defendant regarding the polygraph results, “the police are
not prohibited from misleading a suspect.” Hernandez, 162 N.H. at 706; see
also State v. Hall, 148 N.H. 671, 673 (2002) (“Although the officers may have
misled the defendant into believing they had incriminating evidence, their
comments were not so deceptive as to render the confession involuntary.”).

       The defendant also claims that the officers suggested that her refusal to
confess could result in false accusations against her daughter. Under some
circumstances a confession may be rendered involuntary because the police
unreasonably exploit a person’s compassion for a loved one. Belonga, 163 N.H.
at 352. For example, courts have held that a confession may be involuntary
when police make threats to arrest a suspect’s family members. Id. (citing
cases). Here, however, the officers did not make such a threat. Rather, they
merely questioned whether the defendant’s daughter was involved after the
defendant agreed that video surveillance would show her and her daughter
“over there.” Thus, this is not a case in which the police impermissibly used a
defendant’s compassion for a loved one to “extract a statement.” Id. at 353
(quotation omitted).

       Finally, the defendant claims that the officers were, at times, “insulting
and used profanity,” suggested that her “medication ‘affected her intellect,’”
and that she was “‘not a true friend of [the victim].’” (Brackets omitted.)
Although the officers were “not entirely friendly and sedate,” State v.
Carpentier, 132 N.H. 123, 129 (1989), the interview consisted mainly of
questioning in a reasonable tone. To the extent the officers raised the
defendant’s use of medication, they did so as a possible reason for why they
thought she may have taken the safe. Under the circumstances of the
interview, the defendant could not have expected that her conversation with


                                         8
the officers would occur without any confrontation or intimation that she might
be connected to the crime or questioning as to why she might be connected to
the crime. See id.

      In this case, the evidence supports the trial court’s conclusion that the
defendant’s statements were the product of a free and unconstrained choice.
Based upon the evidence before the trial court, we cannot say that its
determination was against the manifest weight of the evidence. See Rezk, 150
N.H. at 486. Accordingly, we affirm the trial court’s finding that the
defendant’s statements were voluntary.

      Under these circumstances, the Federal Constitution offers the
defendant no greater protection than does the State Constitution. Belonga,
163 N.H. at 357. We, therefore, reach the same result under the Federal
Constitution as we do under the State Constitution. Id.

                                                 Affirmed.

      DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.




                                       9
