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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________

Rockingham
No. 2017-0409


                        THE STATE OF NEW HAMPSHIRE

                                         v.

                                  DAVID BURRIS

                           Argued: January 25, 2018
                          Opinion Issued: June 5, 2018

      Gordon J. MacDonald, attorney general (Sean R. Locke, assistant
attorney general, on the brief and orally), for the State.


      Nolan │ Perroni, P.C., of North Chelmsford, Massachusetts (Peter J.
Perroni on the brief and orally), for the defendant.

       LYNN, C.J. The defendant, David Burris, has been indicted on three
counts of felony reckless conduct. See RSA 631:3 (2016). The Superior Court
(Delker, J.) denied the defendant’s motion to dismiss the charges but approved
this interlocutory appeal from ruling. Sup. Ct. R. 8. Because we conclude that
the defendant is not entitled to transactional immunity under Part I, Article 15
of the New Hampshire Constitution, we affirm and remand.

      The facts as presented in the interlocutory appeal statement are as
follows. At the time of the events giving rise to the indictment, the defendant
was employed as a probation and parole officer with the New Hampshire
Department of Corrections (Department). The indictment alleges that on
December 1, 2015, the defendant engaged in reckless conduct when, during a
home visit to a probationer he was supervising, he discharged a firearm three
times at a motor vehicle operated by the probationer.

      The Department investigated the incident. According to the defendant,
as part of that investigation he was ordered, on at least two occasions, “under
threat of immediate termination to provide a written statement regarding the
events [that later gave] rise to the indictment.” Before providing a written
statement, and again prior to submitting to an interrogation by the director of
the Department, the defendant made the following assertion:

          I have been ordered by the NH Department of Corrections to
          participate in this interview/meeting and/or to provide this
          statement. I do so at this order as a condition of my employment.
          Failure for me to abide by this order would lead to immediate
          severe discipline in the form of automatic dismissal and/or job
          forfeiture. As such, I have no alternative but to abide by this
          order. It is my belief and understanding that the Chief and the
          Department requires [sic] my participation solely and exclusively
          for internal purposes and will not release it [sic] to any other
          agency. It is my further belief that any statements will not and
          cannot be used against me in any subsequent criminal
          proceedings. I authorize release of any statements to my attorney
          or designated union representative. I retain the right to amend or
          change this statement upon reflection to correct any unintended
          mistake without subjecting myself to a charge of untruthfulness.
          For any and all other purposes, I hereby reserve my constitutional
          right to remain silent under the Fifth and Fourteenth Amendments
          to the United States Constitution and Part 1, Article 15 of the New
          Hampshire Constitution and any other rights prescribed by law. I
          specifically rely on the [principles] and protections afforded to me
          by State v. Norwell [sic], 58 N.H. 314 (1878). Further, I rely upon
          the protection afforded me under the doctrines set forth in Garrity
          v. New Jersey, 385 U.S. 493 (1967); Spevack v. Klein, 385 U.S.
          [511] [1967]; State v. Litvin, 147 NH 606 (2002) and any other
          rights afforded under New Hampshire law and/or the New
          Hampshire Constitution, should this report/statement be used for
          any other purpose of whatsoever kind or description.

The defendant then provided a compelled statement regarding the events of
December 1, 2015. The director subsequently issued an investigative report to
the commissioner of the Department that quoted and directly relied upon both
the defendant’s written statement and his interview.1

1   A copy of the defendant’s written statement was included in the report.


                                                   2
      The State avers that the prosecuting entity in this case, the Strafford
County Attorney’s Office, “was provided with a redacted version of the
[investigative report] and other materials from [the] New Hampshire
Department of Corrections, that did not reference or include [the defendant’s]
statement or the fruits therefrom.” For purposes of this interlocutory appeal,
the defendant accepts the State’s representations regarding the materials to
which the Strafford County Attorney’s Office has had access. In October 2016,
the defendant was indicted on three counts of felony reckless conduct.

       The defendant moved to dismiss the indictment, arguing that he is
entitled to transactional immunity under Part I, Article 15 of the New
Hampshire Constitution. He asserted that the State Constitution provides
broader protection against self-incrimination than the Fifth Amendment to the
United States Constitution and that, pursuant to State v. Nowell, 58 N.H. 314
(1878), only transactional immunity is sufficient to protect the privilege against
self-incrimination provided by the State Constitution. The trial court denied
the defendant’s motion.

       The question transferred for our review is: “Whether Article 15 of the New
Hampshire Constitution, as construed by [this court] in State v. Nowell, 58
N.H. 314 (1878), requires a public employee be given transactional immunity
when he is compelled to furnish statements against himself by his public
employer?” The protection afforded by Part I, Article 15 in this context is
strictly a question of law, and thus our review of the trial court’s ruling is de
novo. State v. Roache, 148 N.H. 45, 46-47 (2002); see Petition of State of N.H.
(State v. Johanson), 156 N.H. 148, 151 (2007).

      Part I, Article 15 of the State Constitution provides in part that “[n]o
subject shall be . . . compelled to accuse or furnish evidence against himself.”
N.H. CONST. pt. I, art. 15. This privilege against self-incrimination permits an
individual “to refuse to testify against himself at a criminal trial in which he is
a defendant, [and] also privileges him not to answer official questions put to
him in any other proceeding, civil or criminal, formal or informal, where the
answers might incriminate him in future criminal proceedings.” Knowles v.
Warden, N.H. State Prison, 140 N.H. 387, 391 (1995) (quotation omitted). The
purpose of the right is to prevent the compulsion and subsequent use of the
defendant’s testimony to establish his guilt in a criminal case. See State v.
Marchand, 164 N.H. 26, 32 (2012).

       The defendant argues that Part I, Article 15 “requires that a public
employee be afforded transactional immunity to displace the right to be free
from providing compelled statements against one’s self,” and that “[b]ecause
full transactional immunity . . . is the price the State must pay for compelling
his testimony, the indictment[s] must be dismissed.” The defendant further
contends that the trial court erroneously determined that the holding in Nowell
is dicta. In addition, he asserts that even if we determine that transactional


                                         3
immunity is not necessary to displace his right to remain silent, he was entitled
to rely upon this court’s longstanding precedent.

       There are generally two types of immunity that prosecutorial authorities
offer in exchange for compelled testimony. “Transactional immunity,” the
broadest form of immunity, affords “immunity from prosecution for offenses to
which compelled testimony relates.” Kastigar v. United States, 406 U.S. 441,
443 (1972). “Use and derivative use immunity” affords “immunity from the use
of compelled testimony and evidence derived therefrom.” Id. Unlike
transactional immunity, a grant of use and derivative use immunity does not
prevent future prosecution. See id. at 452-53. Both types of immunity are
typically creatures of statute. See id. at 442-43 (constitutional challenge to a
federal immunity statute conferring use and derivative use immunity);
Counselman v. Hitchcock, 142 U.S. 547, 560 (1892) (constitutional challenge
to a federal immunity statute conferring transactional immunity). But see
State v. Belanger, 210 P.3d 783, 787, 788 (N.M. 2009) (explaining that, in New
Mexico, while transactional immunity is a “legislative prerogative because it
amounts to a decision by the people to exclude an entire class of individuals
from application of the state’s criminal laws,” use immunity, which “serves to
establish an evidentiary safeguard to protect the right against self-
incrimination,” is governed by court rule (quotation omitted)). The United
States Supreme Court has held that, under the Federal Constitution, use and
derivative use immunity is coextensive with the scope of the Fifth Amendment
privilege against compulsory self-incrimination, noting that transactional
immunity “affords the witness considerably broader protection than does the
Fifth Amendment privilege.” Kastigar, 406 U.S. at 453.

       In New Hampshire, prosecutors are authorized, by statute, to grant use
and derivative use immunity. See RSA 516:34 (2007); see also State v. Kivlin,
145 N.H. 718, 721 (2001) (explaining that, pursuant to statute, “the State, with
authorization from the attorney general or county attorney, may grant a
witness use immunity and request the trial court to order the witness to
testify”); State v. Roy, 140 N.H. 478, 480-81 (1995) (noting that the statute
“vests with the State the power to request that a witness, who has asserted his
or her privilege against self[-]incrimination, be ordered to testify in exchange for
a grant of use immunity where the testimony is necessary to the public
interest” (emphasis and quotation omitted)).

      Distinguished from immunity authorized by statute or court rule, the
type of immunity at issue in this case is so-called “Garrity immunity,” which
applies in the public employment context. See Garrity v. New Jersey, 385 U.S.
493 (1967). Garrity immunity “is Supreme Court-created and self-executing; it
arises by operation of law; no authority or statute needs to grant it.” United
States v. Veal, 153 F.3d 1233, 1239 n.4 (11th Cir. 1998).




                                         4
       In Garrity, the Attorney General of New Jersey investigated the alleged
fixing of traffic tickets. Garrity, 385 U.S. at 494. The police officers being
investigated were told that if they did not answer questions, they would be
subject to removal from office. Id. As the Court noted, “No immunity was
granted, as there [was] no immunity statute applicable” under the
circumstances. Id. at 495. After the police officers answered the questions,
some of their statements were used in a subsequent criminal proceeding
against them. Id.

       Agreeing with the police officers that their statements had been coerced,
the Court stated that “[t]he choice given [to them] was either to forfeit their jobs
or to incriminate themselves,” and that “[t]he option to lose their means of
livelihood or to pay the penalty of self-incrimination is the antithesis of free
choice to speak out or to remain silent.” Id. at 497. Analogizing this practice
to the interrogation practices in Miranda v. Arizona, 384 U.S. 436, 464-65
(1966), the Court reasoned that the statements provided by the police officers
were “infected by the coercion inherent in this scheme of questioning” and
could not be sustained as voluntary. Id. at 497-98 (footnote omitted).
Accordingly, as a remedy, the Court held that “the protection of the individual
under the Fourteenth Amendment against coerced statements prohibits use in
subsequent criminal proceedings of statements obtained under threat of
removal from office,” and that this right “extends to all, whether they are
policemen or other members of our body politic.” Id. at 500.

       Following Garrity, the Court addressed the claims of a police officer who
was dismissed because he refused to waive his privilege against self-
incrimination. Gardner v. Broderick, 392 U.S. 273, 274 (1968). The police
officer had been ordered to appear before a grand jury to answer questions
“concerning the performance of his official duties.” Id. Under threat of
termination, he was asked to sign a “waiver of immunity.” Id. (quotation
omitted). He was subsequently discharged solely for his refusal to sign the
waiver. Id. at 274-75.

       The Court acknowledged that the privilege against self-incrimination
“may be waived in appropriate circumstances if the waiver is knowingly and
voluntarily made” and that “[a]nswers may be compelled regardless of the
privilege if there is immunity from federal and state use of the compelled
testimony or its fruits in connection with a criminal prosecution against the
person testifying.” Id. at 276. However, the Court distinguished the case
before it in which the police officer was discharged from office “not for failure to
answer relevant questions about his official duties, but for refusal to waive a
constitutional right,” thereby “relinquish[ing] the protections of the privilege
against self-incrimination.” Id. at 278. Because “[h]e was dismissed solely for
his refusal to waive the immunity to which he [was] entitled” under Garrity, the
Court held that state law requiring his dismissal could not stand. Id. at 278-
79.


                                         5
      In a decision issued the same day as Gardner, the Court observed that,
although public employees are entitled “like all other persons” to the benefit of
the privilege against self-incrimination, “being public employees,” they “subject
themselves to dismissal if they refuse to account for their performance of their
public trust, after proper proceedings, which do not involve an attempt to
coerce them to relinquish their constitutional rights.” Sanitation Men v.
Sanitation Comm’r, 392 U.S. 280, 284-85 (1968).2

      The Court subsequently underscored that its decisions in Garrity,
Gardner, and Sanitation Men “ultimately rest on a reconciliation of the well-
recognized policies behind the privilege of self-incrimination, and the need of
the State . . . to obtain information to assure the effective functioning of
government,” noting that “[i]mmunity is required if there is to be rational
accommodation between the imperatives of the privilege and the legitimate
demands of government to compel citizens to testify.” Lefkowitz v. Turley, 414
U.S. 70, 81 (1973) (citation and quotation omitted). The Court reiterated that

       [a]lthough due regard for the Fifth Amendment forbids the State to
       compel incriminating answers from its employees and contractors
       that may be used against them in criminal proceedings, the
       Constitution permits that very testimony to be compelled if neither
       it nor its fruits are available for such use. Furthermore, the
       accommodation between the interest of the State and the Fifth
       Amendment requires that the State have means at its disposal to
       secure testimony if immunity is supplied and testimony is still
       refused. This is recognized by the power of the courts to compel
       testimony, after a grant of immunity, by use of civil contempt and
       coerced imprisonment. Also, given adequate immunity, the State
       may plainly insist that employees either answer questions under
       oath about the performance of their job or suffer the loss of
       employment.

Id. at 84 (citations omitted).

       In its most recent decision on this topic, after citing Garrity and Gardner,
the Court observed that “[o]nce proper use immunity is granted, the State may
use its contempt powers to compel testimony concerning the conduct of public

2 The Court of Appeals for the First Circuit has explained that, “together, Garrity and Gardner
stand for the proposition that a government employee who has been threatened with an adverse
employment action by [the] employer for failure to answer questions put to [the employee] by [the]
employer receives immunity from the use of [the employee’s] statements or their fruits in
subsequent criminal proceedings, and, consequently, may be subject to such an adverse
employment action for remaining silent.” Sher v. U.S. Dept. of Veterans Affairs, 488 F.3d 489,
501 (1st Cir. 2007). “Under these circumstances, no specific grant of immunity is necessary: It is
the very fact that the testimony was compelled which prevents its use in subsequent proceedings,
not any affirmative tender of immunity.” Id. at 502 (quotation omitted).


                                                6
office, without forfeiting the opportunity to prosecute the witness on the basis
of evidence derived from other sources.” Lefkowitz v. Cunningham, 431 U.S.
801, 809 (1977). The Court rejected the State’s contention that being “forced to
choose between an accounting from or a prosecution of a [public] officer” was
“an intolerable position.” Id. at 808-09. The Court noted that the claimed
“dilemma” was created by the State’s transactional immunity law and that
“[t]he more limited use immunity required by the Fifth Amendment would
permit the State to prosecute [the public official] for any crime of which he may
be guilty in connection with his [public] office, provided only that his own
compelled testimony [was] not used to convict him.” Id. at 809.

       Although acknowledging the above “general principles regarding
compelled statements by public employees,” the defendant asserts that,
pursuant to this court’s 1878 decision in Nowell, and our “reaffirm[ance]” in
Wyman v. DeGregory, 101 N.H. 171, 174 (1957), the only type of immunity that
comports with the New Hampshire Constitution’s prohibition against self-
incrimination is transactional immunity. (Capitalization and bolding omitted.)
The trial court rejected this argument, concluding that the language in Nowell
relied upon by the defendant is non-binding dicta.

       In Nowell, we were asked to determine whether a statute that provided
transactional immunity to any “clerk, servant, or agent of any person accused”
of violating a law prohibiting the sale of intoxicating liquors who was called to
testify “against his principal” was constitutional. Nowell, 58 N.H. at 315
(quotations omitted). We concluded that the statute was “consistent with” Part
I, Article 15. Id. at 314-15. In the course of reaching our decision, we used
language that suggested that a statute that conferred less than transactional
immunity would be insufficient to satisfy the constitution. See id. at 315. The
trial court here explained that this language did not constitute binding
precedent because “the court [in Nowell] was only asked to pass upon the
constitutionality of the statute at issue, which provided transactional
immunity,” and “was not asked to decide whether something less than
transactional immunity — such as use and derivative use immunity — would
suffice for purposes of Part I, Article 15.” Thus, the trial court reasoned,
“[a]lthough the [Nowell court] answered this question anyway, that answer is
not controlling authority because it is judicial dictum — it is effectively an
advisory opinion on the constitutionality of a differently worded statute.”
Further, the trial court reasoned that our “ostensible reaffirmation of Nowell” in
DeGregory “suffers from the same infirmity” because, in the latter case, we
“again considered and upheld a transactional immunity statute.” See
DeGregory, 101 N.H. at 174 (explaining that “an immunity statute which
protects a witness against criminal conviction in our state courts from
disclosures which he may be compelled to make satisfies” the requirements of
Part I, Article 15).




                                        7
       We agree with the trial court’s analysis and conclude that neither Nowell
nor DeGregory control the determination of whether the use and derivative use
immunity remedy provided by Garrity and its progeny to a government
employee for statements compelled by his public employer under threat of an
adverse employment action satisfies the privilege against self-incrimination
under the State Constitution. “Historically the privilege against compelled self-
incrimination originated as a reaction to the practice in the early English
courts of compelling a witness to be sworn and give testimony concerning his
guilt.” State v. Cormier, 127 N.H. 253, 255 (1985) (quotation and brackets
omitted). Therefore, we have recognized that under Part I, Article 15, “[b]y
definition, self-incrimination contemplates the use of the defendant’s
statements to aid in establishing the guilt of the defendant.” Marchand, 164
N.H. at 32 (quotation and brackets omitted) (emphasis added).

      The immunity provided in a Garrity context prohibits the use of the
government employee’s “compelled answers and evidence derived therefrom in
any subsequent criminal case in which he is a defendant.” Turley, 414 U.S. at
78. Thus, when provided such immunity as a remedy for his compelled
testimony, the defendant is “in substantially the same position” as if he had
remained silent. Murphy v. Waterfront Comm’n, 378 U.S. 52, 79 (1964). The
defendant is not exposed to criminal liability based upon any statements
provided to his employer and the State may not use the defendant’s compelled
statements or any “fruits” thereof to “aid in establishing the guilt of the
defendant” in a subsequent criminal proceeding. Marchand, 164 N.H. at 32
(quotation omitted); see Kastigar, 406 U.S. at 460 (explaining that the
prosecution has “the affirmative duty to prove that the evidence it proposes to
use is derived from a legitimate source wholly independent of the compelled
testimony”).

        Given that we have recognized that it is the impermissible use of
compelled testimony that the privilege against self-incrimination embodied in
Part I, Article 15 protects, if the compelled testimony cannot be put to any use
whatsoever by the State in a criminal prosecution against the defendant, his
privilege against self-incrimination is not infringed. See Murphy, 378 U.S. at
79. The privilege against self-incrimination “has never been construed to mean
that one who invokes it cannot subsequently be prosecuted”; rather, “[i]ts sole
concern is to afford protection against being forced to give testimony leading to
the infliction of penalties affixed to criminal acts.” Kastigar, 406 U.S. at 453
(quotations and ellipses omitted); cf. Marchand, 164 N.H. at 33 (holding that
the privilege against self-incrimination under the State Constitution would not
be violated by compelling a psychological examination of the defendant
“because the proposed examination would not be used by the State to prove
. . . the guilt of the defendant”). Accordingly, we conclude that the use and
derivative use immunity that applies by operation of law when a government
employee is compelled to provide a statement in the Garrity context is sufficient
to achieve a proper balance between the employee’s privilege against self-


                                        8
incrimination under Part I, Article 15 and the State’s interest in enforcing its
criminal laws.

      We have recognized that the privileges contained in Part I, Article 15 of
the State Constitution and the Fifth Amendment to the Federal Constitution
are “comparable in scope.” Knowles, 140 N.H. at 391; see Marchand, 164 N.H.
at 31. Nonetheless, the defendant contends that Part I, Article 15 should be
interpreted more broadly than the Fifth Amendment in this context, relying, in
particular, upon the Massachusetts Supreme Judicial Court’s interpretation of
a provision in the Massachusetts Constitution that is identical to Part I, Article
15. See Carney v. City of Springfield, 532 N.E.2d 631 (Mass. 1988).

       In Carney, the Supreme Judicial Court held that Part I, Article 12 of the
Massachusetts Declaration of Rights “requires transactional immunity to
supplant the privilege against self-incrimination, even in the context of public
employment.” Id. at 635-36 (footnote omitted). Despite acknowledging that it
had “never before faced the question whether transactional immunity is needed
to overcome a claim of testimonial privilege by a public employee,” the court
provided no analysis to support its conclusion that transactional immunity is
required in such circumstances; nor did it cite any historical evidence that
such was the intent of the framers of the Massachusetts Constitution. See id.
at 636. The court nonetheless “exercised its prerogative to interpret . . . the
Massachusetts Constitution’s privilege against self incrimination . . . more
broadly than its Federal counterpart.” Id. at 635. Thus, although we “give
weight to” the Massachusetts court’s interpretation of language in its
constitution that is identical to that found in our constitution, Roache, 148
N.H. at 49, for the reasons just stated we find the Carney decision
unpersuasive. We note that the defendant has not developed an argument that
either the text or the history that led to the adoption of Part I, Article 15 of the
State Constitution supports a construction of this provision that differs from
the construction of the Federal Constitution in Kastigar. See generally State v.
Bradberry, 129 N.H. 68, 82-83 (1986) (Souter, J., concurring specially).

      Finally, the defendant argues that “there can be no adequate procedural
protection against a prosecutor’s non-evidentiary use of compelled statements.”
Given that there is no record in this case to support this contention, we decline
to address it. Accordingly, we affirm the trial court’s denial of the defendant’s
motion to dismiss the charges against him and remand for further proceedings
consistent with this opinion.

                                                   Affirmed and remanded.

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




                                         9
