UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States

v. Case No. 17-cr-157-PB Opinion No.

Kurt Carpentino

MEMORANDUM AND ORDER

Kurt Carpentino was questioned twice while in custody at

the Westminster, Vermont State Police barracks on April 27,

2017. In this Memorandum and Order I address Carpentino’s

attempt to suppress the fruits of his second interview.

I. BACKGROUND

On April 27, 2017, Carol Pino called the Hinsdale, New

Hampshire Police Department to report that her fourteen-year-old

daughter, M.H., was missing. 1 Pino suspected that Carpentino,

her landlord, may have taken M.H. to another one of his

properties in Vermont. After an investigation, Carpentino was

arrested and taken to the State Police barracks in Westminster,

Vermont.

At the barracks, Carpentino waived his Miranda rights and

1 Both parties agree on all facts except where specifically noted. These are the same facts that I found orally after the May 29, 2018 hearing on Carpentino’s motion to suppress. agreed to be interviewed. He maintained his innocence during

the interview, but invoked his right to counsel after the

investigating detectives challenged his version of what had

transpired. This prompted the detectives to end the interview

and Carpentino was then returned to a holding cell.

Approximately 40 minutes later, Carpentino waived at a

camera in his cell several times to get a guard’s attention and

asked the guard, “hey are the detectives still here?” The

officer replied, “yeah” and the defendant responded, “can I

speak with them?” Carpentino was then returned to the interview

room and the following conversation ensued, all of which was

recorded.

OFFICER 2: I’ll get you another glass, and then we have to re-Mirandize you because we brought you back in. CARPENTINO: How much, would, uhm, the maximum time be for something like this? OFFICER 1: I’d have to look. You know, I don’t…. I know a lot, but I don’t know a lot of details, so I’m not sure. CARPENTINO: Alright. Uhm… OFFICER 1: Let me just get past this first, the administrative part. So I’m just, because we gotta go over these again. You’ve come to us saying “Hey, I want to talk to you again.” Correct? CARPENTINO: Yeah, because, uhm, one of the things that the officer said that, uhm…once I was done talking with you was that if was up to you if I could have a phone call to my lawyer. OFFICER 1: Well is that what you’re looking for, is a phone call to your lawyer or do you want to talk to us again? CARPENTINO: Uhm, I kinda need a phone call to my lawyer, too. I need to let somebody know that I’m here.

2 OFFICER 2: Here you go Kurt. CARPENTINO: Thank you. OFFICER 1: I mean, if you want to talk to an attorney, then I can’t talk to you. We can’t talk to you. CARPENTINO: Alright. OFFICER 1: My understanding is that you indicated to somebody that you wanted to speak to us again. OFFICER 2: Is that true, or…? OFFICER 1: Is that what you wanna do or do you want to talk to an attorney? CARPENTINO: I don’t know. Just… I fucked myself. OFFICER 2: Well, you know us. We’re just looking for the truth. That’s all we’re looking for. CARPENTINO: Yeah. (Long pause) CARPENTINO: I should probably start from the beginning. OFFICER 2: Yeah, yeah, but we gotta get through the Miranda first. OFFICER 1: And Kurt, I have to make sure that we’re clear on this. You want to talk to us. CARPENTINO: Yeah. OFFICER 1: Okay. To do that, I have to re- go through that whole Miranda thing again. And if you want me to, I will. You made mention about calling a lawyer. If that’s what you want, then we can do that, too. But I can’t do both. I can do one or the other. CARPENTINO: I can talk with you with a lawyer, right? OFFICER 1: You can, but usually that doesn’t happen. CARPENTINO: Okay. OFFICER 1: But it’s up to you. I just want you, I want to be clear with you. I don’t want… OFFICER 2: Make sure that it’s clear that it’s your choice. OFFICER 1: Yeah, you don’t have to talk to us. OFFICER 2: You’re in control here, well, I mean as far as… OFFICER 1: As far as talking to us. OFFICER 2: Right. CARPENTINO: Yeah. I’ll talk. OFFICER 1: You’ll talk to us. CARPENTINO: I’ll talk. OFFICER 1: Ok. I’m going to go through these again for you. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer

3 before questioning and have a lawyer present with you during any questioning. If you cannot afford to hire a lawyer, one will be appointed to represent you at public expense before any questioning, if you wish. In Vermont, that’s called a public defender. If you decide to answer questions, you can stop the questioning at any time. Do you understand each of these rights I’ve explained to you? CARPENTINO: Yes. OFFICER 1: Do you want to talk to me now? CARPENTINO: Fuck. I don’t know. I’m scared. I don’t know what’s going on. Yeah, I’ll talk. I just… I don’t know how long, like, I’d be stuck here. Like, is there like an arraignment or something? OFFICER 1: Yeah. I’ll explain all that. That’s no big deal. Can I just get through this? CARPENTINO: Am I ready to talk to you, right? OFFICER 2: What’s that? CARPENTINO: We’re at “am I ready to talk…”, “am I willing to talk to you?” OFFICER 2: Yeah. OFFICER 1: Mmm Hmm. Yes. I’m going to read you the waiver again. It says “I have been advised that I have the right to remain silent, to be represented by a lawyer and to talk with one prior to questioning and to have one present during questioning. Knowing my rights, I agree to waive them and talk to you now. No threats or promises have been made to me.” Do you understand all that? CARPENTINO: I understand. OFFICER 1: What time you got? This is the same thing I read to you before. If you agree to it, feel free to read it. OFFICER 2: You have nice penmanship. CARPENTINO: Thanks.

After waiving his Miranda rights, Carpentino gave a lengthy

interview and ultimately confessed to bringing M.H. to Vermont

to have sex with her.

4 II. ANALYSIS

Carpentino presents three arguments to support his motion

to suppress the fruits of his second interview. He first argues

that the interview should never have occurred because he invoked

his right to counsel at the end of the first interview and he

did not thereafter initiate further communication with the

detectives. Next, he claims that the interview was improper

even if he initiated further communication because he invoked

his right to counsel again shortly after he was returned to the

interview room. Finally, he argues that the interview was

improper because he did not make a knowing, voluntary, and

intelligent waiver of his Miranda rights. I address each

argument in turn.

A. Did Carpentino Initiate Further Communications With the Detectives After He Invoked His Right to Counsel?

If a suspect in custody invokes his right to counsel, he

may not be subjected to further questioning without counsel

unless “the accused himself initiates further communications,

exchanges, or conversations with the police.” Edwards v.

Arizona,

(1981). The purpose of this rule is

to prevent an accused who has invoked his right to counsel from

being badgered by the police into waiving this important right

after it has been invoked. Maryland v Shatzer,

(2010).

5 Carpentino does not deny that the second interview happened

because he asked to speak with detectives. He nevertheless

argues that he did not initiate further communication with them

in a manner that was sufficient to satisfy Edwards because he

asked to speak with them for the limited purpose of attempting

to arrange a phone call with his attorney. I reject this

argument because Carpentino’s claim cannot be squared with what

actually happened.

Carpentino did not demand to speak with a lawyer when he

was brought into the interview room. Instead, he first asked

the detectives, “[h]ow much, would, uhm, the maximum time be for

something like this?” Although he later told the detectives

that he wanted to arrange a phone call with his attorney “to let

somebody know that I’m here,” he did so in response to the

question, “well is that what you’re looking for, is a phone call

to your lawyer, or do you want to talk with us again?” His full

response, which began with the statement, “uhm, I kinda need a

phone call to my lawyer too” (emphasis added) clearly signaled

his desire to both speak with the detectives and to arrange a

telephone call with his attorney for a purpose unrelated to the

proposed interview. Any reasonable person viewing these

statements together would conclude that Carpentino was intending

to engage in general conversation with the detectives when he

asked to speak with them, rather than to merely arrange a phone

6 call with his attorney.

Because the detectives could reasonably conclude from

Carpentino’s statements that he was seeking to engage them in

communication on matters other than to merely seek to arrange a

phone call with his attorney, they were justified in questioning

him further to see if he was again willing to waive his Miranda

rights. See generally, Oregon v. Bradshaw,

, 1043-

1044 (1983) (plurality)(“well, what is going to happen to me

now?” sufficient to initiate communication); United States v.

Thongsophaporn,

(1st Cir. 2007)(“what is going

on?” same); United States v. Fontana,

(1st

Cir. 1991)(“what’s going to happen to me?” same).

B. Did Carpentino Invoke His Right to Counsel During the Second Interview?

Carpentino next argues that the detectives were barred from

questioning him during the second interview even if he initiated

communication with them because he invoked his right to counsel

at the beginning of the interview.

To enjoy the protections of the Fifth Amendment right to

counsel, a defendant must clearly and unambiguously invoke the

right. United States v. Dudley,

(1st Cir.

2015) (citing Davis v. United States,

(1994)).

Examples of cases in which this rigorous standard has not been

met abound. See, e.g., United States v. Sweeney,

,

7 534, 536 (1st Cir. 2018) (“I’m trying to keep myself . . . I

don’t want to dig a hole. I need to speak to a lawyer. . . . Do

I need a lawyer?”); United States v. Dudley,

(“call Gordon to get ahold of Joseph about the – about getting a

lawyer”); United States v. Oquendo-Rivas,

(1st

Cir. 2014) (“I do not understand this, my lawyer speaks”).

Obershaw v. Lanman,

, 65 (1st Cir. 2006). Moreover,

even an unambiguous request for counsel does not prevent the

police from seeking clarification if it is unclear whether the

suspect is seeking “the assistance of an attorney in dealing

with the forthcoming interrogation.” Grant-Chase v. Comm’r New

Hampshire Dep’t of Corrections,

(1st Cir.

1998); see also United States v. Jardina,

(5th

Cir. 1984) (request for attorney to work out a cooperation

agreement not an invocation of right to counsel); Wayne R.

LaFave, Criminal Procedure § 6.9(g)(4th ed.) (“An indication by

the defendant that he will only want counsel at some future time

or for some other purpose is not an assertion of the right to

counsel for Miranda purposes.”).

Carpentino claims that he invoked his right to counsel when

he told the detectives that he needed to place a phone call to

his attorney to “let someone know I’m here.” This statement,

however, does not suggest either that Carpentino wanted to have

an attorney present during questioning or that he had made a

8 decision to speak to the detectives through counsel. Instead,

it merely expresses Carpentino’s desire to contact his counsel

so that he could let someone know where he was. Any concern

that Carpentino might have meant something different was

dispelled when the questioning that followed left no doubt that

Carpentino was willing to speak with the detectives without an

attorney. Accordingly, I reject Carpentino’s argument that he

invoked his right to counsel during the second interview.

C. Did Carpentino Knowingly, Intelligently, and Voluntarily Waive his Miranda Rights?

Carpentino’s final claim is that the statements he made

during his second interview must be suppressed because he did

not execute a knowing, intelligent, and voluntary waiver of his

Miranda rights. His principal argument is that his Miranda

waiver is invalid because the detectives left him with the

mistaken impression that he would not be allowed to submit to a

later interview with counsel present if he invoked his right to

counsel.

Carpentino rests this argument primarily on the detective’s

statement to Carpentino that he could either invoke his right to

counsel or he could speak to detectives, but he could not do

both. This argument, however, fails to properly account for the

question and clarifying answer that followed the detective’s

statement. Carpentino asked, “I can talk with you with a

9 lawyer, right?” and a detective answered, “[y]ou can, but

usually that doesn’t happen.” At no point following that

exchange did Carpentino express any interest in contacting his

lawyer. Instead, he repeatedly stated that he wanted to proceed

with the interview without counsel and affirmatively waived his

Miranda rights. Under these circumstances, I find no support in

the record for Carpentino’s claim that he did not knowingly,

intelligently, and voluntarily waive his Miranda rights.

III. CONCLUSION

For the reasons stated in this Memorandum and Order, I deny

defendant Carpentino’s motion to suppress the statements he made

during his second interview. Doc. 17 (original motion to

suppress); Doc. 62 (supplemental motion to suppress).

SO ORDERED.

/s/Paul Barbadoro___________ Paul Barbadoro United States District Judge

June 8, 2018

cc: Seth R. Aframe, Esq. Georgiana L. Konesky, Esq. Jonathan R. Saxe, Esq. Dorothy E. Graham, Esq.

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