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, 679 A.2d 1147 (1996). We begin with the latter contention.
The nature of the defendant's challenge compels a detailed review of the evidence in the light most favorable to the State. See State v. Aubuchont, 141 N.H. 206, 209, 679 A.2d 1147, 1149 (1996). When police suspicion of the defendant as a potential suspect intensified, they used an undercover officer, Nick, to portray a witness who saw the defendant leaving the victim's home on the night of the murder.
She contends that the trial court should have considered the following factors: there was no time lapse between the unwarned confession and the subsequent warnings and confessions; she did not have contact with a relative or friend between the confessions; the interrogations occurred at the same location; and the police did not tell her that her unwarned statement could not be used against her. The State argues that the court properly applied the totality of the circumstances test set forth in State v. Aubuchont, 141 N.H. 206 (1996) (Aubuchont I), and that "the absence of a change in physical location and the relatively short time period between the unwarned and warned statements . . . are less significant factors in cases where the initial unwarned statements were made voluntarily and absent coercion." We address these arguments relying upon the New Hampshire Constitution, which "provides greater protection to a criminal defendant with respect to confessions than does the Federal Constitution."
The defendant argues that her Miranda waiver and subsequent confession were tainted by Sergeant Keenan's violation of Miranda in showing her the bank surveillance photographs. See generally State v. Aubuchont, 141 N.H. 206 (1996). However, because we hold that the defendant's unwarned statement and silence were not elicited in violation ofMiranda, we need not address this argument.
See 28 U.S.C.A. § 2254(d). I note that Monroe's claims were adjudicated on the merits since the New Hampshire Supreme Court analyzed them under the New Hampshire State Constitution, which offers equal or greater protection than the Federal Constitution against both involuntary confessions and Miranda violations. Monroe, 142 N.H. at 864, 868 (citing State v. Aubuchont, 141 N.H. 206, 208 (1996)); see McCambridge v. Hall, No. 00-1621, 2002 WL 1941478 at *11 (1st Cir. Aug. 27, 2002). I first determine "whether the Supreme Court has prescribed a rule that governs the petitioner's claim" and, if so, whether the state court acted contrary to this legal rule.
The Federal Constitution offers the defendant no greater protection than does the State Constitution under these circumstances. See State v. Aubuchont, 141 N.H. 206, 208, 679 A.2d 1147 (1996) (observing that the State Constitution provides greater protection to a criminal defendant with respect to confessions than does the Federal Constitution). Accordingly, we reach the same result under the Federal Constitution as we do under the State Constitution.
However, several other states have found that the Elstad holding conforms to their state constitutions. See, e.g ., State v. Corbeil, 674 A.2d 454, 458–59 (Conn.Ct.App.1996); State v. Aubuchont, 679 A.2d 1147, 1149 (N.H.1996); State v. Hicks, 428 S.E.2d 167, 177 (N.C.1993), abrogated in part on other grounds by State v. Buchanan, 543 S.E.2d 823, 828 (N.C.2001); State v. Elstad, 717 P.2d 174, 175–76 (Ore.Ct.App.1986).VIII.