32-year sentence upheld by appeals court

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BOSTON — A Hinsdale, N.H., man who was sentenced to 32 years in federal prison for transporting an underage girl across state lines to have sex with her had his appeal dismissed by the United States Court of Appeals for the First Circuit.

According to a decision issued on Jan. 17, the denial of Kurt Carpentino's appeal hinged on a simple word — "too."

"It is well-settled that an invocation of the right to counsel ... requires a clear and unambiguous request for the assistance of an attorney," wrote Judge Bruce M. Selya. "If a suspect makes no more than an ambiguous reference to an attorney, the interrogation may continue."

On the morning of April 27, 2017, the Vermont State Police received a report of a missing teenager from New Hampshire. The caller told troopers they should look for her at an abandoned motel in Rockingham, Vt. The teenager was found in the company of a man shortly before troopers arrived. The man turned out to be Carpentino, who was the landlord of the house in Hinsdale where the teenager was living with her family. Troopers also learned that Carpentino's family owned the abandoned motel.

Carpentino's vehicle was stopped a little after 9 a.m., when he was taken into custody and escorted to the State Police Barracks in Rockingham. Carpentino was read his Miranda rights and investigators began to interview him. They cut off the interview when Carpentino asked for a lawyer, though they didn't immediately give him access to a telephone to make the call. About 40 minutes later, Carpentino waved at a camera to get a guard's attention. When the guard approached the cell, Carpentino asked to talk to the troopers who had previously interviewed him.

"How much, would ... the maximum time be for something like this?" asked Carpentino.

The investigators asked Carpentino if he still wanted to talk to them and he responded "I kinda need a phone call to my lawyer, too."

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Carpentino was twice read his Miranda rights and during the ensuing conversation, he confessed to transporting a minor across state lines for the purpose of having sex with her.

He first asked the U.S. District Court for the District of New Hampshire to suppress his statement and when that request was denied, he filed a motion with the Appeals Court.

"The [district] court concluded that, although the defendant had invoked his right to counsel during the first phase of the interview, he subsequently initiated an investigation-related conversation with the troopers; that the defendant did not unambiguously reinvoke his right to counsel during the second phase of the interview; and that he knowingly and voluntarily waived his Miranda rights before confessing," wrote Selya.

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But, he wrote, "a suspect opens the door to further questioning if his comments 'evince a willingness and a desire for a generalized discussion about the investigation.'"

By seeking out the investigators by waving at the camera and talking about a possible sentence, Carpentino evinced that desire, wrote Selya.

The appeals court noted that Carpentino said he wanted to talk to the investigators and needed to call his lawyer "too."

"[A] reasonable officer could have interpreted this statement to mean that the defendant wanted both to speak with the troopers about the investigation and to call his lawyer," wrote Selya.

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Selya noted that Carpentino "did not clearly and unambiguously request the assistance of counsel at the start of the second phase of the interview. ... Confronted with this ambiguity, the troopers prudently explained to the defendant that they could not talk with him if he wished to speak to his lawyer. Yet at no subsequent point during the interview did the defendant request the assistance of counsel."

The Appeals Court also denied Carpentino's contention that he did not understand his Miranda rights.

"The troopers read the defendant his Miranda rights twice; the defendant both times confirmed that he understood those rights; and the defendant then signed a waiver form and agreed to speak with the troopers," wrote Selya.

However, Selya did question why the investigators did not allow Carpentino to make a phone call when he requested to do so.

"Let us be perfectly clear," he wrote. "We do not in any way condone the VSP's failure to facilitate the defendant's requested telephone call. Best police practices plainly entail providing a suspect with prompt access to an attorney upon request. Here, though, the lack of a developed record means that we have no principled way of assessing the practical considerations that may have been in play in this case."

But, wrote Selya, "An hour-long delay in providing a detainee with access to a telephone is not inherently unreasonable, and the defendant has offered no evidence that the delay in this case was unjustified. Nor does the record suggest that the troopers were employing a deliberate stratagem of denying telephone access to suspects who ask to speak with their lawyers."

Bob Audette can be contacted at 802-254-2311, ext. 151, or raudette@reformer.com.


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