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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough-southern judicial district No. 2005-594 THE STATE OF NEW HAMPSHIRE v. WILLIAM JOSEPH SULLIVAN, JR. Argued: February 21, 2008 Opinion Issued: April 18, 2008 Kelly A. Ayotte, attorney general (Thomas E. Bocian, attorney, on the brief and orally), for the State. Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant. BRODERICK, C.J. After a jury trial in Superior Court (Hicks, J.), the defendant, William Joseph Sullivan, Jr., was convicted of first degree murder, see RSA 630:1-a (2007), and conspiracy to commit murder, see id.; RSA 629:3 (2007). He appeals his convictions, arguing that the trial court erred by denying his motion to suppress evidence of self-incriminating statements he made to members of the Nashua Police Department, and by dismissing and replacing a member of his jury after the commencement of deliberations. We reverse and remand.

I The record supports the following background information. In May 2002, the defendant met Nicole Kasinskas through an instant message service on the internet. At the time, the defendant was seventeen years old and lived with his family in Connecticut. Kasinskas, then fourteen years old, lived with her mother, Jeanne Dominico, in Nashua. The defendant and Kasinskas soon began communicating daily through the internet, letters and phone calls. In spite of the physical distance separating them, their relationship rapidly intensified; they professed love for one another within days, and soon spoke in detail of marriage and a future together. Dominico drove Kasinskas to Connecticut to meet the defendant for the first time in August 2002, and subsequent visits soon followed. These visits led the defendant and Kasinskas to discuss the possibility of her moving to live with him. When Dominico objected to this plan, the two proposed that Kasinskas be legally emancipated. Dominico angrily refused this request, too, and similarly disapproved of Kasinskas making other moves toward cohabitation like opening a joint bank account with the defendant. Dominico's ongoing disapproval of such ideas engendered hostility and resentment in both the defendant and Kasinskas. In early August 2003, the defendant drove to Nashua to spend a week with Kasinskas. By that time, their anger toward Dominico had crystallized. In fact, the two had moved from discussing ways to eliminate Dominico's opposition to their cohabitation to making plans to kill Dominico. During that week, Kasinskas and the defendant made four failed attempts to take Dominico's life, which ranged from poisoning her coffee creamer to an attempt to blow up her home by igniting its oil tank. On August 6, 2003, the defendant and Kasinskas jointly carried out plans to make it look like Dominico's house had been broken into by a wouldbe intruder, and established false alibis for their own whereabouts. In reality, however, the defendant attacked Dominico in her home soon after she returned from work. Following an argument, he hit her with a baseball bat; once she was stunned, he then stabbed her to death. After the murder, the defendant cleaned himself off, removed some of his bloody clothing, and collected the knives he had used in the attack. Kasinskas assisted in these efforts. The two then disposed of evidence in various locations, and went to a mall to buy the defendant new clothes.

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II The following facts were found by the trial court in its order on the defendant's motion to suppress, and have not been challenged on appeal. Dominico's boyfriend discovered her body later in the evening of August 6 and promptly called 911. Shortly thereafter, Nashua police arrived at Dominico's home and roped off a perimeter around the residence. Sergeant William Moore took charge of "perimeter duty," and assigned Detective Shawn Hill to a position on the west side of the house. At approximately 10:15 p.m., Hill and Moore noticed Kasinskas and the defendant approach the crime scene. Kasinskas testified that she and the defendant returned to Dominico's house with the goal of diverting suspicion from themselves. Initially, Hill told them to keep away from the residence, while Moore notified Detective Sergeant Rick Sprankle of their arrival. Sprankle ordered Moore to separate the defendant and Kasinskas and ask them to come to the Nashua Police Department for interviews. Moore then returned to where the defendant and Kasinskas stood, and, as the trial court found, explained that "they needed to be transported to the [police station]." When Kasinskas expressed concern about the defendant not knowing how to get to the station, Moore told her that he would make sure the defendant was transported there. Kasinskas was taken to the station first, while the defendant remained with Moore to await a second cruiser. While they waited, Moore spoke with the defendant. The trial court found that their conversation was "primarily dominated by the defendant." For example, the defendant spontaneously volunteered that he did not like police officers, and described having been charged with crimes he did not commit in the past. In response, Moore asked the defendant to give him a "fair shake." The defendant also spoke about souvenir shopping with Kasinskas that day, about Dominico, and about Dominico's relationship with Kasinskas. Throughout his conversation with Moore, the defendant was pacing freely, and at one point sat down on the trunk of his car. He did not ask to leave or to drive himself to the police station. On the other hand, Moore never informed the defendant that he was free to leave; the trial court noted that Moore "assumed that it was implied." At around 10:27 p.m., Detective Dennis Linehan arrived on the scene, and made contact with Moore and the defendant. Linehan noted that the defendant appeared "jumpy" and was not standing in one place. Linehan told the defendant to relax, which prompted the defendant to explain that he suffered from anxiety and took medication for it. The defendant said he did not need his medication, however, and also said that he "had no problem" with coming to the station when asked to do so by Linehan. Linehan sat with the defendant in the back seat of a cruiser for the drive from Dominico's house to

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the station, which lasted somewhere between five and eight minutes. He did not frisk the defendant before doing so. The trial court found no evidence of the use of physical force or threatening language on the part of the officers at any point during this time period, and found that overall "the atmosphere was casual and nonconfrontational." After being questioned separately at the station, both the defendant and Kasinskas eventually admitted their involvement in Dominico's murder. Both also led the police to the locations where they had hidden evidence. III Prior to trial, the defendant moved to suppress his self-incriminating statements as the fruit of an illegal seizure of his person at the crime scene. See State v. Belton, 150 N.H. 741, 747, cert. denied, 543 U.S. 1028 (2004). After a hearing, the trial court denied his motion, ruling that the defendant had not been "seized" for constitutional purposes during his interaction with the police outside Dominico's residence. The defendant challenges this ruling on appeal. In support of his claims, he invokes the protections of both Part I, Article 19 of the New Hampshire Constitution and the Fourth Amendment to the United States Constitution. We first address his arguments under the State Constitution, State v. Ball, 124 N.H. 226, 231 (1983), using federal opinions for guidance only, id. at 232-33. When reviewing a trial court's order on a motion to suppress, we accept the trial court's factual findings unless they lack support in the record or are clearly erroneous. State v. Stern, 150 N.H. 705, 708 (2004). Our review of the trial court's legal conclusions, however, is de novo. Id. We begin our review here with the baseline rule that the New Hampshire Constitution provides protection against unreasonable seizures. State v. Cote, 129 N.H. 358, 364 (1987); see N.H. CONST. pt. I, art. 19. An inquiry into the reasonableness of a seizure is only necessary, of course, when an individual has actually been seized. Cote, 129 N.H. at 364. An investigatory stop is a limited seizure. State v. Beauchesne, 151 N.H. 803, 809 (2005). However, "not all personal intercourse between policemen and citizens involves `seizures' of persons." Cote, 129 N.H. at 364 (quotation omitted). Indeed, "[a] seizure does not occur simply because a police officer approaches an individual and asks a few questions." Beauchesne, 151 N.H. at 809 (quotation omitted). An interaction becomes a seizure, however, when a reasonable person would no longer believe he or she is free to leave. Id. at 810; State v. Quezada, 141 N.H. 258, 259 (1996). "This occurs when an officer, by means of physical force or show of authority, has in some way restrained the liberty of the person." Beauchesne, 151 N.H. at 810.

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"Circumstances indicating a show of authority might include the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Id. (quotation omitted). While "mere request[s] to communicate" generally do not amount to an official show of authority, Quezada, 141 N.H. at 260, the police "may not convey a message that compliance with their request[s] is required," Beauchesne, 151 N.H. at 809-10. Our analysis of this issue is an objective one, "requiring a determination of whether the defendant's freedom of movement was sufficiently curtailed by considering how a reasonable person in the defendant's position would have understood his situation." Id. at 810. Further, we conduct an inquiry into an alleged seizure while mindful of all of the circumstances surrounding the incident. Cote, 129 N.H. at 365; see Quezada, 141 N.H. at 259-60. In this case, we agree with the trial court that the defendant was not seized during his interaction with the police at the crime scene. At the outset, we find significant distinctions between the police communication at issue here and that challenged in Beauchesne and Quezada, cases relied upon by the defendant in his brief. In both of those cases, although the police never used physical force, the defendants were ordered by officers to "stop" and answer questions. Beauchesne, 151 N.H. at 815; Quezada, 141 N.H. at 260. Such commands, coupled in both cases with a measure of investigative pursuit, would not have left a reasonable person feeling free to disregard the police and simply walk away. As a result, in both cases we found that seizures occurred. Id. Here, in contrast, it was the defendant who initiated contact with the police by returning to Dominico's residence. He and Kasinskas presented themselves at the crime scene to find out what was going on with the investigation; the police did not initially ask them to stop to respond to questions. Thus, the defendant was acting "voluntarily[,] in a spirit of apparent cooperation with the . . . investigation," Cote, 129 N.H. at 365 (quotation omitted), when interacting with the police. This, coupled with the fact that the defendant also controlled the flow of his conversation with the officers at all times prior to his arrival at the Nashua Police Department, weighs against a finding that a reasonable person in the defendant's position would not have felt free to disregard the officers and leave. See id. Moreover, despite the fact that Moore told the defendant he "needed" to be transported to the police station, this statement, in context, did not "transcend[ ] a mere request to communicate." Beauchesne, 151 N.H. at 815. Within, at most, twelve minutes of Moore's statement, the defendant was asked by Linehan whether he "would mind" coming to the station. The defendant

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immediately responded he "had no problem" with that. We find the nonbinding nature of Linehan's request significant and curative of any coercive effect Moore's statement may have had, especially since it was Linehan who actually accompanied the defendant to the police station and interviewed him on arrival. Finally, we note that throughout his interaction with both Moore and Linehan at the crime scene, the defendant retained freedom of movement. He paced at will and at one point sat on the trunk of his own car. He was outside, as opposed to being confined, for example, in a police cruiser. Cf. State v. Riley, 126 N.H. 257, 264 (1985). The police made no show of force

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