State v. Gross-Santos

169 N.H. 593

154 A.3d 652

The STATE of New Hampshire

v.Remi GROSS–SANTOS

No. 2015–0570

Supreme Court of New Hampshire.

Argued: October 13, 2016

Opinion Issued: January 31, 2017

Joseph A. Foster, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.

David M. Rothstein, deputy director public defender, of Concord, on the brief and orally, for the defendant.

CONBOY, J.

The defendant, Remi Gross–Santos, appeals his convictions on two counts of second degree assault and one charge of transportation of alcoholic beverages by a minor. See RSA 631:2, I(a) (2016); RSA 265–A:45 (2014). He argues that the Trial Court (Delker, J.) erred in: (1) allowing the State to introduce evidence that there was a marijuana grinder in the back seat of his vehicle at the time of the accident (grinder evidence); and (2) ruling that the police had probable cause to arrest him. We affirm.

We recite here a summary of the record evidence. We note that the issues raised by the defendant address two rulings made by the trial court, one after a suppression hearing and the other at trial. This summary of the evidence is drawn from the trial record.

The defendant was scheduled to graduate from Portsmouth High School on June 13, 2014. He made plans with his friends to attend a graduation party in Ipswich, Massachusetts on June 11. On that day, he met a friend, (hereinafter "the passenger"), at Portsmouth High School at approximately 9 p.m. The passenger testified that while they waited for another friend to finish working, they smoked marijuana. They then picked up their friend and drove to the party. The defendant drank alcohol at the party and went to sleep at approximately 4 a.m. on June 12. When he woke at 6:30 a.m., he and the passenger began to drive back to Portsmouth for an early morning graduation rehearsal. The passenger fell asleep almost immediately and did not wake up until he heard a loud noise. The defendant told one of the investigating officers that he "was having trouble staying awake and [was] nodding on and off."

A motorist driving directly behind the defendant observed the defendant's vehicle veer left, cross a lane of traffic, and enter the pedestrian walkway where it struck and severely injured two women who were walking north in the walkway. When the passenger asked the defendant what had happened, the defendant told him that "he hit them."

Police and medical personnel arrived at the scene of the accident. In the course of the investigation, the defendant spoke to three police officers. He told the first officer, Patton, that he was coming from an all-night party in Ipswich. He then spoke to Lieutenant Gidley and told him that he was driving back from Seabrook and that he had had two beers around midnight. At Gidley's direction, the defendant was arrested for driving under the influence (DUI), see RSA 265–A:2, I (2014); and Patton then transported him to the hospital for a blood test.

At the hospital, the defendant was interviewed by Detective Buczek. Buczek testified that the defendant gave him a chronology of his activities during the 24–hour period leading up to the accident. As part of the chronology, the defendant told Buczek that, early in the afternoon before the party, while at home, he had "smoked some marijuana out of a glass pipe." Buczek also testified that the defendant told him that, at the party, he drank five to seven beers between 10:30 p.m. and approximately 3:30 a.m. on the morning of the accident. The officers obtained a warrant to search the defendant's vehicle, in which they found several items, including a marijuana grinder.

Prior to trial, the defendant filed a motion to suppress all evidence derived from his arrest arguing that the police lacked probable cause to arrest him. After a hearing, the trial court ruled that the officers had probable cause to arrest him for violating the per se alcohol concentration limit set forth in RSA 265–A:2, I(b). The defendant also filed a motion in limine seeking to prevent the State "from offering any evidence of prior marijuana use" and to strike the reference to marijuana in the indictments. In a ruling prior to the commencement of trial, the court stated that "the State would not be able to introduce evidence of the marijuana consumption as substantive evidence that the Defendant was impaired by the marijuana and/or alcohol." The court found that the defendant's marijuana consumption was irrelevant to impairment because there was no evidence that his consumption "hours before he drove" created a risk that "constitute[d] a gross deviation from the conduct of a law-abiding person." (Quotation omitted.)

The court also ruled, however, that the State could introduce evidence of the defendant's marijuana consumption "to impeach [his] statement" to the police. The court reasoned:

I think the credibility of his statement about how much alcohol he consumed is a very critical issue in this case and how that alcohol affected him, the fact that he did not disclose the marijuana consumption is highly probative in my mind of an understanding that, that is not a favorable fact to his position that he was not under the influence.

In other words, he appears to have made a conscious decision to keep that information from the police or at least a reasonable jury could infer that and, because he knew that, that would hurt his position that he was not operating under the influence....

And I think, from that decision-making process, a reasonable jury could also conclude that he withheld other information from the police, namely, how much he consumed ... and how that affected him at the time of the crash in this case.

The court also advised the parties that it would "give a very clearly worded jury instruction, limiting instruction about the use of that evidence." The State then argued that, given the court's reasoning, evidence that the marijuana grinder was found in the back seat of the defendant's vehicle should also be admitted. The trial court agreed, finding that "the evidence of the grinder is not so much more prejudicial than the marijuana evidence in general and it does have the additional probative value that it helps corroborate [the passenger's] version of this and undermines the Defendant's version of what happened that night."

The State's first witness at trial was the passenger. As he began to testify, the court gave the following instruction:

Okay. So ladies and gentlemen, I need to give you some additional instructions at this point. In cases, sometimes evidence is admissible for one purpose and not for another purpose, so you can consider it for some limited purposes.

And this is an example of that. In this case, you just heard a moment ago that this witness and the Defendant had smoked marijuana prior to the crash at issue in this case. There is no allegation or charge in this case before you that the Defendant was under the influence of marijuana at the time of the crash, so you cannot speculate about that or consider that in your deliberations.

The relevance of this testimony is to—you can consider that testimony simply—I mean, solely for the limited purpose of evaluating the credibility of statements that the Defendant gave to the police after the crash at issue in this case. So you're only allowed to consider this testimony as it has bearing in your judgment on the credibility of statements that the Defendant gave to the police after the crash, not for any other purpose.

Following the three-day trial, the defendant was convicted on two counts of second degree assault and on a charge of transporting alcohol as a minor. He was acquitted on two counts of aggravated driving while intoxicated.

On appeal, the defendant first argues that the trial court erred in allowing the State to introduce the grinder evidence. He "does not challenge the court's decision to admit statements by himself and [the passenger] that [the defendant] smoked marijuana on the day or the night before the accident." He argues, however, that: (1) the grinder evidence had no probative value; and (2) to the extent that the evidence had any probative value, the value was outweighed by its prejudicial impact because "the grinder cast the statements about marijuana use in a different light" by "impl[ying] that he was more than a casual user."

The State contends that the defendant failed to preserve the "specific claims he makes about the admissibility of the grinder evidence." The State also argues that, to the extent that the defendant challenges admission of the grinder evidence under New Hampshire Rule of Evidence 404(b), he has failed to apply the three-part test applicable to Rule 404(b) challenges and therefore his Rule 404(b) argument is not sufficiently briefed. See, e.g., State v. Thomas, 168 N.H. 589, 599, 134 A.3d 1 (2016) (setting forth three-pronged test applicable to evidence proffered pursuant to Rule 404(b) ). The defendant responds that, his argument is not based upon a violation of Rule 404(b) ; rather, because the Rule 404(b) test contains a Rule 403 component, see id. at 598–99, 134 A.3d 1, he cited Rule 404(b) cases to support his contention that the prejudicial impact of the grinder evidence outweighed any possible relevance.

The State also argues that to the extent the trial court erred in admitting the grinder evidence, any error was harmless.

We have often explained that the purpose of our preservation rule is to insure that trial forums have an opportunity to rule on issues and to correct errors before parties seek appellate review. See, e.g., State v. McMinn, 141 N.H. 636, 642, 690 A.2d 1017 (1997). This requirement is intended to discourage parties who are unhappy with the trial result to comb the record to find an alleged error never raised before the trial judge that might support a motion to set aside the verdict. State v. Noucas, 165 N.H. 146, 152, 70 A.3d 476 (2013). With these principles in mind, we have held that an...