State v. Porter

State of New Hampshire v. Kevin Porter,

No. 2021-0088

Supreme Court of New Hampshire

September 2, 2021

Having considered the memoranda of law and oral arguments of the parties, we conclude that a formal written opinion is unnecessary in this case. The defendant, Kevin Porter, is charged with criminal threatening, criminal mischief resisting arrest, possession of a controlled drug, falsifying physical evidence, and being a felon in possession of a dangerous weapon. He appeals an order of the Superior Court (Temple, J.) denying his request for bail, arguing that the court erred by: (1) continuing his preventive detention on the grounds that he poses a danger to himself and the public; and (2) concluding that continued pretrial detention does not violate his due process rights. We affirm.

The following relevant facts are supported by the record or are otherwise undisputed. On the morning of June 14, 2020, the defendant was arrested following an incident that occurred at a sober living facility where he had been staying. The next day, the Superior Court (Colburn, J.) ordered him preventively detained. The defendant requested an evidentiary bail hearing, which the Superior Court (Temple, J.) held on July 16, 2020. At the hearing, the court heard testimony from one of the officers who was involved in the investigation of the incident. He testified that, on the morning of the defendant's arrest, several officers were dispatched to the sober living facility in response to a report of an argument between the defendant and two female residents at the facility, H.S. and P.S. Upon their arrival the officers asked the defendant if they could frisk him for weapons, at which point the defendant reached for his waistband. One of the officers immediately attempted to restrain the defendant, but the defendant resisted this effort and continued reaching for his waistband. The officers eventually restrained the defendant, and, after arresting him, found two small plastic bags that appeared to contain powder and crack cocaine as well as a four-inch fixed-blade knife that was strapped to his waistband. The defendant was then transported to the police station, where he ripped a sprinkler from the ceiling of his holding cell. He then produced another small plastic bag that appeared to contain drugs and put the contents in his mouth, informing the officers that he intended to overdose. The officers called emergency medical services, and the defendant was transported to the hospital.

Following the defendant's arrest, the officer who testified at the hearing interviewed H.S. and P.S. as well as the manager and an employee of the sober living facility. Both H.S. and P.S reported that they had spent time with the defendant the evening before, but that he "started to become more and more difficult" as the night progressed, repeatedly entering their bedroom unannounced. They further reported that after they asked the defendant to stop entering their room, the defendant kicked in their door, displayed the knife that was strapped to his waistband, and threatened to either "hit" or "stab" them. H.S. also reported that she witnessed the defendant ingest cocaine earlier that evening and that she felt "in fear for her life" during the incident. According to the officer's testimony, the employee at the facility reported that, upon learning about the incident, she attempted to deescalate the situation, but decided to call the police when she "saw [that] the situation was out of control" and "that [the defendant] would not calm down."

The court also heard testimony about the defendant's criminal record, which included, among other things, escape, resisting arrest, breaking and entering, possession of a controlled substance, possession of a firearm without a permit, and multiple assault and battery convictions. In 2011, the defendant was convicted in Massachusetts of manslaughter resulting in a period of incarceration that lasted approximately ten years. Most recently, in 2013, he was convicted in Massachusetts of vandalism and assault and battery and received another two and one-half year sentence. At the time of the incident giving rise to this case, the defendant had two outstanding arrest warrants in Massachusetts for home invasion and a parole violation.

Based upon this evidence, the State asked the court to order preventive detention, arguing that the defendant posed a risk of flight and a danger to himself and the public. The defendant countered that the evidence did not support preventive detention, arguing, among other things, that his behavior resulted from his mental health and substance use issues and that, if released, those issues could be controlled with treatment. The court ultimately concluded that preventive detention was warranted based upon the officer's testimony regarding the underlying incident as well as the defendant's criminal history, mental health issues, and substance use disorder. The court also ordered that the defendant "receive the appropriate level of medical, mental health, and substance use disorder treatment" while incarcerated.

In August 2020, the defendant requested another hearing to address bail, alleging, among other things "unconstitutional and punitive conditions" at the house of corrections. The trial court granted the motion and held another bail hearing. At the hearing, the defendant argued that he was not receiving appropriate mental health or substance use treatment while incarcerated and that he was languishing while waiting for his trial, which had been delayed due to the COVID-19 pandemic. Accordingly, he asked to be released so that he could receive in-patient treatment at a recovery center. The State countered that release was inappropriate and that the defendant could obtain additional treatment through the Substance Abuse Treatment Community for Offenders (SATCO) program. The court again denied bail, concluding that the SATCO program was more appropriate than release.

In January 2021, the defendant requested a third hearing to address bail. The defendant primarily argued that he was not receiving appropriate mental health treatment and that his prolonged detention during the COVID-19 pandemic had exacerbated his mental health conditions, in part because he was in lockdown for twenty-two hours per day in the restrictive housing unit. After holding a hearing, the court again denied bail. In its written order, the court construed the defendant's argument as asserting a claim that the excessive length of his detention violated his due process rights under the Federal Constitution. Citing decisions by the First and Second Circuit Courts of Appeals, the court analyzed the defendant's due process claim by weighing the following six factors:

(1) the seriousness of the charge; (2) the strength of the government's proof that defendant poses a risk of flight or a danger to the community; (3) the strength of the government's case on the merits; (4) the length of the detention; (5) the complexity of the case; and (6) whether one side or the other has needlessly added to the complexity or delay.

See United States v. Zannino, 798 F.2d 544, 547 (1st Cir. 1986) (outlining all six factors); United States v. Briggs, 697 F.3d 98, 101 (2d Cir. 2012) (adopting three out of six factors). In applying these factors, the court concluded that the fourth factor - the length of the detention - weighed in the defendant's favor, but that the remaining five factors weighed against his claim. Nonetheless, despite finding no due process violation, the court noted that continued detention in the restrictive housing unit "may alter the balance of the due process analysis." This appeal followed.

On appeal, the defendant first argues that the trial court erred by continuing his preventive detention on the grounds that he poses a danger to himself and the public. RSA 597:2, III(a) (Supp. 2020) provides, in relevant part, that "the court may order preventive detention without bail . . . only if [it] determines by clear and convincing evidence that release will endanger the safety of [the defendant] or the public." It further provides that "[i]n determining whether release will endanger the safety of [the defendant] or the public, the court may consider all relevant factors presented" to the court by the parties. Id.

We review the trial court's decision under our unsustainable exercise of discretion standard. State v. Spaulding, 172 N.H. 205, 207 (2019). In determining whether the trial court unsustainably exercised its discretion, we consider whether the record establishes an objective basis sufficient to sustain the court's discretionary judgment. Id. at 207-08. To satisfy this standard, the defendant must establish that the court's ruling was clearly untenable or unreasonable to the prejudice of his case. Id. at 208.

As an initial matter, the State contends that the defendant failed to preserve this argument, in part because he "did not contest, or even ask the court to review, its dangerousness determination" at the third bail hearing. See State v. Batista-Salva, 171 N.H. 818, 822 (2019) (observing that we generally do not consider issues raised on appeal that were not raised before the trial court). Nonetheless, even if the defendant's challenge to the trial court's dangerousness determination is preserved for our review, we conclude that the defendant's argument fails on its merits.

The trial court's findings of dangerousness are supported by the officer's testimony at the first bail hearing regarding the incident giving rise to the defendant's charges. The officer testified that the defendant, among other things, threatened to commit assault, displayed a knife in a threatening manner, acted combatively towards the police, and...