State v. Robinson

170 N.H. 52

164 A.3d 1002

The STATE of New Hampshire

v.Scott ROBINSON

Nos. 2013–0480

2013–0635

2015–0429

Supreme Court of New Hampshire.

Argued: November 9, 2016

Opinion Issued: June 2, 2017

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

Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

CONBOY, J.

The defendant, Scott Robinson, appeals his convictions for armed robbery and first degree assault. See RSA 636:1 (2016); RSA 631:1 (2007). We affirm.

The defendant was previously convicted on these charges and appealed, arguing that the Trial Court (Barry, J.) erred in denying his motion to suppress. State v. Robinson, 158 N.H. 792, 794, 973 A.2d 277 (2009) ( Robinson I ). We reversed his convictions, holding that the trial court erred in concluding that exigent circumstances permitted the warrantless entry by police into his apartment. Id. at 802–03, 973 A.2d 277.

Upon remand, the defendant again moved to suppress, inter alia, physical evidence obtained "from the time of the warrantless entry into his apartment" and the fruits thereof. The Trial Court (Garfunkel, J.) denied his request to suppress the physical evidence, after finding that it was properly seized during a subsequent search pursuant to a valid warrant.

The defendant was convicted following a subsequent jury trial. He thereafter filed motions for a new trial in 2013 and in 2014, arguing in both motions that his trial counsel had been ineffective. The motions were denied after hearings, and the defendant has appealed. We consolidated the defendant's direct appeal of his convictions with his appeals of the rulings on his motions for new trial.

In this appeal, the defendant argues: (1) that the trial court erred by considering, upon remand, the doctrines of independent source and inevitable discovery; (2) that his trial counsel was ineffective because she did not argue that the doctrines of law of the case and waiver barred the State from raising the independent source and inevitable discovery arguments in the trial court following remand; and (3) that, even if the trial court did not err in considering the State's arguments, remand is necessary to address certain factual issues. He also contends that our holding in Robinson I—that the police did not violate his constitutional rights when they inserted a key, found at the site of the robbery, into the lock of his car, id. at 796–97, 973 A.2d 277 —conflicts with recent United States Supreme Court decisions.

The following facts are drawn from the trial court's June 2011 post-remand order which denied the defendant's motion to suppress. On March 18, 2006, Manchester police officers responded to a reported robbery at a Manchester variety store. A witness reported that a white male, wearing a New England Patriots jacket and green hooded sweatshirt, entered the area behind the counter in the store, stabbed the store clerk, and took money from the register. The police searched the area behind the counter and found a key ring holding three keys; one of the keys belonged to a Kia automobile. The store employees stated that the key did not belong to any of them, and so the police assumed that the key belonged to the suspect. The police found a Kia parked on the street nearby, and determined from witness reports that the suspect had run in the direction of the vehicle before turning into an alley. They relayed the license plate number of the Kia to police dispatch and learned that the Kia belonged to the defendant, who lived eight blocks from the site of the robbery.

Several police officers headed to the defendant's apartment; another officer took the key and inserted it in the door of the Kia and determined that it fit the lock (key test). This information was relayed to the officers at the defendant's apartment building and was later included in an application for a warrant to search the defendant's apartment. It is undisputed that when the officers first entered the defendant's apartment, they did so without a warrant. During the initial entry, they observed a green sweatshirt and a Patriots jacket in the defendant's closet. Subsequently, after obtaining a warrant, they again entered the apartment and seized the green sweatshirt, the Patriots jacket and a knife.

The defendant first argues that the trial court erred in considering, upon remand, the independent source and inevitable discovery exceptions to the exclusionary rule. Before addressing the defendant's contention that the exclusionary rule applied to the challenged evidence under both the State and Federal Constitutions, we briefly discuss the evolution of these doctrines.

The general rule is that evidence must be excluded if it is discovered as a result of police misconduct. State v. Holler, 123 N.H. 195, 199, 459 A.2d 1143 (1983). "The exclusionary rule enjoins the Government from benefiting from evidence it has unlawfully obtained." United States v. Crews, 445 U.S. 463, 475, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980). The United States Supreme Court has recognized, however, that evidence discovered as a result of unlawful conduct does not automatically become forever inaccessible. Silverthorne Lumber Co v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920). "If knowledge of [facts] is gained from an independent source they may be proved like any others." Id. "Accordingly, information which is received through an illegal source is considered to be cleanly obtained when it arrives through an independent source." United States v. Soto, 799 F.3d 68, 81–82 (1st Cir. 2015) (quotation omitted). "The independent source doctrine teaches us that the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred." Nix v. Williams, 467 U.S. 431, 443, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).

In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the Supreme Court discussed the analysis used to determine whether the independent source exception would apply to challenged evidence:

We need not hold that all evidence is "fruit of the poisonous tree" simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint."

Wong Sun, 371 U.S. at 487–88, 83 S.Ct. 407 (citation omitted).

The Supreme Court subsequently adopted the inevitable discovery doctrine as an exception to the exclusionary rule in Nix. Nix, 467 U.S. at 444, 104 S.Ct. 2501. Under this doctrine, "illegally seized evidence is admissible if a search was justified, and the evidence discovered illegally would inevitably have come to light in a subsequent legal search." Holler, 123 N.H. at 200, 459 A.2d 1143. "The inevitable discovery doctrine, with its distinct requirements, is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered." Murray v. United States, 487 U.S. 533, 539, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988). We have endorsed the application of both the inevitable discovery and the independent source exceptions to the exclusionary rule when evaluating admissibility challenges under our State Constitution. See, e.g., Holler, 123 N.H. at 200–01, 459 A.2d 1143 ; State v. Beede, 119 N.H. 620, 629–30, 406 A.2d 125 (1979) (discussing inevitable discovery doctrine).

In the extensive appellate record, the parties have referred to the doctrine implicated under the State's alternative admissibility argument as both the inevitable discovery doctrine and the independent source doctrine. In his brief, in this appeal, the defendant contends that the trial court "appears to have accepted the State's argument" that the inevitable discovery doctrine applies to the admissibility of the green sweatshirt and the Patriots jacket. We note that at the 2015 hearing on the defendant's most recent motion for new trial, the State clarified that although the parties had "been using the term inevitable discovery ... this is really an independent source issue." Regardless of which doctrine applies, however, the substance of the defendant's position is the same; that is, the State was foreclosed from pressing in the post-remand trial court its alternative argument regarding the admissibility of the derivative evidence because it did not make that argument in Robinson I. For ease of reference, we use "independent source" to refer to the doctrines collectively as we address the defendant's remaining arguments. See Murray, 487 U.S. at 539, 108 S.Ct. 2529 (inevitable discovery doctrine is extrapolation of the independent source doctrine).

We first consider the defendant's arguments that: (1) the trial court erred in considering, upon remand, the State's alternative argument regarding the admissibility of the derivative evidence; and (2) his trial counsel (who is not his appellate counsel) was ineffective because she did not argue that the doctrines of law of the case and waiver barred the State from raising its alternative argument following remand. Because the defendant did not argue in the post-remand trial court that the State was procedurally barred from presenting its alternative argument, he asks that we consider under our plain error rule whether the trial court erred in considering the argument. See Sup. Ct. R. 16–A.

For us to find plain error: (1) there...