Argued: February 17, 2016
A. Foster, attorney general (Sean P. Gill, attorney, on the
brief and orally), for the State.
Offices of Kelly E. Dowd, PLLC, of Keene (Kelly E. Dowd, on
the brief and orally), for the defendant.
defendant, Christopher Gay, appeals his convictions,
following a jury trial, for second degree murder and
conspiracy to commit robbery. See RSA 630:1-b, I(b)
(2007); RSA 629:3 (2007); RSA 636:1 (2007). He argues that
the Superior Court (Brown, J.) erred in denying his
motion to suppress evidence obtained from an allegedly
unconstitutional search and seizure. He further argues that
the Trial Court (Tucker, J.) erred in excluding
evidence of an "alternative perpetrator" and in
allowing the State's expert witness to testify regarding
certain footwear impressions. We affirm.
defendant's convictions arose out of the January 21, 2012
robbery and stabbing of Ryan Stewart in Farmington. The
defendant was charged with two alternative counts of first
degree murder and one count of second degree murder. He was
also charged with one count of conspiracy to commit robbery,
which alleged that, "with the purpose that the crime of
robbery be committed, [he] agreed with Cory Bennett, to
commit or cause the commission of such crime" and that
he committed one or more of certain enumerated overt acts in
furtherance of the conspiracy.
to trial, the court made a number of rulings unfavorable to
the defendant. First, it denied his motion to suppress
evidence obtained as a result of a police officer's entry
onto his property with a trained police dog and his
subsequent detention by two police officers in the driveway
of his residence. Next, the trial court granted the
State's motion to exclude evidence proffered by the
defendant that a third person was guilty of the crimes.
Finally, it allowed a State's expert witness to testify
that certain footwear impressions found at the crime scene
could have been made by a particular type of footwear. The
defendant appeals these rulings. We address each of the
defendant's arguments in turn.
following facts are taken from the trial court's order
denying the defendant's motion to suppress or are
otherwise found in the record. Shortly before midnight on
January 21, 2012, Sergeant Ferguson and Officer Wheeler of
the Farmington Police Department were driving to the police
department when Ferguson observed a man walking on Worster
Street, which runs along the rear side of the police
department. The man entered an apartment building located at
11 Worster Street.
12:02 a.m. on January 22, a few minutes after Ferguson and
Wheeler had returned to the police department, the Farmington
Fire Department and Ambulance medical tone sounded. The
ensuing call reported that there was a stabbing victim at 11
Worster Street. Ferguson, Wheeler, and another Farmington
police officer ran out of the building to render assistance.
Upon exiting the police department, Ferguson saw a man lying
on the ground near the bottom step of the apartment building
and a woman coming out of the building. Ferguson recognized
the man as Stewart and the woman as Amanda DeGroat, both of
whom he knew to be residents of separate apartments in the
building. Stewart had puncture wounds to his torso and was
bleeding. DeGroat was on her cellular telephone with a 911
other officers on the scene began to render assistance to
Stewart and secured the egresses from the apartment building.
Ferguson directed an officer from a neighboring town, who had
arrived on the scene, to patrol the area and provided him
with a description of the man he had earlier witnessed enter
the apartment building. Ferguson instructed Wheeler and
another officer to secure Stewart's apartment. Wheeler
testified at the suppression hearing that Stewart's
apartment had "blood everywhere" and that there
were signs of a struggle in the living room. He also noticed
that a safe across from the bed in the bedroom was ajar and
had a bloody handprint on it.
then reviewed surveillance videos from cameras positioned on
the outside of the police department. One of the cameras,
positioned at the corner of the police department facing the
apartment building, captured an image of the individual
Ferguson had witnessed enter the apartment building. The
video showed that, approximately fifteen seconds later,
another individual entered the apartment building and,
approximately seven minutes after that, two individuals
simultaneously left the building and ran north on Worster
Street. After viewing the surveillance videos, Ferguson went
with another officer to the northern side of 11 Worster
Street where he observed several footprints in the snow
pointing north, some of which contained blood. Ferguson
placed cardboard boxes over some of the footprints and pulled
several officers back so as not to taint the crime scene. He
then posted officers at various street intersections near the
12:29 a.m., Ferguson requested that Officer Mackenzie of the
Rochester Police Department respond to the scene with his
police dog to conduct a canine track. While waiting for the
canine unit, Ferguson learned from Wheeler that Stewart had
been pronounced dead. Wheeler also informed Ferguson that
DeGroat told him that she had heard what sounded like an
argument in Stewart's apartment and she identified one of
the individuals' voices as Stewart's. Although she
could not identify the other individual's voice, she
described the individual as speaking with
"African-American . . . slang-type verbiage."
DeGroat also said that shortly after hearing the argument,
she heard two sets of footsteps running down the stairs.
Stewart then knocked on DeGroat's door and asked her for
help. At that point, DeGroat telephoned 911.
upon the appearance of the man he witnessed enter the
apartment building and DeGroat's description of the
unknown individual's manner of speaking, Ferguson
suspected the defendant. Although the defendant is Caucasian,
Ferguson testified that prior interactions with the defendant
led him to believe that the defendant's manner of
speaking was consistent with DeGroat's description.
Ferguson testified that he knew the defendant lived on Bunker
Street, about a five-minute walk from the police department.
Mackenzie arrived with his dog, a female bloodhound named
Daisy Mae, Ferguson told him that he had a suspect, but did
not tell him that it was the defendant. Ferguson directed
Mackenzie to start the canine track about 10 to 15 yards away
from the apartment building on Worster Street in an area of
snow that appeared to be disturbed and contained footprints.
Mackenzie testified that Daisy Mae is what is referred to as
a "trailing dog, " meaning that she trails the
scent from "skin rafts." He explained that skin
rafts are "dead skin cells" that are discarded by
people and, depending upon the surrounding conditions, settle
to the ground within 15 to 20 minutes. He stated that skin
rafts tend to collect in "hard places" like
driveways or the base of houses. He explained that skin rafts
can easily be dispersed by the wind.
approximately 1:06 a.m., Ferguson informed dispatch that he
and Mackenzie were conducting the canine track. Once Daisy
Mae picked up the scent, she led MacKenzie to the driveway of
a home nearby, where it appeared that a party was going on.
After sniffing around the base of the home, Daisy Mae
indicated that she wanted to continue back onto the street.
She then led the officers to 29 Bunker Street. On the way,
the officers found an empty 12 ounce Budweiser can with a red
tab, which, because it had no snow, salt or debris on it,
appeared to have recently been discarded.
Mae proceeded onto the property at 29 Bunker Street. She
sniffed the base of the residence near the driveway and
continued to the back of the house. She then attempted to
climb onto the back porch, but Mackenzie stopped her.
Mackenzie testified that, at this point, Daisy Mae went
around to the back of the porch and became "frantic,
" indicating that she had lost the scent. Mackenzie
allowed Daisy Mae to explore the area to try to pick up the
scent again, but when she was unsuccessful, he informed
Ferguson that Daisy Mae had lost the scent. At this point,
Ferguson told Mackenzie that this location was where the
defendant, whom he originally suspected, resided. Ferguson
and Mackenzie then left the property, and, at 1:15 a.m.,
Ferguson informed dispatch that they were headed back to the
assigned Wheeler and another officer to conduct surveillance
of the residence. Wheeler was posted on Bunker Street in
front of the residence, while the other officer was posted in
a driveway facing the back door of the residence. Soon after
Wheeler arrived at the residence, he observed a man leave by
way of the back door and go into the backyard. Wheeler
illuminated the individual with his flashlight and attempted
to make contact with him, but the individual ignored
Wheeler's attempts and went back into the residence.
decided to attempt contact with the defendant to see if he
had any information about Stewart's death. Arriving at
approximately 1:33 a.m., he parked his cruiser near the
residence. Ferguson could see what he estimated to be four to
six people moving around inside the residence and looking out
the windows. Ferguson and Wheeler spoke for a moment, and
then the defendant came out of the back door of the residence
and told the officers that, if they wanted to talk with him,
they should "come up [to the residence] like men."
(Quotation omitted.) Ferguson tried to engage the defendant
in conversation, but the defendant called Ferguson a
derogatory name and went inside.
thereafter, the defendant returned to the back porch and
engaged the officers again. Wheeler stated that he attempted
to be friendly to the defendant. At this point, Wheeler and
Ferguson were taking cover behind one of the police cruisers.
Wheeler testified that he did not have his gun drawn, but
that he believed Ferguson had his gun drawn, down by his leg.
Ferguson testified that, although he was not positive whether
he had his gun drawn, if he had, he would have written a
report in accordance with police department policy. No such
report was introduced at the hearing.
short exchange, the defendant agreed to meet the officers in
the driveway. Wheeler testified that he did not have his gun
drawn, but that he could not recall whether Ferguson did.
Ferguson stated that if he had drawn his gun, he would have
holstered it prior to meeting the defendant. Ferguson used
his flashlight to illuminate his path while walking. As they
approached, the officers, who knew the defendant had been
previously arrested on a weapons charge, asked the defendant
to lift up his sweatshirt and turn around to show them that
he did not have any weapons in his waistband. The officers
noticed that the defendant was holding a Budweiser can ...