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State v. Gay

Supreme Court of New Hampshire

July 27, 2016



          Argued: February 17, 2016

          Joseph A. Foster, attorney general (Sean P. Gill, attorney, on the brief and orally), for the State.

          Law Offices of Kelly E. Dowd, PLLC, of Keene (Kelly E. Dowd, on the brief and orally), for the defendant.

          CONBOY, J.

         The 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.

         The 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.

         Prior 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.

         I. Suppression Motion

         The 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.

         At 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 operator.

         The 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.

         Ferguson 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 scene.

         At 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.

         Based 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.

         When 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.

         At 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.

         Daisy 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 police department.

         Ferguson 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.

         Ferguson 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.

         Shortly 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.

         After a 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 ...

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