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State v. Doane

Supreme Court of New Hampshire

November 4, 2016

State of New Hampshire
v.
Robert Doane

         The defendant, Robert Doane, appeals his convictions, following a jury trial in Superior Court (Abramson, J.), on charges of possession of the controlled drug buprenorphine, see RSA 318-B:2 (Supp. 2015), attempted sale of heroin, see id., conspiracy to sell heroin, see id.; RSA 629:3 (2016), receipt of stolen property, see RSA 637:7 (2016), being a felon in possession of a firearm, see RSA 159:3 (2013), and being an armed career criminal, see RSA 159:3-a (2013). He contends that the trial court erred by denying his "motion to sever the buprenorphine possession charge from the other charges" because: (1) "[t]he possession charge was not logically and factually connected to the heroin and gun charges"; and (2) joinder of the possession charge with the other charges prejudiced him. We affirm.

         We note that the defendant's motion sought to address the possession charge, the heroin-related charges, and the gun-related charges in three separate trials. On appeal, the defendant does not challenge the impact of joinder on his conviction for possession because he stipulated to the elements of that charge. Instead, he challenges only the impact of joinder on his convictions on the other charges. Thus, he argues that the trial court should have severed the possession charge from the remaining charges.

         Under Superior Court Rule 97-A, the rule in effect when the defendant moved to sever the charges against him, upon motion by either party, the trial court was required to join related offenses for trial unless it determined that "joinder is not in the best interests of justice." Super. Ct. R. 97-A(I)(B) (repealed and replaced 2016). We review the trial court's decision to join charges for an unsustainable exercise of discretion. State v. Brown, 159 N.H. 544, 555 (2009). Thus, to succeed upon appeal, the defendant must demonstrate that the trial court's ruling was clearly untenable or unreasonable to the prejudice of his case. Id.

         We first address whether the possession charge was related to the other charges. Offenses that occurred at different times are related when they are "logically and factually connected in a manner that does not solely demonstrate that the accused has a propensity to engage in criminal conduct." Super. Ct. R. 97-A(I)(A)(iii). Whether offenses are thus related is largely determined by the close relationship among the charged offenses and the evidence to be used to prove them. Brown, 159 N.H. at 551. When determining whether charges are related, the trial court should consider: (1) the temporal and spatial relationship among the charged acts; (2) the commonality of the victim(s) and participant(s); (3) the similarity in the defendant's mode of operation; (4) the duplication of law regarding the crimes charged; and (5) the duplication of witnesses, testimony, and other evidence related to the offenses. Id. at 551-52. No single factor is dispositive; rather, these factors serve as guidelines that must be sensibly applied in accord with the purposes of joinder, which are economy and efficiency. Id. at 552, 556.

         In this case, the trial court declined to sever the charges because it found that they: (1) resulted from a "single, comprehensive . . . investigation"; (2) were temporally and spatially proximate to each other; and (3) would require "the duplication of witnesses, testimony and other evidence." The defendant argues that it is irrelevant that the buprenorphine was found during the same search during which the defendant's gun was discovered, and which was undertaken in response to information that he was selling heroin, and that there was no "significant" duplication of witnesses or testimony between the possession charge and the other charges.

         The defendant contends that "[t]he only witness necessary to prove the buprenorphine charge was the police officer who catalogued the items found during the search of [the defendant's] room." However, the trial court could have reasonably concluded that, in addition, testimony regarding the investigation that led to the search, the defendant's living situation, the location and condition of the defendant's room, and his relationship to the other occupants of the house would have been required to give the jury context in which to understand the officer's testimony. Such evidence would also have been required in connection with the other charges and would have been elicited from the same witnesses.

         In fact, the same officer who testified to the finding of the buprenorphine also testified to the discovery of the gun in another bedroom. The defendant argues that "the State had other witnesses who could and did testify about the discovery of the gun." However, the State could have decided that such other witnesses would be less effective. The defendant does not cite, nor are we aware of, any authority that the State is required to select its witnesses so as to promote severance.

         The defendant argues that as between the possession charge and the other charges, there was: (1) no similar mode of operation; (2) no duplication of law; and (3) no duplication of expert witnesses. However, he does not challenge the trial court's finding that all the charges arose in spatial and temporal proximity to each other. Cf. Brown, 159 N.H. at 552 (stating charges arising at different times and in different places and involving distinct sets of witnesses and victims should not be joined).

         Accordingly, we cannot conclude that the trial court's finding that the charges were related was unreasonable or untenable. See id. at 555.

         We next address whether joinder was not in "the best interests of justice" because it allowed the State to potentially create an impression that the defendant had a propensity to engage in criminal conduct. See id. at 554 (stating trial court should consider potential prejudice under the "best interests of justice" prong of Rule 97-A(I)(B)). The "best interests of justice" standard precludes joinder "whenever it is deemed appropriate to promote a fair determination of the defendant's guilt or innocence." Id. at 555 (quotation omitted). Applying the standard requires that the trial court evaluate "whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently to each offense." Id. (quotation omitted). Furthermore, the trial court must consider whether joinder will unfairly prejudice the defendant, including whether: (1) joinder will allow the State to argue propensity; (2) some charges may inflame the jury; (3) the available defenses are inconsistent or the defendant wishes to testify regarding some, but not all, offenses; and (4) the State may gain an unfair advantage if a weak case is joined with a strong case. Id. at 555-56.

         Here, the defendant argues that the State's witnesses regarding the other charges "suffered credibility difficulties" and that "proof that [he] had buprenorphine in his room supplied credibility-independent physical evidence tending to show that [he] was the type of person to involve himself illegally with controlled drugs." However, the trial court must weigh prejudice to the defendant against the obviously important considerations of economy and expedition in judicial administration. State v. Ramos, 149 N.H. 118, 124 (2003).

         The defendant argues that to prove the heroin-related charges, the State had to rely upon witnesses whose credibility was impugned by their involvement in other crimes. However, the State offered letters written by the defendant discussing his involvement in selling drugs. The defendant argues that, to prove that he possessed the stolen gun, the State had to rely upon many of the same witnesses lacking credibility. However, the State also offered evidence of recorded statements by the defendant that supported the conclusion that the gun was his.

         Although the defendant was charged with six offenses, the evidence regarding each was not complex, and the defendant does not argue that the jury was unable to distinguish the evidence and apply the law to each offense. Nor does he contend that the State argued propensity. Moreover, joinder allowed the defendant to argue to the jury that his stipulation to the elements of the possession charge bolstered his credibility when claiming that he was not guilty of the other charges.

         Accordingly, we cannot conclude that the trial court's determination that "the best interests of justice" did not preclude joinder was unreasonable or ...


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