Argued: October 13, 2016
A. Foster, attorney general (Susan P. McGinnis, senior
assistant attorney general, on the brief and orally), for the
M. Rothstein, deputy director public defender, of Concord, on
the brief and orally, for the defendant.
defendant, Remi Gross-Santos, appeals his convictions on two
counts of second degree assault and one charge of
transportation of alcoholic beverages by a minor.
See RSA 631:2, I(a) (2016); RSA 265-A:45 (2014). He
argues that the Trial Court (Delker, J.) erred in:
(1) allowing the State to introduce evidence that there was a
marijuana grinder in the back seat of his vehicle at the time
of the accident (grinder evidence); and (2) ruling that the
police had probable cause to arrest him. We affirm.
recite here a summary of the record evidence. We note that
the issues raised by the defendant address two rulings made
by the trial court, one after a suppression hearing and the
other at trial. This summary of the evidence is drawn from
the trial record.
defendant was scheduled to graduate from Portsmouth High
School on June 13, 2014. He made plans with his friends to
attend a graduation party in Ipswich, Massachusetts on June
11. On that day, he met a friend, (hereinafter "the
passenger"), at Portsmouth High School at approximately
9 p.m. The passenger testified that while they waited for
another friend to finish working, they smoked marijuana. They
then picked up their friend and drove to the party. The
defendant drank alcohol at the party and went to sleep at
approximately 4 a.m. on June 12. When he woke at 6:30 a.m.,
he and the passenger began to drive back to Portsmouth for an
early morning graduation rehearsal. The passenger fell asleep
almost immediately and did not wake up until he heard a loud
noise. The defendant told one of the investigating officers
that he "was having trouble staying awake and [was]
nodding on and off."
motorist driving directly behind the defendant observed the
defendant's vehicle veer left, cross a lane of traffic,
and enter the pedestrian walkway where it struck and severely
injured two women who were walking north in the walkway. When
the passenger asked the defendant what had happened, the
defendant told him that "he hit them."
and medical personnel arrived at the scene of the accident.
In the course of the investigation, the defendant spoke to
three police officers. He told the first officer, Patton,
that he was coming from an all-night party in Ipswich. He
then spoke to Lieutenant Gidley and told him that he was
driving back from Seabrook and that he had had two beers
around midnight. At Gidley's direction, the defendant was
arrested for driving under the influence (DUI), see
RSA 265-A:2, I (2014); and Patton then transported him to the
hospital for a blood test.
hospital, the defendant was interviewed by Detective Buczek.
Buczek testified that the defendant gave him a chronology of
his activities during the 24-hour period leading up to the
accident. As part of the chronology, the defendant told
Buczek that, early in the afternoon before the party, while
at home, he had "smoked some marijuana out of a glass
pipe." Buczek also testified that the defendant told him
that, at the party, he drank five to seven beers between
10:30 p.m. and approximately 3:30 a.m. on the morning of the
accident. The officers obtained a warrant to search the
defendant's vehicle, in which they found several items,
including a marijuana grinder.
to trial, the defendant filed a motion to suppress all
evidence derived from his arrest arguing that the police
lacked probable cause to arrest him. After a hearing, the
trial court ruled that the officers had probable cause to
arrest him for violating the per se alcohol
concentration limit set forth in RSA 265-A:2, I(b). The
defendant also filed a motion in limine seeking to
prevent the State "from offering any evidence of prior
marijuana use" and to strike the reference to marijuana
in the indictments. In a ruling prior to the commencement of
trial, the court stated that "the State would not be
able to introduce evidence of the marijuana consumption as
substantive evidence that the Defendant was impaired by the
marijuana and/or alcohol." The court found that the
defendant's marijuana consumption was irrelevant to
impairment because there was no evidence that his consumption
"hours before he drove" created a risk that
"constitute[d] a gross deviation from the conduct of a
law-abiding person." (Quotation omitted.)
court also ruled, however, that the State could introduce
evidence of the defendant's marijuana consumption
"to impeach [his] statement" to the police. The
I think the credibility of his statement about how much
alcohol he consumed is a very critical issue in this case and
how that alcohol affected him, the fact that he did not
disclose the marijuana consumption is highly probative in my
mind of an understanding that, that is not a ...