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State v. Gross-Santos

Supreme Court of New Hampshire

January 31, 2017


          Argued: October 13, 2016


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

          David M. Rothstein, deputy director public defender, of Concord, on the brief and orally, for the defendant.

          CONBOY, J.

         The 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.

         We 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.

         The 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."

         A 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."

         Police 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.

         At the 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.

         Prior 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.)

         The court also ruled, however, that the State could introduce evidence of the defendant's marijuana consumption "to impeach [his] statement" to the police. The court reasoned:

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 ...

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