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State v. Smith

Supreme Court of New Hampshire

January 31, 2017


          Argued: November 9, 2016


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

          Stephanie Hausman, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.

          LYNN, J.

         Following a jury trial in Superior Court (Bornstein, J.), the defendant, Robert Grimpson Smith, was convicted of possession of heroin. See RSA 318-B:2, I (2011). The defendant appeals, arguing that the trial court erred by: (1) denying the defendant's motion to suppress; and (2) excluding the testimony of a defense investigator.[1] We affirm.


         The pertinent facts are as follows. On August 2, 2014, Officer Alden responded to a report that a woman, later identified as Kerry St. Lawrence, had collapsed on the lawn outside 14 Bank Street in Lebanon. When Alden arrived, he saw St. Lawrence sitting bent over on the lawn, approximately six feet from the entrance of the rooming house located at that address. Alden called out to her, but she did not respond. When Alden put his hand on St. Lawrence's shoulder, she slowly lifted her head and looked at him groggily. After St. Lawrence told him that she was having a medical issue, Alden called for the Lebanon fire department.

         Two EMTs arrived, as did another police officer, Sergeant Norris. The EMTs assessed St. Lawrence and decided to take her to the hospital. At that time, St. Lawrence began repeatedly yelling for the defendant. The defendant did not respond. Norris asked St. Lawrence where the defendant was. She told Norris that the defendant was in "our apartment" and gave Norris directions to its location in the building. The door to the room St. Lawrence described (room 1) was on the first floor, about ten feet from the rooming house's main door.

         Both Alden and Norris were familiar with the house at 14 Bank Street, having previously responded to various complaints at the location. They knew 14 Bank Street to be a rooming house, and testified that the front door was usually wide open. Norris testified that he passes 14 Bank Street on a regular basis because the road is heavily travelled and the police frequently patrol it. Furthermore, he testified that in his eight years on the police force, he had never seen the door closed. Alden described the house as having between eight and ten rooms. Although these rooms were separately numbered and locked, they shared a common hallway, kitchen, and bathroom.

         Norris walked up to the rooming house to check on the defendant and make sure that he was okay. Norris walked through the open front door of the rooming house and saw the defendant lying unresponsive on the floor in room 1, the door to which was also open. Norris called for the EMTs to come inside.

         Norris followed the EMTs into room 1. After the defendant regained consciousness, he told the EMTs that he and St. Lawrence had used a quarter gram of heroin. As the EMTs were treating the defendant, Norris observed a syringe, a plastic spoon with cotton in the bowl, and a metal spoon. Based upon his past experience, Norris recognized that these items could have been used to prepare and inject heroin. While the defendant and St. Lawrence were waiting to be taken to the hospital, Norris asked if they would consent to a search of room 1. They declined to give consent.

         Thereafter, the officers obtained a search warrant, pursuant to which they seized the plastic spoon with cotton, syringe, and metal spoon. The State later charged the defendant with one count of possession of heroin.

         In preparation for trial, Sheryl Montague, a defense investigator, interviewed St. Lawrence and wrote an investigation report about the interview. According to Montague, St. Lawrence initially stated that she was "pleading the [Fifth]." In response to Montague's questions, St. Lawrence stated that she had neither been charged nor received a plea deal that required her cooperation in lieu of being charged. St. Lawrence also indicated that she had received a letter from the County Attorney's Office giving her notice to be available for the defendant's upcoming trial. Without further questioning, St. Lawrence added that it was "her apartment, her name on the lease and her items in the apartment." St. Lawrence then repeated that she was "pleading the [Fifth], " and she did not say anything further.

         Before trial, the defendant moved to suppress the evidence seized from the room, arguing that it was the fruit of an illegal search of the residence. Following a hearing, at which the State offered testimony from Alden and Norris, the trial court denied the defendant's motion. The court found that the defendant had no reasonable expectation of privacy in the common hallway at 14 Bank Street, the area from which Norris observed the defendant's unconscious body lying in room 1. Alternatively, the court found that the community caretaking exception to the warrant requirement justified Norris's entry. The defendant moved for reconsideration, arguing that the trial court had failed to consider whether the police physically intruded into the defendant's home. The court denied the motion.

         During trial, the State moved to exclude testimony by Montague as inadmissible hearsay. The defendant objected, arguing that the statements made by St. Lawrence to Montague were exempt from the rule against hearsay pursuant to New Hampshire Rule of Evidence 804(b)(3) because the statements were against St. Lawrence's penal interest.[2] The trial court granted the State's motion, ruling that the statements were inadmissible hearsay.[3]

         Following a two-day trial, the jury found the defendant guilty. ...

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