Argued: November 9, 2016
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.
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. We affirm.
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.
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.
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.
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.
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.
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.
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
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.
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. The trial court granted the
State's motion, ruling that the statements were
a two-day trial, the jury found the defendant guilty. ...