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State v. Page

Supreme Court of New Hampshire

March 19, 2019



          Argued: November 28, 2018

          Gordon J. MacDonald, attorney general (Peter Hinckley, senior assistant attorney general, on the brief and orally), for the State.

          Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

          HICKS, J.

         The defendant, Tommy Page, appeals his convictions, following a jury trial in Superior Court (MacLeod, J.), of first degree murder, see RSA 630:1-a, I(b)(1) (2016), and falsification of physical evidence, see RSA 641:6, I (2016). We affirm.

         The jury could have found the following facts. In the fall of 2015, the defendant met Danielle Sylvester, the mother of the victim. Sylvester was separated from the victim's father, and the two shared custody of the child. The defendant and Sylvester began a romantic relationship, and, soon thereafter, Sylvester moved in with the defendant and his mother.

         On Wednesday, November 11, 2015, Sylvester picked up the 11-month-old victim from his father's house, and the victim stayed with her at the defendant's house until Friday, November 13. Sylvester had a scheduled medical appointment on Friday, and the defendant, who had "called out of work" that day, offered to watch the victim while Sylvester went to her appointment.

         Sylvester left the house at approximately 12:30 p.m., leaving the victim alone with the defendant. The victim had no visible bruising, swelling, or injuries when Sylvester left him. She returned to the house at approximately 2:30 p.m. and, having been told by the defendant that the victim was in his crib sleeping, proceeded to put away some purchases. When Sylvester eventually checked on the victim, she found him lying in vomit in his crib. He did not respond when she spoke to him, and, when she picked him up, "he was completely dead weight."

         Sylvester immediately told the defendant that they needed to take the victim to the hospital. As they were leaving the house to do so, the victim stopped breathing and Sylvester called 911. At this time, Sylvester noticed that the "whole side of [the victim's] face was bruised." The victim was taken by helicopter to Dartmouth Hitchcock Medical Center. He died two days later.

         According to expert testimony at trial, the victim suffered "massive injury to his head and brain." His injuries included extensive bruising over his face, forehead, scalp, and ears, "fairly extensive fractures on both sides of his head," "severe tissue damage to his brain," a broken leg, a broken arm, and injuries to his penis, scrotum, and anus.

         On November 14, 2015, the police obtained a warrant to search the defendant's cell phone. Forensic examination of that phone uncovered a number of photographs, 14 of which were published to the jury at trial. Those photographs were taken with the defendant's cell phone between 1:08 and 1:20 p.m. on November 13, 2015, and had been deleted from that phone. Some showed signs of injury to the victim's head and face. Others, according to the trial court's order on the defendant's motion to suppress, "depict[ed] the penis and anus of an infant male and several depict[ed] an adult male hand digitally penetrating the infant's anus."

         At trial, the theory advanced by the defendant in opening and closing statements was that, although he sexually assaulted the victim, as evidenced in the photographs on his phone, he did not cause the victim's death. Rather, according to the defendant's theory, Sylvester returned from her medical appointment "already frustrated," discovered that the victim had urinated on her bed, and, in a "momentary, yet horrific loss of self control," fatally beat the victim.

         The jury convicted the defendant of first degree murder and falsification of physical evidence. He now appeals, arguing that the trial court erred by: (1) denying his motion to suppress photographs found on his cell phone; (2) denying his motion to admit, as substantive evidence, prior statements by the victim's mother that she did not want to be alone with the victim because she was having "bad thoughts"; and (3) failing to instruct the jury that to convict on the first degree murder charge, it had to find that the defendant was aware that his conduct was "practically certain" to cause the victim's death.

         I. Suppression

         We begin with the defendant's challenge to the trial court's suppression ruling. Because the defendant raises claims under both the State and Federal Constitutions, we first address his claim under the State Constitution and rely upon federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, 231- 33 (1983). "Part I, article 19 of the New Hampshire Constitution provides that search warrants shall issue only upon 'cause or foundation,' supported by oath or affirmation," which we have interpreted "as a requirement for probable cause." State v. Decoteau, 137 N.H. 106, 111 (1993). We review the trial court's ruling on probable cause "de novo except with respect to any controlling factual findings." State v. Ward, 163 N.H. 156, 159 (2012). Nevertheless, "[w]e assign great deference to the magistrate's determination of probable cause, and do not invalidate a warrant by interpreting the evidence submitted in a hypertechnical sense." State v. Zwicker, 151 N.H. 179, 185 (2004). "We apply a totality-of-the-circumstances test to review the sufficiency of an affidavit submitted with a warrant application." State v. Letoile, 166 N.H. 269, 273 (2014). We interpret such supporting affidavits "realistically and with common sense," Zwicker, 151 N.H. at 186, and we "determine close cases by the preference to be accorded to warrants," Letoile, 166 N.H. at 273 (quotation omitted).

         A. Probable Cause

         The defendant first argues that the affidavit did not establish probable cause to search for photographs. He does not "dispute that the affidavit established probable cause to search his phone for text messages that he and Sylvester exchanged after the victim's hospitalization." He contends, however, that the affidavit, which did not mention photographs, "failed to show that it was 'probable' that photographs constituted the fruit, instrumentalities, or evidence of any crime."

         "Probable cause exists if a person of ordinary caution would justifiably believe that what is sought will be found through the search and will aid in a particular apprehension or conviction." Letoile, 166 N.H. at 272 (quotation omitted). "The police must demonstrate in an application for a search warrant that there is a substantial likelihood that the items sought will be found in the place to be searched." Id. at 272-73 (quotation omitted). "The affiant need not establish with certainty, or even beyond a reasonable doubt, that contraband or evidence of a crime will be found in a particular place." In re Search Warrant for 1832 Candia Road, 171 N.H. 53, 56 (2018). Our task as the reviewing court is to "examine whether, given all the circumstances set forth in the affidavit, the magistrate had a ...

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