State v. Tabaldi

• Decision Date: 01 October 2013
• Docket Number: No. 2012–214,2012–214
• Citation: 77 A.3d 1124,165 N.H. 306
• Parties: The STATE of New Hampshire v. Matthew TABALDI
• Court: New Hampshire Supreme Court

165 N.H. 306

77 A.3d 1124

The STATE of New Hampshire

v.Matthew TABALDI

No. 2012–214

Supreme Court of New Hampshire.

Argued: May 9, 2013

Opinion Issued: October 1, 2013

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

James B. Reis, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

CONBOY, J.

The defendant, Matthew Tabaldi, appeals his convictions, following a jury trial, for the sale of a narcotic drug (cocaine), see RSA 318–B:2, I (2011); possession of narcotic drugs (crack cocaine and cocaine), see id. ; felon in possession of an electronic defense weapon, see RSA 159:21 (2002); and receiving stolen property (a firearm), see RSA 637:7 (2007). He argues that the Superior Court (Lewis, J.) erred by: (1) denying his motion to strike a prospective juror; (2) denying his motions to dismiss the possession of an electronic defense weapon and possession of crack cocaine charges; and (3) admitting certain evidence over his objection. We affirm all of the defendant's convictions except his conviction for being a felon in possession of an electronic defense weapon. We reverse that conviction with prejudice because we conclude that the evidence was insufficient to convict him of that charge. See State v. Gordon, 161 N.H. 410, 418, 13 A.3d 201 (2011) ("[I]f the evidence was insufficient to support the conviction, the Double Jeopardy Clauses of both the New Hampshire and United States Constitutions ... preclude a new trial.").

I. Background

The jury could have found the following facts. On March 25, 2009, Heather Taylor was the target of a drug investigation conducted by the New Hampshire Police Narcotics Investigation Unit. The police suspected that Taylor was transporting large quantities of heroin and cocaine from Massachusetts into New Hampshire. The police planned a "controlled buy."

In a controlled buy, the police use a confidential informant (CI) to purchase drugs from a target using paper currency that has been documented by the recording of the bills' serial numbers (also known as "buy money"). In a controlled buy, officers search the CI before and after sending him or her to purchase the drugs to ensure that the CI does not have unaccounted-for money or contraband. Officers also conduct surveillance of the CI and the target during the investigation.

The police planned for a female CI to purchase drugs from Taylor on March 25. The plan was for the CI to go to Taylor's residence in Rochester, accompany her to Massachusetts, and then return with her to New Hampshire. At approximately 9:00 a.m., State Police Trooper Bryan Trask, Sergeant Ellen Arcieri, and a detective from the Rochester Police Department met with the CI. They searched the CI and her belongings and vehicle, and found no money or contraband. Trask then supplied the CI with $300 in documented bills (the buy money).

At 11:40 a.m., the CI drove to Taylor's residence in Rochester, and police officers followed. Officers observed the CI enter the residence, where she remained for between sixty and ninety minutes. While the CI was inside the residence, however, the target of the investigation changed from Taylor to the defendant. The CI and Taylor left Taylor's residence and drove together to a residence in North Hampton that the defendant shared with Kenneth Vaillancourt. Surveillance units followed.

At approximately 2:00 p.m., the CI and Taylor arrived at the North Hampton house. Vaillancourt was at work. Approximately forty-five minutes after entering the house, the CI exited alone, got into her car, and drove directly to a prearranged meeting place. There, she gave Trask a small plastic baggie containing cocaine. After receiving the cocaine, officers searched the CI, her vehicle, and her belongings for other contraband, and again found none. She no longer had the buy money.

Thereafter, the defendant and Taylor emerged from the residence and drove away in a gray BMW. The defendant was driving and Taylor was sitting in the front passenger's seat. Officers then conducted a motor vehicle stop, took the defendant and Taylor into custody, and transported them to the police station. Trask applied for warrants to search the defendant, Taylor, and the BMW.

Before the warrants were issued, Taylor identified certain items in the BMW belonging to her, including a green and purple backpack on the front passenger's side floor, a purse on the front passenger's seat, and a black backpack in the trunk. She consented to a search of those items as well as her person. Officers found nothing of significance in the backpacks, but in the purse they found crack cocaine pipes, brass knuckles, lighters, scissors, a syringe, a first aid kit, and a digital scale. There was testimony at trial that the buy money was found on the defendant's person.

Upon executing a search warrant for the BMW, officers found a black bag under the rear passenger's seat. The bag's contents—including laptop computers with content linked to the defendant, mail addressed to the defendant, and a notebook entitled "Matthew Tabaldi's usernames and passcodes"—indicated that the bag belonged to the defendant. Other items in the bag included: a ledger, plastic baggies, a white powder used as a cutting agent to dilute the strength of drugs, a weight for calibrating a scale, and a small torch commonly used for quickly heating drugs. The bag also contained a device police referred to as a "taser." Additionally, officers discovered a black case under the driver's seat, which contained drug paraphernalia, including spoons, plastic tubing, copper

mesh, and a hypodermic needle. Officers also discovered a digital scale in the pocket of a canvas guitar bag behind the driver's seat, crack cocaine pipes in a black canvas bag on the front passenger's seat, and another crack cocaine pipe in the pocket of a jacket on that seat. Finally, a Newport cigarette box containing crack cocaine was found between the driver's seat and the center console.

Officers also executed a search warrant at Vaillancourt's residence. In the defendant's bedroom they found, among other things, an open box of plastic sandwich bags and a white powdered substance that later tested positive for cocaine. On August 20, 2009, the defendant met with Trask and Arcieri at the State Police barracks in Epping, and told them that he dealt drugs. During a recorded telephone call with Taylor on October 2, 2011, the defendant discussed the events of March 25 with her saying, "I had to wait for a girl and make a sale." Taylor responded, "Don't be hating. Don't be hating." The defendant responded, "Hating? I'm doing a long time for this."

II. Discussion

A. Motion to Strike Juror

During jury selection, the venire was advised that the defendant was a convicted felon. A prospective juror, H.S., thereafter explained to the trial court, "[H]earing that a gentleman in the defendant's chair is a convicted felon just makes me a little—somewhat concerned for the charges brought against him." When asked if she would be able to put her concern aside, the juror indicated, "I will do my best." The trial court then engaged in the following exchange with H.S.:

Court: And you're going to hear about this, but you're going to need to expressly and affirmatively be able to say to me that's—I'm not trying this case on the basis of someone's reputation or his past.

H.S.: Yes, sir.

Court: Whether or not the State has proven the case here, beyond a reasonable doubt.

H.S.: Okay.

Court: So you need to be focused in on the evidence here.

H.S.: Yes, sir. Okay.

Court: You can do that?

H.S.: Yes, sir.

Defense counsel moved to strike H.S. for cause on the basis of her "reservations." The trial court denied the motion. H.S. was later stricken following the parties' use of their peremptory challenges. See RSA 606:3, III (2001); see also RSA 606:4, III (2001).

The defendant argues that the trial court erred in denying his motion to strike H.S. for cause, and that the error violated his rights to an impartial jury under the Sixth Amendment to the United States Constitution and Part I, Articles 15, 17, 21, and 35 of the New Hampshire Constitution. We first address the defendant's claim under the State Constitution and rely upon federal law only to aid our analysis. See State v. Ball, 124 N.H. 226, 231–33, 471 A.2d 347 (1983).

Part I, Article 35 of the State Constitution provides, "It is the right of every citizen to be tried by judges as impartial as the lot of humanity will admit." "This provision for judicial impartiality is applicable as well to jurors." State v. Town, 163 N.H. 790, 793, 48 A.3d 966 (2012). "[I]t is a fundamental precept of our system of justice that a defendant has the right to be tried by a fair and impartial jury." Id. at 793–94, 48 A.3d 966 (quotation omitted).

"Generally, a juror is presumed to be impartial." Id. at 794, 48 A.3d 966. "A juror is considered impartial if the juror can lay aside her impression or opinion and render a verdict based on the evidence presented in court." Id. (quotation omitted). "When a juror's impartiality is questioned, however, the trial court has a duty to determine whether the juror is indifferent." Id. "If it appears that any juror is not indifferent, he shall be set aside on that trial." RSA 500–A:12, II (2010); Town, 163 N.H. at 794, 48 A.3d 966. "Indifference or impartiality is not a technical conception. It is a state of mind." State v. Weir, 138 N.H. 671, 673, 645 A.2d 56 (1994) (quotation omitted). The trial court's determination of the impartiality of the jurors selected is essentially a question of demeanor and credibility and, thus, is entitled to special deference. Id. at 673–74, 645 A.2d 56. "We will not disturb the trial court's ruling absent an unsustainable exercise of discretion or a finding that the trial judge's decision was against the weight of the evidence." Town, 163 N.H. at 794, 48 A.3d 966.

In Town, we considered an...