State v. Brown

• Decision Date: 31 December 2009
• Docket Number: No. 2008–517.,2008–517.
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. Sean D. BROWN.

159 N.H. 544

986 A.2d 547

The STATE of New Hampshire

v.Sean D. BROWN.

No. 2008–517.

Supreme Court of New Hampshire.

Argued: June 11, 2009.

Opinion Issued: Dec. 31, 2009.

Kelly A. Ayotte, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

Paul Borchardt, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

BRODERICK, C.J.

The defendant, Sean D. Brown, appeals his convictions on four counts of the sale of a narcotic drug, see RSA 318–B:2 (2004) (amended 2008). He argues that the Superior Court (Groff, J.) erred in joining the charges under Superior Court Rule 97–A and in excluding evidence of a witness's prior conviction to impeach his testimony under New Hampshire Rule of Evidence 609(a)(2). We affirm.

I

The record supports the following facts. The Nashua Police Department arranged to have an individual cooperate to purchase drugs from the defendant. The cooperating individual participated in controlled buys on four occasions, January 21, January 24, January 28, and February 9, 2005. Many of the facts underlying the controlled buys are substantially similar. Each occurred at arranged locations within approximately one mile of one another. Prior to each purchase, a police officer, Officer Collins, searched the cooperating individual for weapons, contraband and money to preserve the integrity of the controlled buy and then supplied him with a sum of money to buy drugs. The cooperating individual met the defendant at an established location and entered the defendant's gray car bearing New York license plates. After each drug buy, the cooperating individual gave the drugs to the same police officer, who again searched him for weapons, contraband and money, and found none.

Some differences exist in the evidence underlying the four charges. For the first buy, the cooperating individual identified the defendant's car as a gray Mazda or Maxima with New York license plates. For the latter three buys, police surveillance more specifically identified the defendant's car as bearing New York license plate CXV 7985. In addition, the police conducted video surveillance during the first two buys, and the cooperating individual wore a wiretap for the second two buys. Further, while the cooperating individual identified the defendant as the seller for all four transactions, police officers witnessed the defendant in the driver's seat of the gray Mazda at the second, third and fourth buys. On another occasion, Officer Collins conducted surveillance of the defendant's residence and witnessed him driving the same gray Mazda sedan with the same New York license plates.

The defendant subsequently was charged with four counts of selling a narcotic drug under RSA 318–B:2, which were joined for trial over his objection. The jury found him guilty, and he appealed, arguing that the trial court erred in joining the charges against him. We reversed his convictions in State v. Brown, 156 N.H. 440, 938 A.2d 909 (2007), and remanded the case to the trial court. We rejected the State's argument that each controlled buy was part of a common plan and held that the trial court erred in joining the charges. Brown, 156 N.H. at 442–44, 938 A.2d 909. We also rejected the State's argument that because the evidence for each count would have been admissible at hypothetical separate trials under New Hampshire Rule of Evidence 404(b), the misjoinder constituted harmless error. Id. at 444–45, 938 A.2d 909.

In October 2007, before retrial, we adopted a new rule for joinder of offenses that became effective on January 1, 2008. See Super. Ct. R. 97–A. The State again moved for joinder. Again, the defendant objected. The trial court joined the charges, concluding that they were related under the new joinder rule, and that joinder was not contrary to the best interests of justice. During his retrial, the defendant sought to use certain prior convictions of the cooperating individual, pursuant to Rule 609(a)(2), to impeach the cooperating individual's credibility. The trial court excluded the evidence. The defendant was convicted on all four counts, and this appeal followed.

II

The defendant challenges the trial court's decision to join the charges. Specifically, he contends that the trial court erred in concluding that the charges were related and that joinder would not offend the best interests of justice. See Super. Ct. R. 97–A(I). We disagree.

Superior Court Rule 97–A governs the joinder of criminal offenses and distinguishes between charges that are related and unrelated. When a party moves to join related charges, the trial court is required to join them unless it "determines that joinder is not in the best interests of justice." Super. Ct. R. 97–A(I)(B). The rule defines three categories of related offenses:

Two or more offenses are related if they:

(i) are alleged to have occurred during a single criminal episode; or

(ii) constitute parts of a common scheme or plan; or

(iii) are alleged to have occurred during separate criminal episodes, but nonetheless, are logically and factually connected in a manner that does not solely demonstrate that the accused has a propensity to engage in criminal conduct.

Super. Ct. R. 97–A(I)(A). The trial court may join unrelated charges only upon written motion of the defendant or with the defendant's written consent, and "upon a showing that failure to try the charges together would constitute harassment or unduly consume the time or resources of the parties." Super. Ct. R. 97–A(I)(C). Under such circumstances, the trial court is required to join the charges unless "joinder is not in the best interest of justice." Id.

In this case, the trial court concluded that although the four drug charges occurred during separate criminal episodes, they were related because they were logically and factually connected in a manner that does not solely demonstrate that the accused has a propensity to engage in criminal conduct. See Super. Ct. R. 97–A(I)(A)(iii). It reasoned:

[There were] a series of sales to the same person of the same drug in the same amount, involving the same police officers as the organizing force behind the sales, within a short time period. The court does not find that the recording of only two of the transactions is significant. It must be conceded that every joinder of criminal indictments involves to some extent an inference of a propensity to engage in criminal conduct, simply because a series of crimes, rather than an isolated crime, has been committed. However, the Court finds that, in this case, the logical and factual connection does not solely demonstrate propensity. It is strongly probative of intent. Indeed, if the crimes in this case may not be joined for trial, it is difficult to conceive of any separate criminal episodes which could be joined.

The defendant argues that the trial court erred, contending that the common underlying conduct and the common participants in the four drug transactions are not enough to establish the requisite logical and factual connection. He further argues that joinder prejudiced him by allowing the State to rely upon the number of drug sales to demonstrate propensity and to use the stronger evidence of the later sales to improperly bolster its case for the earlier sales.

Historically, the decision to join multiple charges has been a discretionary matter left to the trial court. See State v. Ramos, 149 N.H. 118, 120, 818 A.2d 1228 (2003). Thus, we will uphold the trial court's ruling unless the decision constitutes an unsustainable exercise of discretion. Id. To show the trial court's decision is unsustainable, the defendant must demonstrate that the ruling was "clearly untenable or unreasonable to the prejudice of [the defendant's] case." Id. (quotation omitted).

A

Before considering whether the trial court correctly concluded that the drug sales were related offenses under Superior Court Rule 97–A(I)(A)(iii), we first briefly outline our joinder jurisprudence to give context to the present dispute. In Ramos, we departed from our then-existing joinder precedent because it had proven "unworkable," Ramos, 149 N.H. at 121, 818 A.2d 1228, and adopted the ABA standards for joinder and severance of criminal offenses, id. at 127, 818 A.2d 1228. Distinguishing between related and unrelated charges, we defined three categories of related offenses, "same conduct," "single criminal episode," and "common plan," and also determined that unrelated offenses are those offenses "that are not related." Id. at 125, 818 A.2d 1228.

Since Ramos, our opportunities for addressing relatedness have been confined largely to the "common plan" category, and we adopted the definition of common plan prescribed under New Hampshire Rule of Evidence 404(b). See, e.g., State v. McIntyre, 151 N.H. 465, 466–67, 861 A.2d 767 (2004) ; State v. Schonarth, 152 N.H. 560, 883 A.2d 305 (2005) ; Petition of State of N.H. (State v. San Giovanni), 154 N.H. 671, 919 A.2d 762 (2007). In 2006, however, we expressed concern that the definition of relatedness under Ramos may have been construed to be exclusive. See State v. Abram, 153 N.H. 619, 627, 903 A.2d 1042 (2006) ("we did not foreclose expansion of [the] definition [of related under Ramos ]"). While we continued to endorse Ramos, we were troubled that our jurisprudence seemed to preclude joinder of charges that might otherwise be appropriate for joinder. See id. We noted, however, that "the court should not adopt new standards for joinder in criminal trials for an issue that is not squarely before [it] and the adoption of a new rule of criminal procedure should be accomplished through rulemaking." Id. at 627–28, 903 A.2d 1042 (quotations and brackets omitted). Subsequently, in October 2007, we adopted Superior Court Rule 97–A, which became effective on January 1, 2008. This is our first opportunity to address the new joinder rule.

Turning to the governing law of this case, under Superior Court...