State v. Collins, 89-020

• Decision Date: 17 October 1990
• Docket Number: No. 89-020,89-020
• Citation: 133 N.H. 609,581 A.2d 69
• Parties: The STATE of New Hampshire v. Liam COLLINS.
• Court: New Hampshire Supreme Court

Page 69

581 A.2d 69

133 N.H. 609

The STATE of New Hampshire v. Liam COLLINS.

No. 89-020.

Supreme Court of New Hampshire.

Oct. 17, 1990.

John P. Arnold, Atty. Gen. (Mark E. Howard, Asst. Atty. Gen. on the brief and orally), for State.

James E. Duggan, Chief Appellate Defender, Concord by brief and orally, for defendant.

PER CURIAM.

The defendant appeals his burglary conviction, claiming that the Superior Court (Nadeau, J.) erred: (a) in refusing to apply collateral estoppel by adopting findings made with respect to suppression issues in an earlier habeas corpus proceeding; (b) in recognizing the authority of a business vehicle's owner to consent to its search; and (c) in permitting retrial for burglary when the court at the first trial gave an erroneous instruction on an element of the offense. We affirm.

The defendant, Liam Collins, was first convicted of burglary in 1986, after which he sought relief on petition for habeas corpus, alleging ineffective assistance of counsel and erroneous jury instructions said to have violated due process. The Superior Court (Groff, J.) ordered a new trial. The court found that trial counsel's failure to move for suppression of certain evidence, which the court would have held inadmissible, had deprived the defendant of effective assistance, to his prejudice. The court also concluded that an erroneous jury instruction on one element of the offense had worked a denial of due process.

Prior to retrial, the defendant sought to suppress statements and certain real evidence and moved for favorable rulings as a matter of law on the theory that the State was collaterally estopped to relitigate the conclusions reached by Groff, J., that the evidence in question would have been suppressed in response to an appropriate motion at the first trial. The Court (Nadeau, J.) declined to recognize any such preclusion and denied a motion to suppress evidence seized from a truck entrusted to the defendant by his employer. Nadeau, J. also declined to limit the charge on retrial to a lesser-included offense, as a consequence of the first trial's erroneous jury charge on one of the elements of burglary. The defendant's second conviction led to this appeal.

The defendant's claim that at the second trial the State should have been estopped collaterally from litigating the motions to suppress evidence is concededly without constitutional significance, cf. Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970); State v. Fielders, 124 N.H. 310, 312, 470 A.2d 897, 898 (1983), since a habeas proceeding is civil in nature, see Riddle v. Dyche, 262 U.S. 333, 335-36, 43 S.Ct. 555, 555-56, 67 L.Ed. 1009 (1923); R. McNamara, 2 New Hampshire Practice, Criminal Practice and Procedure § 1001, at 178 (1980). The issue before us is therefore one of common law, whether conclusions about evidentiary admissibility made in the course of habeas review should preclude the State from relitigating those admissibility issues in response to a defense motion prior to a subsequent trial required by the terms of habeas relief.

Although the parties have addressed the conditions necessary for such issue preclusion at some length, see Daigle v. City of Portsmouth, 129 N.H. 561, 570, 534 A.2d 689, 693 (1987), we rest our decision on the more fundamental ground that collateral estoppel should not be recognized as between the litigation of a defendant's habeas petition seeking a new trial and his subsequent retrial on criminal charges. Our reasons emerge from examining the parties' respective responsibilities in the two proceedings.

A petitioner for writ of habeas corpus bears the burden of proving entitlement to relief, see State v. Hesse, 117 N.H. 329, 331, 373 A.2d 345, 346 (1977), and a defendant who invokes a trial court's post-trial jurisdiction to grant a new trial based on prejudice from ineffective assistance of counsel likewise bears the entire burden of proof, see State v. Faragi, 127 N.H. 1, 5, 498 A.2d 723, 726 (1985). If, however, a conclusion about evidentiary admissibility reached in the habeas proceeding could estop the State from relitigating that issue prior to any new trial, the State would be bound for all practical purposes to assume the burden of fully litigating the merits of suppression at the habeas stage. The burden of proof in the habeas proceeding would devolve in fact upon the State, just as it rests in law upon the State in any true suppression hearing, see State v. Palamia, 124 N.H. 333, 336, 470 A.2d 906, 907-08 (1983) (to justify admitting fruits of warrantless arrest); State v. Gullick, 118 N.H. 912, 915, 396 A.2d 554, 555 (1978) (to show post-Miranda waiver); State v. Phinney, 117 N.H. 145, 146, 370 A.2d 1153, 1153 (1977) (to show voluntariness of statement); State v. Slade, 116 N.H. 436, 437, 362 A.2d 194, 195 (1976) (to show lawfulness of search and seizure). If collateral estoppel were thus to be predicated on the result of enquiring into a suppression issue at a habeas hearing, the resulting effective shift of the burden of proof would tend to inflate the scope of such habeas litigation, and would run counter to the policy underlying the presumption of regularity attending any judgment pending demonstration of its taint with some error. See, e.g., State v. Dayutis, 127 N.H. 101, 104, 498 A.2d 325, 328 (1985); see also 31A C.J.S. Evidence § 145 (1964). To accord a preclusive effect to such a habeas finding would, moreover, create a whimsical disparity between the consequences of relief awarded after habeas proceedings and after motions for new trial: the prior judgment of the completed habeas proceeding would support collateral estoppel, cf. Restatement (Second) of Judgments §§ 13, 27 (1982), whereas the ruling on a prompt post-trial motion for new trial would produce no judgment (because rendered within a continuing criminal case) and no estoppel. See Daigle v. Portsmouth supra (no estoppel without prior final judgment); Restatement (Second) of Judgments supra. Such disparate procedural consequences would, of course, discourage any defendant from expeditiously raising an ineffective assistance claim by means of a motion for new trial. These unjustifiable anomalies are avoided by our holding that the determination of a suppression issue, insofar as necessary for purposes of habeas, raises no estoppel barring litigation of that issue at a subsequent new trial necessitated by the terms of the habeas relief.

The second assignment of error goes to the receipt into evidence of a shoe found in a truck used by the defendant in his employment, but owned by his employer. Immediately after the crime, the police learned that the perpetrator had entered the victim's apartment without using force, and other evidence pointed to the apartment complex's maintenance man, the defendant, as the burglar. The police promptly arrested him, and in subsequent questioning the defendant mentioned that during the evening he had used a pickup truck that was assigned to him as an incident of his employment. The police then got permission from the owner of the apartment complex to search the truck, in which they found the mate to a shoe or moccasin discovered under the window from which the burglar had jumped in leaving the victim's apartment.

The defendant moved to block evidentiary use of the second shoe. The testimony at the motion hearing showed that the defendant was permitted to use the truck for personal errands as well as for business purposes, that he possessed the only set of keys to it, that no other employee of the complex was allowed to use it without his permission, and that the owner made no use of it himself. On these facts, the defendant argued that the owner's permission was inadequate to authorize the police's search, the fruits of which were therefore said to be subject to suppression.

In reviewing this issue, we look only to the fourth amendment, since the defendant's brief made no reference to part I, article 19 of the State Constitution. See State v. Dellorfano, 128 N.H. 628, 632, 517 A.2d 1163, 1166 (1986). If we start with the assumption that in using the truck the defendant was entitled to entertain an expectation of privacy against the government, the relevant fourth amendment enquiry rests on the premise that consent can exempt a search from the requirements of a warrant supported by probable cause, see Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 2058-59, 36 L.Ed.2d 854 (1973), and that such consent need not always be obtained from the defendant against whom the fruits of the search are to be used as evidence, see Coolidge v. New Hampshire, 403 U.S. 443, 487-90, 91 S.Ct. 2022, 2048-50, 29 L.Ed.2d 564 (1971); Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). Although there is some support for the blanket proposition that a defendant's private employer may supply such third-party consent to search business premises and instrumentalities, even when these are reserved for the defendant's use to the exclusion of other employees and the general public, see Mancusi v. DeForte, 392 U.S. 364, 369-70, 88 S.Ct. 2120, 2124-25, 20 L.Ed.2d 1154 (1968), the safer course is to scrutinize the efficacy of an employer's consent in light of United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

In Matlock, third-party consent to search a bedroom had been obtained from a woman who occupied that room as a cohabitant of the male defendant, who rented the room from the woman's mother. On these facts, there was no possibility of arguing that the constitutional adequacy of the permission derived from the superior status of the third party over the defendant or the superiority of the third party's rights to deal with the room. Whatever the third party's authority might be, it had to be derived either from the defendant, to whom the room was rented, or from the third party's mother, who as a joint...