State v. Eldridge

• Decision Date: 19 February 2020
• Docket Number: No. 2018-0551,2018-0551
• Citation: 237 A.3d 266,173 N.H. 61
• Parties: The STATE of New Hampshire v. Brian ELDRIDGE
• Court: New Hampshire Supreme Court

173 N.H. 61

237 A.3d 266

The STATE of New Hampshire

v.Brian ELDRIDGE

No. 2018-0551

Supreme Court of New Hampshire, Merrimack.

Argued: January 14, 2020

Opinion Issued: February 19, 2020

Gordon J. MacDonald, attorney general (Danielle H. Sakowski, senior assistant attorney general, on the brief and orally), for the State.

Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.

DONOVAN, J.

The defendant, Brian Eldridge, appeals his convictions, following a jury trial in the Superior Court (Kissinger, J.), on one count each of possession of a controlled drug, see RSA 318-B:2, I (2017), and being a felon in possession of a firearm, see RSA 159:3 (2014). He argues that the trial court erred by: (1) concluding that the immunity afforded by RSA 318-B:28-b (2017) does not apply to the offense of possession with intent to sell a controlled drug, see RSA 318-B:2, I; (2) requiring him to waive that statutory immunity before instructing the jury on the lesser included offense of possession; and (3) denying his motion to suppress evidence. We conclude that the immunity provided by RSA 318-B:28-b does not extend to the offense of possession with intent to sell. However, we vacate the defendant's conviction for possession because we hold that, under the circumstances in this case, the defendant was entitled to both an instruction on the offense of possession and the statutory immunity. We also conclude that the police officers' initial warrantless entry into the defendant's apartment was justified by the emergency aid exception to the warrant requirement.

I. Facts

The following facts are supported by the record. At approximately 10:15 p.m. on May 3, 2017, Concord Police Officer Gorham was dispatched to an apartment at 28 Pierce Street in response to a 911 call reporting that the defendant may have overdosed and, as a result, was unconscious and not breathing. Gorham arrived at the apartment simultaneously with the Concord Fire Department. The firefighters and EMTs entered the apartment just ahead of Gorham and began treating the defendant, who was lying on the living room floor. Gorham proceeded to the kitchen, where she encountered the defendant's girlfriend. The girlfriend reported that she observed the defendant "shoot[ ] up" what she suspected was heroin and fall to the ground. Several minutes after Gorham arrived at the apartment, two other officers arrived, including Officer Levesque.

At that time, the Concord Police Department did not require its officers to carry Narcan

, a medication that reverses the effect of opioid overdoses, and none of the three officers who initially responded to the scene provided any medical treatment to the defendant. The EMTs administered multiple doses of Narcan to the defendant and successfully revived him. At some point while the defendant was being treated, a member of the Fire Department handed Levesque a fabric bag, in which Levesque observed small plastic bags and pills. Levesque was also handed an open wooden box, which he described as a "drug kit," that contained syringes, a spoon, and a small plastic bag. After the firefighters and EMTs left the apartment, Levesque entered the living room and observed ammunition cans and a "somewhat transparent" case in which he perceived something resembling the barrel of a firearm.

The police subsequently applied for a warrant to search the apartment. During their search, they found two knives, a dismantled firearm, 9.7 grams of fentanyl, a scale, a large number of small plastic bags, drug use paraphernalia, and over $7,000. The defendant was indicted on one count each of possession of fentanyl with intent to sell and being a felon in possession of a firearm, and two counts of being a felon in possession of a deadly weapon, see RSA 159:3.¹

The defendant moved to dismiss the indictments, arguing that RSA 318-B:28-b, III, immunized him from prosecution because he was the subject of a good faith request for medical assistance while he was experiencing a drug overdose and the evidence underlying the indictments was obtained as a direct result of that request. The trial court denied the defendant's motion. It concluded that the statutory language only immunizes a defendant from the arrest, prosecution, and conviction of the controlled drug offenses of "possessing" and "having under his or her control," and none of the charged crimes fell under the statute's immunity provisions. See RSA 318-B:28-b, II, III. The court also noted that, although the evidence underlying his indictments was discovered as a result of the request for medical assistance, the statute expressly provides that it shall not be construed to limit the authority of the police to arrest a person for an offense not immunized by paragraphs II or III. See RSA 318-B:28-b, IV.

The defendant then moved to suppress the evidence seized as a result of the search of his apartment, arguing, in part, that the search violated his right to be free from unreasonable searches under Part I, Article 19 of the State Constitution and the Fourth Amendment to the Federal Constitution. The trial court denied the defendant's motion, concluding, among other things, that the police officers' initial entry into his apartment was justified under the emergency aid exception to the warrant requirement. The trial court further concluded that the officers' initial entry into the apartment was not primarily motivated to seize evidence because their presence was also necessary to secure the scene and protect first responders from dangers commonly associated with responses to overdose calls.

Prior to trial, the defendant raised the possibility that he would argue to the jury that he possessed the fentanyl without intent to sell it. The State acknowledged that it is "axiomatic" that possession is a lesser included offense of possession with intent to sell, but argued that the defendant would waive the immunity provided by RSA 318-B:28-b if he requested a jury instruction on possession. The defendant asserted that if the jury found that the State only proved possession, then the statute mandated that its verdict be set aside. The trial court postponed ruling on the issue to consider the arguments during the jury trial.

Before closing arguments, the trial court ruled that, if the defendant requested a jury instruction on possession, he was required to waive the immunity afforded by RSA 318-B:28-b. In reaching its decision, the trial court primarily relied on Commonwealth v. Shelley, 477 Mass. 642, 80 N.E.3d 335 (2017), and State v. LaPlante, 117 N.H. 417, 374 A.2d 643 (1977). It found "very compelling" the "notion of the importance of the jury process being a rational one," and concluded that allowing the jury to deliberate on an offense for which the defendant could not be convicted called into question the process's rationality. The defendant objected to the trial court's ruling but ultimately opted to waive the immunity and the jury was instructed on the offense of possession.

The jury found the defendant not guilty of possession of fentanyl with intent to sell, but guilty of the lesser included offense of possession of fentanyl. It also found the defendant guilty of being a felon in possession of a firearm, and not guilty on both counts of being a felon in possession of a deadly weapon. This appeal followed.

II. Analysis

A. Offenses Immunized by RSA 318-B:28-b

The defendant first argues that the statutory immunity afforded by RSA 318-B:28-b applies to all crimes enumerated in RSA 318-B:2 with "possession" as an inherent element. He asserts that the statute is ambiguous, and the legislative history supports his argument that the legislature intended to bring within the statute's scope all crimes with the actus reus of possession, including the offense of possession with intent to sell a controlled drug. We disagree.

The interpretation of a statute presents a question of law, and we therefore review a trial court's interpretation of a statute de novo. State v. Mfataneza, 172 N.H. 166, 169, 210 A.3d 874 (2019). When interpreting a statute, we look first to the statutory language and, if possible, construe that language according to its plain and ordinary meaning, in the context of the entire statutory scheme. Id. We neither ignore the statute's language nor add words that the legislature did not include. Id. We are the final arbiters of the legislature's intent as expressed in the words of the statute. Id. Only when the statutory language is ambiguous do we look to the legislative history to aid in our interpretation. See State v. Lathrop, 164 N.H. 468, 470, 58 A.3d 670 (2012). Further, we construe provisions of the Criminal Code "according to the fair import of their terms and to promote justice." RSA 625:3, :7 (2016).

In 2015, the legislature added the "Immunity from Liability" statute to the Controlled Drug Act. RSA 318-B:28-b ; see Laws 2015, 218:2. As relevant here, the statute protects a person who "is experiencing a drug overdose" and "is the subject of a good faith request for medical assistance." RSA 318-B:28-b, III. The statute prohibits such a person from being "arrested, prosecuted, or convicted for possessing, or having under his or her control, a controlled drug in violation of RSA 318-B:2, if the evidence for the charge was gained as a proximate result of the request for medical assistance." Id.

RSA 318-B:2, I, makes it unlawful for a person to, among other things, "manufacture, possess, have under his control, sell, purchase, prescribe, administer, or transport or possess with intent to sell ... any controlled drug."² (Emphases added.) The language in RSA 318-B:2, I, indicates that "possess," "have under his control," and "possess with intent to sell" are distinct offenses. See Marcotte v. Timberlane/Hampstead School Dist., 143 N.H. 331, 338-39, 733 A.2d 394 (1999) (noting that commas between enumerated elements and before the conjunction "and" generally...