State v. Field

• Decision Date: 09 March 1990
• Docket Number: No. 89-239,89-239
• Citation: 571 A.2d 1276,132 N.H. 760
• Parties: The STATE of New Hampshire v. Nelson FIELD.
• Court: New Hampshire Supreme Court

Page 1276

571 A.2d 1276

132 N.H. 760

The STATE of New Hampshire v. Nelson FIELD.

No. 89-239.

Supreme Court of New Hampshire.

March 9, 1990.

Rehearing Denied April 25, 1990.

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

Robert J. Moses, Amherst, on brief and orally, for defendant.

JOHNSON, Justice.

After an April 27, 1989 probation revocation hearing, the Superior Court (Hollman, J.) found that defendant violated the rules of his probation. The court sentenced defendant to two to four years in the State Prison, with credit for pretrial incarceration, and defendant now appeals. For the reasons stated below, we affirm.

The facts of this case are as follows. Defendant pleaded guilty to a charge of violating RSA 159:3 (Supp.1989) (felon in possession of a weapon) on March 23, 1988. As a result of his negotiated plea, he was sentenced to one year in the house of corrections and two years of probation. The sentence was deferred for one year, at the end of which defendant was to be given the opportunity to show cause why that sentence should be suspended. He signed an acknowledgment of rights form before entering his plea of guilty to this offense.

There is no evidence that defendant signed the standard probation form, which explains the rules of probation, upon receiving this sentence. However, defendant had been on probation before and had signed the standard probation form at the commencement of that earlier probation period. In addition, Probation/Parole Officer (PPO) Dennis Kinnan, defendant's PPO during the earlier probation period, testified:

"Basically, I had the same conversation with Nelson [at the start of this probation] that I had before.... 'You're back on probation. You know what the rules are. Do you have any questions on what you have to do?' And this last time was, 'Nelson, this is really the last chance. You've got to fulfill, you've got to follow the rules of probation. You've got to do what you've got to do here or you're going to go to Prison.' That was the discussion."

Based on this evidence, we hold that the defendant was sufficiently apprised of his obligation as a person on probation to not possess a weapon, explosive and/or firearm and to be of good behavior during the period of probation.

In early September, 1988, the Jaffrey Police Department obtained a warrant for defendant's arrest for his suspected role in a theft of three firearms and some ammunition. Three officers, Pelio, Ellis, and Griffin (a State trooper), went to defendant's apartment complex on September 15, 1988, and attempted to execute the warrant. No one responded to the officers' knock, but upon leaving the building, Pelio met Charles Rocheleau, a part-time police officer who had been outside the building. Rocheleau told Pelio he had just seen a man kick out a screen in a second-floor window (defendant's apartment was located on the second floor), jump out of the window onto a dormer over a first-floor door, jump onto the ground, and run into another part of the building. The officers then returned to defendant's apartment, knocked on the door, and, getting no response, forced the door open with the intention of executing the arrest warrant if the defendant was still within the apartment. They had a reasonable belief that the defendant was still in the apartment, and that perhaps some other person had jumped out the window, or that the person who had exited had returned to the apartment.

Once inside defendant's apartment, the officers searched for him in each of the rooms, to no avail. During this search Pelio noticed an open, apparently damaged window in one of the bedrooms. Griffin, meanwhile, found a .22 calibre rifle in the living room. It is unclear from the record whether the rifle was found "in plain view."

After the search, Pelio called defendant's new PPO, Sherwood Vachss, and gave him a "basic synopsis" of what had happened and what had been found in the apartment. Vachss testified at the probation revocation hearing that the officers did not tell him they searched for anything or anyone other than defendant.

In response to Pelio's call, Vachss conducted his own search of defendant's apartment, pursuant to Superior Court Rule 107(h) (allowing PPO's to make reasonable searches of a probationer's residence). Vachss found letters addressed to defendant on a dresser in one of the bedrooms. He opened the dresser and found more papers bearing defendant's name, as well as boxes of .22 calibre long-rifle ammunition. Vachss seized the ammunition and filed a violation of probation report against defendant, alleging two violations: "(1) Possession of weapon, explosive and/or firearms; and (2) Failure to be of good behavior (did resist apprehension of the Jaffrey Police)." Following a probation revocation hearing, the superior court found defendant chargeable on these violations and sentenced him to two to four years of incarceration.

On appeal, defendant makes three arguments. First, he argues that the superior court subjected him to double jeopardy and violated his due process rights under the State Constitution. The court, he maintains, should not have imposed on him a longer sentence for probation violation than the sentence he negotiated for and received when he pled guilty to the underlying crime of being a felon in possession of a firearm. Second, defendant argues that the superior court's refusal to apply the exclusionary rule violated his rights under part I, article 19 of the State Constitution. Third, he argues that the superior court lacked sufficient evidence to find that he had violated the terms of his probation.

I. Double Jeopardy and Due Process

We need not address defendant's first argument because he did not raise it properly below. As we stated in State v. Dellorfano, 128 N.H. 628, 517 A.2d 1163 (1986),

"the defendant must fulfill two preconditions before triggering a State constitutional analysis: first, the defendant must raise the State constitutional issue below; second, the defendant's brief must specifically invoke a provision of the State Constitution."

Id. at 632, 517 A.2d at 1166 (citations omitted). A defendant must "raise a clear State, as distinct from federal, constitutional claim at the trial court level...." Id. at 633, 517 A.2d at 1166 ("the defendant objected to the admission of his statements to police based only on generalized 'constitutional' concerns"); see also State v. Westover, 127 N.H. 130, 131, 497 A.2d 1218, 1219 (1985); State v. Cimino, 126 N.H. 570, 572-73, 493 A.2d 1197, 1199-1200 (1985).

In his brief, defendant properly fleshed out his State constitutional double jeopardy and due process arguments, although he incorrectly referred to part I, article 19 for these principles. However, defendant failed to raise a State double jeopardy or due process claim at the probation revocation hearing. Defendant's counsel stated he had "some due process concerns" about his client's augmented sentence, but he neglected to invoke the State Constitution in connection with these concerns. The words "double jeopardy" were never invoked by defense counsel. Having failed to raise these State constitutional issues at the hearing, the defendant has failed to preserve these issues on appeal. State v. Westover, supra. Further, although defendant implicated the Federal Constitution at the hearing, he nonetheless failed to raise the issue in either his notice of appeal or brief. Thus, we need not consider the issue on appeal. Aubert v. Aubert, 129 N.H. 422, 529 A.2d 909 (1987).

Assuming, arguendo, that defendant properly raised State double jeopardy and due process claims below, State v. White, 131 N.H. 555, 556 A.2d 308 (1989) bars him from winning relief. In that case, we held that "[s]tatutory law authorizes courts to impose fines or imprisonment upon probation violation up to the balance of the maximum which could have been imposed originally." Id. at 557, 556 A.2d at 310 (citing RSA 651:2, VII). Addressing the defendant's double jeopardy claim, we stated that the trial "court's jurisdiction had been continued by reason of the provision for probation.... When probation is imposed, the sentencing function is not ended, however strongly the parties may hope that it has." Id. at 558, 556 A.2d at 310-11. Thus the defendant's protection against double jeopardy was not violated.

Similarly, White held that the defendant's due process rights were not violated. Citing Stapleford v. Perrin, 122 N.H. 1083, 453 A.2d 1304 (1982), we stated that "a defendant whose retained liberty interest is to be revoked in whole or in part is entitled to a due process hearing and the opportunity to be heard to test the State's case against him and to offer evidence in his own behalf in an effort to defeat the revocation." Defendant was given such a hearing on April 27, 1989. White, 131 N.H. at 558, 556 A.2d at 311.

Defendant maintains that this case can be distinguished from White because White did not involve a suspended sentence, whereas such a sentence was an integral part of his punishment. This argument fails because we affirmed White's conviction in spite of the fact that he received no suspended sentence. We find no other reason to distinguish White from defendant's case and therefore White controls.

II. Exclusionary Rule

Defendant's second argument, concerning the exclusionary rule and part I, article 19 of the State Constitution, was properly raised below. During his closing argument, defendant's counsel opined:

"The State ... obtained evidence in violation of Mr. Field's constitutional rights in a manner sufficient by making a forcible entry without a warrant and knowing they didn't have a warrant so as to shock the conscience of this Court and thus abrogate Mr. Field's federal and state constitutional rights."

Applying the standard detailed above to these words, we hold that defendant preserved...