State v. Gubitosi
| Decision Date | 28 October 2005 |
| Docket Number | No. 2004–110.,2004–110. |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Steven GUBITOSI. |
Kelly A. Ayotte, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief, and Robert S. Carey, assistant attorney general, orally), for the State.
Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon, on the brief and orally), for the defendant.
The defendant, Steven Gubitosi, appeals his conviction for one count of stalking, see RSA 633:3–a, I(a) (Supp. 2004), following a jury trial in the Superior Court (Manias , J.). We affirm.
The jury could have found the following facts. The defendant began dating the victim, Martha Rubin, during the summer of 2000. Rubin ended their relationship in April 2002. Soon thereafter, Rubin began receiving telephone calls from the defendant on her home telephone and cell phone. During the summer of 2002, the defendant called Rubin numerous times each day. The calls "started to become threatening in nature," making Rubin fear for her safety. She changed the locks on her doors several times and often felt as though she was being followed.
On July 11, 2002, Rubin spoke to Officer William Dexter at the Concord Police Department about the telephone calls. She also described a recent incident in which the defendant had appeared at her home, asked her to step outside for a moment, then took her hand and placed it on the small of his back, where he had a firearm secured. While Rubin was talking with Officer Dexter, the defendant called her cell phone. Officer Dexter, who knew the defendant from his work as a police officer in Pembroke, took the phone and told the defendant that Rubin did not want to receive any more calls from him and that if he continued to call her, the police would file charges against him. Despite the officer's warnings, the defendant continued to telephone Rubin.
On September 19, 2002, Rubin and her boyfriend, Brian Kane, went to Zack's restaurant in Tilton to meet their friend, Kathleen Companion, for dinner. While Rubin and Kane were sitting in the bar area waiting for Companion to arrive, they saw the defendant's gold Lincoln Town Car drive through the parking lot. Rubin and Kane both recognized the car and the license plate number. Rubin also saw the driver's profile and the flash of his glasses. She testified that seeing the defendant's car that night made her feel "[f]earful, angry, [and] frustrated." Rubin and Kane then moved into the dining area of the restaurant where they could watch over Kane's car, which had been damaged in the past.
Companion arrived at the restaurant shortly before 8:00 pm and sat with Rubin and Kane in the dining area. Companion went to the bar to get a drink. The bartender was on the telephone. The bartender passed the phone to a waitress, who spoke briefly on the phone and then asked Companion if her name was Martha. When Companion replied that it was not, the waitress said that the person on the telephone was asking for Martha Rubin. Companion took the telephone from the waitress, listened briefly and recognized the person on the other end as the defendant. She told him to "[k]nock it off" and to "grow up," then the phone went dead. The defendant's cellular telephone records show that the defendant called the number for Zack's restaurant at 8:03 pm that night.
Companion returned to the table and told Rubin about the phone call. Companion then called the defendant and left him a message on his voicemail. When the defendant returned the call, he denied that he had called the restaurant and driven through the parking lot.
In October 2002, as part of its investigation into Rubin's allegations against the defendant, the Attorney General's office sent a subpoena duces tecum to U.S. Cellular. The subpoena required U.S. Cellular to provide "[s]ubscriber toll information on outgoing phone calls" from April 12, 2002, through October 18, 2002, for the defendant's cell phone number.
Prior to trial, the defendant filed a motion to suppress the phone records that U.S. Cellular had given to the State in compliance with the subpoena. The trial court denied the defendant's motion.
On appeal, the defendant argues that: (1) the trial court erred in admitting into evidence phone records obtained from U.S. Cellular; (2) the subpoena of the defendant's phone records was overbroad; (3) the evidence presented at trial was insufficient to find guilt beyond a reasonable doubt; and (4) the defendant was improperly charged with an inchoate act as part of a course of conduct under the stalking law. See RSA 633:3–a, II(a) (Supp. 2004).
The State argues that: (1) the defendant had no reasonable expectation of privacy in the telephone records obtained from U.S. Cellular; (2) the defendant does not have standing to challenge the breadth of the subpoena directed at U.S. Cellular and, even if he does, it was not overbroad; (3) the evidence at trial was sufficient to prove the defendant guilty beyond a reasonable doubt of stalking under RSA 633:3–a, I(a); and (4) the defendant's telephone call to the restaurant constituted an act as part of a course of conduct under RSA 633:3–a, II(a). We agree with the State.
The defendant argues that the trial court should have suppressed the telephone records because the State obtained them without a warrant or probable cause in violation of his right to privacy under Part I, Article 19 of the New Hampshire Constitution. Our review of the trial court's order on a motion to suppress is de novo , except as to any controlling facts determined at the trial court level in the first instance. State v. Goss, 150 N.H. 46, 47, 834 A.2d 316 (2003).
The defendant argues that he had a reasonable expectation of privacy in the telephone billing records obtained from U.S. Cellular. We recently adopted an expectation of privacy analysis for claims under Part I, Article 19 : "[T]here is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ " Id. at 49, 834 A.2d 316 (quotation omitted); see Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring).
In State v. Valenzuela, we held that the government's use of a pen register to record and disclose the numbers dialed from a telephone does not constitute a search under Part I, Article 19 of the State Constitution. State v. Valenzuela, 130 N.H. 175, 189, 536 A.2d 1252 (1987), cert. denied, 485 U.S. 1008, 108 S.Ct. 1474, 99 L.Ed.2d 703 (1988). We relied, in part, upon the United States Supreme Court's holding in Smith v. Maryland, 442 U.S. 735, 745–46, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), that the use of a pen register is not a search within the meaning of the Fourth Amendment because the defendant has no legitimate expectation of privacy in the phone numbers dialed to make outgoing telephone calls. See Valenzuela, 130 N.H. at 184, 536 A.2d 1252. Although we did not explicitly adopt an expectation of privacy framework under Part I, Article 19, we concluded that the defendant had no reasonable expectation of privacy in the information that was conveyed to the telephone company when he made an outgoing telephone call. Id. at 181, 536 A.2d 1252.
Id. Thus, we concluded that when a defendant communicates information to the telephone company in order to make the telephone system work for him, there is no violation of a protected privacy interest when the record of that information is later disclosed. Id. at 188–89, 536 A.2d 1252. Likewise, the defendant does not have a reasonable expectation of privacy in information concerning his cellular telephone calls that was recorded for billing purposes and retained by U.S. Cellular in the ordinary course of its business.
The defendant asks us to reconsider our holding in Valenzuela in light of our holding in Goss that a person has a reasonable expectation of privacy in garbage bags left in front of a residence for collection. See Goss, 150 N.H. at 49, 834 A.2d 316. He points to our observation in Goss that "[p]ersonal letters, bills, receipts, prescription bottles and similar items that are regularly disposed of in household trash disclose information about the resident that few people would want to be made public" to support his argument that he has a reasonable expectation of privacy in the billing records held by U.S. Cellular. Id. (emphasis added).
We decline the defendant's invitation to overrule Valenzuela for two reasons. First, "[t]he doctrine of stare decisis demands respect in a society governed by the rule of law, for when governing legal standards are open to revision in every case, deciding cases becomes a mere exercise of...
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