State v. Hammell
| Decision Date | 21 December 2001 |
| Docket Number | No. 99-783.,99-783. |
| Citation | 787 A.2d 850 |
| Parties | The STATE of New Hampshire v. Brian HAMMELL. |
| Court | New Hampshire Supreme Court |
Philip T. McLaughlin, attorney general (Stephen D. Fuller, assistant attorney general, on the brief and orally), for the State.
Richard E. Samdperil, assistant appellate defender, of Concord, by brief and orally, for the defendant.
The defendant, Brian Hammell, appeals his convictions in Superior Court (McGuire, J.), on twelve counts of being a felon in possession of a weapon. We affirm in part and reverse in part.
The record establishes the following facts. On January 31, 1999, Concord Police Officers William Dexter and Steven Smagula were dispatched to investigate an open line 911 call from an apartment in Penacook. Knocking on the door, Dexter heard a female voice say that they were all set, instructing Dexter to go away. Dexter knocked again and the door was opened by the apartment's tenant, Daniel Mathieu, who signaled with his hand for Dexter to come in.
Dexter observed a kitchen table, broken and knocked over, and the defendant, with scratches on his neck and a cut below his eye. Dexter also noticed three handguns in holsters located on the wall in an archway. Unable to locate the female he had heard, Dexter opened the door to the last remaining room in the apartment, where he observed a stockpile of long guns and a woman, later identified as Sheila Hammell, crying, partially disrobed and bleeding. The defendant slammed the door shut, shoving Dexter out of the way. Dexter arrested the defendant for assault. Dexter later learned that the defendant was a convicted felon.
After removing the defendant, Dexter returned to the apartment to speak with Mrs. Hammell. Mrs. Hammell stated that there had been a knife fight between the defendant and Jeffrey Smith, in which she was accidentally wounded. Dexter left the apartment to find Smith, who later stated that there had been a fistfight between the defendant and Mrs. Hammell, which Smith had tried to break up. Smith claimed that the defendant then pulled a knife on him. After questioning Smith, Dexter returned to the apartment where Officer Smagula was still in the process of inventorying Mathieu's weapons.
Upon his return, Dexter relayed to Mrs. Hammell Smith's version of the night's events, which she denied. Mrs. Hammell then showed Dexter four knives located in the bedroom, describing which knives were used in the altercation. Dexter observed that one of the knives had blood on the blade. At that point Dexter seized all four knives and removed them from the apartment.
After booking, the police searched the defendant and found fifteen, twenty-two caliber rounds. Though all of the weapons observed in the apartment belonged to Mathieu, the police determined that the defendant had access to and control of the numerous firearms in the apartment and returned to collect them. Dexter told Mathieu that the police had learned that the defendant was a convicted felon and that they wanted to seize Mathieu's weapons in connection with their criminal investigation. Dexter also expressed concern for the haphazard manner in which the weapons were stored. After expressing concern about recovering his firearms, Mathieu asked Dexter what options he had. Dexter explained that Mathieu could either surrender his weapons voluntarily or the police could petition a judge for permission to seize them. Mathieu was agreeable during the conversation and nodded his head as Dexter explained his options. The trial court found that Mathieu then "threw up his hands and stated that the police could do what they had to do." Thirty-six firearms and four knives were recovered in the apartment. The defendant was charged with forty counts of being a felon in possession of a weapon and one count of simple assault.
After a jury trial, the defendant was found guilty on twelve counts of being a felon in possession of a weapon and one count of simple assault. Pursuant to RSA 651:6, I(c) (Supp. 1999), providing for extended terms of imprisonment, the defendant was sentenced to not more than fifteen years nor less than seven and one-half years for each of the twelve possession convictions and to a term of twelve months for the simple assault, all sentences to be served concurrently.
On appeal, the defendant argues that the trial court erroneously denied his motion to suppress the weapons, that the evidence linking him to the weapons was insufficient, that the trial court erred when it denied his motion to dismiss on grounds of prosecutorial overreaching, and that the trial court erred by imposing the extended terms of imprisonment.
The defendant first argues that the seizure of the four knives and the thirty-six firearms violated Part I, Article 19 of the New Hampshire Constitution. The trial court upheld the seizure of the knives under the plain view exception to the warrant requirement. The court further found that the search and seizure of the firearms was voluntarily consented to by Mathieu. Accordingly, we will consider the search and seizure of the knives and the firearms separately.
The defendant argues that the seizure of the knives does not fall within the plain view exception because Dexter's viewing of the knives was not inadvertent. Under our State Constitution, the State must prove three criteria by a preponderance of the evidence to justify a seizure under this exception: "(1) The initial intrusion which afforded the view must have been lawful; (2) the discovery of the evidence must have been inadvertent; and (3) the incriminating nature of the evidence must have been immediately apparent." State v. Murray, 134 N.H. 613, 615, 598 A.2d 206 (1991) (citation omitted). But cf. Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (). "The purpose of the `immediately apparent' requirement is to prevent `general, exploratory rummaging in a person's belongings.'" Arizona v. Hicks, 480 U.S. 321, 334, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) (O'Connor, J., dissenting) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)).
Our review of the superior court's order is de novo, except as to any "controlling facts determined at the superior court level in the first instance." State v. Decoteau, 137 N.H. 106, 111-12, 623 A.2d 1338 (1993). We defer to the trial court's determinations of credibility unless "no reasonable person could have come to the same conclusion after weighing the ... testimony." State v. Patch, 142 N.H. 453, 458-59, 702 A.2d 1278 (1997) (citation omitted).
At the time of the seizure, the trial court found that Dexter was investigating an altercation among the defendant, Mrs. Hammell and Jeffrey Smith. Questioning Mrs. Hammell and Smith, Dexter received conflicting information concerning the fight. As the trial court found, "It was in response to Jeffrey Smith's version of events that Sheila Hammell took Officer Dexter into the bedroom, showed him the knives allegedly involved in the altercation, and described who held what knife."
The defendant contends that the plain view exception to the warrant requirement is not applicable in this case because Dexter's discovery of the knives was not inadvertent. The defendant argues that because Dexter had been in the apartment earlier that night, learned of the existence of the knives, but left to question Smith, his return and continued questioning belies any claim that the subsequent view was inadvertent. We disagree. As the trial court correctly found, Dexter did not have probable cause to seize the knives when he was questioning Mrs. Hammell. Rather, Dexter was attempting to reconcile with Mrs. Hammell conflicting information provided by Smith. It was in response to Smith's version of events that Mrs. Hammell voluntarily led Dexter into the bedroom and showed him the knives. The discovery of the knives was therefore inadvertent.
The defendant also argues that even if the view of the knives involved in the altercation was lawful, the subsequent seizure of the remaining knives was not. Because two knives were not used in the altercation, the defendant maintains that their incriminating nature was not immediately apparent, thereby failing the third prong of Murray. We disagree. At the time the knives were seized, Dexter had been given two conflicting accounts of the altercation. In addition, both the defendant and Mrs. Hammell had been bleeding and one of the knives had blood on the blade. Under those circumstances, the incriminating nature of the knives was apparent. Therefore, Dexter's discovery of all four knives was permissible under the plain view exception to the warrant requirement.
The defendant next argues that the State failed to prove that Mathieu voluntarily consented to the seizure of the thirty-six firearms. To prove consent under Part I, Article 19 of the New Hampshire Constitution, the State must show that, under the circumstances surrounding the search, it was objectively reasonable for the officers conducting the search to believe that Mathieu had consented to it. State v. Baroudi, 137 N.H. 62, 66, 623 A.2d 750 (1993). We will disturb the trial court's finding only if it is not supported by the record. See State v. McGann, 124 N.H. 101, 106, 467 A.2d 571 (1983).
The defendant argues that Mathieu's statement, telling the police to "do what [they] have to do," did not clearly manifest consent to seize the firearms in question. We disagree. In light of the attendant facts, it was objectively reasonable for Smagula and Dexter to believe that Mathieu's statements, gestures and subsequent behavior, manifested free, knowing and voluntary consent. Dexter informed Mathieu that he could voluntarily surrender the weapons or wait for the officers to petition the court for a warrant. The record reflects that...
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