State v. Horne, 91-054
| Decision Date | 10 November 1992 |
| Docket Number | No. 91-054,91-054 |
| Parties | The STATE of New Hampshire v. Reuben HORNE. |
| Court | New Hampshire Supreme Court |
John P. Arnold, Atty. Gen., (Brian R. Graf, Asst. Atty. Gen., on the brief), by brief for the State.
James E. Duggan, Chief Appellate Defender, of Concord, by brief, for defendant.
The defendant, Reuben Horne, was convicted of four counts of the sale of marijuana and one count of the possession of marijuana with the intent to sell, RSA 318-B:2, I (Supp.1991), after a bench trial in the Superior Court (DiClerico, J.). On appeal, the defendant argues that the trial court erred by not suppressing certain conversations that were transmitted by a bodywire on an undercover State trooper but not simultaneously tape-recorded. Because we conclude that this issue was not raised below, we affirm.
The defendant met with an undercover State Police trooper in Bellows Falls, Vermont, in March 1990, to discuss a marijuana transaction. The State trooper wore a bodywire that allowed other law enforcement personnel to monitor the defendant's conversations. Prior to trial, the defendant moved to dismiss all five of the indictments against him. He argued that the State failed to preserve relevant and material evidence when it failed to tape-record the transmitted conversations as purportedly required by RSA 570-A:9. The trial court denied the defendant's motion to dismiss.
On appeal, the defendant now seeks relief solely on the ground that the trial court erred by not suppressing the transmitted conversations. The State contends that this issue was not properly preserved for appeal because the defendant did not seek to suppress the conversations below. We agree.
It is well established that we will not consider issues raised on appeal that were not presented in the lower court. State v. Kiewert, 135 N.H. 338, 348, 605 A.2d 1031, 1037 (1992); State v. Nutter, 135 N.H. 162, 164, 600 A.2d 139, 140 (1991). In the proceedings below, the defendant's objection to the conversations was in the form of a motion to dismiss all five indictments. He never moved to have the conversations suppressed, nor did he object to their use at trial. Although the defendant's requests for dismissal and suppression are based on the same assertion that the conversations should have been tape-recorded, they seek substantially different forms of relief which require different types of analysis. In moving to dismiss all five...
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