State v. Jaroma

• Decision Date: 31 August 1993
• Docket Number: No. 90-515,90-515
• Citation: 630 A.2d 1173,137 N.H. 562
• Parties: The STATE of New Hampshire v. Al JAROMA.
• Court: New Hampshire Supreme Court

Page 1173

630 A.2d 1173

137 N.H. 562

The STATE of New Hampshire v. Al JAROMA.

No. 90-515.

Supreme Court of New Hampshire.

Aug. 31, 1993.

Jeffrey R. Howard, Atty. Gen. (William H. Lyons, Sr. Asst. Atty. Gen., on the brief and orally), for State.

Murphy, McLaughlin, Hemeon & Lahey, Laconia (Philip T. McLaughlin, on the brief and orally, and Janice L. McLaughlin on the brief), for defendant.

BROCK, Chief Justice.

The defendant, Al Jaroma, was convicted of burglary, RSA 635:1 (1986), after a jury trial in Superior Court (Mohl, J.). On appeal, he contends that the trial court (1) erred when it denied his motions to suppress and found that the police had reasonable articulable suspicion to stop his vehicle; (2) erred when it denied his motion to suppress and found that the police had probable cause to arrest him for loitering and prowling; (3) erred when it held that his arrest under the loitering and prowling statute did not violate his State right against unreasonable searches and seizures; (4) deprived him of his right to an impartial jury and fair trial by refusing to ask the potential jurors certain voir dire questions; (5) deprived the defendant of his right to due process and an impartial jury when it nonrandomly selected the jury's foreperson and removed that person from the alternate pool; and (6) denied him his right to effective assistance of counsel at sentencing. For reasons that follow, we affirm.

At approximately 4:30 a.m. on June 20, 1989, Allenstown Police Officer Edwin Fournier observed the defendant drive out of the parking lot of several businesses near the Allenstown Convenience Store onto Route 3, without yielding, at approximately 30 miles per hour. Knowing that the defendant's vehicle did not belong to any of the business owners, that all of the businesses were closed, and that there had been several burglaries in the area over the past year, the officer became suspicious. Prior to stopping the vehicle in Hooksett, the officer learned that it had been leased from Knox Leasing Company. After the stop, the officer asked the defendant for his license and registration. The defendant produced his license, but could not find a registration or papers from a leasing company. After checking the defendant's license, the officer became aware that the defendant was a known burglar.

The officer then returned to his cruiser to request further information and a backup from the Hooksett police. While in his cruiser, Officer Fournier noticed the defendant duck down in his car. Concerned that the defendant might be concealing weapons, the officer used his loudspeaker to order the defendant to exit the car and place his hands on the front of the police cruiser. The officer then conducted a pat down search for weapons, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and checked the front seat of the car. The officer found no weapons but observed two bank bags under the seat of the car, which he neither examined in detail nor removed at that time.

After asking the Hooksett police to check businesses in the area of the Allenstown Convenience Store, Officer Fournier asked the defendant additional questions about the car and why he had been in the area at 4:30 a.m. The defendant gave the following responses. The vehicle was leased and he had borrowed it from his friend, Sandra Fisher. He did not know her address or telephone number. He left Dover at 11:00 p.m. after boating with a friend, whose name he did not know. He stopped on Route 28 to sleep, and when he awoke, he continued on his way to Allenstown, where he stopped behind the businesses to urinate. Officer Fournier told the defendant that he had been patrolling Route 28 during the time in which the defendant claimed he had stopped to sleep and he did not see the defendant's car. After listening to the defendant offer a different explanation as to his whereabouts that night, Officer Fournier concluded that the defendant was being deceitful and arrested him at approximately 5:07 a.m. for loitering and prowling in violation of RSA 644:6 (1986). The defendant was later charged with violating RSA 644:6.

Officer Fournier then asked the defendant if he could look in the trunk of the vehicle. The defendant agreed but then stated that he did not have a trunk key. When the officer pointed out that the trunk could be opened by pushing a button, the defendant refused to open it. The defendant's car was then towed, and the defendant was taken to the police station. At the station, Officer Fournier learned that the Allenstown Convenience Store had been burglarized and a Hooksett Bank deposit bag was missing. Officer Fournier obtained a warrant to search the car that the defendant was driving and found the instrumentalities of a burglary. The defendant subsequently was charged with burglary.

The Hooksett District Court (Kfoury, J.) dismissed the loitering and prowling charge, finding that the stop and arrest were invalid. The validity of the stop and arrest was relitigated in superior court on motions to suppress evidence and dismiss the burglary charge. The superior court denied these motions, and the defendant was convicted of burglary. He appeals.

The defendant argues that the Superior Court (Dunn, J.) erred when it reached the issues of whether there existed articulable suspicion to stop the defendant's car and probable cause to arrest the defendant because the superior court was "totally controlled by the factual finding" of the Hooksett District Court (Kfoury, J.). Because this issue was not raised below, it is not preserved for appellate review. See State v. Dayutis, 127 N.H. 101, 104, 498 A.2d 325, 328 (1985).

The defendant argues that even if the district court's findings are not binding on the superior court, the superior court erred in finding that Officer Fournier's initial detention of the defendant was a valid investigatory stop. The defendant contends that the stop violated his State and federal constitutional rights to be free from unreasonable searches and seizures. N.H. CONST. pt. I, art. 19; U.S. CONST. amend. IV.

We independently consider the defendant's claims first under the State Constitution, State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), citing to federal law only as an aid in our analysis, State v. Maya, 126 N.H. 590, 594, 493 A.2d 1139, 1143 (1985). Because the federal law offers no greater protections to be free from unreasonable searches and seizures, we make no separate federal analysis. See id.

A law enforcement officer is permitted to temporarily detain a suspect for investigatory purposes on grounds less than probable cause if the officer has a reasonable suspicion based on "specific and articulable facts which, taken together with rational inferences from those facts," leads him to believe that the person detained has committed or is about to commit a crime. State v. Kennison, 134 N.H. 243, 246-47, 590 A.2d 1099, 1101 (1991) (quotations omitted). Officer Fournier had an articulable basis for the suspicion that reasonably led him to believe that the defendant may have committed a crime. The officer knew the area, knew that several burglaries had occurred at local businesses within the past year, observed the defendant's vehicle emerge from behind a commercial building at 4:30 a.m. and enter onto a main street at approximately 30 miles per hour without yielding, knew that the businesses would not have been open for several hours, and knew that the vehicle did not belong to an owner of any of the businesses. Taking these facts together with the reasonable inferences therefrom, the officer had a sufficient basis to make an investigatory stop.

The defendant next argues that the Superior Court (Dunn, J.) erred when it found that the police had probable cause to arrest him for loitering and prowling in violation of RSA 644:6. He contends that the arrest was made without probable cause in violation of part I, article 19 of the New Hampshire Constitution.

"Probable cause to arrest exists when the arresting officer has knowledge and trustworthy information sufficient to warrant a person of reasonable caution and prudence in believing that the arrestee has committed an offense." State v. Vachon, 130 N.H. 37, 40, 533 A.2d 384, 386 (1987). When determining whether the police had probable cause to arrest, the court should review "reasonable probabilities and not the amount of evidence required to sustain a conviction or to make out a prima facie case." State v. Birmingham, 122 N.H. 1169, 1172, 453 A.2d 1329, 1331 (1982). The determination of probable cause must be viewed in the light of "factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." State v. Stevens, 121 N.H. 287, 290, 428 A.2d 1241, 1243 (1981) (quotations omitted).

The trial court did not err in finding that the officer had probable cause to arrest for a violation of RSA 644:6. Under that statute "[a] person commits a violation if he knowingly appears at a place, or at a time, under circumstances that warrant alarm for the safety of persons or property in the vicinity." RSA 644:6, I (1986) (emphasis added). The statute lists four circumstances that may be considered in determining whether such alarm is warranted, including, but not limited to, when the actor:

"(a) Takes flight upon appearance of a law enforcement official or upon questioning by such an official.

(b) Manifestly endeavors to conceal himself or any object.

(c) Has in his possession tools or other property which would lead a reasonable person to believe a crime was about to be perpetrated.

(d) Examines entrances to a structure which the actor has no authority or legitimate purpose to enter."

RSA 644:6, I(a)-(d) (1986). It also provides that, prior to any arrest under the statute, the officer "shall afford the actor the opportunity to dispel any alarm which would otherwise be warranted, by requesting ...