State v. Mack

Decision Date22 December 2020
Docket NumberNo. 2019-0171,2019-0171
Citation249 A.3d 423,173 N.H. 793
Parties The STATE of New Hampshire v. Jeremy D. MACK
CourtNew Hampshire Supreme Court

Gordon J. MacDonald, attorney general (Susan P. McGinnis, senior assistant attorney general, on the brief and orally), for the State.

Thomas Barnard, senior assistant appellate defender, of Concord, on the brief and orally, for the defendant.

BASSETT, J.

Following a jury trial in Superior Court (Bornstein, J.), the defendant, Jeremy D. Mack, was convicted on one count of possession of a controlled drug: psilocyn and/or psilocybin, see RSA 318-B:2, I (2017); RSA 318-B:1-a, I (2017); N.H. Admin. R., He-C 501.03(a) (incorporating by reference the federal schedules of controlled substances, 21 C.F.R. §§ 1308.11 - 15 (2019), into the New Hampshire Controlled Drug Act), which he possessed in the form of mushrooms. On appeal, the defendant argues that, because Part I, Article 5 of the New Hampshire Constitution protects his right to possess and use mushrooms as part of his religious worship, so long as he does not "disturb the public peace," the trial court erred by denying his pre-trial motion to dismiss. This appeal requires us to interpret Part I, Article 5, which provides:

Every individual has a natural and unalienable right to worship God according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping God in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession, sentiments, or persuasion; provided he doth not disturb the public peace or disturb others in their religious worship.

N.H. CONST. pt. I, Art. 5. Specifically, the outcome of this appeal turns on our interpretation of the phrase "disturb the public peace." Because we now articulate the test required by Part I, Article 5, we vacate the trial court's order and remand.

The pertinent facts are as follows. In 2017, the defendant, after practicing "[s]hamanic, earth-based religion" for years, joined the Oratory of Mystical Sacraments branch of the Oklevueha Native American Church. After joining the church, the defendant was issued a membership card specifying that he "met the standard of being a sincere member of the Native American Church," which qualified him to grow and use mushrooms as a religious sacrament in accordance with the church's rules. The defendant testified that the church has strict rules surrounding the taking of the sacraments, which must be done in seclusion. The defendant further testified that the rules prohibit taking mushrooms in public or around children, and also prohibit the operation of vehicles and the use of firearms while doing so. After joining the church, the defendant completed additional training and became a minister within the church.

In November 2017, two New Hampshire State Police troopers went to the defendant's home to serve him with an order of protection arising out of an unrelated civil matter pending in another state. The order required the troopers to take custody of any firearms owned by the defendant. Although the defendant was not at home, his mother, who lived with him, allowed the troopers into the residence. Speaking with the troopers on the telephone, the defendant gave the troopers permission to take custody of his firearms, which were located in a safe in the basement of his home. When the troopers opened the safe, they observed mushrooms on the top shelf, and seized them.

Approximately one week later, the defendant voluntarily met with one of the troopers at the Colebrook Police Department. During the meeting, the defendant explained to the trooper that he possessed and used the mushrooms as part of his religious worship, and that he did so in accordance with the rules of the Oklevueha Native American Church. He further explained his belief that it was legal for him to do so as part of his religious worship, based on his understanding of certain out-of-state court rulings and other legal information provided by the church.

In April 2018, the defendant was indicted on one count of possession of a controlled drug. See RSA 318-B:2, I. In July 2018, the defendant moved to dismiss the indictment on the grounds that it violated his right to freely exercise his religion under the First Amendment to the United States Constitution, and Part I, Article 5 of the New Hampshire Constitution. See U.S. CONST. Amend. 1 ; N.H. CONST. pt. I, Art. 5. The State objected. Following a hearing in September 2018, the trial court denied the defendant's motion to dismiss.

In its order, the trial court considered the defendant's claims under both the Federal and State Constitutions. The trial court observed that, prior to the decision of the United States Supreme Court in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), superseded by statute, Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488, any law that substantially burdened religious conduct was deemed to violate the Free Exercise Clause of the First Amendment unless the law was shown to serve a compelling government interest. In Smith, the Supreme Court dispensed with the "compelling government interest" test, and held that "the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." Employment Div., Ore. Dept. of Human Res. v. Smith, 494 U.S. at 879, 885-90, 110 S.Ct. 1595 (quotation omitted). Accordingly, the trial court determined that, under the Federal Constitution, "the State is not required to show a compelling government interest" because "the state law making it illegal to possess a controlled drug in the State of New Hampshire is a facially neutral law that applies to every person in the State regardless of the person's religious beliefs or lack thereof."

With regard to the State Constitution, the trial court observed that we had employed the reasoning from Smith in a free exercise case involving Part I, Article 5: State v. Perfetto, 160 N.H. 675, 679, 7 A.3d 1179 (2010). Finding that, in Perfetto, we had adopted Smith, the trial court applied the same reasoning as it had under the Federal Constitution, and denied the defendant's motion to dismiss, concluding that "the defendant's possession of psilocyn and/or psilocybin is prohibited under New Hampshire law, and because that prohibition is constitutional, the State may, consistent with the [federal] Free Exercise Clause and Part I, Article 5 of the New Hampshire Constitution, prosecute the defendant for said possession." The trial court denied the defendant's motion to reconsider, and the defendant was later convicted by a jury. This appeal followed.

On appeal, the defendant does not advance any appellate arguments under the Federal Constitution; rather, he argues that the trial court erred by denying his motion to dismiss under Part I, Article 5 of the New Hampshire Constitution. The defendant contends that the plain language and original meaning of Part I, Article 5 bar the State "from prosecuting an individual for worshipping God in the manner and season most agreeable to the dictates of his own conscience, except for conduct that disturbs the public peace or disturbs others in their religious worship." (Quotations and brackets omitted.) The defendant contends that his possession and use of mushrooms did not "disturb the public peace" within the original meaning of Part I, Article 5. He argues that the State Constitution provides greater protection to religious conduct than the Federal Constitution, and that we did not and should not adopt Smith because it is contrary to the plain language and original meaning of Part I, Article 5. The State does not dispute that the defendant's possession and sacramental use of mushrooms constitutes religious conduct motivated by a sincerely held religious belief.

We first consider the State's threshold contention that the defendant failed to preserve his arguments regarding the original meaning of Part I, Article 5 and the applicability of Smith. See Halifax-American Energy Co. v. Provider Power, LLC, 170 N.H. 569, 574, 180 A.3d 268 (2018) (observing that we generally "decline to review any argument that the defendants did not raise before the trial court" (quotation omitted)). From the outset, the defendant has maintained that his conduct is protected by Part I, Article 5, provided that he does not disturb the public peace or disturb others in their religious worship. Additionally, with regard to Smith, the trial court relied heavily on that decision in its order, and the parties had advanced arguments regarding Smith in their pleadings and during the hearing on the defendant's motion to dismiss. Accordingly, we find that the defendant's arguments are preserved for our review.

We now turn to the merits of the defendant's arguments. As we noted at the outset, the defendant's arguments require us to interpret Part I, Article 5, and, in particular, the "disturb the public peace" clause. If, as the State contends, we adopted Smith in Perfetto, then the application of Smith would be dispositive. Accordingly, we examine Perfetto.

In Perfetto, the defendant entered into a plea agreement whereby he pled guilty to numerous counts of possession of child pornography. Perfetto, 160 N.H. at 676, 7 A.3d 1179. As part of his plea agreement, the defendant was prohibited from having contact with minors under the age of seventeen. Id. at 676-77, 7 A.3d 1179. Following his release from state prison, the defendant moved to amend that condition — which was a part of his remaining suspended sentences — so that he could attend meetings at a particular congregation of Jehovah's...

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