State v. Nutter

• Decision Date: 11 December 1991
• Docket Number: No. 90-434,90-434
• Citation: 135 N.H. 162,600 A.2d 139
• Parties: The STATE of New Hampshire v. Irving NUTTER.
• Court: New Hampshire Supreme Court

Page 139

600 A.2d 139

135 N.H. 162

The STATE of New Hampshire v. Irving NUTTER.

No. 90-434.

Supreme Court of New Hampshire.

Dec. 11, 1991.

John P. Arnold, Atty. Gen. (Brian R. Graf, Asst. Atty. Gen., on the brief, and Clyde R.W. Garrigan, Sr. Asst. Atty. Gen., orally), for State.

James E. Duggan, Chief Appellate Defender, Concord, by brief and orally, for defendant.

THAYER, Justice.

The defendant was convicted of possession of a controlled narcotic drug and sentenced to one and one-half to three years in the State Prison. He now appeals his sentence, asserting that the Superior Court (Gray, J.) erred in basing its sentencing decision, in part, on evidence that was admitted in the prosecution of a related charge, which was joined with the prosecution of the possession charge, and of which the defendant was acquitted. We affirm.

In May of 1989, the Rockingham County Grand Jury indicted the defendant on two drug-related charges: (1) possession of cocaine and (2) possession of cocaine with the intent to distribute. The possession charge was based on 1.02 grams of cocaine discovered in a metal box on top of the refrigerator in the defendant's kitchen. The possession with intent to distribute charge was based on 19.29 grams of cocaine found outside the premises.

After a trial on both charges, the jury acquitted the defendant of the possession with intent to distribute charge, as well as of the lesser-included offense of possession of the 19.29 grams of cocaine, but convicted him of the possession charge relating to the 1.02 grams of cocaine found in the kitchen. During the sentencing hearing, the prosecutor recommended a three-to-seven-year sentence. Defense counsel requested that the court impose a twelve-month sentence with eleven months suspended. The court imposed a sentence of one and one-half to three years in the State Prison. In so doing, the court stated that "I am not sentencing nor am I considering the fact that there was other cocaine found outside under the porch. He was found not guilty on that and that's that as far as I'm concerned." However, the court did consider the existence of a "loan book" which contained a record of money the defendant had loaned to friends, and commented on the believability of defendant's testimony that he did not know where any of the people listed in the book were located. No objection by the defendant to the trial court's sentencing considerations appears on the record.

On appeal, the defendant argues that the trial court erred during sentencing when it considered evidence which was irrelevant to the possession charge. Specifically, the defendant asserts that the trial court incorrectly considered the "loan book" in rendering a sentence on the conviction for possession because the "loan book" was admitted at trial only as evidence of intent to distribute, the charge of which the defendant was acquitted. See State v. Cote, 129 N.H. 358, 374, 530 A.2d 775, 784-85 (1987). The State contends that the defendant failed to properly preserve this issue for appeal by failing to object at the sentencing hearing. In the alternative, the State maintains that the trial court could permissibly consider the defendant's testimony about the "loan book" as it pertained to the defendant's veracity while under oath. Because the defendant failed to make a proper contemporaneous objection to the trial court's sentencing considerations, we need not reach the merits of either party's arguments.

It is well settled in this jurisdiction that we will not consider objections on appeal which were not raised during the proceedings below. State v. Johnson, 130 N.H. 578, 587, 547 A.2d 213, 218 (1988); N.H. R. Ev. 103(b)(1). This requirement is firmly "grounded in common sense and judicial economy...." State v. Johnson, 130 N.H. at 587, 547 A.2d at 218. While the rules of evidence do not apply to sentencing hearings, the reasoning supporting New Hampshire Rule of Evidence 103(b)(1) is equally applicable to sentencing proceedings, and a defendant must, therefore, as at other stages of criminal trial proceedings, make a specific, contemporaneous objection upon perceiving an error in order to preserve an issue for appeal. A proper objection provides the trial court with an opportunity to correct an error it may have made, or clearly explain why it did not make an error. For these reasons, "[e]rrors discovered by combing the record after trial and never properly presented to the trial judge should not be utilized to set aside a verdict." State v. Cass, 121 N.H. 81, 83, 427 A.2d 1, 3 (1981).

The defendant contends that during his sentencing argument his counsel preserved the issue of the trial court's sentencing error by stating that "it's wrong to punish Mr. Nutter for something that doesn't exist, for something that could have happened to rectify any mistake, real or perceived." We do not find this statement to constitute an objection in any meaningful sense of the word. An examination of the transcript of the sentencing hearing reveals that the defendant's counsel made this statement in reference to the jury's verdicts, specifically their finding of not guilty on the possession with intent to distribute charge. The statement was part of the defendant's argument that the trial court should not consider the crime of which the defendant was found not guilty, when sentencing the defendant for the crime of which he was found guilty. Indeed, on this point, the trial court explicitly stated that it was not considering the fact that other cocaine was discovered outside the defendant's residence, because the court acknowledged that the defendant was found not guilty of that.

It is clear from the sentencing transcript that the defendant did not specifically object, either before, during, or after the sentence was imposed, to any of the facts forming the basis of the sentence. We are not willing to adopt a plain error standard. See State v. Wisowaty, 133 N.H. 604, 607-08, 580 A.2d 1079, 1080-81 (1990). Therefore, we hold that because defense counsel did not object during the sentencing hearing, issues surrounding the trial court's sentencing considerations are not preserved for our review. See State v. Menard, 133 N.H. 708, 711, 584 A.2d 752, 754-55 (1990); State v. Wisowaty, 133 N.H. at 607-08, 580 A.2d at 1080-81.

Accordingly, we affirm the trial court's sentence.

Affirmed.

BATCHELDER and JOHNSON, JJ., concurred specially; the others concurred.

BATCHELDER, Justice, concurring specially:

The majority today declines to decide the issue raised because the defendant did not make an objection "upon perceiving an error" in the judge's rationale for the sentence imposed. The underlying question is whether it was error for the judge to consider the evidentiary value of a notebook, and the defendant's testimonial explanation of it, in sentencing the defendant, when that evidence was introduced in a companion case which resulted in acquittal. I would reach the main issue and would find against the defendant.

For several reasons there is no need for this court to require a contemporaneous objection to preserve a sentencing issue for appeal. First, it is impracticable to require, as the majority would, that counsel at sentencing raise an objection to the judge's explanation of the sentencing rationale whenever the stated reason, conclusion, or fact appears improper. Such a requirement places counsel in a nearly impossible situation and is but a short step from requiring counsel to object to the judge's frame of mind. To require this at the expense of the loss of appellate review is strong medicine.

Second, the contemporaneous objection rule upon which the majority relies in declining to decide on the merits of the appeal has its foundation in the rules of evidence, N.H. R. Ev. 103(b)(1). These rules, however, also provide that they do not apply to sentencing proceedings. N.H. R. Ev. 1101(d)(3). Thus, there is no basis in the rules for this court to require a contemporaneous objection.

Third, unlike an issue raised during trial, a sentencing decision need not be grounded in an objection in order to secure jurisdiction in this court. Appeals to this court with respect to sentences are contemplated by the New Hampshire Supreme Court Rules. Sup.Ct.R. 7 (an appeal may be taken from a decision on the merits) and Sup.Ct.R. 3 (a sentence is a decision on the merits). Thus, jurisdiction here may be instituted by an appeal, petition for writ of certiorari, petition for writ of habeas corpus or other appellate...