State v. Smalley
| Decision Date | 19 July 2002 |
| Docket Number | No. 2000–462.,2000–462. |
| Citation | 802 A.2d 1154,148 N.H. 66 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Steven SMALLEY. |
Philip T. McLaughlin, attorney general (Nicholas Cort, 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, Steven Smalley, was convicted by a jury of possession of a controlled substance, see RSA 318–B:26, II (1995), and driving after suspension, subsequent offense, see RSA 263:64, VI (1993). On appeal, he argues that the Superior Court (Murphy, C.J.) erred by allowing the State to introduce a statement made by the defendant that was not provided to him during pretrial discovery. He also argues that there was insufficient evidence to prove beyond a reasonable doubt that he was in possession of a controlled substance. We reverse the possession conviction and remand.
The record supports the following facts. On July 5, 1999, New Hampshire State Police Sergeant Brian Hester stopped a vehicle being driven by the defendant on Interstate 95, near the Hampton toll plaza, after observing what he described as suspicious behavior. There was a passenger in the automobile with the defendant. The defendant did not have a license and told Sergeant Hester that he left it at home. In addition, he produced a temporary registration that was neither in his name nor the passenger's name, and admitted that he did not know the name of the automobile's owner. A subsequent records check revealed that the defendant's license to operate an automobile in New Hampshire was suspended and that he had been previously convicted of driving after suspension.
Sergeant Hester asked the defendant for permission to search him and the vehicle and the defendant consented. Sergeant Hester discovered a wad of cash in a pocket in the defendant's shorts. State Troopers Donini and Holdsworth discovered an open beer can on the floor of the front passenger side and a cooler on the rear seat on the driver's side of the vehicle. Upon examining the cooler, Sergeant Hester found four cans of cold beer and an unopened pack of Camel cigarettes in a tray next to a small red cloth wrapped around several items. Inside the red cloth, Sergeant Hester found a metal rod, a smoking pipe and a vial containing a substance that later tested positive for cocaine residue.
While the search was being conducted, the defendant and the passenger were smoking cigarettes. Sergeant Hester determined that the defendant was smoking Camels and the passenger was smoking Dorals. Sergeant Hester arrested the defendant for possession of a controlled substance and driving after suspension, subsequent offense.
During the trial, Sergeant Hester was asked how he knew the defendant was smoking Camel cigarettes, to which he replied in part:
And as I recall, when he left he wanted his cigarettes, and I gave him the package of Camels, because he indicated those were his.
Sergeant Hester testified that the package of Camels he was referring to was the unopened package in the cooler. The defendant objected to the testimony on the ground that it referenced a statement made by the defendant that was not disclosed prior to trial as required by Superior Court Rule 98. The trial court overruled the objection and informed the defendant that he could cross-examine Sergeant Hester as to why the statement was not included in his police report.
The defendant moved for a directed verdict on the possession count, arguing that the facts could not support a finding beyond a reasonable doubt that he was in possession of the cocaine. The trial court denied the motion. The defendant was convicted of one count of possession of a controlled substance and one count of operating after suspension, subsequent offense. This appeal followed.
On appeal, the defendant argues that the trial court erred by failing to strike Sergeant Hester's testimony regarding the defendant's statement because the State failed to disclose the statement prior to trial. He also argues that the evidence was insufficient to support a finding beyond a reasonable doubt that he was in possession of cocaine. The defendant does not challenge his conviction for driving after suspension, subsequent offense. Because the sufficiency of the evidence claim is potentially dispositive, we address it first.
The defendant argues that the trial court erred in denying his motion for directed verdict because the evidence was insufficient to support a finding beyond a reasonable doubt that he was in possession of cocaine. "When reviewing the sufficiency of the evidence, we ask whether, based upon all the evidence and all reasonable inferences from it, when considered in a light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty." State v. Clyde, 145 N.H. 388, 389, 766 A.2d 250 (2000) (quotation omitted).
The defendant argues that the evidence was insufficient because it did not preclude all other rational conclusions as to who possessed the drugs in the cooler. He asserts that the Camel cigarettes do not link him to the drugs because he made no admission that he knew about or was aware of the drugs in the cooler. Moreover, he argues that there was no evidence that he jointly possessed the cocaine with the passenger. On the contrary, he argues that a rational conclusion is that the passenger was in possession of the cocaine.
State v. Turmelle, 132 N.H. 148, 155, 562 A.2d 196 (1989) (citations and quotations omitted). "A conviction for illegal possession may be based upon evidence that the [drugs,] while not found on the person of the defendant, w [ere] in a place under his dominion and control." State v. Nickerson, 114 N.H. 47, 52, 314 A.2d 648 (1974) (). When more than one person occupies the premises where drugs are found, mere proof that a defendant is one of those occupants is insufficient to prove his constructive possession. State v. Stiles, 128 N.H. 81, 86, 512 A.2d 1084 (1986). Evidence of "personal possessions of the defendant standing in close proximity to the controlled substance may provide a sufficiently close nexus between the defendant and the substance to allow the jury to infer possession." Id. (quotation and brackets omitted).
In this case, the police discovered a cooler on the rear seat on the driver's side of an automobile that the defendant was operating. In the cooler was an unopened pack of Camel cigarettes, which the defendant stated was his. These cigarettes were the same brand as the cigarettes the defendant was smoking during the search of the automobile, and were found in close proximity to the drugs in the cooler. Viewing this evidence and all reasonable inferences from it in the light most favorable to the State, we conclude that a rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty of being in possession of a controlled substance.
The defendant next argues that the trial court erred in failing to strike Sergeant Hester's testimony regarding the defendant's statement, and that he is entitled to a new trial as a result of this error. Generally,...
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