State v. Zwicker
| Decision Date | 29 June 2004 |
| Docket Number | No. 2003–082.,2003–082. |
| Citation | 151 N.H. 179,855 A.2d 415 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Troy W. ZWICKER. |
Peter W. Heed, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.
Law Offices of Richard N. Foley, of Portsmouth (Richard N. Foley on the brief and orally), for the defendant.
The defendant, Troy W. Zwicker, was indicted on one count of possession of crack cocaine and one count of possession of one ounce or more of marijuana with intent to sell. See RSA 318–B:2, :26, I(c)(5) (Supp.2003). Following a jury trial in the Superior Court (Smith , J.), he was convicted on both counts. We affirm.
On September 12, 2001, Corporal Richard Plourde of the Berlin Police Department applied for a warrant to search for contraband in the possession of the defendant or other persons present at "39 7th Street, Berlin NH Apt. 1 & 2, and vehicles on his property/yard." In his supporting affidavit, Plourde recounted information provided by at least five confidential informants concerning the defendant's alleged drug- related activities. The first informant explained to Plourde that the defendant had approached him to sell cocaine, and that the defendant insisted he would only sell large amounts of the drug. The second informant informed Plourde that there was significant foot traffic behind the defendant's residence that he believed involved the sale of drugs. The third informant told Plourde that the defendant had traveled to Manchester on ten different occasions in order to pick up five pounds of marijuana and that the last trip was two weeks ago. He also observed ecstasy, marijuana and crack cocaine in the defendant's bedroom, and explained that the defendant kept his drugs in his grandparents' apartment located directly over his residence. The fourth informant observed illegal drugs in the defendant's dining room. During the week of September 9, the fifth informant told Plourde that he had witnessed illegal drugs in the defendant's apartment and mentioned that the defendant dealt ecstasy, cocaine and marijuana. During that same week, the fifth informant also participated in a "controlled buy" of drugs from the defendant with Plourde.
On September 12, the police and a drug task force arrived at the 7th Street address to execute the warrant. Meanwhile, Detectives Nelson and Stiegler located the defendant elsewhere in Berlin. Stiegler approached him, identified himself, and told the defendant that there was an investigation concerning him and that a search warrant was currently being executed at the 7th Street address. Stiegler then explained to the defendant his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and told him that they were taking him to his residence. The defendant acknowledged that he understood his rights.
Upon their arrival at the defendant's residence, several detectives began talking to the defendant. Then, they approached Captain Morency. Detective Juran asked Morency if he would speak to the defendant because the defendant indicated that he was willing to talk to Morency, but not to the other officers. Morency asked the detectives if the defendant had been read his Miranda rights, and they responded affirmatively. Morency asked the defendant if that was correct, and the defendant responded affirmatively. After this exchange, the defendant indicated he was willing to talk to Morency, and made several statements to him. Finally, after unsuccessfully trying to bargain for his "walking papers," the defendant told Morency that he would be cooperative concerning the investigation, and made additional statements. Based upon the evidence seized and the statements made, the defendant was taken into custody.
The defendant was indicted for knowingly possessing or having under his control one ounce or more but less than five pounds of marijuana with intent to sell or dispense and for knowingly possessing crack cocaine. See RSA 318–B:2, :26, I(c)(5). Prior to trial, the defendant moved to suppress his statements and the items seized pursuant to the search warrant.
At the hearing, Susan Goodwin, the defendant's mother, testified that a few minutes after her son arrived, he "kept asking, get me a lawyer, get me a lawyer, get me a lawyer," and that before he was escorted away by the police he hugged her and said to her, "please, get me a lawyer." The defendant testified that he told Stiegler that he did not want to talk and that he "wanted an attorney present if [he was] going to be questioned."
The Superior Court (Houran , J.) denied both motions. Concerning the search warrant, the court found that most of the information supplied by the informants occurred within the weeks preceding the application, and that much of it related to events within days of the application. It also found that the information was sufficiently reliable and that two of the informants had been reliable in previous cases. Regarding the defendant's statements to the police, the court concluded they were voluntary beyond a reasonable doubt. The court found that the defendant was read his Miranda rights and understood them. The court also found that the defendant's assertion that he requested an attorney after his Miranda rights were recited to him was not credible "given the inconsistencies in his statements concerning that request during his testimony and given the other testimony received."
During the first trial, the government's first witness, Plourde, was questioned concerning two pieces of identification that he found in a bedroom at the 7th Street address. During Plourde's explanation, defense counsel objected. Before the court had an opportunity to rule on the objection, the witness stated that he found the defendant's identification from the Concord Prison. The defendant immediately moved for a mistrial with prejudice arguing that the witness's statement was highly prejudicial and could not be rehabilitated by curative jury instructions. In arguing for a mistrial with prejudice, the defendant contended that the officer, with eleven years of experience, engaged in clearly inappropriate conduct. The court declared a mistrial because no curative instructions could erase the prejudice resulting from the reference to the defendant's past criminal convictions. In dismissing the case without prejudice, the court expressly found that the improper testimony was "completely inadvertent on the part of the County Attorney's Office and completely without malice or ill intent and also inadvertent on the part of Officer Plourde." Thus, the court found that double jeopardy would not bar retrial.
During the second trial in Superior Court (Perkins , J.), the State questioned Officer Nelson, its first witness, concerning his role in the search for the defendant. After indicating that he was responsible for locating the defendant, Nelson testified that the defendant was purportedly "going to Rockingham Street, or to maybe see his probation officer." Again, the defendant objected and moved for a mistrial. The court granted the motion, and dismissed the case without prejudice.
During the third trial, the jury could have found the following facts. While executing the search warrant at the defendant's residence, the police discovered a marijuana cigarette, a marijuana pipe and rolling papers, items that are typically used by someone who uses or intends to sell marijuana. The police also discovered a homemade smoking device evidencing crack cocaine residue and plastic bags containing various quantities of marijuana, including marijuana seeds and stems. The police found a digital scale, the type of device used to weigh cocaine or marijuana. The total weight of the marijuana in one paper bag and one plastic bag was 3.17 ounces, and the total weight of the marijuana in four other plastic bags was 23.87 ounces. The buds, leaves and stems of the marijuana all contain tetrahydrocannabinol, the active ingredient in the drug, and all those parts are usable as a controlled drug. The defendant confessed to Morency that he had "gotten rid of" some ecstasy and marijuana, and that he was purchasing marijuana in five pound lots, and bottles of ecstasy pills. He also told Morency that there were bags of marijuana stems, seeds, and a scale in the house.
At the close of the State's evidence, the defendant moved for a directed verdict of not guilty. He argued that a reasonable trier of fact could not find beyond a reasonable doubt that he possessed a crack cocaine pipe or possessed marijuana in excess of one ounce with intent to distribute because the State had failed to establish that he had dominion or control over the area where the drugs were found. The court denied the motion.
During deliberations, the jury asked the court the following question: "Does the possession of ‘shake’ (remnants of processing) that is non-saleable, still constitute possession with intent to distribute?" The defendant argued that the matter contained in the plastic bags was "mostly mature stalks," and therefore should be excluded from the definition of "Cannabis-type drug" under RSA 318–B:1. He also argued that if the matter is non-saleable, "it can't be for possession with intent to distribute." In response, the State contended that "[t]here is [a] difference between stems and stalks, and what was in the bag is stems, not stalks." Over the defendant's objection, the court answered the jury's question, "yes." The jury convicted the defendant on both counts.
On appeal, the defendant raises seven arguments. He first argues that the trial court erred in denying his motion to suppress evidence seized pursuant to the search warrant. He next contends that his Miranda rights were violated because the police failed to honor scrupulously his invocation of his right to remain silent. Third, he contends that the State violated...
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