2005-796, STATE OF NH v. SEAN BROWN

The defendant, Sean Brown, appeals his conviction for

brief and orally, for the defendant. David M. Rothstein, deputy chief appellate defender, of Concord, on the page is: http://www.courts.state.nh.us/supreme.

brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Elizabeth J. Baker, attorney, on the

editorial errors in order that corrections may be made before the opinion goes No. 2005-796 Hillsborough-southern judicial district

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THE SUPREME COURT OF NEW HAMPSHIRE

reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 642:3, I(a). weapon, RSA 159:3, I (2002) and one count of hindering apprehension, RSA with two alternative theory counts of being a felon in possession of a deadly

commission of a crime?’” The court discussed the question with counsel and reasonable to interpret . . . that ‘commission of a crime’ could be ‘suspicion of

lasted approximately thirty to forty-five minutes. The defendant was charged

to the court relating to the hindering apprehension statute, asking: “Is it

where they found Soto lying on the floor. The entire encounter in the hallway protective measure while the other officers entered the defendant’s apartment investigatory stop and was reasonable in scope and duration.” defendant that he was not under arrest, but placed him in handcuffs as a

possession charges. During deliberations, the foreperson submitted a question The defendant answered “no” to all three questions. in his apartment, if he knew anything about the Jetta, and if he knew Soto.

motion, ruling that “the detention of the defendant was lawful as a valid apartment and refused to allow the police to enter. Adamson told the

At the close of the State’s case, the trial court dismissed the felon in

called for a criminal record check. Adamson then inquired if anyone else was

when they first encountered him in the hallway. The trial court denied the window. The defendant continued to deny that there was anyone in his of his seizure upon the basis that the officers lacked reasonable suspicion At trial, the defendant moved to suppress evidence obtained as a result

encountered the defendant exiting his apartment. Puerto Rican flag on it. The three officers reentered the building and

that had occurred in the area, requested the defendant’s identification, and “afraid of the police.” Adamson explained that he was investigating a crime defendant said that he was and that he did not open the door because he was officer saw a man attempting to climb out of the defendant’s apartment two sets of car keys, one of which belonged to a Jetta. Meanwhile, another carry firearms, he conducted a pat-down search for weapons, which revealed When Adamson learned from dispatch that the defendant was known to

left the building and noticed inside the Jetta a blue bandana and a hat with the

he was the man to whom he had spoken earlier from behind the door. The The officers confronted the defendant in the hallway. Adamson asked if

opening the door, the individual responded “no” to both questions. Adamson individual knew who owned the Jetta and whether he knew Soto. Without apartment yell through the door, “[W]hat do you want?” Adamson asked if the While knocking on doors, Adamson heard an individual from an

investigate and speak with residents. along with two uniformed officers, entered the apartment building to vehicle’s hood was still warm and it was registered to Mark Soto. Adamson, their terms and to promote justice.” RSA 625:3;

p. 3 All provisions of this code shall be construed according to the fair import of

offense of obstruction of justice.” to the original homicide but is convicted, as he should be, for an independent

rule that penal statutes are to be strictly construed does not apply to this code. this statute, we draw guidance from RSA 625:3 (1996), which provides: “The commission of a crime, he: (a) Harbors or conceals the other.” In construing that a felony actually have been committed . . . .” perpetrator, knowledge of the underlying felony, and . . . even the requirement

Model Code provision [242.3], one who harbors a murderer is not made a party Perez, 770 N.E.2d at 433. instead upon whether the defendant purposely hindered law enforcement.” Commentaries § 242.3, comment 3, at 229, 230. The approach “focuses N.E.2d 428, 433 (Mass. 2002) (parentheses omitted) citing Model Penal Code & prosecution or conviction. Commonwealth v. Perez, 770 apprehension, prosecution, conviction or punishment of another for the common-law elements[,] [including] knowledge of the identity of the drawn from section 242.3 of the Model Penal Code (MPC). Article 242, at 199 (1980). “[This] approach dispenses with many of the

the accessory’s liability derives from that of his principal. Thus, under the accessory after the fact but breaks decisively with the traditional concept that affirmatively to the jury’s inquiry. We disagree. The offense, as defined in the MPC, “covers the common-law category of

must prove that the defendant’s purpose was to hinder apprehension, offense if, with a purpose to hinder, prevent or delay the discovery, Maloney, 126 N.H. 235, 237-38 (1985). Consistent with the MPC, the State

New Hampshire’s “Hindering Apprehension or Prosecution” statute is

court and we will uphold the response unless the court unsustainably 559, 561-62 (1999).

expanded the definition of the crime of hindering apprehension by replying

RSA 642:3, I(a) provides in pertinent part: “A person is guilty of an

The response to a jury question is left to the sound discretion of the trial

On appeal, the defendant first argues that the trial court impermissibly

defendant of hindering apprehension. over the defendant’s objection, responded, “Yes.” The jury convicted the entirely accurate and appropriate given the evidence at trial.

p. 4 engaged in criminal activity.”

defendant’s apartment floor. The court’s response to the jury question was defendant’s pocket. More importantly, they discovered Soto lying on the had committed a crime. The police found the car keys to a Jetta in the facts – that the particular person stopped has been, is, or is about to be,

the intent to harbor or conceal a person from apprehension and discovery.

questioning was sufficient to alert the defendant that the police suspected Soto activity. We disagree. specific, articulable facts taken together with rational inferences from those

apprehension or prosecution. RSA 642:3, I. The defendant need only act with

apartment. The defendant answered “no” to all three questions. This line of owned the Jetta parked out front, and whether there was anyone else in his him in the hallway because they lacked reasonable suspicion of criminal investigatory stop, the officer must have a reasonable suspicion – based on the area and asked him whether he knew Mark Soto, whether he knew who

suspect’s conduct and other specific facts must create a ‘significant possibility committed a crime. Instead, the mental state required is the intent to hinder Id. (quotations and brackets omitted). “The require that the defendant or anyone else know that the person he aided in fact statute.” We disagree. The required mental state under RSA 642:3 does not

Fourth Amendment of the United States Constitution when police confronted It is well settled that “in order for a police officer to undertake an informed the defendant that they were investigating a crime that occurred in conclusions, however, is de novo. Id. v. Beauchesne, 151 N.H. 803, 809 (2005). Our review of the trial court’s legal findings unless they lack support in the record or are clearly erroneous. State only. Id. at 232-33. In reviewing the trial court’s rulings, we accept its factual State v. Ball, 124 N.H. 226, 231 (1983), and cite federal opinions for guidance We first address the defendant’s claim under the State Constitution,

knowledge, and permitted the jury to convict him of a crime not specified by

violation of Part I, Article 19 of the New Hampshire Constitution and the suspected in the commission of a robbery, within his apartment. Police The defendant next argues that he was subject to an unlawful seizure in

“reduced the State’s burden of proof with regard to [the defendant’s] culpable

hinder the apprehension of Mark Soto for commission of a crime.” Here, the defendant harbored Mark Soto, an individual who police

The defendant argues that the court’s response to the jury’s question

connection with a robbery, [and] that the defendant acted with a purpose to while members of the Nashua Police Department were searching for Mr. Soto in reasonable doubt “that the defendant harbored Mark Soto in his residence The court instructed the jury that the State needed to prove beyond a p. 5 Adamson’s requests; it was therefore a consensual encounter.

would not have led a reasonable person to believe that he must submit to

actions in the hallway did not transcend a mere request to communicate and contact took only a short period of time. As the trial court found, the officers’ the defendant a series of questions and asked for his identification. This police

with him as to why he did not open his apartment door. Adamson then asked

under the State Constitution. defendant in the hallway, Adamson initially engaged in limited conversation regarding the suspect and the Jetta. When the three officers encountered the residents of the apartment building in an attempt to discover information

DALIANIS, DUGGAN and GALWAY, JJ., concurred.

Accordingly, we reach the same result under the Federal Constitution as we do request might be compelled. U.S. 429, 436 (1991); Terry, 392 U.S. at 29-31; McKeown, 151 N.H. at 97. does the State Constitution under these circumstances. Florida v. Bostick, 501 hallway. Nashua police were investigating a robbery and began questioning The Federal Constitution offers the defendant no greater protection than

authority” factors we applied in See id. at 815.

of voice indicating that compliance with the officer’s

not seized when the three officers initially approached the defendant in his

Looking at the totality of the circumstances, as well as the “show of

in the defendant’s position would have understood his situation. show of authority, has in some way restrained the liberty of the person.” Id. Id Constitution. “[A seizure] occurs when an officer, by means of physical force or. This is an objective test where the court considers how a reasonable person

identification or for consent to search the individual or his belongings. touching of the person, or the use of language or tone

the display of a weapon by an officer, some physical include the threatening presence of several officers, Circumstances indicating a “show of authority” might

Beauchesne, 151 N.H. at 810.

95, 97 (2004), the citizen is not seized under Part I, Article 19 of the State 257, 263-64 (1985), or to terminate the encounter, State v. McKeown, 151 N.H. long as a reasonable person would feel free to leave, State v. Riley, 126 N.H.

individual and asks a few questions, or asks to examine the individual’s 809. A seizure does not occur simply because a police officer approaches an does not always amount to a seizure of the person. Beauchesne, 151 N.H. at Vadnais, 141 N.H. 68, 70 (1996)). However, a police encounter with a citizen of criminality.’” State v. Wiggin, 151 N.H. 305, 308 (2004) (quoting State v.