2007-533, STATE OF NEW HAMPSHIRE v. SEAN MCGURK

The defendant, Sean McGurk, appeals an order of the

and Christopher A. Dall on the brief, and Mr. Dall orally), for the defendant. DesMeules, Olmstead & Ostler, of Norwich, Vermont (George H. Ostler

memorandum of law and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Karin M. Eckel, attorney, on the

page is: http://www.courts.state.nh.us/supreme. v.

editorial errors in order that corrections may be made before the opinion goes No. 2007-533 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Grafton Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as tongue.

p. 2 marijuana on the defendant’s breath and identified pieces of marijuana on his tongue and exhaled into Anderson’s face. Anderson detected an odor of Anderson, told him he made a mistake, opened his mouth, stuck out his

and then placed the defendant in a holding cell. The defendant swore at

defendant that he could leave; he left the scene on foot. arrested her for transportation of alcohol. During the arrest, Anderson told the to allow him to smell its contents. Anderson smelled alcohol in the bottle and

station and left the defendant in the cruiser. Anderson returned to the cruiser

would be arrested if he did not leave the scene. yelling and swearing at Anderson. Again, Anderson told the defendant that he items, Anderson realized that he could not locate the plastic bag of marijuana. to take responsibility for possession of the marijuana. The defendant began

age, Anderson asked if the bottle contained alcohol. She replied no, but agreed obstructing government administration.

At the police station, Anderson first brought the driver into the police

items on the trunk with the marijuana and alcohol. While checking these the vehicle. After collecting the two bags, he asked the defendant if he wanted cooler, computer and file box from the driver’s side rear seat and placed the Before placing the defendant in the police cruiser, Anderson removed his

and her activities that night. After confirming that she was eighteen years of After she exited her vehicle, Anderson questioned her about the pick-up truck approached him from behind. Anderson then arrested the defendant for one years of age, to step out of the vehicle and provide him with identification. inventory search. As soon as he stuck his head into the vehicle, the defendant Anderson turned away from the defendant and attempted to finish the

center console and also in a plastic Ziploc bag inside a purse in the trunk of to be marijuana located in a cellophane wrapping inside a cigarette pack in the During the inventory search, Trooper Anderson found what he perceived

leave the scene before he was arrested. the driver’s seat. He asked the driver, whom he perceived to be under twenty- demanding that the driver be released. Anderson advised the defendant to returned to the scene, where he interfered with the search by repeatedly As Anderson began an inventory search of the car, the defendant passenger seat.

Anderson observed two partially full bottles of juice on the floor behind

pick-up truck. She replied in the negative. The defendant was seated in the He approached the car and asked the driver, Diane Molluer, if she had seen a been provided.”

p. 3 guilty and would have insisted upon going to trial.”

case against the driver. a motion would have been granted because a similar motion was granted in the

the proceeding would have been different had competent legal representation

counsel guaranteed by the State Constitution. probability that, but for counsel’s errors, the defendant would not have pled

the initial search. He asserts that there was a reasonable probability that such

prejudice by showing that there is a reasonable probability that the result of

strategy, and “the defendant must overcome the presumption that counsel’s

counsel made such egregious errors that he or she failed to function as the “the prejudice prong requires the defendant to show that there is a reasonable undermine confidence in the outcome of the case.” Id. In a guilty plea context,

Id. “A reasonable probability is a probability sufficient to He argues that his trial counsel failed to file a motion to suppress challenging

To satisfy the second prong, the “defendant must demonstrate actual

I, art. 15. We afford broad discretion to trial counsel when determining a trial

640-41 (2007). To satisfy the first prong, the defendant must show that actually prejudiced the outcome of the case.” State v. Sharkey, 155 N.H. 638, constitutionally deficient and, second, that counsel’s deficient performance a defendant must show, first, that counsel’s representation was motion to vacate his conviction in docket 04-S-742 (falsification of evidence). at 232-33. “To successfully assert a claim for ineffective assistance of counsel, Ball, 124 N.H. 226, 231 (1983), and cite federal opinions for guidance only, id. Constitution. We first address his claim under the State Constitution, State v. Sixth Amendment to the Federal Constitution and Part I, Article 15 of the State The defendant’s ineffective assistance of counsel claim is based upon the docket 04-S-742. The trial court denied the motions. This appeal followed.

04-S-745),

First, the defendant asserts that the trial court erred in denying his pieces of marijuana on the back seat. He also located the Ziploc bag with remnants of marijuana still inside and I. Ineffective Assistance of Counsel

his guilty plea, the defendant filed several motions challenging his conviction in

see RSA 318-B:2, I (2004). On December 22, 2006, over a year after

RSA 641:6 (2007), and one count of possession of marijuana (docket number counts of falsifying physical evidence (docket numbers 04-S-741 and 742), see The defendant was indicted and, on May 2, 2005, pled guilty to two

wrapper on the back floor of the cruiser and pieces of marijuana on the seat. When Anderson returned to his cruiser, he found an empty cellophane proceeding.

p. 4 destroy anything that would have been available in an official

argues:

was not admissible in a court proceeding then Mr. McGurk did not

part: the offense of falsifying physical evidence. The statute provides, in pertinent 4

successfully moved to suppress all evidence from her vehicle, the defendant

consisted of the illegally obtained marijuana, and if the marijuana against Mr. McGurk for falsifying evidence. That evidence marijuana there was an insufficient basis to obtain a conviction

assistance of counsel. RSA 641:6 does not make admissibility of the evidence at trial an element of

about their actions.” Noting that the driver, in the criminal case against her, driver were “unlawfully seized by Trooper Anderson when he interrogated them likely would have failed.” We agree. The defendant asserts that he and the or about to be instituted, he: proceeding, as defined in RSA 641:1, II, or investigation is pending A person commits a class B felony if, believing that an official

been granted in Mr. McGurk’s case, and absent the illegally seized

motion that would not have succeeded, however, cannot constitute ineffective The defendant’s reasoning is flawed, however, because the language of

motion to suppress based upon the allegedly illegal initial search, the motion

There is a reasonable probability that a similar motion would have

been different except for the error of counsel”). The failure to file a suppression of trial counsel” and “it is reasonably likely the result of the trial might have warranted reversal where such failures “demonstrate[d] deficient performance

The trial court concluded that “had [the defendant’s trial attorney] filed a

1993).

diary and statements and failure to object to their introduction at trial 843 P.2d 606, 611, 612 (Wyo. 1992) (failure to move to suppress defendant’s the Sharkey test for ineffective assistance of counsel. Cf. Dickeson v. State, circumstances, the failure to file a meritorious suppression motion may satisfy accept the proposition, for purposes of this appeal, that under certain assistance of counsel,” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986), we the “failure to file a suppression motion does not constitute per se ineffective constitutes ineffective assistance when there is merit for suppression.” While The defendant asserts that “[f]ailure to file suppression motions these charges cannot possibly be the fruits of the search of [the driver’s] car.”

p. 5 thus contends that “the defendant’s arrest and the evidence against him on him at trial.

charge that was distinct and separate from the prior illegal seizure.” suppressed.” only through the exploitation of an antecedent illegality, it must be New Hampshire Constitution. If the evidence in question has been obtained 5

sufficiently distinguishable to be purged of the primary taint.” unconnected to both the stop and the search of [the driver’s] car.” The State is made has been come at by exploitation of that illegality or instead by means establishment of the primary illegality, the evidence to which instant objection proceeding or investigation irrespective of its admissibility against

and swallowing the bag seized by the police officers supported a new criminal

of evidence derivatively obtained through a violation of Part I, Article 19 of the

omitted).

defendant’s own illegal acts were committed after the stop . . . and were omitted). Accordingly, “the question to be resolved is whether, granting impaired the availability of that evidence for any resulting

State v. Cobb, 143 N.H. 638, 650 (1999) (quotations and citation

above reasoning, and because it concluded that “Wagstaff’s actions in removing

“The ‘fruit of the poisonous tree’ doctrine requires the exclusion from trial

1313. The State makes a similar argument here, asserting that “[t]he swallowing the bag that the police had taken into custody, clearly Id. at construction. In the case at bar, [the defendant], by removing and fact, the very breadth of section 76-8-510 is inimical to such a The court upheld the denial of Wagstaff’s motion to suppress under the

948 (Utah 1993). State v. Wagstaff, 846 P.2d 1311, 1312 (Utah Ct. App.), cert. denied, 857 P.2d

investigation . . . . with evidence which is admissible against a defendant at trial. In investigation. That section’s application is not limited to tampering with anything which could be used in a future proceeding or The plain language of section 76-8-510 proscribes tampering

the Court of Appeals of Utah reasoned: Section 77-8-510 in a case presenting a situation similar to the one before us, Interpreting the nearly identical language of Utah Code Annotated

RSA 641:6.

purpose to impair its verity or availability in such proceeding or I. Alters, destroys, conceals or removes any thing with a the factual pattern of this case.

p. 6 circumstance factor strongly militates against suppression under

illegal arrest and search for evidence. Accordingly, the intervening own and were independent of any police coercion caused by the Schrecengost’s conduct. Schrecengost’s actions were therefore her

seizure was illegal.”). 6

this intervening circumstance in the

reduced to the sole custody of the police at the time of

the defendant was not entitled to remove it – whether or not the underlying

circumstances. See Brown v. Illinois, 422 U.S. 590, 603-04 (1975) (setting provides at least as much protection as the Federal Constitution under these v. State, 575 So. 2d at 1361, ingested the marijuana. The State Constitution was purged when the defendant “independently and of his own volition,” Brown under our State constitutional analysis, that the taint of any police illegality

We find nothing in the facts before us that would override the force of

still in her possession. The evidence in this case had already been search for evidence and were not committed while the evidence was Dist. Ct. App. 1991) (“Once the officer had taken the evidence into his custody, contraband were not committed during an active, illegal police Schrecengost, 6 P.3d at 406; see Brown v. State, 575 So. 2d 1360, 1361 (Fla.

police officers in response to an illegal search or seizure).

from the prior illegal seizure.”

Schrecengost’s actions in destroying the suspected

Schrecengost: case). We concur with the reasoning of the Court of Appeals of Idaho in

tainted by prior unlawful detention); exception to exclusionary rule where defendant commits a new crime against and flagrancy of the official misconduct.” Panarello, 157 N.H. ___, ___ 949 A.2d 732, 737 (2008) (adopting new crime suppressed]; (2) the presence of intervening circumstances; and (3) the purpose Wagstaff, 846 P.2d at 1313; cf. State v. the police illegality and the . . . [acquisition of the evidence sought to be marijuana “supported a new criminal charge that was distinct and separate sufficient to purge the taint. Specifically, the defendant’s ingestion of the this case, we find the second factor, the presence of intervening circumstances, We need not discuss the first and third factors because, on the facts of

(Idaho Ct. App. 2000) (applying comparable factors to destruction of evidence

(2001) (quotations omitted) (determining whether consent to search remained

purged, we consider the following factors: “(1) the temporal proximity between In determining whether the taint of a Part I, Article 19 violation has been p. 7 318-B.

knowingly possessed a controlled drug, except as authorized by RSA chapter

would, if true, have sustained the first.”

will in actuality require a difference in evidence.

of an element that the other does not.” See RSA 318-B:2, I. The second offense, falsifying physical evidence,

possession of a controlled substance, requires proof that the defendant fact that was not necessary to the other. We agree. The first offense, The trial court ruled that each indictment required the State to prove a prosecutions and multiple punishments for the same offense. Constitution and the New Hampshire Constitution protect against multiple Id. (quotation omitted). 65 (1995). “The test is whether the facts charged in the second indictment constitutional law, our review is State v. Lucius, 140 N.H. 60, Constitution is upon whether proof of the elements of the crimes “as charged” considering the issue of double jeopardy, our focus under the State and sentence in docket 04-S-745 (possession of marijuana). We disagree. Hutchinson, 156 N.H. at 791. When considered the same [for double jeopardy purposes] unless each requires proof federal opinions for guidance only, id. at 232-33. “Two offenses will be address the claim under the State Constitution, Ball, 124 N.H. at 231, and cite N.H. at 791; see U.S. CONST. amend. V; N.H. CONST. pt. I, art. 16. We first

791 (2008). The Double Jeopardy Clauses of both the United States

Because the issue of double jeopardy presents a question of

the United States and New Hampshire Constitutions in light of his conviction 04-S-742 (falsifying physical evidence) violate the Double Jeopardy Clauses of Next, the defendant argues that his conviction and sentence in docket

Constitution as we do under the State Constitution. at 640-41, and we therefore reach the same result under the Federal forth federal standard for ineffective assistance of counsel); Sharkey, 155 N.H. circumstances, see Strickland v. Washington, 466 U.S. 668, 687 (1984) (setting provides at least as much protection as the Federal Constitution under these 640-41; see also Breese, 612 N.E.2d at 1174. Again, the State Constitution did not constitute ineffective assistance of counsel. See Sharkey, 155 N.H. at our State constitutional analysis, that counsel’s failure to file such a motion motion would likely have been unsuccessful. Accordingly, we conclude, under Given that any taint of police misconduct was purged, a suppression

under the State Constitution. Accordingly, we reach the same result under the Federal Constitution as we do Illinois factors instructive for purposes of our State constitutional analysis). forth factors cited in Hight); Hight, 146 N.H. at 750 (finding the Brown v. a motion for a p. 8 new trial. We disagree.

p. 8 new trial.

plea must be allowed to correct a manifest injustice. he argues that the suppression “changed the status” of the evidence justifying

guilty plea. As a result, we decline to address the defendant’s argument for a analysis is not the new trial standard, but the standard for withdrawing a trial. Because the defendant pled guilty and never went to trial, the proper 8

prove that his earlier plea was made involuntarily and that withdrawal of the evidence, including the marijuana, after the defendant pled guilty. Moreover,

the New Hampshire Constitution. motion was properly a motion to withdraw a guilty plea, not a motion for a new

It is within the trial court’s discretion to allow the withdrawal of a guilty plea. thing” and destroyed with a purpose to impair its availability. Sharkey, 155 N.H. at 640.

When a defendant moves to withdraw a guilty plea, he has the burden to because the district court granted the driver’s motion to suppress all the suppression order in the case involving the driver constitutes new evidence a new trial based upon the discovery of new evidence. He contends that the

constitute separate offenses and do not violate the Double Jeopardy Clause of As an initial matter, the trial court concluded that the defendant’s

Constitution. prove that the object destroyed was a controlled drug, but only that it be “any reach the same result under the Federal Constitution as we do under the State “same elements” test in federal double jeopardy analysis). Accordingly, we

Federal Constitution under these circumstances.

The defendant asserts that the trial court erred in denying his motion for

III. New Trial/Withdraw Guilty Plea though each offense arises out of the same act of ingesting marijuana, they

ruled that the falsifying physical evidence charge did not require the State to controlled substance and falsification of physical evidence. The trial court 509 U.S. 688, 696-704 (1993) (overruling “same conduct” test and retaining possession committed and therefore was an element of both the possession of a See United States v. Dixon, The State Constitution provides at least as much protection as the

anything, and did so with a purpose to impair its availability.

the trial court properly ruled that a difference in evidence exists. Thus, even

The defendant asserts that ingesting the marijuana was the sole act of

proceeding pending, knowingly altered, destroyed, concealed or removed requires the State to prove that the defendant, believing that there was a this case.

p. 9 defendant’s case. Consequently, there was no manifest injustice to correct in the driver’s case did not render the marijuana unavailable as evidence in the otherwise. Further, as stated previously, the successful suppression order in 9

intelligently and voluntarily pled guilty, and the defendant fails to argue

record reveals nothing contrary to a conclusion that the defendant knowingly, have the court exclude at trial any evidence that was improperly obtained. The concurred. to enter a plea was free and voluntary. In addition, he gave up his right to

BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ., that he did not feel threatened by anyone to enter a guilty plea and his decision

guilty because he was in fact guilty and for no other reason. He also admitted guilty plea. At the plea and sentencing hearing, he stated that he was pleading Here, the defendant failed to meet his burden of proof to withdraw his

case. State v. Lambert, 147 N.H. 295, 296 (2001). court's ruling was clearly untenable or unreasonable to the prejudice of his court’s decision was unsustainable, the defendant must demonstrate that the unsustainable exercise of discretion. Id. at 640-61. To show that the trial Id. We will not set aside the trial court’s decision unless it committed an