2012-313, State of New Hampshire v. John A. Smith

I(b). We affirm. had to find that the stolen property consisted of firearms. See RSA 637:11, sentence, see RSA 637:11, III (2007), when the jury was not instructed that it felony - level sentence, see RSA 637:11, I(b), instead of a misdemeanor - level our review is whether the trial court committed plain error by imposing a of receipt of stolen property. See RSA 637:7, :11, I(b) (2007). The sole issue for imposed by the Superior Court (Fitzgerald, J.) follow ing his conviction by a jury DALIANIS, C. J. The defendant, John A. Smith, appeals the sentence

the brief and orally, for the defendant. Stephanie Hausman, senior assistant appellate defender, of Concord, on

general, on the brief and orally), for the State. Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney

No. 2012 - 313 Cheshire

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, 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 p. 2 22 as 2

the peace and dignity of the State. form of the statute in such cases made and provided, and against handguns by selling one or both handguns to J.M., contrary to the with the purpose to deprive the owner of that handgun or those believing that the handgun or handguns had probably bee n stolen, knowing that the handgun or handguns had been stolen, or of the .380 caliber handgun and/or a .44 caliber handgun, day of August, p. 2 2010 . . . in that [he] did receive, retain, or dispose property contrary to RSA 637:7 and 63 7:11 on or about the 17th John Smith . . . is charged with the crime of receiving stolen

the defendant had been arraigned: At the beginning of the trial, the jury was read the indictment on which

victim’s stolen guns. At trial, the victim identifie d the guns as his stolen guns. checked the serial numbers on the guns and confirmed that they were the the police and was not found to have any contraband. An officer immediately police with the two hand guns. He was searched again after giving the guns to the home, spoke briefly with the defendant, gave him $400, and returned to the The police accompanied the friend to the defendant’s home. The friend entered Tabaldi, 165 N.H. 306, 309 - 10 ( p. 2 2013) (describing “controlled buys” in general). defendant, the police searched the friend and gave him $400. See State v. The “buy” occurred on August 17, 2010. Before the friend met with the

defendant while the friend wore a recording device. Task Force, arranged for the defendant’s friend to purchase the guns from the case. The police, together with the New Hampshire Attorney General’s Drug Keene Police Department, offering to act as a confidential informant in this purchasing the two gu ns for $ p. 2 200 each. The friend immediately telephoned the Sometime thereafter, t he defendant asked a friend if he was interested in

Underwood $400 for the two guns. man and drove to the defendant’s residence where the defendant gave “b ring them over.” U nderwood retrieved the two stolen handguns from another he was interested in buying any weapons. The defendant told Underwood to In August p. 2 2010, Eric Underwood telephoned the defendant and asked if

he noticed the two handguns were missing, and he reported them stolen. eventually, the victim lost consciousness. When he awoke t he next morning, and a SIG Sauer . p. 3 380 caliber handgun. The three continued to drink, and them two handguns that he owned: a Smith & Wesson .44 caliber handgun the victim invited a man and a woman into his home for a drink and showed The jury could have found the following facts. In the summer of p. 2 2010, 3

bodily injury.” Id. (quotation omitted). At trial, there was evidence that the defendant knew or should have known that it could result in death or serious “any firearm, knife or anything else which is used in such a way that the armed was a firearm. Id. Instead, the trial court defined a “deadly weapon” as that it had to find that the “deadly weapon” with which the defendant was weapon.” Id. (quotation omitted). However, the court did not instruct the jury defendant of armed robbery, it had to find that he was armed with a “deadly weapon is a firearm.” The trial court had instructed the jury that to convict the the possession, use or attempted use of a deadly weapon, and the deadly enhanced sentence “[i]f a person is convicted of a felony, an element of which is was sentenced under RSA 651:2, II - g (Supp. 201 p. 3 3), which provides for an We find Russell instructive. The defendant in Russell, 159 N.H. at 490,

confine our review to the fourth prong of the plain error test. test are met. See State v. Russell, 159 N.H. 475, 490 - 94 (2009). We, therefore, Id. We assume, without deciding, that the first three prongs of the plain error those circumstances in which a miscarriage of justice would otherwise result. judicial proceedings. Id. The rule is used sparingly, however, and is limit ed to the error must seriously affect the fairness, integrity, or public reputation of discretion to correct a forfeited error only if the error meets a fourth criterion: N.H. 252, 254 (2012). If all three conditions are met, we may then exercise our plain; and ( p. 3 3) the error must affect substantial rights. State v. Charest, 164 For us to find plain error: (1) there must be error; (2) the error must be

trial co urt. See Sup. Ct. R. 16 - A. under certain narrowly drawn circumstances, to correct errors not raised in the argument in the trial court, he invokes the plain error rule, which allows us, property stolen is a firearm”). Because the defendant did not make that 6 p. 3 37:11, I(b) (receipt of stolen property constitutes a class A fel ony when “[t]he a reasonable doubt, that the stolen property consisted of firearms. See RSA sentence, the jury must have been instructed to find, unanimously and beyond I, Article 15 of the State Constitution because, for him to receive a felony - level On appeal, however, the defendant argues that his sentence violate s Part

sentence. maximum of six years, stand committed. The defendant did not object to the him to the New Hampshire State Prison for a minimum of three years and a instructions. After the jury convicted the defendant, the trial court sentenced to deprive the owner of the p roperty.” The defendant did not object to those it had probably been stolen”; and ( p. 4 4) he “received the property with the purpose another person”; ( p. 3 3) he “knew the property had been stolen or believed that . . . “received, retain ed, and/or disposed of property”; (2) “the property belonged to to convict the defendant, it had to find, beyond a reasonable doubt, that: (1) he handguns as “firearms.” At the trial’s conclusion, the jury was instructed that, Throughout the trial, witnesses, including the defendant, referred to the 4

See Russell, 159 N.H. at p. 4 492. Given the essentially uncontroverted evidence prong of the plain error rule to reverse the defendant’s conviction and sentence. Accordin gly, as in Russell, we will not exercise our discretion under the fourth from which shot is discharged by gunpowder” (quotation omitted)). there was no need for trial court to instruct jury that a firearm is “a weapon Wesson handgun and witnesses referred to the handgun as a “firearm” at trial, N.H. 1, 3 - 4 (1986) (when defendant was charged wit h possessing a .357 Dan firearm.” State v. Taylor, 136 N.H. 131, 13 4 (1992); see State v. St. John, 129 evidence at trial, “there was no real issue as to whether the handgun was a others involving the issue of whether a handgun is a “firearm,” based upon the defendant, referred to the stolen handguns as “firearms.” In this case, as in appeal, that a handgun is a firearm. See id. At trial, witnesses, including the Additionally, the defendant did not dispute at trial, and does not dispute on as stolen property; no other allegedly stolen property was discussed. handguns was overwhelming. The evidence at trial concerned only handguns Similarly, here, evidence that the stolen property at issue consisted of

under the fourth prong of the pl ain error test. Id. exercise our discretion to reverse the defendant’s conviction and sentence defendant used a firearm to commit the armed robbery,” we declined to “Given the overwhelming and essentially uncontroverted evidence that the dispute that the deadly weapon used during the robbery was a firearm. Id. (quotation omitted). In addition, at trial, the defendant in Russell did not expert confirmed that the fragment “was from a discharged bullet.” Id. dashboard and that the fragment appear ed to be a bullet. Id. A firearms scene technician testified that he found a metal fragment in the vehicle’s stuck a gun inside [the] vehicle and shot out its back window.” Id. A crime the victim wa s seated. Id. Moreover, the victim testified that someone “had gun would not have done as much damage to the window of the car in which at p. 4 492. The witness stat ed that the gun looked like a revolver and that a BB gun . . . , he also testified that the defendant pointed a gun at [the victim].” Id. although a witness testified “that he initially thought that the shooter had a BB firearm was overwhelming and undisputed, id. at 491 - 93. We explained that the plain error test was not met because evidence that the defendant used a and that the error was plain, id. at 490, we conclu ded that the fourth prong of 489. Although we agreed with the State ’s concession that the trial court erred and to his sentence, we reviewed his sentence under the plain error rule. Id. at Because the defendant in Russell failed to object to the jury instructions

a firearm, his sentence under RSA 6 p. 5 51:2, II - g was unconstitutional. Id. that it had to find that the “deadly weapon” he used in the armed robbery was Accordingly, he contended that because the trial court did not instruct the jury the jury could have convicted him of armed robbery with a BB gun. Id. at p. 4 489. argued that, based upon the jury instructions and evidence presented at trial, “deadly weapon” used could have been a BB gun. Id. at 492. The defendant 5

specially. HICKS, CONBOY and BASSETT, JJ., concurred; LYNN, J., concurred

not persuaded us that Russell must be overruled. See id. omitted). Having failed to brief the four stare decisis factors, the defendant has over and above the belief that a prior case was wrongly decided.” Id. (quotation a court to adhere. . . to. . . precedent in the absence of some special reason incorrectly decided. However, “[p]rincipled application of stare decisis requires the defendant find s Russell to be intolerable because he believes that it was cases; and (3) it undermines “significant constitutional guarantees.” In effect, differently from those who have not; (2) it conflicts with prior and subsequent who have preserved their objections to jury instructions and sentencing defendant asserts that Russell is intolerable because: (1) it treats defenda nts because it “def[ies] practical workability.” Id. (quotations omitted). The omitted). The defendant argues only that Russell is “intolerable,” but not Mapleva le Builders v. Town of Danville, 16 p. 5 5 N.H. 99, 105 (2013) (quotation

significant application or justification. come to be seen so differently, as to have robbed the old rule of abandoned doctrine; and (4) whether facts have so changed, or developed as to have left the old rule no more than a remnant of overruling; (3) whether related principles of law have so far reliance that would lend a special hardship to the consequence of practical workability; (2) whether the rule is subject to a kind of (1) whether the rule has proven to be intolerable simply by defying Generally, we will overrule a prior decision only after considering:

elements of the plain error test.” sentencing based on that enhancement is plain error, satisfying all four jury has not been instructed to f ind a sentencing enhancement element, asks us to overrule that part of Russell. He asks that we hold “that, where the incentive not to object” at trial to jury instructions. Id. at 494. The defendant do so “would creat e a windfall for criminal defendants,” giving them “every on an element of the offense always constitutes plain error,” explaining that to In Russell, we also declined to hold “that the failure to instruct the jury

(quotation and brackets omitted). uncontroverted evidence . . . , were n ot to receive the enhanced sentence.” Id. rep utation of judicial proceedings would be if the defendant, despite th[at] . . . constitute firearms, “the real threat then to the fairness, integrity, and public that the stolen property consisted of handguns and that the handguns p. 6 6

(Dalianis, J., joined by Hicks, J., concurring in part and dissenting in part). Russell, that is ripe for reexamination. See Kousounadis, 159 N.H. at 429 - 34 Kousounadis, 159 N.H. 413 (2009), I tend to believe that it is Kousounadis, not th at Russell is fundamentally at odds with our decision in State v. not believe Russell was wrongly decided; and insofar as the defendant argues 159 N.H. 475 (2009), if I thought that case had been wrongly decided. But I do I arguably would be more willing than the majority to overrule State v. Russell, State v. Quintero, 1 p. 6 62 N.H. 526, 543 - 47 (2011) (Lynn, J., concurr ing specially), may warrant overruling precedent is broader than that of the majority, see LYNN, J., concurring specially. Because my view as to the factors that