State of New Hampshire v. Joshua Fowler

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2013-0886, State of New Hampshire v. Joshua
Fowler, the court on January 9, 2015, issued the following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The defendant, Joshua Fowler, appeals his conviction, following a jury
trial in Superior Court (Delker, J.), on seven charges of residential burglary.
See RSA 635:1 (2007) (amended 2014). Each indictment alleged that the
defendant, acting either alone or in concert with one or more persons, see RSA
626:8 (2007), burglarized a different residence from the residences identified in
the other indictments. On appeal, the defendant argues that the trial court
erred by not suppressing certain statements he made to detectives after he had
invoked his rights under Miranda v. Arizona, 384 U.S. 436 (1966). The State
does not contest that the detectives interrogated the defendant while he was in
custody after he had invoked his Miranda rights, but instead argues that the
trial court sustainably found that the motion to suppress was untimely, and
that any error in denying the motion was harmless beyond a reasonable doubt.

We first address whether the trial court erred by ruling that the motion
to suppress was untimely. Superior Court Rule 98F required the defendant to
file any motion to suppress “not less than forty-five (45) calendar days prior to
the scheduled jury selection date or within such other time in advance of trial
as the Court may [have] order[ed] for good cause shown or may have provide[d]
for in a pretrial scheduling order.” Super. Ct. R. 98F (2007) (amended 2014
and re-codified as Super. Ct. Crim. R. 98G). Although trial courts have
discretion to act upon untimely motions to suppress, “defendants are not
entitled to assume that a judge will exercise discretion to entertain such a
motion at the eleventh hour.” State v. Knight, 161 N.H. 338, 341 (2011)
(quotation omitted). Trial courts “have a legitimate interest in the enforcement
of scheduling deadlines, both to manage a pending case and to retain the
credibility of these deadlines in future cases.” Id. (quotation omitted).

We review the trial court’s decision to deny a motion to suppress on
timeliness grounds for an unsustainable exercise of discretion. Id. To
establish that the trial court unsustainably exercised its discretion, the
defendant must show that the decision was clearly unreasonable or untenable
to the prejudice of his case. See State v. Young, 159 N.H. 332, 336 (2009).
 In this case, the defendant did not request that the trial court suppress
any of his statements until the second day of trial, well after any deadline
under Rule 98F had passed. The record establishes that he was first detained
in connection with the case at a pawn shop in Lawrence, Massachusetts, and
that he was questioned shortly thereafter, after he had waived his Miranda
rights, by Lawrence Detective Kevin Nigohosian and Hampstead Detective
Robert Kelley. The interview was recorded. The recording reflects that at one
point, after Detective Kelley had asked the defendant about a laptop computer
that was in his possession at the pawn shop, the defendant stated that he was
going to “stop answering questions,” and that if Detective Kelley could not
answer his question regarding whether there was something wrong with the
computer, he was not going to answer Detective Kelley’s questions. The
defendant further stated that he had called a lawyer who would arrive shortly,
that he was “probably better off waiting for” the lawyer to arrive, and that he
wanted to “hold off” until the lawyer arrived. Detective Kelley responded, “You
don’t have to talk to me anymore. I don’t know if you want to speak to the
Lawrence detective.” Detective Nigohosian added, “If you want to wait for your
attorney, that’s fine. I have different questions, but if you’re going to wait,
that’s fine with me.” At that point, the defendant stated that if Detective
Nigohosian would be “straightforward,” he would answer his questions.

Detective Nigohosian advised the defendant that he was now under
arrest for receiving stolen property, but that his “bigger problems [were] in New
Hampshire.” After Detective Nigohosian had asked the defendant whether he
owned other items that were in his car at the pawn shop, the defendant asked
if he could speak with Detective Nigohosian alone. After Detective Kelley had
left the room, and after Detective Nigohosian, at the defendant’s request,
turned the recorder off, the defendant stated that he “was working with a kid in
Hampstead.” Detective Nigohosian further testified that the defendant asked
him “what he was looking at for sentencing or time in reference to the crimes.”

The prosecutor was not aware that the interview had been recorded until
the first day of trial. When the prosecutor learned that the interview had been
recorded, he acquired a copy of the recording, and produced it to counsel for
the defendant. Counsel for the defendant was unable, however, to review the
recording. Although the State had not produced the recording prior to trial, it
had produced Detective Kelley’s police report, in which he had stated:

Detective Nigohosian and I attempted to conduct an
interview with [the defendant]. [The defendant] was read his
Miranda rights which he waived and agreed to speak with both
detectives. I began to talk to [the defendant] about the laptop that

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 was in the front seat of his car. [The defendant] advised that he
had it for about a month, that he bought it off a buddy for 600 or
$700.

[The defendant] was unable to tell me who the buddy was.
[The defendant] then asked me if there was a problem with the
laptop. When I did not answer the question the way [the
defendant] wanted, he replied by telling me that he wanted to wait
for his lawyer.

[The defendant] then stated that he was willing to talk to
Detective Nigohosian, but did not want me in the room, so I left.

In addition, the State produced an affidavit from Detective Kelley stating:

When Detective Nigohosian of [the] Lawrence Police
Department and I attempted to interview [the defendant], he lied
and stated that the Pro Mac laptop was his and when [the
defendant] was confronted about his lie, he immediately stated he
did not want to talk to me.

[The defendant] did agree to continue speaking with
Detective Nigohosian for a short period of time. [The defendant]
advised to Detective Nigohosian that he was “working with another
kid from Hampstead.” He did not say who.

Detective Nigohosian attempted to question [the defendant]
more and he requested his lawyer.

On the second day of trial, after the trial court and parties had reviewed
the recording outside the presence of the jury, the defendant argued that it
revealed much more than that which the discovery had disclosed, and
established that the detectives had violated his Miranda rights by continuing to
question him after he had asserted his rights to silence and to counsel. He
further asserted that he was unfairly surprised by the late disclosure of the
recording. The trial court rejected these arguments, finding that “there was
plenty of information in the discovery to have flagged an issue for suppression
. . . in a timely manner prior to trial” so as to render the motion to suppress
untimely, and that the defendant was not prejudiced by the late disclosure of
the recording because the discovery “adequately covered the substance of it.”

On appeal, the defendant argues that the trial court erred by finding that
his motion to suppress was untimely, and that he was not prejudiced by the
late disclosure of the recording, because the pretrial discovery provided by the
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State “failed to disclose that he invoked his rights to silence and counsel and
only continued speaking after prompting by the detectives.” Thus, according to
the defendant, the pretrial discovery “supplied no basis to move to suppress
[his] post-invocation statements.” We disagree.

Detective Kelley’s report expressly stated that after Detective Kelley had
not responded to the defendant’s question regarding the laptop in a manner
that he had wanted, “he replied by telling me that he wanted to wait for his
lawyer.” The report then asserted that the defendant “stated that he was
willing to talk to Detective Nigohosian.” Detective Kelley’s affidavit stated that
after the defendant was confronted with evidence that he was lying concerning
the laptop, “he immediately stated he did not want to talk to me,” but that he
“agree[d] to continue speaking with Detective Nigohosian” and told Detective
Nigohosian that he was “working with another kid from Hampstead.” Thus, the
report and affidavit, read together, establish grounds to assert that: (1) after
the defendant was questioned about the laptop, he invoked his rights to silence
and an attorney; (2) the defendant “agree[d]” to continue speaking with
Detective Nigohosian after having invoked his Miranda rights; (3) Detective
Nigohosian continued the interrogation; and (4) the defendant made a
potentially inculpatory statement in response to the continued interrogation.
Moreover, we agree with the State that the fact that the defendant “agree[d]” to
continued interrogation suggests that the detectives had done something to
prompt the “agreement.” Further, because the defendant was present during
the interview, he was aware of what had transpired. Under these
circumstances, we cannot say that the trial court’s findings that the defendant
had the information necessary to file a timely motion to suppress, and that he
was not prejudiced by the late disclosure of the recording, were clearly
untenable or unreasonable to the prejudice of his case. Young, 159 N.H. at
336. Accordingly, we conclude that the trial court did not unsustainably
exercise its discretion by determining that the motion was untimely. See
Knight, 161 N.H. at 342.

Even if the trial court had erred by ruling that the motion was untimely,
however, we agree with the State that any error in admitting the defendant’s
post-invocation statements – that he was working with someone from
Hampstead, and that he wanted to know the amount of time he was facing –
was harmless beyond a reasonable doubt. “An error is harmless if we can say
beyond a reasonable doubt that it did not affect the verdict.” State v. Ramsey, 166 N.H. 45, 47 (2014) (quotation omitted). The State bears the burden of
demonstrating that an error is harmless, and evaluating whether the State has
carried its burden involves considering the alternative evidence presented at
trial and the character of the contested evidence. Id. “An error may be
harmless beyond a reasonable doubt if the alternative evidence of the

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defendant’s guilt is of an overwhelming nature, quantity or weight, and if the
contested evidence is merely cumulative or inconsequential in relation to the
strength of the State’s evidence of guilt.” Id. (quotation omitted).

In this case, the evidence established that at the time of the defendant’s
apprehension at the Lawrence pawn shop, he possessed several stolen items
that had been taken from a home that had been burglarized earlier that day.
He also possessed a BB gun and a package of BBs. For at least five of the
burglaries with which the defendant was charged, including the burglary that
had occurred earlier that day, the homes had been entered through windows
that had been shot with BBs near the window latches. According to trial
testimony, this manner of entry was unique. Ten days prior to his
apprehension, the defendant had pawned a stolen item, which had been taken
from a different burglarized home, at the same Lawrence pawn shop on the day
that the burglary had occurred. Approximately two weeks before his arrest, he
had pawned stolen items, which had been taken from yet another burglarized
home, at two different pawn shops in Plaistow on the day after the burglary.

At one of the Plaistow pawn shops, the defendant had listed a phone
number for a prepaid cellular telephone on a pawn slip. That phone was in his
possession when he was apprehended at the Lawrence pawn shop. Records for
the phone established that, at or near the times that each of the charged
burglaries had occurred, the phone had accessed cellular towers in the vicinity
of each of the burglarized homes. Additionally, it had been used to call: (1) four
burglarized homes on the days that the burglaries occurred, including multiple
calls within short periods of time to three of the homes; (2) other homes within
the same neighborhoods as three burglarized homes within the same time
frames as the burglaries; and (3) the business of one of the burglary victims,
for whom the defendant had previously performed work, on the day before the
burglary occurred. For several of these calls, the user of the phone had
blocked its number.

Finally, the evidence established that the defendant was acquainted with
three burglary victims, each of whom was associated with his employer. One of
these victims had the same position as the defendant, and was on vacation at
the time of the burglary. The burglary of another acquaintance occurred at the
same time that the employer was holding its holiday party.

When balanced against all of this evidence, we agree with the State that
the defendant’s post-invocation statements were inconsequential. Ramsey, 166
N.H. at 47. At trial, he testified that other persons with whom he worked had
used the phone in question, and that with respect to the stolen items he had
pawned, he had pawned such items for other persons. He argued to the jury
that he had not been charged with receiving or possessing stolen goods and,
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thus, that the State was required to prove his involvement in the burglaries
themselves. Within this context, therefore, the jury reasonably could have
interpreted his post-invocation statements that he was working with someone
from Hampstead and wanted to know how much time he was facing merely as
an admission to receiving stolen property, a crime with which he ultimately
was not charged, and for which Detective Nigohosian had just told him that he
was being arrested. When compared with the overwhelming evidence that the
defendant had engaged in the charged burglaries, we conclude that these
statements could not have affected the verdict. Id.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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