State of New Hampshire v. Andrew Tulley

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2016-0084, State of New Hampshire v. Andrew
Tulley, the court on April 26, 2017, 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, Andrew Tulley, appeals his conviction, following a bench
trial in Circuit Court (Stephen, J.), on charges of conduct after an accident, see
RSA 264:25 (2014), and transportation of alcoholic beverages by a minor, see
RSA 265-A:45 (2014). He likewise appeals the suspension of his driver’s license.
See RSA 263:57 (2014); RSA 265-A:45, I.

The record supports the following facts. On a clear evening when the
pavement was dry, the defendant drove his vehicle onto the sidewalk and into a
utility pole, damaging his vehicle and the pole and leaving the back end of the
vehicle in the roadway. He immediately stepped out from the driver’s side door,
and his passenger got out from the passenger’s door. They ignored another
vehicle that stopped near them. After they conferred briefly, the passenger
walked swiftly across a parking lot adjacent to the sidewalk to a Target store,
while the defendant walked to the store more slowly. In the store, the passenger
used the store’s telephone at the customer service desk. When the defendant
arrived at the customer service desk, he and the passenger did not acknowledge
each other. When the passenger finished using the store’s phone, the defendant
used it. While the defendant was talking on the phone, the defendant wandered
away from the customer service counter. When the defendant saw police officers
enter the store, the defendant walked away from them back to the customer
service counter. The officers commanded him to stop. As the first officer reached
the defendant, the defendant said that he had been in a car accident. The officer
took the defendant’s arm, at which time the trial court concluded the defendant
was arrested.

The defendant contends that the trial court erred by: (1) not suppressing
his statement to the police that he had been in a car accident (statement), the
store surveillance videos showing his activities (videos), and unopened bottles of
beer found in his vehicle (bottles); (2) not finding that “he had been seized when
given verbal commands to stop”; (3) finding that the police had probable cause to
arrest him; (4) finding that the bottles had been properly seized because they
were in plain view; (5) finding that there was sufficient evidence to convict him of
conduct after an accident and of transporting alcohol; (6) not “making
particularized findings as to either suspension [of his driver’s license] or why the
suspensions should run consecutively”; (7) unsustainably exercising its
discretion by suspending his license on each conviction and ordering the second
suspension to run consecutive to the first; and (8) finding that his motion to
reconsider was untimely as to issues regarding his convictions.

To the extent that the defendant makes constitutional arguments other
than those arguments specifically addressed below, they are not sufficiently
developed for review. See State v. Chick, 141 N.H. 503, 504 (1996). We assume,
without deciding, that the defendant’s arguments are preserved.

The defendant argues that: (1) he was arrested before he stated to the
police that he had been in a car accident; (2) he was arrested without probable
cause; and (3) as a result, the bottles, the store videos, and his statement must
be suppressed. However, we need not dwell upon the underlying arguments
regarding the timing of, and grounds for, the arrest because, even if we were to
assume that the defendant was arrested illegally prior to his statement, his
arguments — that the statement, the bottles, and the videos must be suppressed
— fail.

When reviewing a trial court’s order on a motion to suppress, we accept the
trial court’s factual findings unless they lack support in the record or are clearly
erroneous and review its legal conclusions de novo. State v. Sullivan, 157 N.H.
124, 129 (2008). Evidence that has been obtained only through exploitation of
an antecedent illegality must be suppressed, State v. Socci, 166 N.H. 464, 471
(2014), but if a source independent of the alleged police misconduct leads to the
discovery of the evidence, then such evidence may be admissible, State v. Holler, 123 N.H. 195, 199-200 (1983).

In this case, the bottles were seized by an officer when he checked the
defendant’s abandoned crashed vehicle for occupants. The officer who seized the
bottles did not enter the store, and the defendant acknowledges that the officer
did not know “anything at all about actions otherwise taken by other police
officers.” Furthermore, the same officer broadcast the description of the driver,
which the arresting officer testified he received prior to the arrest. From this, the
trial court could have reasonably inferred that the officer found the bottles before
the defendant was arrested. Accordingly, we conclude that the bottles were
discovered independent of the defendant’s arrest. See id.

Similarly, the videos were made by a third party prior to, and
contemporaneous with, the defendant’s arrest. The trial court could reasonably
infer that the police knew that the store made such recordings and that they
were obtained directly from the store. Accordingly, we conclude that they, too,
were “discovered” independent of the defendant’s arrest. See id.

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 The defendant’s brief is unclear as to whether he is arguing that his
statement should have been suppressed because it resulted from a custodial
interrogation in the absence of Miranda warnings, see State v. Thelusma, 167
N.H. 481, 484 (2015), or because it was the fruit of his allegedly illegal arrest, see
State v. Gotsch, 143 N.H. 88, 90 (1998). To the extent that he is arguing that his
statement was the product of an improper custodial interrogation, the trial court
found that his statement was volunteered. See State v. Cloutier, 167 N.H. 254,
258 (2015) (stating whether statement voluntary is question of fact). This finding
is supported by the video showing the defendant making a statement to a police
officer as the officer approached him. Volunteered statements of any kind are not
affected by Miranda v. Arizona, 384 U.S. 436, 478 (1966). Thelusma, 167 N.H. at
485. Furthermore, the trial court could have reasonably found, based upon the
video and the testimony of an officer, that the defendant did not make his
statement in response to a question. See State v. Graca, 142 N.H. 670, 675
(1998) (stating interrogation required for Miranda to apply).

To the extent that the defendant is arguing that his statement was the fruit
of his allegedly illegal arrest, we must determine whether the statement was a
product of his free will. See Gotsch, 143 N.H. at 90. Because the defendant does
not address the four factor test that we employ to make this determination, see
id., we decline to engage in this analysis. See State v. Blackmer, 149 N.H. 47, 49
(2003). Accordingly, we conclude that the trial court did not err by not
suppressing the defendant’s statement.

In light of these conclusions, we need not decide when the defendant was
arrested, or address whether the officer had probable cause for the arrest.

We next consider whether the trial court erred in finding that the bottles
were in plain view. To validate a seizure under this exception, unless the items
seized are “dangerous in themselves,” the State must prove, by a preponderance
of the evidence, that: (1) the initial intrusion that afforded the view was lawful;
(2) the evidence was discovered inadvertently; and (3) the incriminating nature of
the evidence was immediately apparent. State v. Nieves, 160 N.H. 245, 247
(2010).

The “immediately apparent” requirement is met if, at the time of the
seizure, the officer has probable cause to believe that the object seized is
incriminating evidence. Id. at 701. Absolute certainty of illegality is not required.
Id. at 703. Officers are entitled to draw reasonable inferences from the facts
available to them in light of their knowledge and prior experience. Id. at 701-02.
Thus, in some situations, a trained officer’s observations of certain types of
contraband will be deemed sufficient to meet the requirements of the plain view
doctrine. Id. at 702.

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 In this case, we construe the defendant’s argument to be that the
incriminating nature of the bottles was not apparent to the officer who seized
them because, at the time of the seizure, that officer did not know that the driver
of the vehicle was a minor. However, we agree with the State that the officer who
seized the bottles could have reasonably inferred that the crash was caused by
an intoxicated driver because, although the weather was clear and the road was
dry, the vehicle had been driven onto the sidewalk, collided forcefully with a
utility pole, and was abandoned half on the sidewalk and half in the road. Thus,
regardless of the driver’s age, the officer had probable cause to believe that the
bottles in the car were incriminating. Cf. State v. Cable, 168 N.H. 673, 679
(2016) (relying upon presence of alcohol in boat to support finding that
defendant’s impairment caused victim’s death).

To the extent that the defendant argues that the officer’s initial intrusion
was unlawful because he used a flashlight, we note that the officer testified that
he did not use his flashlight in looking into the vehicle to see if anyone was in it.
To the extent that the defendant argues that “the search was warrantless,” he
does not develop this argument. See Blackmer, 149 N.H. at 49. Accordingly, we
conclude that the trial court did not err in declining to suppress the bottles.

We next address the defendant’s arguments that the evidence was not
sufficient to find him guilty of either charge. A challenge to the sufficiency of the
evidence raises a claim of legal error; therefore, our standard of review is de novo.
State v. Boutin, 168 N.H. 623, 627 (2016). In reviewing a sufficiency of the
evidence claim, we view the evidence presented at trial, and all reasonable
inferences drawn therefrom, in the light most favorable to the State and uphold
the trial court’s verdict unless no rational trier of fact could have found guilt
beyond a reasonable doubt. Id. The defendant bears the burden of
demonstrating that the evidence was insufficient to prove guilt. Id.

We first address whether the evidence was sufficient to find the defendant
guilty, beyond a reasonable doubt, of conduct after an accident. RSA 264:25
requires a driver who knows that he has been in an accident resulting in
property damage to stop at the scene and provide certain information to the
property owner. If the property owner is not at the scene, then the driver must
“immediately” give the information to a police officer at the scene or at the
nearest police station. RSA 264:25, I.

The defendant argues that the trial court erred by determining “that the
‘scene’ did not include the contiguous Target property where [he] went to make a
phone call.” He acknowledges that “the clear purpose of [RSA 264:25] is to make
the identity of the operator available.” However, the video shows that, upon
damaging the utility pole on the sidewalk, the defendant and his passenger
immediately left his vehicle and walked to the Target store, which was on the
other side of a parking lot. Although another vehicle stopped, apparently to offer
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assistance, the defendant walked away from it without ascertaining whether that
driver had a telephone.

The defendant argues that there was “no conduct evidencing an intention
to flee or hide.” However, when the police arrived approximately five minutes
after the crash, the defendant was not in sight. Instead, the police had to
broadcast his description and search for him. We conclude that, viewing the
evidence in the light most favorable to the State, the trial court could reasonably
have found that the defendant left the scene of the accident. See State v.
Palermo, 168 N.H. 387, 394 (2015) (stating that we assume that trial court made
subsidiary findings necessary to support its general ruling).

The defendant argues that RSA 264:25, in allowing a driver to report an
accident at the nearest police station, authorizes the driver to leave the scene to
report an accident and that the evidence did not show that he failed to make a
report because it did not identify whom he called from the Target store phone.
However, a police officer testified that he was listening to his radio and did not
hear dispatch receive a report of the crash. The defendant argues that the police
prevented him from reporting the accident by interrupting his phone call and
“asking only one question about the accident.” He further argues that he
complied with RSA 264:25 when he told the officers who found him in Target that
he had been in a car accident. However, the defendant did not immediately
inform the officers that he had been driving the vehicle or provide them with
other statutorily required information. Both officers testified that, instead, when
the defendant saw them in the store, he walked away from them. We conclude
that, viewing the evidence in the light most favorable to the State, the trial court
could have reasonably found that the defendant did not comply with the
requirements of RSA 264:25.

To the extent that the defendant argues that the evidence was not
sufficient to find him guilty of transporting alcohol as a minor, that the police did
not conduct an investigation, and that the trial court improperly considered the
video showing him exiting from the driver’s door of the vehicle, he does not
develop these arguments. See Blackmer, 149 N.H. at 49.

We next address whether the trial court erred by suspending the
defendant’s license for 30 days for cause based on his conviction for conduct
after an accident, see RSA 263:57, and consecutively for 60 days for transporting
alcohol, see RSA 265-A:45, I.

The trial court has discretion to suspend a license under RSA 263:57.
State v. Meissner, 144 N.H. 487, 488 (1999). We defer to the trial court’s
findings; the defendant must establish that its decision was clearly untenable or
unreasonable to the prejudice of his case. Id. at 489.

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 Under the statute, a driver’s license may not be suspended on the basis of
a speeding conviction unless the operator created an immediate hazard to the
operator or to the safety or property of others on or near the roadway, or had a
record of prior driving offenses which would support a suspension for public
safety. Id. at 489. We assume, without deciding, that this requirement applies
following a conviction for conduct after an accident. Contrary to the defendant’s
argument that “Meissner requires that the trial court make specific findings that
the driving conduct of the person poses such a threat,” it requires only that the
record support such a finding. Meissner, 144 N.H. at 489, 490; see Palermo, 168
N.H. at 394 (stating that we assume that trial court made subsidiary findings
necessary to support its general ruling).

The defendant argues that, without specific findings, “it is impossible to
determine whether the trial court considered facts and/or evidence that it should
not have.” However, when we determine whether a ruling is a proper exercise of
judicial discretion, we are really deciding whether the record establishes an
objective basis sufficient to sustain the discretionary judgment made. State v.
Lambert, 147 N.H. 295, 296 (2001).

In this case, the defendant drove his vehicle onto a sidewalk until it
crashed into a utility pole with enough force to damage both the pole and the
vehicle. The defendant then left his vehicle with half of its front end on the
sidewalk and its back end in a travel lane of a four-lane road. This supports an
implied finding that the defendant created an immediate hazard to himself and to
the safety or property of others on or near the roadway. See Meissner, 144 N.H.
at 489.

The defendant notes that “the State did not offer, nor did the Court request
[his] driving record.” He contends that this “strongly suggests that the
suspension for cause was preordained without regard to [his] conduct.” However,
the trial court reasonably suspended his license on the basis of his conduct in
this accident. Thus, it could have reasonably determined that reviewing his
driving record was unnecessary. We note that the defendant did not argue to the
trial court that his driving record mitigated his offense.

The defendant argues that his criminal conduct occurred only after the
accident and after he stopped driving. We find this argument to be without
merit. See RSA 263:57 (permitting suspension for cause). Cf. State v. Pinault, 168 N.H. 28, 32 (2015) (addressing RSA 651:62, III (2016), which limits
restitution to loss incurred “as a direct result of a criminal offense”).

With reference to the suspension of his license pursuant to his conviction
for transporting alcohol when a minor, the defendant argues that: (1) he “was
but several months away from his 21 birthday”; (2) the trial court based its
decision upon the “totality of the circumstances” and did not explain the reasons
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for the sentences; (3) the bottles were not open; (4) the State did not provide
support for its sentencing recommendations; (5) the trial court “rubber
stamp[ed]” the State’s recommendation; and (6) “[n]either the State nor the trial
court proffered any sustainable opposition to [his] argument opposing such a
discretionary suspension.” However, he does not cite, nor are we aware of, any
authority that these considerations compel a different sentence. See State v.
Littlefield, 152 N.H. 331, 357 (2005) (stating that trial judge has broad discretion
to choose the sources and types of evidence upon which to rely in imposing
sentence, and we review sentencing decisions under our unsustainable exercise
of discretion standard).

Finally, we address whether the trial court erred by finding that the
defendant’s motion to reconsider was untimely as to issues regarding his
conviction. By notice of decision dated October 29, 2015, the trial court issued
an order, dated October 21, 2015, convicting the defendant. He was sentenced
on December 17, 2015. He moved for reconsideration of his convictions and of
the sentences on December 24, 2015. The trial court found the motion to
reconsider untimely as to his convictions and timely as to his sentence, and
denied the motion. We review a trial court’s decision that issues were not timely
raised in a motion to reconsider for an unsustainable exercise of discretion. ATV
Watch v. N.H. Dep’t of Transp., 161 N.H. 746, 763 (2011). To show that the trial
court's decision is not sustainable, the defendant must demonstrate that the
court’s ruling was clearly untenable or unreasonable to the prejudice of his case.
Lambert, 147 N.H. at 296.

In this case, the defendant does not show how he was prejudiced by the
trial court’s decision not to review his arguments in the motion to reconsider
concerning his convictions. He timely appealed the trial court’s decision, we have
reviewed the issues that he raised in the motion to reconsider, and we conclude
that they lack merit. Thus, even if the trial court erred by finding the motion
untimely as to the defendant’s convictions, he has failed to demonstrate how the
error was prejudicial to his case.

Any remaining issues raised by the plaintiff in his brief are either not
sufficiently developed, see Blackmer, 149 N.H. at 49, or otherwise do not warrant
further discussion, see Vogel v. Vogel, 137 N.H. 321, 322 (1993).

Affirmed.

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

Eileen Fox,
Clerk
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