Case No. State of New Hampshire v. Mesfen Rowell

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0082, State of New Hampshire v. Mesfen
Rowell, the court on June 17, 2022, 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). The
defendant, Mesfen Rowell, challenges his conviction, following a jury trial, of
being an armed career criminal. See RSA 159-3:a (Supp. 2021). He argues that
the Trial Court (Messer, J.) erred by denying his motion to suppress and when
instructing the jury. We affirm.

The record of the suppression hearing includes the following evidence. On
January 9, 2019, the Manchester Police Department Crimeline received a tip that
“two males with street names of Mes and Killer” were responsible for recent
robberies in the Manchester area and that they were “known to hang out in the
Eastern Avenue area.” A department-wide email was then issued. On January
11, 2019, another call was placed to the Crimeline in which the caller reported
that the two suspects in the robberies were currently in a bungalow outside of
255 Lake Ave. in the alley between Spruce and Lake.

Officer Ward responded to the tip and after searching unsuccessfully in his
cruiser “for anyone who might have information,” he continued his search on
foot. While he was on foot, an individual approached him; it appeared to Ward
that the individual “wanted to talk to [him] about what was going on.” The
individual stated that he was the person who had called the Crimeline. He
reported that the two males were inside his residence, were known as Killer and
Mes, and were each armed. He further reported that “one of them was going
around bragging about robbing various markets throughout the city” and that
they “were talking about going to rob [another market].” He reported that one of
them was wearing a red sweatshirt and the other was wearing a dark-colored
jacket. As Ward received the information, he radioed it to other units in the area.

Officer DeJoy was in the area, patrolling in an unmarked car. He had
already observed the two men. He recognized Killer, who had distinctive tattoos
on his face and neck and who had had contact with the Manchester Police
Department on at least 50 related incidents. DeJoy called the dispatch desk to
see whether Killer had any outstanding warrants. During this call, he was
contacted by Sergeant Jajuga, who was also responding to the Crimeline tip.
Jajuga shared the information reported by Ward.

Jajuga, with other officers, conducted a pedestrian stop of both men.
When DeJoy arrived, he observed both men assuming a prone position. DeJoy
placed the defendant in handcuffs and advised him that he was being detained
and that he was not being arrested. He then asked the defendant whether he
had any weapons “on him.” After DeJoy asked again, the defendant admitted
that he was carrying a firearm and DeJoy removed it. The defendant told DeJoy
that he was a convicted felon. DeJoy confirmed this with dispatch and then
placed the defendant under arrest.

The defendant was indicted on an armed career criminal charge. He
subsequently filed a motion to suppress, arguing that the police lacked
reasonable suspicion to stop him as he walked down the street and that any
evidence seized as a result of the illegal detention should be suppressed. The
trial court denied the motion, finding that when the officers seized the defendant,
they “were acting upon information provided by . . . a known informant.”

Prior to trial, the defendant filed a motion requesting the court “to instruct
the jury regarding the minimum mandatory ten to forty-year prison sentence that
[the defendant] shall receive if convicted.” He argued that “because the Court has
no discretion in sentencing if [he] is convicted, the jurors apply the sentence
blindly without understanding the ramifications of their decision.” The trial court
ruled: “For the reasons stated on the record, the motion is denied.” The
defendant renewed his request following witness testimony. The trial court
denied the request and, after the parties completed closing arguments, instructed
the jury, in part, that: “The duty of imposing sentence is solely for the judge.”

The defendant was convicted on the charge of armed career criminal and
this appeal followed.

We first address the defendant’s challenge to the trial court ruling on his
motion to suppress. When reviewing a trial court’s ruling on a motion to
suppress, we accept the trial court’s factual findings unless they lack support in
the record or are clearly erroneous; we review its legal conclusions de novo. State
v. Davis, 174 N.H. 596, 600 (2021). The defendant has invoked both the State
and Federal Constitutions in his challenge to the trial court’s ruling. We first
address his claim under the State Constitution and rely upon federal law only to
aid our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).

To undertake an investigatory stop, a police officer must have reasonable
suspicion – based upon specific, articulable facts taken together with rational
inferences from those facts – that the particular person stopped has been, is, or
is about to be, engaged in criminal activity. State v. Wallace, 146 N.H. 146, 148
(2001). The defendant argues that the trial court erred by concluding that the
informant was not anonymous and also by failing to examine his credibility.

Our examination of the record provides support for the trial court’s finding
that the informant was not anonymous. Ward provided the following testimony

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at the suppression hearing:

[OFFICER WARD]: I went to the area, you know, drove
around the area looking to see if there was anybody who might have
any information, and then -- then I was on foot, at one point. And at
that time, a subject approached me, appeared that he wanted to talk
to me about what was going on. So I spoke with him. I patted him
down at first, just because it was (indiscernible) when I was outside.
Like, it -- I was in the area, and he kind of approached me, and then
he stated that he was actually the one that called the CrimeLine.

[STATE]: Did you have any idea who the person who called
the CrimeLine was until that point?

[OFFICER WARD]: No, sir.

When asked on cross-examination whether the individual had given Ward his
name, Ward confirmed that he had provided his name but that Ward had been
instructed not to include the name in his report.

The defendant also contends that the presumption of credibility that
applies to information provided by victims and eyewitnesses does not extend to
information provided by an informant. The State contends that the defendant
never argued in the trial court that this distinction was relevant to the
presumption of credibility. See, e.g., State v. Gross-Santos, 169 N.H. 593, 598
(2017) (purpose of preservation rule is to insure trial courts have opportunity to
rule on issues and to correct alleged errors before parties seek appellate review).
We have reviewed the record of the suppression hearing and agree with the State.
Accordingly, the defendant’s challenge to the trial court’s ruling on his motion to
suppress must fail.

The defendant also contends that the trial court erred when it instructed
the jury as follows:

Possible punishment [is] not relevant. The possible punishment the
Defendant may receive, if you return a guilty verdict, should not
influence your decision. The duty of imposing sentence is solely for
the judge. You should base your verdict only on the evidence and the
law without considering the possible punishment.

The defendant’s specific challenge addresses the trial court’s statement that the
“duty of imposing sentence is solely for the judge.” He concedes that he does not
challenge “the trial court’s refusal to inform the jury of the mandatory minimum
sentence.” Rather, he asserts that the trial court’s instruction can be read to
convey that the indicted offense “does not carry a mandatory minimum.”

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 When we review jury instructions, we evaluate allegations of error by
interpreting the challenged instructions in their entirety, as a reasonable juror
would have understood them. State v. Parry, 174 N.H. 50, 54 (2021). We have
long held that a jury should not consider the penalty that a defendant may
receive if convicted, see State v. Brown, 132 N. H. 520, 526 (1989). Rather, “the
authority to sentence a defendant is vested in the court.” State v. Chace, 151
N.H. 310, 313 (2004). Accordingly, the duty to determine a sentence upon
conviction falls to the trial court. See Webster’s Third New International
Dictionary 705 (unabridged ed. 2002) (defining “duty” as “obligatory tasks,
conduct, service”). Moreover, although the legislature has established a
minimum mandatory sentence of ten years for those convicted of being an armed
career criminal, it has also given discretion to trial courts to impose a maximum
sentence of “not more than 40 years” and a fine of “not more than $25,000.” RSA
159:3-a, II (Supp. 2021).

In this case, the trial court correctly instructed the jury that it should not
speculate as to any potential sentence that might be imposed but, rather,
“should base your verdict only on the evidence and the law without considering
the possible punishment.” See State v. Gross-Santos, 169 N.H. 593, 599 (2017)
(juries are presumed to follow instructions). Moreover, following his conviction,
the trial court sentenced the defendant to a maximum term of 20 years and did
not impose a fine. Having reviewed the jury instructions in their entirety, we
conclude that the trial court did not err by including the challenged statement in
its instructions.

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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