State of New Hampshire v. Dickens Etienne

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2014-0373, State of New Hampshire v. Dickens
Etienne, the court on August 10, 2015, issued the following
order:
Having considered the briefs and oral arguments of the parties, the court
concludes that a formal written opinion is unnecessary in this case. The
defendant, Dickens Etienne, appeals an order of the Superior Court (Garfunkel,
J.) denying his motion for return of $9,800. See RSA 595-A:6 (2001). We
affirm in part, vacate in part, and remand.
The trial court found the following facts. The defendant is currently
serving a life sentence as a result of his 2004 conviction for the first degree
murder of Larry Lemieux. He seeks the return of $9,800 that the police
recovered from his apartment when they executed a warrant as part of a
narcotics investigation. The police found the money inside a stuffed animal in
the defendant’s bedroom. The police also found a marijuana pipe, a duffel bag
containing a flak vest, a bulletproof vest, a black ski mask, ammunition,
ammunition magazines, an electronic scale, and other paraphernalia.
The defendant filed the instant motion for return of the $9,800 in 2012.
Following a hearing at which the defendant testified, the trial court denied his
motion, finding that the money constitutes “contraband” within the meaning of
RSA 595-A:6. The court ordered the money to be “forfeited to the State to be
used for law enforcement purposes as determined appropriate by the Attorney
General.” This appeal followed.
We first address whether the trial court erred when it denied the
defendant’s motion for return of property based upon its determination that the
money constitutes contraband under RSA 595-A:6. RSA 595-A:6 “sets out the
procedure for custody and disposition of items lawfully seized by a police
officer.” State v. Brown, 125 N.H. 346, 350 (1984). RSA 595-A:6 provides, in
relevant part, that “[u]pon application by a prosecutor, defendant, or civil
claimants, the court . . . shall, upon notice to a defendant and hearing, and
except for good cause shown, order returned to the rightful owners any stolen,
embezzled or fraudulently obtained property, or any other property of evidential
value, not constituting contraband.”
In State v. Cohen, 154 N.H. 89 (2006), we explained that an item
constitutes contraband when it is unlawful to possess the item. Cohen, 154
N.H. at 91. Property may be contraband per se, derivative contraband, or both.
State v. Pessetto, 160 N.H. 813, 816 (2010). Contraband per se is “property
whose possession is unlawful regardless of how it is used.” Cohen, 154 N.H. at
92 (quotation and brackets omitted). Derivative contraband is “property whose
possession becomes unlawful when it is used in committing an illegal act,” and
includes “tools or instrumentalities that a wrongdoer has used in the
commission of a crime.” Id. (quotations and brackets omitted).
“If the item is determined to be contraband, then the trial court has
discretion to order forfeiture and dispose of the property as the public interest
requires.” Pessetto, 160 N.H. at 817; see RSA 595-A:6. “If the item is not
contraband, the trial court must return the property unless the State provides
good cause to withhold its return.” Pessetto, 160 N.H. at 817; see RSA 595-
A:6. The State bears the burden of proving, by a preponderance of the
evidence, that an item constitutes contraband under RSA 595-A:6. Pessetto,
160 N.H. at 817.
The trial court determined that the $9,800 constitutes either contraband
per se or derivative contraband or both because it consists of proceeds from the
defendant’s illegal acts. We review that determination for an unsustainable
exercise of discretion. See Cohen, 154 N.H. at 91.
The defendant first argues that there was insufficient admissible
evidence to support the trial court’s contraband determination. We review
sufficiency of the evidence claims as a matter of law, and uphold the findings
and rulings of the trial court unless they are lacking in evidentiary support or
tainted by error of law. Knight v. Maher, 161 N.H. 742, 745 (2011). When
performing this review, we accord considerable weight to the trial court’s
judgments regarding the credibility of witnesses and the weight to be given
testimony. Id.Based upon our review of the record submitted on appeal, we conclude
that there was sufficient evidence to prove, by a preponderance of the evidence,
that the money constituted the proceeds from the defendant’s unlawful acts
and, therefore, was either contraband per se or derivative contraband, or both.
The defendant wrote a letter to Cameo Jette in 2004 admitting that his income
was derived from illegal acts. In that letter, he told Jette: “You knew what I
did for a living . . . . I’m a drug dealer and do robberies on other drug deal [sic]
out of state.” There is also evidence that, between 1995 and 2004, the
defendant reported no earnings, despite having claimed to have worked in New
Hampshire and Massachusetts. Further, the police seized the money during a
search that produced other items that support the defendant’s admission that
he dealt drugs and committed robberies. Contrary to the defendant’s
assertions, the evidence described above was “competent evidence upon which
the court’s decision reasonably could have rested,” and was sufficient to
support the trial court’s finding that the money was derived from his illegal
acts. Although the defendant testified that the money constituted legitimate
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gambling winnings, the court found that he was not credible on this point, and
we defer to that determination. See id. To the extent that the defendant
argues that the State could not prevail upon its claim that the money
constitutes contraband unless it proved the precise illegal source of the money,
we are not persuaded, and conclude that his argument warrants no further
discussion. See Vogel v. Vogel, 137 N.H. 321, 322 (1993).
The defendant next asserts that, even if the money constitutes
contraband, it must be returned to him because the attorney general’s office
failed to bring a civil forfeiture action within sixty days of the seizure as
required by RSA 318-B:17-b (Supp. 2014). Addressing this assertion requires
us to engage in statutory interpretation. The interpretation of a statute is a
question of law, which we review de novo. In re Toyota Avalon, 155 N.H. 720,
721 (2007). We are the final arbiters of the legislature’s intent as expressed in
the words of the statute considered as a whole. Id. We first examine the
language of the statute, and, where possible, ascribe the plain and ordinary
meanings to the words used. Id. When interpreting two or more statutes that
deal with a similar subject matter, we construe them so that they do not
contradict each other, and so that they will lead to reasonable results and
effectuate the legislative purpose of the statutes. In the Matter of Aldrich &
Gauthier, 156 N.H. 33, 35 (2007).
RSA 318-B:17-b governs petitions brought by the attorney general’s
office for forfeiture of items seized in connection with a drug offense. RSA 318-
B:17-b provides, in pertinent part, that, within 60 days of the seizure of
property, including money, the attorney general’s office “shall . . . either file a
petition in the superior court having jurisdiction under this section or seek
administrative forfeiture pursuant to RSA 318-B:17-d,” and that if no petition
is filed or administrative procedure initiated within 60 days, “the items or
property interest seized shall be released or returned to the owners.” RSA 318-
B:17-b, II(e).
The defendant argues that, because the attorney general’s office did not
initiate a forfeiture action under RSA 318-B:17-b within 60 days of the seizure
in this case, the money must be returned to him. See id. His argument
proceeds from the mistaken premise that he is the “owner” of the money. That
money constitutes proceeds from his illegal activities and is unlawful for him to
possess. See Cohen, 154 N.H. at 91-92.
The defendant next argues that the trial court erred when it forfeited
“his” money to the State to be used for law enforcement purposes as
determined by the attorney general. We need not address this argument
because the defendant lacks standing to contest that decision. “[B]ecause
standing is a question of subject matter jurisdiction, we may raise the issue of
a party’s standing sua sponte.” Duncan v. State, 166 N.H. 630, 640 (2014).
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To have standing to challenge the trial court’s order that the money be
forfeited to the State, the defendant must have a lawful possessory or
ownership interest in the money. See United States v. U.S. Currency,
$81,000.00, 189 F.3d 28, 35 (1st Cir. 1999) (explaining that, generally, “an
allegation of ownership and some evidence of ownership are together sufficient
to establish standing to contest a civil forfeiture”); see also 36 Am. Jur. 2d
Forfeitures and Penalties § 38, at 532 (2011) (claimant in forfeiture proceeding
has burden of establishing standing and may satisfy that burden by alleging
“an ownership interest, some type of lawful possessory interest, or a security
interest” (footnote omitted)). In light of our decision to uphold the trial court’s
finding that the $9,800 either is contraband per se or derivative contraband or
both, the defendant lacks such an interest as a matter of law. See Cohen, 154
N.H. at 92. For the same reason, we reject the defendant’s argument that the
denial of his motion for return of property constituted “an unconstitutional
taking.” Simply put, this money, because it is contraband, does not lawfully
belong to the defendant.
Nevertheless, we vacate the trial court’s order of forfeiture. The only
motion before the court was the defendant’s motion to return property. In the
trial court, the State repeatedly asserted that the money should be returned to
Jette, whom, the State contended, was its rightful owner. Under these
circumstances, it was error for the trial court to order forfeiture of the money
without first affording Jette notice and an opportunity to assert a claim for the
money. Cf. 4 G. MacDonald, New Hampshire Practice: Wiebusch on New
Hampshire Civil Practice and Procedure § 2.08, at 2-10 (4th ed. 2014) (“The
adjudication of New Hampshire courts as to all property within the state is final
and conclusive upon nonresidents as well as residents, upon such notice as
the statutes of the state require.” (quotation omitted)); Continental Biomass
Indus. v. Env’t Mach. Co., 152 N.H. 325, 327-28 (2005) (explaining in rem and
quasi in rem jurisdiction). We express no opinion as to whether Jette’s
potential claim is, in fact, valid and whether the money is returnable to her.
We remand for further proceedings consistent with this order.
Although the defendant argues that the State’s failure to call Jette as a
witness deprived him of his state and federal constitutional rights to due
process, we decline to address the merits of that argument because it is
insufficiently developed for our review. To support his argument, the
defendant relies solely upon cases involving pretrial bail hearings. See State v.
Poulicakos, 131 N.H. 709, 710 (1989), superseded by statute as stated in State
v. Tsopas, 166 N.H. 528 (2014); United States v. Acevedo-Ramos, 755 F.2d
203, 207-08 (1st Cir. 1985). However, he has neither argued nor attempted to
demonstrate that a defendant in a RSA 595-A:6 proceeding is entitled to the
same due process protections as a pretrial detainee in a bail hearing. See
generally In re Eduardo L., 136 N.H. 678, 686 (1993) (explaining three-part due
process inquiry and holding that “a defendant does not have a general due
process right to meaningful cross-examination in a juvenile certification
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hearing”). Under these circumstances, we decline to address his due process
argument substantively.
We have reviewed the defendant’s remaining arguments and conclude
that they do not warrant further discussion. See Vogel, 137 N.H. at 322. Any
argument that the defendant raised at oral argument, but did not brief, is
deemed waived. See State v. Kelly, 159 N.H. 390, 394 (2009).
Affirmed in part; vacated
in part; and remanded.
DALIANIS, C.J., and HICKS, CONBOY, LYNN, and BASSETT, JJ.,
concurred.
Eileen Fox,
Clerk
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