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                    THE SUPREME COURT OF NEW HAMPSHIRE

                                ___________________________

Grafton
No. 2015-0636


                            THE STATE OF NEW HAMPSHIRE

                                                v.

                                ROBERT GRIMPSON SMITH

                              Argued: November 9, 2016
                           Opinion Issued: January 31, 2017

       Joseph A. Foster, attorney general (Sean P. Gill, assistant attorney
general, on the brief and orally), for the State.


       Stephanie Hausman, deputy chief appellate defender, of Concord, on the
brief and orally, for the defendant.

      LYNN, J. Following a jury trial in Superior Court (Bornstein, J.), the
defendant, Robert Grimpson Smith, was convicted of possession of heroin. See
RSA 318-B:2, I (2011). The defendant appeals, arguing that the trial court
erred by: (1) denying the defendant’s motion to suppress; and (2) excluding the
testimony of a defense investigator.1 We affirm.

1 The defendant raised two additional issues in his notice of appeal, but did not address those
issues in his brief. Accordingly, they are deemed waived. See Mountain View Park, LLC v.
Robson, 168 N.H. 117, 121 (2015) (“[A]ny issues raised in the notice of appeal, but not fully
briefed, are deemed waived.”).
                                       I

      The pertinent facts are as follows. On August 2, 2014, Officer Alden
responded to a report that a woman, later identified as Kerry St. Lawrence, had
collapsed on the lawn outside 14 Bank Street in Lebanon. When Alden arrived,
he saw St. Lawrence sitting bent over on the lawn, approximately six feet from
the entrance of the rooming house located at that address. Alden called out to
her, but she did not respond. When Alden put his hand on St. Lawrence’s
shoulder, she slowly lifted her head and looked at him groggily. After St.
Lawrence told him that she was having a medical issue, Alden called for the
Lebanon fire department.

       Two EMTs arrived, as did another police officer, Sergeant Norris. The
EMTs assessed St. Lawrence and decided to take her to the hospital. At that
time, St. Lawrence began repeatedly yelling for the defendant. The defendant
did not respond. Norris asked St. Lawrence where the defendant was. She told
Norris that the defendant was in “our apartment” and gave Norris directions to
its location in the building. The door to the room St. Lawrence described
(room 1) was on the first floor, about ten feet from the rooming house’s main
door.

      Both Alden and Norris were familiar with the house at 14 Bank Street,
having previously responded to various complaints at the location. They knew
14 Bank Street to be a rooming house, and testified that the front door was
usually wide open. Norris testified that he passes 14 Bank Street on a regular
basis because the road is heavily travelled and the police frequently patrol it.
Furthermore, he testified that in his eight years on the police force, he had
never seen the door closed. Alden described the house as having between eight
and ten rooms. Although these rooms were separately numbered and locked,
they shared a common hallway, kitchen, and bathroom.

      Norris walked up to the rooming house to check on the defendant and
make sure that he was okay. Norris walked through the open front door of the
rooming house and saw the defendant lying unresponsive on the floor in
room 1, the door to which was also open. Norris called for the EMTs to come
inside.

      Norris followed the EMTs into room 1. After the defendant regained
consciousness, he told the EMTs that he and St. Lawrence had used a quarter
gram of heroin. As the EMTs were treating the defendant, Norris observed a
syringe, a plastic spoon with cotton in the bowl, and a metal spoon. Based
upon his past experience, Norris recognized that these items could have been
used to prepare and inject heroin. While the defendant and St. Lawrence were
waiting to be taken to the hospital, Norris asked if they would consent to a
search of room 1. They declined to give consent.



                                       2
       Thereafter, the officers obtained a search warrant, pursuant to which
they seized the plastic spoon with cotton, syringe, and metal spoon. The State
later charged the defendant with one count of possession of heroin.

       In preparation for trial, Sheryl Montague, a defense investigator,
interviewed St. Lawrence and wrote an investigation report about the interview.
According to Montague, St. Lawrence initially stated that she was “pleading the
[Fifth].” In response to Montague’s questions, St. Lawrence stated that she had
neither been charged nor received a plea deal that required her cooperation in
lieu of being charged. St. Lawrence also indicated that she had received a
letter from the County Attorney’s Office giving her notice to be available for the
defendant’s upcoming trial. Without further questioning, St. Lawrence added
that it was “her apartment, her name on the lease and her items in the
apartment.” St. Lawrence then repeated that she was “pleading the [Fifth],”
and she did not say anything further.

      Before trial, the defendant moved to suppress the evidence seized from
the room, arguing that it was the fruit of an illegal search of the residence.
Following a hearing, at which the State offered testimony from Alden and
Norris, the trial court denied the defendant’s motion. The court found that the
defendant had no reasonable expectation of privacy in the common hallway at
14 Bank Street, the area from which Norris observed the defendant’s
unconscious body lying in room 1. Alternatively, the court found that the
community caretaking exception to the warrant requirement justified Norris’s
entry. The defendant moved for reconsideration, arguing that the trial court
had failed to consider whether the police physically intruded into the
defendant’s home. The court denied the motion.

      During trial, the State moved to exclude testimony by Montague as
inadmissible hearsay. The defendant objected, arguing that the statements
made by St. Lawrence to Montague were exempt from the rule against hearsay
pursuant to New Hampshire Rule of Evidence 804(b)(3) because the statements
were against St. Lawrence’s penal interest.2 The trial court granted the State’s
motion, ruling that the statements were inadmissible hearsay.3


2 Before trial, the court conducted a Richards hearing, see State v. Richards, 129 N.H. 669 (1987),
regarding St. Lawrence’s ability to invoke her privilege against self-incrimination. During the
Richards hearing, St. Lawrence, through counsel, stated that she would invoke her privilege
against self-incrimination should she be called to testify. The State conceded that St. Lawrence
has “self-evident incrimination issues,” but it declined to grant St. Lawrence immunity. The Court
(MacLeod, J.) concluded that St. Lawrence was properly raising her constitutional privilege against
self-incrimination.
3 In excluding St. Lawrence’s statements to Montague, the court explained: “I find that the

statements, . . . the mere fact that it was her apartment, that it was her name on the lease and
her items in the apartment . . . , are so vague, nonspecific and amorphous, that they do not tend
to expose Ms. St. Lawrence at the time she made them to criminal liability so as to make them
admissible under [Rule 804(b)(3)].”


                                                3
     Following a two-day trial, the jury found the defendant guilty. This
appeal followed.

                                                II

       The defendant first argues that the trial court erred by denying his
motion to suppress. He asserts that Norris’s warrantless entry through the
front door of the house at 14 Bank Street violated his right to be secure from
unreasonable searches under both the State and Federal Constitutions, and
that any evidence discovered as a result of that entry should not have been
admitted at trial.4 See N.H. CONST. pt. I, art. 19; U.S. CONST. amend. IV.

       “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, and we review its legal conclusions de novo.” State v. Boyer,
168 N.H. 553, 556 (2016). Following our standard practice, we first address
the defendant’s 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).

        “Our State Constitution protects all people, their papers, their
possessions and their homes from unreasonable searches and seizures.” State
v. Goss, 150 N.H. 46, 48 (2003) (quotation omitted); see also N.H. CONST. pt. I,
art. 19. “It particularly protects people from unreasonable police entries into
their private homes, because of the heightened expectation of privacy given to
one’s dwelling.” Goss, 150 N.H. at 48 (quotation omitted). A violation occurs if
government agents invade a person’s reasonable expectation of privacy. See
State v. Robinson, 158 N.H. 792, 796 (2009). This is a “twofold requirement,
first that a person have exhibited an actual (subjective) expectation of privacy
and, second, that the expectation be one that society is prepared to recognize
as reasonable.” Goss, 150 N.H. at 49 (quotations omitted). “[T]he
determination of whether a person has a legitimate expectation of privacy with
respect to a certain area must be made on a case-by-case basis, considering
the unique facts of each particular situation.” Boyer, 168 N.H. at 558
(brackets and quotation omitted). “Evidence that is obtained in violation of
Part I, Article 19 may be subject to exclusion from evidence in a criminal trial.”
Id. at 557 (quotation omitted).

      “The search of a home is subject to a particularly stringent warrant
requirement because the occupant has a high expectation of privacy.” State v.
Tarasuik, 160 N.H. 323, 328 (2010) (quotation omitted). The protections

4 The defendant does not independently challenge the trial court’s conclusion that Norris’s entry
into room 1 from the main hallway of the building, upon observing the defendant’s unresponsive
body lying on the floor of the room, was reasonable. Nor does the defendant dispute the trial
court’s conclusion that the seized contraband was within Norris’s plain view once he entered the
room.


                                                4
afforded to a person’s home are not limited to single-family dwellings: an
apartment can be a home within the meaning of the State Constitution. See,
e.g., State v. Chaisson, 125 N.H. 810, 817 (1984) (When officers executed a
search warrant at defendant’s apartment and an officer remained at the
apartment for the purpose of arresting the defendant, that officer’s conduct
“constituted a search for the defendant within his home.” (emphasis added)).
Similarly, “we have stated that the privacy interest in a hotel room is
comparable to that of the home.” Tarasuik, 160 N.H. at 328 (quotation
omitted).

       Here, the defendant argues that Norris conducted an unconstitutional
search when he crossed the threshold of the house at 14 Bank Street, which
the trial court characterized as “essentially a boarding house or rooming
house.” The defendant argues that the common areas in the rooming house,
which include hallways, kitchen, and bathroom, should be protected from
government intrusion. The State, however, argues that the defendant’s
protected privacy interest began at the door to room 1 and did not extend to
the common hallway.

      We have not previously addressed whether a tenant has a reasonable
expectation of privacy in the common areas of a rooming house, and other
jurisdictions that have addressed the issue have reached varying conclusions.
See United States v. Anderson, 533 F.2d 1210, 1214 (D.C. Cir. 1976)
(reasoning that “appellant’s constitutionally protected privacy interest began at
the door to [his room] rather than at the door to the entire rooming house”);
Bryant v. United States, 599 A.2d 1107, 1109-10 (D.C. 1991) (reasoning that
defendant had a legitimate expectation of privacy in common areas of a
rooming house, in part, because there was no evidence that the areas were
open to the public); State v. Titus, 707 So. 2d 706, 711 (Fla. 1998) (reasoning
that common hallways in rooming houses are protected because they connect
individual rooms with bathrooms and kitchens); State v. Kechrid, 822 S.W.2d
552, 554-55 (Mo. Ct. App. 1992) (reasoning that defendant did not have a
reasonable expectation of privacy in rooming house common area because the
area was “open to anyone having business there”). In arriving at such varying
results, courts have focused on the particular facts of the living situation in
question. See, e.g., United States v. Werra, 638 F.3d 326 (1st Cir. 2011). The
common areas in rooming houses that are more like shared single-family
dwellings are usually protected. Id. at 332. Conversely, the common areas in
rooming houses that are more like unsecured apartment buildings are not
usually protected. Id.

      For example, in Werra, the First Circuit noted that, when dealing with a
residence that “does not fit squarely into the paradigm for either a traditional
family home or a multi-unit apartment building,” the court should look to the
nature of the tenants’ living arrangements. Id. at 332 (quotation omitted). If
the tenants “lived separately—like apartment dwellers—they could not claim


                                        5
the common areas of the house, including the foyer, as their private space.”
Id.; see also Chaisson, 125 N.H. at 816 (“The common areas of an apartment
building, even if they are normally kept locked, are not places in which tenants
have a reasonable expectation of privacy.” (quotation omitted)). But see United
States v. Carriger, 541 F.2d 545, 548-50 (6th Cir. 1976) (finding a violation of
defendant’s Fourth Amendment rights when police, through guile, gained
access to an apartment building’s common hallways that could only be
accessed with a key or by a tenant activating a buzzer system). However, if the
tenants “did not live in individualized residences within the house—and were
thus more like the occupants of a single-family home—their right to privacy . . .
would begin at [the] front door.” Werra, 638 F.3d at 332 (quotation omitted);
see also State v. Crider, 341 A.2d 1, 4 (Me. 1975) (“The mere presence of a
hallway in the interior of a single family dwelling, without more, is not in itself
an invitation to the public to enter . . . .”). The court in Werra went on to hold
that the defendant had a reasonable expectation of privacy in the rooming
house’s foyer because the tenants “shared the house in much the same way as
would a traditional family” and “could best be characterized as roommates in
the same house, not simply co-tenants sharing certain common areas.” Werra,
638 F.3d at 334-35 (quotations omitted); see also Reardon v. Wroan, 811 F.2d
1025, 1027 n.2 (7th Cir. 1987) (finding that fraternity members have a “greater
expectation of privacy in the common areas of their residence than do tenants
of an apartment building” because members “could best be characterized as
roommates in the same house, not simply co-tenants sharing certain common
areas” (quotation omitted)).

      Turning to the facts of this case, the record reflects that the house at
14 Bank Street has between eight and ten individual rooms, each with an
individually numbered and locked private door. The tenants all share a
common bathroom and kitchen, which the tenants can access by using a
common hallway. Additionally, the front door to the building is usually left
unsecured and open, and it leads directly into the common hallway.

      The fact that the individual units are not fully self-contained living
spaces (i.e., they do not have separate bathrooms and kitchens), weighs in
favor of finding that the defendant had an objectively reasonable expectation of
privacy in the common hallway of the building. Bathrooms and kitchens are
integral parts of a home, and the common hallway at 14 Bank Street was the
only means for tenants to access these rooms. See Titus, 707 So. 2d at 711
(reasoning that “[i]nterior hallways in rooming houses are protected only by
virtue of linking such traditional rooms within the house”).

      However, several other factors weigh against finding an objectively
reasonable expectation of privacy. The rooms are individually numbered, and
each is secured by a lock, which is similar to how apartment buildings are
organized. Cf. Werra, 638 F.3d at 333-35 (reasoning that tenants in a rooming
house could best be characterized as roommates within the same house, in


                                        6
part, because they shared each other’s personal spaces). Additionally, 14 Bank
Street has between eight and ten rooms, and the front door is customarily left
unsecured and wide open. See United States v. Bain, 155 F. Supp. 3d 107,
116 (D. Mass. 2015) (reasoning that residents of an apartment building with a
small number of units (three) and a secured front door may have a “greater
expectation of privacy in the interior of the building than would be the case in a
larger building without a lock or where the mail and other deliveries were made
inside the front door”). The common hallway that Norris entered was
accessible to a large number of people: the landlord, between eight and ten
tenants, guests of those tenants, and visitors calling upon the individual
tenants of those rooms. See id. at 116-17 (finding no reasonable expectation of
privacy in the locked entryway and common staircase that connected three
apartments because these areas “were shared spaces accessible to the tenants
of three apartment units and their guests, the landlord, and the landlord’s
agents” and “served as passageways routinely used for egress and ingress to
the apartment units”); United States v. Eisler, 567 F.2d 814, 816 (8th Cir.
1977) (reasoning that a tenant in an apartment had no reasonable expectation
of privacy in a common hallway because the hallway was “available for the use
of residents and their guests, the landlord and his agents, and others having
legitimate reasons to be on the premises”).

       Although the trial court found that the entryway to 14 Bank Street was
usually left unlocked and open, an open door, standing alone, does not destroy
a person’s privacy rights. See Titus 707 So. 2d at 710 (“The absence of locks or
even doors on the entrances does not change the character of the building from
a residence.” (ellipsis omitted)). Here, however, the facts in the record support
an inference that the way the tenants and landlord of 14 Bank Street used the
front door demonstrated an implied license for visitors to approach and knock
on the individual tenant rooms, rather than wait outside the front door. This
custom makes 14 Bank Street more like an unsecured apartment building,
where visitors approach through the common hallways and knock directly on
individual apartments. See Bain, 155 F. Supp. 3d at 116 (“First Circuit
precedent establishes that generally a tenant lacks a reasonable expectation of
privacy in the common areas of an apartment building.” (quotation omitted)).
Additionally, there were no facts that suggested that visitors should knock on
the exterior door rather than proceed directly to the room of the person whom
they came to visit. Cf. Logan v. Com., 616 S.E.2d 744, 748 (Va. Ct. App. 2005)
(finding that the common hallway in a rooming house was not open to the
general public when the front entrance had a door, an outer storm door, a “no
trespassing” sign on a pole near the steps leading to the door, another “no
trespassing” sign on the door, and a sign on the door that advised visitors to
“ring” or “knock” to enter).

      In sum, the large number of tenants, the fact that each room had an
individual number and a private lock, and the custom of leaving the exterior
door unsecured and open suggest that the tenants at 14 Bank Street lived


                                        7
more like apartment dwellers, despite the shared kitchen and bathroom.
Based upon these facts, we conclude that the defendant did not have a
reasonable expectation of privacy in the common hallway at 14 Bank Street,
and, therefore, Norris’s entry into the common hallway did not invade the
defendant’s reasonable expectation of privacy under Part I, Article 19 of the
State Constitution. Because we have recognized that the Federal Constitution
affords no greater protection as to a defendant’s expectation of privacy, see
Goss, 150 N.H. at 49, we reach the same conclusion on this issue under the
Federal Constitution as we do under the State Constitution.

       The defendant next argues that Norris’s entry into the common hallway
at 14 Bank Street was a trespassory invasion of a constitutionally protected
area, and thus an illegal search. In support of his argument, he relies upon
the United States Supreme Court’s decision in Florida v. Jardines, 133 S. Ct.
1409 (2013). See Jardines, 133 S. Ct. at 1417 (stating that “[t]he Katz
reasonable-expectations test has been added to, not substituted for, the
traditional property-based understanding of the Fourth Amendment” (quotation
and emphases omitted)).

       “The United States Supreme Court has recently clarified that, under the
Federal Constitution, a criminal defendant may also challenge a search based
upon a trespass theory.” State v. Mouser, 168 N.H. 19, 23-24 (2015); see also
Jardines, 133 S. Ct. at 1414-17. “The trespass theory has three requirements:
a physical intrusion, on an enumerated interest (‘persons, houses, papers, and
effects’), that is not supported by an implicit license based on social norms.”
Mouser, 168 N.H. at 24 (quotation and brackets omitted).

       In Jardines, police brought drug sniffing dogs onto the defendant’s porch
for the purpose of detecting illegal activity. See Jardines, 133 S. Ct. at 1413.
The Jardines Court emphasized that constitutional protection against
unreasonable searches is afforded to both the home and the area immediately
surrounding and associated with the home, which is referred to as the
curtilage. Id. at 1414-15. The Court reasoned that the “background social
norms that invite a visitor to the front door do not invite him there to conduct a
search.” Id. at 1416. Thus, the Court concluded that the government violated
the Fourth Amendment because it physically intruded into constitutionally
protected curtilage for the sole purpose of conducting a search. Id. at 1416-17
(concluding that the government’s “behavior objectively reveals a purpose to
conduct a search, which is not what anyone would think he had license to do”).

      Even if we assume, without deciding, that the common hallway at
14 Bank Street was constitutionally protected curtilage of room 1, Norris’s
entry into the hallway is not the type of unconstitutional physical intrusion
that Jardines contemplates.




                                        8
       “We have long adhered to the common law principle that certain property
surrounding a home deserves the same protection against unreasonable
searches and seizures as the home itself.” State v. Smith, 163 N.H. 169, 172
(2012). “Such areas, known as curtilage, were traditionally accorded
constitutional protection and required either a warrant or circumstances falling
within a recognized exception to the warrant requirement before they could be
entered or searched.” Id. However, a homeowner or occupant implicitly
provides a customary license to visitors, including police officers, to enter the
curtilage of his or her home. See State v. Socci, 166 N.H. 464, 469-70 (2014)
(recognizing that “[t]his implicit license typically permits the visitor to approach
the home by the front path, knock promptly, wait briefly to be received, and
then (absent invitation to linger longer) leave” (quotation omitted)); see also
Jardines, 133 S. Ct. at 1414-15 (“The scope of a license—express or implied—is
limited not only to a particular area but also to a specific purpose.”).

      Unlike the police in Jardines, Norris did not enter the common hallway
and approach St. Lawrence’s apartment “to do nothing but conduct a search.”
He entered the hallway to knock on the door to room 1 and inform the
defendant that his girlfriend was being taken to the hospital. This is how any
other visitor would approach the door to room 1 to initiate a conversation, and
Norris had an implied license to do so.

      Therefore, we conclude that Norris’s entry into the common hallway at
14 Bank Street was not a prohibited physical intrusion under the Federal
Constitution. To the extent that the defendant argues that Norris’s entry into
the common hallway was a prohibited physical intrusion under the State
Constitution, he has not argued that the State Constitution provides greater
protection than the Federal Constitution. Therefore, we reach the same
conclusion on this issue under the State Constitution as we do under the
Federal Constitution.

       In sum, we conclude under both the State and Federal Constitutions
that: (1) the defendant did not have a reasonable expectation of privacy in the
common hallway area of 14 Bank Street; and (2) Norris did not
unconstitutionally trespass upon the defendant’s property interest in his home.
Therefore, we hold that the trial court did not err by denying the defendant’s
motion to suppress.5




5 In light of our conclusion that Norris’s entry into the common hallway of 14 Bank Street
infringed neither the privacy nor the property rights of the defendant, we need not address the
defendant’s arguments regarding the inapplicability of the community caretaking and consent
exceptions to the warrant requirement.


                                                9
                                        III

      The defendant next argues that the trial court erred by excluding
testimony from defense investigator Montague regarding statements made to
her by St. Lawrence.

      “[W]hether a statement is hearsay or admissible under a hearsay
exception is a question for the trial court.” State v. Robidoux, 139 N.H. 657,
660 (1995) (quotation and ellipsis omitted). We review challenges to a trial
court’s evidentiary rulings under our unsustainable exercise of discretion
standard. State v. Noucas, 165 N.H. 146, 158 (2013). “To demonstrate an
unsustainable exercise of discretion, the defendant must show that the trial
court’s ruling was clearly untenable or unreasonable to the prejudice of his
case.” State v. Ramsey, 166 N.H. 45, 49 (2014). “In determining whether a
ruling is a proper exercise of judicial discretion, we consider whether the record
establishes an objective basis sufficient to sustain the discretionary decision
made.” State v. Costella, 166 N.H. 705, 714 (2014).

      The trial court ruled that Montague could not testify regarding St.
Lawrence’s statements because they constituted inadmissible hearsay. The
defendant argues that the statements were admissible under New Hampshire
Rule of Evidence 804(b)(3), which creates an exception to the hearsay rule for
statements against interest.

      Rule 804(b) provides that certain out-of-court statements are not
excluded by the hearsay rule if the declarant is unavailable as a witness. See
N.H. R. Ev. 804(b). Paragraph (b)(3) of the rule states, in relevant part:

      Statement Against Interest. A statement which . . . at the time of
      its making . . . so far tended to subject the declarant to . . .
      criminal liability . . . that a reasonable person in this position
      would not have made the statement unless the person believed it
      to be true. A statement tending to expose the declarant to criminal
      liability and offered to exculpate the accused is not admissible
      unless corroborating circumstances clearly indicate the
      trustworthiness of the statement.

N.H. R. Ev. 804(b)(3). “The rule thus permits an out-of-court statement to be
admitted at trial when: (1) the declarant is shown to be unavailable; and (2) the
statement is against the declarant’s penal interest.” State v. Kiewert, 135 N.H.
338, 343 (1992). “If offered by the defendant to exculpate himself, there is an
additional requirement that the statement be corroborated by circumstances
clearly indicating its trustworthiness.” Id. “The justification for this exception
to the hearsay rule rests upon the assumption that one does not make
statements that would damage oneself unless the [statements are] true.” Id.
(quotations and brackets omitted).


                                       10
       “Rule 804(b)(3) clearly sets forth an objective standard for determining
the against-interest nature of the statement.” Id. “This standard was adopted
for practical reasons; because the initial threshold requirement for the
application of the rule is that the declarant be unavailable, there will rarely be
evidence of what the declarant thought.” Id. at 343-44. “[H]owever, the court
is not precluded from making an inquiry into the declarant’s subjective state of
mind.” Id. at 344 (quotation omitted). Therefore, we give due weight to
evidence of the declarant’s subjective intent. Id.

       The statements at issue come from a defense investigator interview with
St. Lawrence. During the interview, St. Lawrence initially stated that she was
“pleading the [Fifth].” She then added that it was “her apartment, her name on
the lease and her items in the apartment.” St. Lawrence then repeated that
she was “pleading the [Fifth],” and she did not say anything further. Montague
conducted the interview outside St. Lawrence’s apartment, approximately
eleven months after the events leading to the charges against the defendant,
and while the defendant was inside the apartment. The trial court excluded St.
Lawrence’s statements, finding that they were not against her penal interest
because they were vague, nonspecific, and amorphous.6

      If we examine the statements alone, we might agree with the defendant.
On August 2, 2014, Lebanon police officers seized a plastic spoon with cotton,
a syringe, and a metal spoon from room 1 of the house at 14 Bank Street. The
metal spoon was an “item” located within the room, and it had a trace amount
of heroin on it. RSA 318-B:2, I, makes it illegal to possess heroin. Thus,
standing alone, St. Lawrence’s statements that it was “her apartment, her
name on the lease and her items in the apartment” arguably could be regarded
as an admission that she illegally possessed heroin, thereby tending to subject
her to criminal liability. However, the trial court was not required to, and did
not, examine the statement in isolation, and we agree with its conclusion that,
when examined in the context of all the surrounding circumstances, the
statements are too “vague, nonspecific and amorphous” to satisfy the
requirements of Rule 804(b)(3).

      St. Lawrence’s repeated statements that she was invoking her privilege
against self-incrimination are evidence of her subjective state of mind. By
stating that she was “pleading the [Fifth],” St. Lawrence demonstrated that she
may well have believed that she was not incriminating herself, but rather, that
by making such a proclamation, she was then free to say anything to save the
defendant, her boyfriend, without the State being able to use her statements
against her. “If the declarant does not believe the statement to be against [her]
interest, the rationale for the exception fails.” State v. Woodman, 125 N.H.
381, 384 (1984) (quotation omitted) (reasoning that because the declarant
“indicated that he did not believe that his statements were against his penal

6   The State concedes that St. Lawrence was an unavailable witness.


                                                11
interest, it would be anomalous for this court to rule that the statements were
declarations against penal interest”); see also Robidoux, 139 N.H. at 661
(reasoning that a declarant’s confession was not against his penal interest
because the declarant indicated that he did not believe the statements were
against his penal interest).

       The timing and circumstances surrounding St. Lawrence’s statements
also indicate that the statements may not be reliable: she made them eleven
months after the events in question, to the investigator she knew represented
her boyfriend, and during an interview that she knew was about her
boyfriend’s pending trial. Thus, these were not spontaneous, and therefore
reliable, statements, as the defendant argues. See State v. Cook, 135 N.H. 655,
664 (1992) (reasoning that a declarant who speaks spontaneously “presumably
does not have sufficient time to contrive a false version of events”). Rather, the
timing and circumstances show that St. Lawrence was aware of the subject
and purpose of the interview and had time to contrive a false version of events.

      Considered together, the circumstances surrounding St. Lawrence’s
statements, her repeated invocation of the Fifth Amendment, and the vague
nature of her statements, provided an objective basis for the trial court to find
that the statements were not sufficiently trustworthy to meet the requirements
of Rule 804(b)(3), and thus constituted inadmissible hearsay. Therefore,
because there was an objective basis to support the trial court’s decision to
exclude the investigator’s testimony, we conclude that the trial court
sustainably exercised its discretion in excluding the evidence.

                                                  Affirmed.

      DALIANIS, C.J., and HICKS, CONBOY, and BASSETT, JJ., concurred.




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