THE STATE OF NEW HAMPSHIRE SUPREME COURT In Case No. 2014-0639, State of New Hampshire v. Robert Joubert, the court on November 30, 2015, issued the following order: The defendant, Robert Joubert, appeals his conviction, following a jury trial in Superior Court (Smukler, J.), on charges of pattern aggravated felonious sexual assault, see RSA 632-A:2, III (2007), and felonious sexual assault, see RSA 632-A:3, III (2007). He contends that the trial court erred by: (1) denying his motion to suppress evidence seized by warrant; and (2) admitting evidence that [he] lied about his baseball career. We affirm. We first address the defendant s claims regarding the warrant under the State Constitution and rely upon federal law only to aid in our analysis. State v. Letoile, 166 N.H. 269, 272 (2014). Part I, Article 19 of the State Constitution requires that search warrants be issued only upon a finding of probable cause. Id. Probable cause exists if a person of ordinary caution would justifiably believe that what is sought will be found through the search and will aid in a particular apprehension or conviction. Id. An application for a search warrant must demonstrate that there is a fair probability that evidence of a crime will be found in a particular place. Id. at 274. To meet constitutional muster, affidavits must establish a sufficient nexus between the items to be seized and the place to be searched. Id. at 273. We review the trial court s order regarding the validity of a search warrant de novo, except with respect to any controlling factual findings. Id. We apply a totality-of-the-circumstances test to review the sufficiency of an affidavit submitted with a warrant application. Id. We afford much deference to the issuing court s probable cause determination and will not invalidate a warrant by reading the supporting affidavit in a hypertechnical sense. Id. Rather, we review the affidavit in a common-sense manner and determine close cases by the preference to be accorded to warrants. Id. We consider only the information that the police brought to the issuing court s attention. Id. In this case, the defendant concedes that the affidavit established probable cause to believe that he sexually assaulted children and that specific items would be found at his parents home. However, he argues that [t]he affidavit fail[ed]... to establish... [probable] cause to believe that the items will aid in [his] apprehension or conviction for sexual assault. The affidavit alleged, among other things, that the defendant sexually assaulted numerous children whom he
met in connection with youth-related sports over the course of twenty years, that he falsely claimed to have played baseball professionally for the Montreal Expos, and that he photographed and videotaped children, including his victims. Accordingly, we conclude that any photographs or videos of children could have aided in his apprehension or conviction by: (1) providing further evidence of his pattern of conduct; (2) establishing his presence at a particular time and place; (3) corroborating or contradicting witnesses; or (4) evidencing his unnatural interest in children, including in specific body parts. We note that the defendant concedes that photographs of the victim engaging in innocuous activities are incriminating because they corroborate [the victim s] accusations by demonstrating [the defendant s] unusual and enduring fascination with the victim. Similarly, clothing and memorabilia associated with sports teams and material on his computer could evidence his connection to victims, his identity, or his pattern of conduct. The defendant argues that the search could not be justified by the possibility that it would produce evidence that would impeach or rebut a hypothetical claim or that... would have some marginal, de minimus probative value under the modern definition of relevance. On the contrary, we conclude, based upon the totality of the circumstances, that the affidavit demonstrated that there was a fair probability that evidence of the defendant s particular crimes would be found in the search. The defendant relies upon several cases from other jurisdictions to argue that the affidavit failed to establish a nexus between the items sought and the crime suspected. However, these cases are distinguishable. In some cases, the affidavits failed to connect either the items sought or their owner to the suspected crime. See State v. Gogg, 561 N.W.2d 360, 366 (Iowa 1997) (stating items to be seized were commonly found in residences and affidavit did not establish connection between crime being investigated and either owner or items); State v. Jackson, 380 So. 2d 616, 619 (La. 1980) (same). In others, the affidavit contained false statements or did not establish probable cause. See United States v. Vigeant, 176 F.3d 565, 571 (1st Cir. 1999) (stating affidavit did not provide probable cause that crime had been committed); State v. Buccini, 810 P.2d 178, 185 (Ariz. 1991) (stating affiant s deliberate or reckless omission and misstatement of material facts indicates that he was acting mainly upon a suspicion or hunch ); State v. Seager, 341 N.W.2d 420, 425, 427-28 (Iowa 1983) (stating affidavit contained deliberately false statement and failed to establish connection between crime being investigated and either owner or items); Com. v. Robles, 666 N.E.2d 497, 500 (Mass. 1996) (stating affidavit did not establish probable cause defendant was wearing coat sought on night of crime); Kennedy v. State, 338 S.W.3d 84, 99 (Tex. Ct. App. 2011) (stating affidavit contained nothing more than a summary of [affiant s] and others bare and unsubstantiated beliefs and suspicions ). 2
We next address the defendant s argument that the warrant here authorized the seizure of a broad range of items in no way limited to the offenses for which the affidavit demonstrated probable cause. We disagree. The degree of specificity required in a search warrant depends upon the nature of the items to be seized. State v. Kirsch, 139 N.H. 647, 652 (1995). The soundest generalization probably is that generic descriptions are inadequate whenever it is reasonably possible for a warrant s applicant or issuing magistrate to narrow its scope by using descriptive criteria for distinguishing objects with evidentiary significance from similar items having no such value. State v. Tucker, 133 N.H. 204, 206-07 (1990). In this case, the trial court identified the first three paragraphs in the warrant as overly general and severed them from the rest of the warrant. We conclude that the remaining paragraphs did not purport to authorize a general exploratory search, against which the particularity requirement is a safeguard. See id. at 206 (describing history of particularity requirement). Nor did they employ generic descriptions. Instead, they were tailored toward the seizure of items related to the defendant s relationships with children, his participation in youth sports, through which he met children, and the representations he made to children and their parents regarding his supposed professional sports career. See Kirsch, 139 N.H. at 652 (stating warrant did not authorize general search because tailored toward seizure of pornographic and child-related items). The defendant argues that the items authorized for seizure should have been limited to those related to the known accusers. However, as noted above, given the nature of the offenses, such a limitation would have excluded items with evidentiary significance. Furthermore, it would have been impractical to expect the police to search through all the photos, documents, and videos on site to cull those related only to the victims already identified. Cf. State v. Fitanides, 131 N.H. 298, 301 (1988) (stating limiting warrant to illegal fireworks practical impossibility because only distinction between legal and illegal fireworks was manner of sale). The defendant argues that, because the affidavit stated that the evidence sought might identify other potential (yet unknown) victims, the warrant authorized the seizure of items far broader in scope than that justified by the specific allegations in the affidavit. However, the affidavit established probable cause that the defendant had engaged in a course of conduct of sexually abusing children whom he met through youth sports. Furthermore, as discussed above, the items sought had potential evidentiary value with regard to the known victims. Accordingly, we conclude that the warrant s description of the items to be seized was sufficiently particularized. The defendant relies upon several cases to show that the warrant here authorized the seizure of a broad range of items in no way limited to the offenses for which the affidavit demonstrated probable cause. However, his reliance is 3
misplaced. For example, State v. Sheedy, 124 N.H. 738, 740 (1984), interpreted RSA 359-C:4 (2009), which sets the requirements for particularity in a warrant for the records of customers of financial institutions, and that statute is not at issue in the case at hand. In other cases relied upon by the defendant, the warrant was not limited by identifying facts known to the authorities. See United States v. Cook, 657 F.2d 730, 734 (5th Cir. 1981) (stating portions of warrant not sufficiently particular because used broad description of films to be seized instead of relying upon list of illegally copied films that affiant possessed); VonderAhe v. Howland, 508 F.2d 364, 366 (9th Cir. 1974) ( In spite of the fact that the things to be seized and the places to be searched were known to the [government] with a high degree of specificity, the warrants as they were requested and issued were, for all practical purposes, general warrants. ). In United States v. Kow, 58 F.3d 423, 427 (9th Cir. 1995), the warrant authorized the seizure of virtually every document and computer file belonging to the suspect. In United States v. Falon, 959 F.2d 1143, 1148-49 (1st Cir. 1992), the suspect was engaged in business fraud from his home, and the court upheld a warrant for all the suspect s business records, while requiring them to be distinguished from his personal matters. The defendant also argues that [e]ven if some of the categories in the search warrant are deemed to be sufficiently particular, they did not authorize the seizure of the forged documents related to his baseball career, photographs of the victim engaging in innocuous activities, or the videotape depicting the victim being abused. Because the defendant does not develop this argument, we decline to address it. See State v. Blackmer, 149 N.H. 47, 49 (2003). Even if we were to address the merits of this argument, we observe that the warrant authorized the seizure of photographs, electronic images, and video of minors... that [the defendant] has... had contact with and documents that confirm or dispel [the defendant s] affiliation with... [t]he Montreal Expos. Because the Federal Constitution offers the defendant no greater protection than does the State Constitution under these circumstances, see Letoile, 166 N.H. at 277, we reach the same result under the Federal Constitution as we do under the State Constitution. We next address whether the trial court erred by admitting arguably fraudulent documents relating to the defendant s putative career in baseball. We assume, without deciding, that this issue is preserved for our review. The defendant argues that this evidence was irrelevant and that [t]he danger of unfair prejudice... substantially outweighed any marginal, attenuated probative value it may have had. He further argues that evidence that the documents had been forged invited the jury to... draw impermissible inferences about [his] character. In this case, we need not address whether the trial court erred in admitting the documents because we conclude that any error would have been harmless. 4
An error is harmless if we can say beyond a reasonable doubt that it did not affect the verdict. State v. Fischer, 165 N.H. 706, 711 (2013). The State bears the burden of proving that an error is harmless. Id. The evaluation of whether the State has met its burden involves consideration of 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 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. In making this determination, we consider the alternative evidence presented at trial as well as the character of the inadmissible evidence itself. Id. We conclude that the alternative evidence of the defendant s guilt was overwhelming. The victim testified, in detail, to multiple sexual encounters with the defendant while the victim was a child. The victim testified that the defendant bribed him to perform a specific sexual act in return for gifts. The victim also identified the defendant as the person in a video sexually abusing the victim, as a child, while he slept. The victim s mother testified regarding the defendant s obsessive behavior toward the victim. We conclude that the contested evidence was inconsequential in relation to the other evidence in the case. The alternative evidence included testimony by the victim and the victim s mother and father that the defendant told them that he had played professional baseball. Moreover, the defendant significantly undermined his own credibility by testifying, on the one hand, that he was not into pornography, while later conceding that he had been convicted less than six months earlier for the manufacture and possession of pornography. Accordingly, we conclude that the admission of the documents was inconsequential in relation to the strength of the State s evidence of guilt and that, even if the admission of the evidence was erroneous, the State has met its burden of establishing, beyond a reasonable doubt, that it did not affect the verdict. HICKS, LYNN, and BASSETT, JJ., concurred. Affirmed. Eileen Fox, Clerk 5