Criminal Law

No. 2017-0632

Sam Harkinson Previously employed as an Assistant County Attorney, and as an insurance adjuster, now as an associate at Hoefle, Phoenix, Gormley & Roberts

Sam Harkinson
Previously employed as an Assistant County Attorney, and as an insurance adjuster, now as an associate at Hoefle, Phoenix, Gormley & Roberts

March 19, 2019

  • Whether a search warrant lacked probable cause or otherwise lacked particularity so as to demand suppression, whether statements relating the “bad thoughts” were admissible at trial, and whether a defendant accused of first degree murder is entitled to a jury instruction that he was aware that his conduct was practically certain to cause the victim’s death.

Mr. Tommy Page (Defendant) appealed his conviction for first degree murder following a jury trial in Grafton County. On appeal, the Defendant raised issues relating to his motion to suppress evidence obtained via a search warrant. The Defendant also raised issues relating to character evidence that he argued should be admissible, and also argued that he was entitled to a specific jury instruction related to the first degree murder charge.

The Defendant first argued that a search warrant obtained by the police to search his phone lacked probable cause to search for photos. In analyzing the issue, the Court relied on the fact that it is a well-known fact that users of smartphones can send photos via text message and that users of smartphones can capture text message exchanges by utilizing the screen-capturing function of a smartphone. The Court concluded that the search warrant in question had sufficient probable cause to search for photos in addition to text messages. The Defendant next argued that the search warrant lacked particularity since the warrant stated to search for photos and text messages “…for as far back as possible.” In addressing particularity, the Court reviewed the testimony of the forensic officer from the suppression hearing and relied on the fact that the officer testified that while it is possible to limit a search on a phone to a specific date range, that doing so could potentially cause the search to overlook evidence that was being sought. The Court found that based on the record established between the affidavit in support of the search warrant and the suppression hearing, that the facts of the case were sufficient to not narrow the search parameters.

Next, the Defendant argued that he should have been allowed to admit character evidence against the mother of the victim, specifically related to “bad thoughts” the mother was having and the fact that the mother was having concerns about being left alone with the victim. Prior to trial, the State had moved to exclude both pieces of character evidence, with the trial court granting the motion as it related to the “bad thoughts” and denying as it related to the comments about being left alone with the victim. On cross-examination, the mother of the victim denied making either statement, and the Defendant moved to admit the prior statements as substantive evidence with the trial court denying the motion again. On appeal, the State argued that any error was harmless error. The Court agreed finding that, “[w]hen considered in relation to the strength of the State’s evidence of guilt…the alternative perpetrator evidence the defendant sought to introduce was inconsequential.”

Finally, the Defendant argued that it was plain error that the trial court erred by failing to give a specific jury instruction that in order to find the Defendant guilty of first degree murder, the jury had to find he “…was aware that his conduct was ‘practically certain’ to cause the victim’s death.” In concluding that this argument failed, the Court conducted a four-prong test to determine whether the error presented a plain error, concluding that the error, if there was one, did not “…seriously affect the fairness, integrity or public reputation of judicial proceedings.” In concluding this way, the Court noted that it was not addressing whether the first three prongs, one of which is to determine whether there was error, because it ultimately concluded that even if there was error, the error would not otherwise be plain error. In further addressing the specific issue of the Defendant’s requested instruction, the Court again reviewed the record and concluded that there had been ample evidence offered by the State that the Defendant would have known his conduct would cause the victim’s death.


Gordon J. MacDonald, Attorney General, with Peter Hinckley, Senior Assistant Attorney General on the brief and orally for the State. Thomas Barnard, Senior Assistant Appellate Defender on the brief and orally for Mr. Page