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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Hillsborough-southern judicial district No. 2005-796 THE STATE OF NEW HAMPSHIRE v. SEAN BROWN Argued: February 27, 2007 Opinion Issued: April 6, 2007 Kelly A. Ayotte, attorney general (Elizabeth J. Baker, attorney, on the brief and orally), for the State. David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant. HICKS, J. The defendant, Sean Brown, appeals his conviction for hindering apprehension under RSA 642:3, I(a) (1996), following a jury trial in Superior Court (Groff, J.). He argues that the trial court improperly expanded the statutory definition of the crime when it responded to a jury question and erred in denying his motion to suppress. We affirm. The record supports the following. On May 25, 2004, the Nashua Police Department was informed of a robbery allegedly committed by two males. One of the alleged perpetrators was described as a Hispanic male wearing a blue bandana. The two suspects left the scene together in a blue or green Volkswagen Jetta automobile. Officer William Adamson located a green Jetta parked in front of an apartment building, two blocks from the robbery. The

vehicle's hood was still warm and it was registered to Mark Soto. Adamson, along with two uniformed officers, entered the apartment building to investigate and speak with residents. While knocking on doors, Adamson heard an individual from an apartment yell through the door, "[W]hat do you want?" Adamson asked if the individual knew who owned the Jetta and whether he knew Soto. Without opening the door, the individual responded "no" to both questions. Adamson left the building and noticed inside the Jetta a blue bandana and a hat with the Puerto Rican flag on it. The three officers reentered the building and encountered the defendant exiting his apartment. The officers confronted the defendant in the hallway. Adamson asked if he was the man to whom he had spoken earlier from behind the door. The defendant said that he was and that he did not open the door because he was "afraid of the police." Adamson explained that he was investigating a crime that had occurred in the area, requested the defendant's identification, and called for a criminal record check. Adamson then inquired if anyone else was in his apartment, if he knew anything about the Jetta, and if he knew Soto. The defendant answered "no" to all three questions. When Adamson learned from dispatch that the defendant was known to carry firearms, he conducted a pat-down search for weapons, which revealed two sets of car keys, one of which belonged to a Jetta. Meanwhile, another officer saw a man attempting to climb out of the defendant's apartment window. The defendant continued to deny that there was anyone in his apartment and refused to allow the police to enter. Adamson told the defendant that he was not under arrest, but placed him in handcuffs as a protective measure while the other officers entered the defendant's apartment where they found Soto lying on the floor. The entire encounter in the hallway lasted approximately thirty to forty-five minutes. The defendant was charged with two alternative theory counts of being a felon in possession of a deadly weapon, RSA 159:3, I (2002) and one count of hindering apprehension, RSA 642:3, I(a). At trial, the defendant moved to suppress evidence obtained as a result of his seizure upon the basis that the officers lacked reasonable suspicion when they first encountered him in the hallway. The trial court denied the motion, ruling that "the detention of the defendant was lawful as a valid investigatory stop and was reasonable in scope and duration." At the close of the State's case, the trial court dismissed the felon in possession charges. During deliberations, the foreperson submitted a question to the court relating to the hindering apprehension statute, asking: "Is it reasonable to interpret . . . that `commission of a crime' could be `suspicion of commission of a crime?'" The court discussed the question with counsel and 2

over the defendant's objection, responded, "Yes." The jury convicted the defendant of hindering apprehension. On appeal, the defendant first argues that the trial court impermissibly expanded the definition of the crime of hindering apprehension by replying affirmatively to the jury's inquiry. We disagree. The response to a jury question is left to the sound discretion of the trial court and we will uphold the response unless the court unsustainably exercised its discretion. State v. Poole, 150 N.H. 299, 301 (2003). RSA 642:3, I(a) provides in pertinent part: "A person is guilty of an offense if, with a purpose to hinder, prevent or delay the discovery, apprehension, prosecution, conviction or punishment of another for the commission of a crime, he: (a) Harbors or conceals the other." In construing this statute, we draw guidance from RSA 625:3 (1996), which provides: "The rule that penal statutes are to be strictly construed does not apply to this code. All provisions of this code shall be construed according to the fair import of their terms and to promote justice." RSA 625:3; State v. Williams, 143 N.H. 559, 561-62 (1999). New Hampshire's "Hindering Apprehension or Prosecution" statute is drawn from section 242.3 of the Model Penal Code (MPC). Id.; State v. Maloney, 126 N.H. 235, 237-38 (1985). Consistent with the MPC, the State must prove that the defendant's purpose was to hinder apprehension, prosecution or conviction. State v. Kelley, 120 N.H. 14, 17 (1980). The offense, as defined in the MPC, "covers the common-law category of accessory after the fact but breaks decisively with the traditional concept that the accessory's liability derives from that of his principal. Thus, under the Model Code provision [242.3], one who harbors a murderer is not made a party to the original homicide but is convicted, as he should be, for an independent offense of obstruction of justice." Model Penal Code, Introductory Note for Article 242, at 199 (1980). "[This] approach dispenses with many of the common-law elements[,] [including] knowledge of the identity of the perpetrator, knowledge of the underlying felony, and . . . even the requirement that a felony actually have been committed . . . ." Commonwealth v. Perez, 770 N.E.2d 428, 433 (Mass. 2002) (parentheses omitted) citing Model Penal Code & Commentaries

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