2003-434, STATE OF NH v. JAMES J. HALL

shared an apartment in Concord, and had lived together for approximately ten The record supports the following facts. The defendant and his mother

630:1 - b (1996). He now appeals his conviction. We aff irm. second - degree murder in connection with the death of his mother. See RSA Hall, was retried and again convicted in Superior Court (McGuire, J.) of degree murder, see State v. Hall, 148 N.H. 394 (2002), the defendant, James J. NADEAU, J. Following reversal of his original conviction for second -

and orally, for the defendant. Chris McLaughlin, assistant appellate defender, of Concord, on the brief

brief, and Mr. Strelzin orally), for the State. attorney general, and Elizabeth A. Dunn, assistant attorney general, o n the Kelly A. Ayotte, attorney general (Jeffery A. Strelzin, senior assistant

No. 2 003 - 434 Merrimack

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. O pinions are available on the Internet by 9:00 Errors may be reported by E - mail at the following address: errors in order that corrections may be made before the opinion goes to press. Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

(1985). To overcome this presumption, the defendant must produce “evidence that attaches to grand jury proceedings. State v. Dayutis, 1 p. 2 27 N.H. 101, 104 Calandra, 414 U.S. 338, 343 - 44 (1974). There is a presumption of regularity proceedings should be instituted against any person.” United States v. to determine whether a crime has been committed and whether criminal innocence of the accused is adjudicated. R ather, it is an ex parte investigation grand jury proceeding is not an adversary hearing in which the guilt or within the trial court’s discretion in both the federal and state courts. Id. “A 421 U.S. 919 (1975). Whether to permit invasion of the grand jury’s secrecy is grand jury are secret. State v. Booton, 114 N.H. 750, 755 (1974), cert. denied, In conformity with the practice in most States, the proceedings of the

creating a misleading impression before the grand jury.” We disagree. present “all materially relevant portions of his prior testimony in order to avoid mental state at the time of the murder, and that the State was obligated to grand jury. The defendant now argues that his prior testimony reveals his State to present a full transcript of his testimony from the first trial to the the grand jury proceeding, the defendant unsuccessfully moved to require the present to the grand jury alternative theories of second - degree murder. Prior to After reversal of the defend ant’s first conviction, the State planned to

mother’s letters. his motion to recuse; and (3) allowing the State to introduce excerpts from his portion of his testimony from his first trial to the grand jury; ( p. 2 2) not granting to dismiss the indictments on t he grounds that the State presented only a The defendant argues that the trial court erred by: (1) denying his motion

and (3) “I never thought I’d be afraid of my own son.” This appeal followed. about the ab ove. I really am scared now, but I stand up to him as best I can”; [sic], you will know who to blame for my accident or death and I’m serious ( p. 2 2) “I don’t know if [he is] planning to do something to me, so if something does don’t know what to make of you know who. He sometimes frightens me . . .”; letters. They contained statements referring to the defendant, includi ng: (1) “I allowed to introduce, over the defendant’s objection, excerpts from those plan to move into a retirement community in New York. A t trial, the State was expressed her fear of, and frustration with, the defendant and disclosed her During this period, Mrs. Hall wrote her sister many letters in which she supporting the defendant and to retire in New York to be near her sister. father. In th e months preceding the murder, Mrs. Hall was preparing to stop criticized him for not having a job, being an alcoholic, and being just like his financially dependent upon her. He alleged that his mother repeatedly Preceding Mrs. Hall’s death, the defendant was unemployed and

his mother and strang led her until she died. years. On April 15, 1999, during a heated argument, the defendant lunged at p. 3 3

or a party’s lawyer.” Sup. Ct. R. p. 3 38, Canon 3E(1)(a). The party claiming bias instances where “the judge has a personal bias or prejudice concerning a party impartiality might reasonab ly be questioned, including but not limited to A judge should disqualify herself in a proceeding in which her

biased against either the defendant or his attorney. reasonable, objective person would not conclude that she was prejudiced or hearing, the trial judge denied the motion, stating in her order that a trial judge’s letter, the defendant moved to recuse the judge. Following a also based upon a memo authored by the same attorney. After learning of the she had recently responded to another judicial conduct complaint which was statements made in a pleading filed by the attorney. She further noted that judge noted in her reply to the JCC that the complaint was based on complaint with the JCC against the judge. After being asked to respond, the The record reveals that a former client of defendan t’s trial counsel filed a

without merit. concerning the conduct of his trial counsel. The defendant’s argument is impropriety” by sending a letter to the Judicial Conduct Committee (JCC) his motion to recuse. He argues that the trial court created an “appearance of Next, the defendant argues that the trial court erred by failing to grant

obligation to present it.”). Accordingly, we find no error. we do not understand how the prosecutor can be said to have a binding grand jury has no obligation to consider all ‘substantial exculpatory’ evid ence, to the grand jury. See United States v. Williams, 504 U.S. p. 3 36, 53 (1992) (“If the omitted). Moreover, the State is not obligated to present exculpatory evidence ability to exercise independent judgment.” Dayutis, 127 N.H. at 104 (quotation of the prosecutor that “deceived the grand jury or significantly impaired its not established any evidence of irregularity or flagrant misconduct on the part the first trial. After reviewing the record, we conclude that the defendant has Here, the grand jury heard portions of the defendant’s testimony from

(198 p. 3 3). trial be included in the indictment. See State v. Fennelly, 123 N.H. 378, 386 require that all of the evidentia ry details that the State intends to present at conduct which the grand jury found violated the Criminal Code, it does not While that right includes a requirement that the indictment clearly state the indictme nt against him. See State v. Erickson, 129 N.H. 515, 518 - 19 (1987). a grand jury consider the evidence and decide whether or not to return an There is no dispute that the defendant has a constitutional right to have

independent judgment.” Id. (quotation omitted). deceived the grand jury or significantly impaired its ability to exercise of irregularity or flagrant misconduct on the part of the prosecutor that p. 4 4

Evidence is relevant if it has “any tendency to make the existence of any fact relevant. All evidence must be relevan t to be admissible. N.H. R. Ev. p. 4 402. The defendant contends, nevertheless, that the evidence was not

sustainable exercise of discretion. prove the state of mind of the victim in the months before her death, was a conclude the trial court’s decision to admit r elevant portions of the letters, to to stop supporting him and her plan to change her living situation. We Mrs. Hall’s state of mind, which included her fear of the defendant, her intent brackets omitted). The State sought to introduce excerpts of the letters to show was made.” MacDonald v. Bishop, 1 p. 4 45 N.H. 442, 444 - 45 (2000) (quotation and state of the declarant and have reference to the time at which the declaration admissible under this exception, “the declaration must concern the mental statement of memory or belief to prove the fact remembered or believed.” To be motive, design, mental feeling, pain, and bodily health), but not including a state of mind, emotion, sensation, or physical condition (such as intent, plan, hearsay to be admitted if it is “[a] statement of the decla rant’s then existing 721, 725 (1988); N.H. R. Ev. 802. Rule 803(3) is an exception that allows unless it falls within a well delineated exception. See State v. Woods, 130 N.H. truth of the matter asserted.” N.H. R. Ev. 801(c). Hearsay is not admissible declarant while testifying at the trial or hearing, offered in evidence to prove the inadmissible hearsay. “‘Hearsay’ is a statement, other than one made by the letters violate d New Hampshire Rule of Evidence 803 because they were The defendant argues that the introduction of the excerpts from the

prejudice. Id. the trial court’s rulings were clearly untenable or unreasonable to his 5 p. 4 41, 543 (2003). To meet this standard, the defendant must demonstrate that unsustainable exercise of discretion standard. State v. Amirault, 149 N.H. review a trial court’s decision on the admissibility of evidence under an written by the victim to her sister expressing her fear of the defendant. We Finally, the defendant challenges the admissi on of excerpts of the letters

had any such bias. Thus, we find no error in the trial court’s order. Nothing in the judge’s letter to the JCC even remotely suggests that the judge court was prejudiced or biased against either the defendant or his attorney. objectively viewed, no reasonable person would have determined that the trial After a review of the record, on the facts of this case, we conclude that,

(1996). determined under an objective standard. Snow’s Case, 1 p. 4 40 N.H. 618, 624 N.H. 462, 469 (2002). Whether an appearance of impropriety exists is interests of the court and the interests of a party. State v. Jeleniewski, 147 such bias that the judge is unable to hold the balance between vindicating the must show the existence of bias, the likelihood of bias, or an appearance of p. 5 5

concurred. BRODERICK, C.J., and DALIANIS, DUGGAN and GALWAY, JJ.,

therefore, was harmless. See State v. Davis, 139 N.H. 18 p. 5 5, 192 (1994). verdict was not affected by adm ission of the challenged evidence. Any error, guilt and that the State has demonstrated beyond a reasonable doubt that the evidence before the jury was more than sufficient to establish the defendant’s were error, however, we conclude beyond a reasonable doubt that the other 15 of the New Hampshire Constitution. E ven if the admission of that excerpt Fourteenth Amendments to the United States Constitution and Part 1, Article sufficient to satisfy the Confrontation Clause as guaranteed by the Sixth and portion of one of the letters because it does not have ind icia of reliability The defendant also argues that the trial court erred in admitting a

to kill his mother. Therefore, w e find no error. c ould have found that the evidence was relevant to show the defendant’s intent Haddock, 24 S.W.3d 192, 19 p. 5 5 (Mo. Ct. App. 2000). Accordingly, the trial judge the victim’s death, but argues that he did so unintentionally. See State v. a victim’s fear of an accused is relevant when the accused admits to causing probable than it would be without the evidence.” N.H. R. Ev. 401. Evidence of that is of consequence to the determination of the action more probable or less