2004-129, STATE OF NH v. LUCIO E. FERNANDEZ

the fight, that he and the victim struggled, and that the victim came at him to have acted in self - defense. The defendant testified that the victim initiated At trial, the defendant admitted that he stabbed the victim, but claimed

arrested him approximately seventeen months later in Los Angeles. and fled the scene. He later fled the East Coast. United States Marshals another man to death. After the stabbing, the defendant threw away the knife The jury could ha ve found the following facts. The defendant stabbed

by a jury for second - degree murder. See RSA 630:1 - b (1996). We affirm. NADEAU, J. The defendant, Lucio E. Fernandez, appeals his conviction

and orally), for the defendant. Law Office of Paul J. Haley, of Hillsborough (Paul J. Haley on the brief

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Robert S. Carey, assistant attorney

No. 2 004 - 129 Rockingham

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

depositions in a criminal case. Id. Under RSA 517:13, II, the trial court may A defendant does not have an unqualified due process right to compel

the prejudi ce of his case. Hilton, 144 N.H. at 473. demonstrate that the court’s ruling was clearly untenable or unreasonable to v. Lambert, 147 N.H. p. 2 295, 296 (2001). To prevail, the defendant must of discretion standard. See State v. Hilton, 144 N.H. 470, 473 (1999); cf. State We evaluate the trial court’s decision under our unsusta inable exercise

such as by interviewing the witnesses. defendant had other means of ascertaining the witnesses’ criminal records defendant with “extensive open file discovery.” The court also found that the found that the case was not complex and the State had already provided the evidence that deposing the witnesses was necessary. Specifically, the court denied his request, finding that he failed to show by a preponderance of the statements, and unearth further discoverable information. The trial court of the witnesses’ criminal records, explore inconsistencies in their prior argued that the depositions were necessary to permit him to discover the extent eyewitnesses to the murder. See RSA 517:13 (1997)(amended p. 2 2003). He Before trial, the defendant requested permission to depose the four

I. Depositions

argument in turn. testifying that the victim’s wounds suggested torture. We address each gun; and (7) de nied his motion in limine to preclude the medical examiner from he fled, the defendant had a duffel bag that contained a police scanner and a about the murder; (6) permitted the State to introduce testimony that, before defendant remained a fugitive after seeing himself on a television program testimony at trial; (5) permitted the State to introduce evidence that the preclude the State from using the words “victim” and “murder” when eliciting alleged was asleep during the State’s closing; (4) denied his motion in limine to Lawrence, Massachusetts; (3) declined to v oir dire a juror whom the State the court voir dire prospective jurors about his race and the fact that he lives in erroneously: (1) denied his request for depositions; ( p. 2 2) denied his request that On appeal, the defendan t argues that the Superior Court (Abramson, J.)

was . p. 3 33. The defendant was sober. staggered and appeared unsteady on his feet. His blood alcohol level at death testified that the victim was quite drunk the night of the murder and that he any of the alleged injuries. Numero us witnesses, including the defendant, testified that the victim injured him, no one who witnessed the incident saw unarmed and that the defendant was the aggressor. Although the defendant with a knife. Four eyewitnesses testified, however, that the victim was 3

408, 412 (1989) (quotation omitted). We will not disturb the trial court’s wholly within the sound discretion of the trial judge.” State v. Bone, 1 p. 3 31 N.H. See U.S. CONST. amend. XIV. “[T]he manner in which voir dire is conducted is Federal Constitution to have the trial court voir dire the jury about racial bias. The defendant first argues that he has a due process right under the

case. The court declined to do so. lives in Lawrence, Massachusetts, affected their ability to be impartial in this court ask prospective jurors about whether his ethnicity or the fact that he Before trial, the defendant, who is of Cuban descent, requested that the

II. Jury Voir Dire Before Trial

defendant’s request for depositions was a sustainable exercise of discretion. Under these circumstances, we hold that the trial court’s decision to deny the individual requests to States that are not part of the criminal record database. record checks on all names and aliases the defendant provided and to make Moreover, the court ordered the State to provide th e defendant with criminal The State also provided the defendant with all requested record checks.

statements. Id. at 474. here knew in advance of trial of the inconsistencies in the witnesses’ testimony before the grand jury. Like the def endant in Hilton, the defendant State provided police reports about witness statements and transcripts of provided transcripts from and copies of audiotaped interviews. In addition, the lengthy transcripts of i nterviews. For two of the witnesses, the State also to prepare his defense.” Id. For each of the four witnesses, the State provided Like the defendant in Hilton, the defendant here had “ample information

establishing necessity.” Hilton, 144 N.H. at 47 p. 3 3. factors and properly ruled that the defendant had not met his burden of contrary, “[t]he record demonstrates that the trial court weighed the statutory find exceptional circumstances to justify his request for depositions. To the On appeal, the defendant argues that the court erred because it did not

II(b). any other special or exceptional circumstances which may exist.” RSA 517:1 p. 3 3, information available to discover the information sought by the deposition, and “consider the complexity of the issues involved, other opportunities or cause shown.” To determine whether a deposition is necessary, the court must available for trial” or to “ensure a fair trial, avoid surprise or for other good “necessary” to “preserve the testimony of any witness who is unlikely to be permit the defendant to depose a witness if the requested dep osition is p. 4 4

we should mandate that trial courts ask prospective jurors questions about The defendant suggests that, in the exercise of our supervisory authority,

trial.” Ristaino, p. 4 424 U.S at 597. conclude that racial issues were “inextricably bound up with the conduct of the sort at issue in Ham. Based upon the circumstances in this case, we cannot The defendant has failed to show that there were “special factors” of the

the issue of racial bias.” Id. at 36 - 37. “to have prospective jurors informed of the race of the victim and questioned on “a capital defendant accused of an interracial cr ime” has a constitutional right (quotation, ellipsis and brackets omitted). Thus, in Turner, the court held that indifferent as they stand unsworne.” Turner v. Murray, p. 4 476 U.S. 28, 33 (1986) that, absent questioning ab out racial prejudice, the jurors would not be circumstances presented there was a constitutionally significant likelihood “The broad inquiry in each case [is] whether under all of the

prejudice affecting the jurors in a particular case.” Id. there are more substantial indications of the lik elihood of racial or ethnic request to examine jurors about racial prejudice unconstitutional “[o]nly when p. 4 451 U.S. at 190. The Court will find a trial court’s denial of a defendant’s such circumstances requiring inquiry as to racial prejudice.” Rosales - Lopez, particular racial or ethnic groups.” Nor is there a “per se constitutional rule in constitutional presumption of juror bias for or against members of any Rosales - Lopez v. United States, 451 U.S. 182, 190 (1981): “There is no such as those involved in Ham. Id. As a plurality of the Court explained in questioning to be constitutionally required, there must be “special factors” the races of the defendant and victim differed. Id. Rather, for such require a state court judge to question prospect ive jurors in every case where In Ristaino, the Court clarified that the Federal Constitution did not

589, 597 (1976). inextricably bound up with the conduct of the trial.” Ristaino v. Ross, p. 4 424 U.S because of his civil rights activities. Id. at 5 25. “Racial issues therefore were that case, the defendant’s defense was that law enforcement had framed him black and had been active in the civil rights movement in South Carolina. In required the court to ask questions concerning race where the defendant was (1973), for instance, the Court ruled that the Federal Due Process Clause denied, 502 U.S. 992 (1991). In Ham v. South Carolina, 409 U.S. 524, 526 - 27 mandated.” United States v. Brown, 938 F.2d 1482, 1485 (1 Cir.), cert. st limited circumstances special voir dire questioning is constitu tionally “The [United States] Supreme Court has determined that under certain

evidence. Id. at p. 4 410 - 11. decision with respect to voir dire unless it is manifestly against the law and the p. 5 5

was told by a reporter that the reporter saw the juror sleeping. juror because they noticed that she seemed to be “nodding off.” Another bailiff “dead asleep.” A bailiff told the judge th at court observers had pointed at the attorneys also observed the juror sleeping, although he stated that she was not the jurors had been asleep during the closings. One of the defendant’s After clos ing arguments, the prosecutor informed the court that one of

III. Jury Voir Dire During Trial

defendant’s request that his attorney question prospective jurors. second - degree murder case, we find no error in the trial court’s denial of the 146 N.H. 108, 111 (2001). But cf. RSA p. 5 500 - A:12 - a (Supp. 2004). As this was a judge, except in capital and first - degree murder cases. See State v. McLellan, in New Hampshire has been that jury voir dire is conducted solely by the trial a rgument unpersuasive. As the defendant aptly notes in his brief, the practice exercise their preemptory [sic] challenges.” We find the defendant’s conclusory information about the juror’s [sic] biases and prejudices so as to meaningfully dire is necessary so that counsel for the parties may gain necessary County is relatively small and homogeneous[,] . . . [a]ttorney conducted voir Hampshire “is not a heavily populated state” and “the jury pool in Rockingham permit his attorney to ask voir dire questions. He asserts that because New The defendant next conte nds that the trial court erred when it did not

Accordingly, we decline his invitation. by the United States Supreme Court. See Rosales - Lopez, 4 p. 5 51 U.S. at 190. Moreover, the rulings about which he complains are consistent with decisions Jacobs v. Director, N.H. Div. of Motor V ehicles, 149 N.H. 502, 504 - 05 (2003). Massachusetts is insufficient to compel us to revisit our prior decisions. See defendant’s speculation about alleged prejudice against Latinos from Lawrence, after drug ca se involving Latinos from Lawrence, Massachusetts.” The “has been inundated by the television, radio and news media[ ] with drug case dictates that we reconsider these decisions because the public, he contends, about possible racial prejudice. He asserts that “the tenor of the times” prejudice and that trial courts need not always ask specific voir di re questions 411, and its progeny, in which we held that there is no presumption of racial The defendant also impliedly invites us to overrule Bone, 131 N.H. at

rule at this time. we decline to exercise our supervisory authority to adop t such a mandatory racial prejudice if requested by the defendant,” Ristaino, 424 U.S. at p. 5 597 n.9, course generally is to propound appropriate questions designed to identify at 192. While we agree with the United States Supreme Court that “the wiser ethnicities and the crime at issue is a violent one. See Rosales - Lopez, 451 U.S. racial bias where, as here, the perpetrator and the victim are of different p. 6 6

See N.H. R. Ev. 403. He does not cite any cases to support this proposition. substa ntially more prejudicial than probative given his claim of self - defense. its witnesses to use the word “murder” was error because the word was On appeal, the defendant impliedly argues that permitting the State and

arguments. from using the words “victim” and “murder” in its opening and closing the man the defendant killed. The defendant did not se ek to preclude the State “murder,” but required the State to use the phrase “alleged victim” to describe alleged act. The trial court denied the motion as to the use of the word man the defendant killed and the word “murder” to describe the defendant’s witnesses, during questioning, from using the word “victim” to describe the Before trial, the defendant moved in limine to prevent the State and its

IV. Use of Words “Victim” and “Murder”

appeal. Id. by neither argument nor authority, warrants no ext ended consideration on (2003). The defendant’s off - hand invocation of constitutional rights, supported insufficient to warrant judicial review. State v. Blackmer, 149 N.H. 47, 49 review, a mere laundry list of c omplaints, without developed legal argument, is developed it sufficiently to warrant appellate review. In the realm of appellate decision compromised his right to a fair and impartial trial because he has not We decli ne to address the defendant’s argument that the trial court’s

decision not to voir dire the sleeping juror was sustainable. does he make any showing of prejudice. We conclude therefore that the court’s N.H. 708, 710 (1990). He cites no direct authority for this proposition. Nor voir dire the juror about whether she was sleeping. Cf. State v. Colbath, 132 basis to conclude that the juror was incompetent, the court was required to The defendant asserts that because there was an articulable factual

Lambert, 147 N.H. at 29 p. 6 6. decision was clearly unreasonable and that the de cision prejudiced his case. exercise of discretion, the defendant must demonstrate that the trial court's and an unsustainable exercise of discretion. To show an unsustainable On appeal, the defendant argues that the court’s decision was arbitrary

A:13 (199 p. 7 7). sleeping. The court then designated the juror as an alternate. See RSA 500 defense counsel’s request that the juror be voir dired about whether she was at tention and that she appeared to have been sleeping. The court denied Based upon the above, the court found that the juror was not paying 7

claim of self - defense. a fugitive, was relevant to show his consciousness of guilt and disprove his acknowled gement that, although he knew that the episode aired, he remained The State argued that evidence of the defendant’s appearance, and his defendant had appeared on the television program, America’s Most Wanted. Before trial, the State moved in limine to admit evidence that the

A. Appearance on America ’s Most Wanted Television Program

V. Evidence of Consciousness of Guilt

describe the defendant’s act. discretion to permit the State and its witnesses to use the word “murder” to Under these circumstances, we hold that it was within the trial court’s

victim was unarmed and too intoxicated to defend himse lf. four eyewitnesses who, contrary to the defendant’s testimony, said that the back in his head and he fell to the ground. It also included the testimony of face deep enough to cut the facial muscles, and kicked him after his eyes rolled defendant stabbed the victim in the stomach, cutting his pancreas, slashed his “murdered” the victim based upon the evidence. This evidence was that the Even without the word, the jury could have concluded that the defendant

necessarily raise a negative implication in the mind of a reasonable juror. charged with second - degree “murder,” the use of the word “murder” would not did not substantially outweigh any probative value. Where the defendant is trial court could reasonably have determined that the preju dice was slight and Even if use of the word “murder” may have prejudiced the defendant, the

issues that are emotionally charged.” State v. Stott, 149 N.H. 1 p. 7 70, 172 (2003). decision against the defendant on s ome improper basis, such as evidence of prejudice required to prove reversible error is an undue tendency to induce a detrimental to the defendant because it tends to prove his guilt. See id. “The case.” Id. (quo tation omitted). It is not, however, evidence that is merely base its decision on something other than the established propositions in the punish, or trigger other mainsprings of human action that may cause a jury to appeal to a jury’s sympathies, arouse its sense of horror, provoke its instinct to “Evidence is unfairly prejudicial if its primary purpose or effect is to

discretion. State v. Jordan, 14 p. 8 8 N.H. 115, 11 p. 7 7 (2002). and we will not disturb its decision absent an unsustainable exercise of probative value is substanti ally outweighed by the danger of unfair prejudice, We accord the trial court considerable deference in determining whether 8

substantially outweighed by the danger of unfair prejudice . . . .” N.H. R. Ev. “Although relevant, evidence may be excluded if its probative value is

guilt. program and remained a fugitiv e was relevant to show his consciousness of 27 (1991). In this case, evidence that the defendant saw himself on a television . . . of the defendant’s consciousness of guilt.” State v. Torrence, 134 N.H. 24, Ev. 401. “It is beyon d dispute that evidence of post - offense flight is probative more probable or less probable than it would be without the evidence.” N.H. R. existence of any fact that is of consequence to the determination of the action Relevant evidence is evidence “having any tendency to make the

omi tted). case.” State v. Steed, 140 N.H. 153, 155 (1995) (quotations and citations discretionary ruling is clearly untenable or unreasonable to the prejudice of his and the defendant has the burden to demonstrate that the trial court’s “Evidentiary rulings are within the sound discre tion of the trial court,

of guilt to outweigh the danger of unfair prejudice. See N.H. R. Ev. 401, 403. even if relevant, that it was insufficiently probative of flight and consciousness On appeal, the defendant argue s that this evidence was irrelevant and,

A. Yes. Q. And you stayed on - the - run? A. Yes. Q. The police wanted to talk to you? A. Yes. Q. That TV show was about what you had done? A. Yes. show? Q. Still stayed on - the - run even after seeing yourself on a TV A. Yes. Q. And you saw yourself on a TV sho w?

occurred: At trial, during the State’s cross - examination, the following colloquy

examination. the State could admit this evidence only through the defendant’s cross probative of defendant’s co nsciousness of guilt.” The court further ruled that name. The court found “the title of the program, itself, is more prejudicial than a television show or program, but that it could not refer to the program by and denied it in part, instructing the State that it could refer to the program as Over the defendant’s objection, the trial court granted the motion in part p. 9 9

Ev. 403; see Steed, 140 N.H. at 156. was not “substantially outweighed by the danger of unfair prejudice.” N.H. R. consciousne ss of guilt. See id. at 155 - 56. The probative value of this evidence with him that contained guns and a police scanner, was probative of his himself on television, evidence that, before fleeing the State, he had a duffle bag disagree. Like the evidence that the defendant remained a fugitive after seeing The defendant argues that admitting this evidence was err or. We

later fled the State. The friend then drove the defendant back to his sister’s house. The defendant would rather be dead and he would kill himself first before he went to prison.” also said that “he wasn’t going in alive, that he was not going bac k to jail. He him up and that he was going to “get out of here that week.” The defendant and a gun. The defendant told his friend that his brother was going to pick home, the defendant was given a duffle bag that contained a police scanner to get something to eat. Before the defendant and his friends left his sister’s Massachusetts. The friend then drove the defendant to Lowell, Massachusetts, the defendant’s fri ends met the defendant at his sister’s house in Lawrence, At trial, the State elicited testimony that the day after the murder, one of

on the night of the murder contained any weapons. from introducing evidence that the duffle bag in the vehicle with the defendant immediately before his period of flight. The court pr ecluded the State, however, related to the defendant’s possession of a duffle bag containing guns part and denied it in part. The court permitted the State to introduce evidence submitted an offer of proof, the trial court granted the defendant’s motion in [the defendant], contained guns or any other weapons.” After the State passenger on the night of the incident, or any duffle bag allegedly belonging to that a duffle bag inside a motor vehicle in which [the defendant] was a Before trial, the defendant moved in limine to exclude “any testimo ny

B. Admission of Duffle Bag and Its Contents

“stayed - on - the run even after seeing [himself] on [the] . . . show.” defenda nt saw himself on a “TV show” that “was about what [he] had done” and minimized the danger of unfair prejudice. At trial, the jury heard only that the trial court precluded the State from referring to the television program by name justifiably assigned the evidence a high probative value. Id. Moreover, that the contested issue at trial.” Steed, 140 N.H. at 156. Accordingly, the trial cou rt outweighed by the danger of unfair prejudice.” Id. “Intent was a hotly trial court’s determination that its probative value was not “substantially 403. Although the evidence may have prejudiced t he defendant, we uphold the p. 10 10

reverse this decision only if the appealing party can demonstrate that the of the trial court. State v. Fleetwood, 1 49 N.H. 396, 408 (2003). We will The decision to admit expert testimony rests within the sound discretion

itself and suggests depravity on the part of the perpetrator.” vic tim’s injuries prejudiced him because it “connotes the embodiment of evil contends that permitting the expert to use the word “torture” to describe the way beyond medical evidence and [the expert’s] area of expertise.” He further it “interpreted the intent of the defendant at the time of the incident and went The defendant argues that admission of this testimony was error because

injuries was formed by torture, was as a result of torture. group indicates that this sub - group or this big cluster of the facial injuries, the other injuries, and these injuries as a You’re looking at the body in complete – in total, l ooking at A. Again, it goes by putting the multiple injuries together.

injuries that way? that night, how can you say they – how can you describe the Q. Now, Doctor, assuming that you weren’t in the parking lot

torture injuries. act, one or two final acts. So, it would be threatening or enough courage or musters that drive to commit one final person; an assailant makes tentative jabs and then musters caused when a person is being threatened by another A. In my opinion, these injuries resemble a cluster of injurie s

were caused? which these three incisions in [the victim]’s left upper arm trauma marks, do you have an opinion as to the manner in me dicine, how pattern plays a significant role in evaluating Q. Now, based on your experience and on the nature of forensic

testified as follows: Examiner in Boston, Massachusetts, who performed the autopsy on the victim, At trial, the expert, a medical examiner for the Office of the Chief Medical

from its expert, provided the State laid a proper f oundation. The trial court denied this motion, ruling that the State could elicit this opinion testifying that the victim’s injuries were consistent with “taunting” or “torture.” The defendant moved in limine to preclude the State’s expert from

VI. Medical Examiner’s Testimony p. 11 11

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

months after killing the victim. and the defendant’s admission that he remained a fugitive for seventeen eyewitnesses who disputed the defendant’s claim that he acted in self - defense, defendant’s admissio n that he stabbed the victim, the testimony of four harmless. See Fleetwood, 149 N.H. at 409. This evidence included the overwhelming evidence against the defendant, we hold that any error was Even if the expert’s testimony was inadmissible, in light of the

the defendant’s intent. state of mind. It was a description of the victim’s wounds and their cause, not examiner’s use of the word “torture” was an opinion about the defendant’s the victim’s injuries. In context, we do not agree with the defendant that the nothing prevented the expert from using the word to describ e his perceptions of agree that the word “torture,” in isolation, has a disturbing connotation, opinion is inadmissible because it is more prejudicial than probative. While we “torture,” the expert opined about the defendant’s state of mind and that this argues that by testifying that the injuries to the victim’s arm were caused by The defendant does not dispute the expert’s qualifications. Instead, he

S tate v. Newman, 148 N.H. 287, 292 (2002) (quotation omitted). testing the basis of an expert’s opinion is by cross - examination of the expert.” the opinion evidence, and not to its admissibility. The appropriate method of “Objections to the basis of an expert’s opinion go to the weight to be accorded

be admissible in evidence. opinions or inferences upon the subject, the facts or data need not reasonably relied upon by experts in the particular field in forming known to the expert at or before the hearing. If of a type bases an opinion or inference may be those perceived by or made The facts or data in the particular case upon which an expert

expert. N.H. R. Ev. 702. Under New Hampshire Rule of Evidence 703: trier of fact to understand the evidence” and if the witness is qualified as an Expert opinion testimony is admissible if such test imony “will assist the

case. Id. ruling was untenable or unreasonable and that the error prejudiced the party's