2003-795, STATE OF NH v. JOSEPH SAWTELL

defendant’s son approximately two months earlier. Prior to the murder, the about one year prior to her murder, and the victim had given birth to the chest. The defendant and the victim had been involved in a relationship for Sheehan, four times with a .357 magnum revolver and then shot himself in the defendant allegedly shot the victim, his nineteen - year - old girlfriend, Crystal The record supports the following facts. On September 19, 2002, the

We affirm. the Superior Court (Coffey, J.) of first degre e murder. See RSA 630:1 - a (1996). NADEAU, J. The defendant, Joseph Sawtell, appeals his conviction in

defendant. and Thomas J. Gleason on the brief, and Scott F. Gleason orally) for the Gleason Law Office s, P.C., of Haverhill, Massachusetts (Scott F. Gleason

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Charles J. Keefe, assistant attorney

No. 2 003 - 795 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

privilege is meant to encourage the patient to disclos e relevant facts fully so as (Medical Records of Payne), 150 N.H. 436, 440 ( p. 2 2004). The physician - patient between patients and their medical providers. In re Grand Jury Subpoena Traditionally, we h ave carefully guarded the confidential relationship

or surgeon. relations or communications were with such supervising physician treatment are privileged to the same extent as though those surgeon that are customary and necessary for diagnosis and any person working u nder the supervision of a physician or Confidential relations and communications between a patient and shall be required to disclose such privileged communications. except as otherwise provided by law, no such physician or surgeon basis as those provide d by law between attorney and client, and, the patient of such physician or surgeon are placed on the same physician or surgeon licensed under provisions of this chapter and The confidential relations and communications between a

RSA 3 p. 2 29:26 provides in relevant part:

treating physician, and was necessary for diagnosis and treatm ent. was providing care and treatment to the defendant under instructions from a N.H. R. Ev. 503(a), because his statement was made to the hospital nurse who introduction violated the physician - p atient privilege, see RSA 3 p. 2 29:26 (2004); defendant’s statement that he shot himself. The defendant argues that its We first consider the challenge to the nurse’s testimony about the

prejudice. Id. the trial cou rt’s rulings were clearly untenable or unreasonable to his 541, 543 ( p. 2 2003). To meet this standard, the defendant must demonstrate that an unsustainable exercise of discretion standard. State v. Amirault, 149 N.H. We review a trial court’s decision on the admissibility of evidence under

witnesses that he had previously threatened the victim wi th a gun. removal of the victim and their son from their apartment; and (3) testimony of him; ( p. 2 2) testimony of witnesses as to his unhappiness about fatherhood and evidence: (1) an inculpatory s tatement he made to a nurse who was treating On appeal, the defendant challenges the introduction of three pieces of

murder and his failed suicide.” dislike of living with the baby evidences his motive in carrying out [the victim’s] between the defendant and [the victim] and the defendant’s demonstrated Thus, the State’s theory was that “the birth of the baby created a conflict pregnancy, thrown her out of their apartment and threatened to harm her. defendant had, on several occasions, expressed unhappiness about the victim’s p. 3 3

is substantially outweighed by the danger of unfair prejudice, Although relevant, evidence may be exc luded if its probative value

New Hampshire Rule of Evidence 40 p. 3 3 provides:

substantially more prejudicial than probative. apartment violated New Hampshire Rule of Evidence 40 p. 3 3, as the evidence was unhappiness about being a father and his attempts to evict the victim from the Next, the defendant argues that the admission of evidence regarding his

was “injured and in great pain.” comfortably” while the statements to the other witnesses were made when he made “after he had been treated and s tabilized in a hospital and was resting made immediately after the murder because the statement to the nurse was would appear more credible and thus be more prejudicial than the statements not agree with the defendant’s contention that the statement made to the nurse the defendant at the murder scene, as testified to by three witnesses. We do harmless. T he statement itself was cumulative of similar statements made by Even if the introduction of the statement were erroneous, the error was

p. 3 329:26. at 605. Accordingly we hold that the statement was not protected under RSA procuring information necessary for treatment or diagnosis.” Elwell, 132 N.H. was not necessary for his treatment. Thus, the statement was not “essential in the defendant had already received treatment an d, in any event, the statement treat or diagnose the defendant. In fact, at the time the statement was made evidence presented at trial that the nurse used the information in any way to defendant responding to an y questions posed by her. In addition, there was no nurse was not attempting to elicit any information from him nor was the The record reflects that at the time the defendant made the statement the chest, [the defendant] made the statement that, ‘I was aiming for my heart.’” injuries to him: “When I described the track the bullet had taken through his testified that the statement was made while she was explaining the defendant’s for the purpose of obtaining a diagnosis or treatment. Rather, the nurse A careful review of the record reveals tha t the statement was not made

privilege, we do so strictly. See State v. Elwell, 1 p. 3 32 N.H. 599, 605 (1989). Lewis, 130 N.H. 106, 109 (1987). Thus, when construing the physician - patient protecting statements mad e to a physician for purposes of treatment. Nelson v. without fear of humiliation, the legislature has granted the patient a privilege the patient may reveal facts that could be necessary to successful treatment embarras sing and of little real consequence to society. In order to insure that that much of what a physician learns from his patient may be both p. 4 412, 415 (1977). The privilege parallels the Hippocratic oath in recognizing to receive complete and appropriate treatment. State v. Kupchun, 117 N.H. 4

the char acter of a person in order to show that the person acted in Evidence of other crimes, wrongs, or acts is not admissible to prove

N.H. p. 4 493, 496 (1995). Rule 404(b) provides: conviction based on evidence of other crimes or wrongs. State v. Bassett, 139 defendant is tried o n the merits of the crime as charged and to prevent a 196 (2004). The purpose of Rule 404(b) in a criminal trial is to ensure that the for an unsustainable exercise of discretion. State v. Smalley, 151 N.H. 193, We review the trial court’s admission of evidence pursuant to Rule 404(b)

crime. We disagree. months and five months prior to the murder, lacked temporal proximity to the p. 4 404(b). Specifically, he argues that the prior incidents, which occurred ten threats to the victim with a gun violate New Hampshire Rule of Evidence Finally, the defendant argues that the admission of evidence of his prior

substantially outweighed by the danger of unfair prejudice. exercised its discretion in concluding that its probative value was not evidence had sufficient probative value such that the trial court properly upon the jury to make a decision based upon emotion. We hold that the sympathies, arouse its sense of horror, provoke its instinct to punish, or call failed to show how this evidence, or its effect, was to appeal to a jury’s probative of the defendant’s motive to commit murder. The defenda nt has was more prejudicial than probative. The evidence was relevant and highly of being a parent and attempts to evict the victim and his son from the home We disagree with the defendant tha t the evidence concerning his dislike

Id. defendant on some improper basis, commonly one that is emotionally charged. reversible error is an undue tendency to induce a decision against the Cochr an, 132 N.H. 670, 672 (1990). Rather, the prejudice required for defendant from the tendency of the evidence to prove his guilt. State v. Pelkey, 1 p. 4 45 N.H. 133, 136 (2000). Unfair prejudice is not mere detriment to a on something other than the established propositions in the case. State v. other mainsprings of human action that may cause a jury to base its decision sympathies, arouse its sense of horror, provoke its instinct to punish, or trigger unfairly prejudicial if its primary purpose or effect is to appeal to a jury’s exercise of discretion. State v. Plch, 149 N.H. 608, 621 (2003). Evidence is discretion, and we will not disturb that determination absent an unsustainable outweighed by the danger of unfair prejudice is a matter within the trial court’s Whether th e probative value of certain evidence is substantially

presentation of cumulative evidence. considerations of undue delay, waste of time, or needless confusion of the issues, or misleading the jury, or by p. 5 5

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

defendant’s intent and did not lack temporal proximity to the crime. thre ats was admissible because the threats were relevant to prove the Thus, under the facts of this case, we find the evidence of the prior

before the murder. before the murder, and the other incident occurred approximately ten months defendant’s intent. Here, one incident occurred approximately five months which occurred three years earlier, was admissible and relevant to pr ove the evidence of the defendant’s entry into the victim’s house with a loaded revolver, Allen, 128 N.H. 390, 397 (1986), an attempted murder case, we held that lacked sufficient proximity to be relevant pursua nt to Rule 404 (b). In State v. We disagree with the defendant’s argument that the prior incidents

circumstances. parties, a similar, if not identical weapon, and occurred under similar circumstance. Id. Her e, as in Dukette, the prior acts involved the same conduct involved the same victim, a similar weapon, and occurred in a like we concluded that evidence of prior assaults was admissible because the prior admissible under Rule 404 (b). In State v. Dukette, 14 p. 5 5 N.H. 226, 230 (2000), against a victim were relevant to prove the defendant’s intent and therefore We have previously held that prior threats and assaults by a defendant

value of the evidence. Bassett, 139 N.H. at 496. (3) prejudice to the defendant does not substantially outweigh the probative there is clear proof that the defendant committed the other crimes or acts; and purpose other than to show the defendant’s bad character or disposition; (2) Evidence of other crimes is not admissible unless: (1) it is relevant for a

accident. preparation, plan, knowledge, identity, or absence of mistake or purposes, such as proof of motive, opportunity, intent, conformity therewith. It may, however, be admissible for other