2003-594, STATE OF NH v. BRADLEY J. MACINNES

We affirm. directed verdict and for a mistrial; and (3) his request for a curative instruction. in ruling upon: (1) the admis sibility of certain evidence; (2) his motions for 631:4, II (a)(2) (Supp. 2004). He argues that the Trial Court (Vaughan, J.) erred following a jury trial for felony criminal threatening with a firearm. See RSA NADEAU, J. The defendant, Bradley J. MacInnes, appeals his conviction

defendant. Christopher A. Dall on the supplemental brief, and Mr. Clark orally), for the DesMeules, Olmstead & Ostler, of Norwich, Vermont (Timothy A. Clark and Decato Law Offices, of West Lebanon (R. Peter Decato on the brief), and

general, on the brief and supplemental brief and orally), for the State. Kelly A. Ayotte, attorney general (Susan P. McGinnis, assistant attorney

No. 2003 - 594 Grafton

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

was untimely. interpretation of the State’s argument; the trial court then ruled the objection Both the State and the trial court disagreed with defense counsel’s

t hat impacts on his defense --” fear of serious bodily harm when he went out the second time, that somehow stating: “[The prosecutor] has suggested to the jury that if my client was not in Defense counsel objected at the conclusion of the State’s argument,

enraged and wants to fight? Are those indicators of someone who is in fear or someone who is apartment building? Would he have tried to keep this fight going? continue to pursue a fight? Would he have run after them into the If [the de fendant] was in fear of serious bodily injury, would he

encounter arguing: At the close of the State’s case, the prosecutor referred to the hallway

request. his deposition testimony about his alleged pleas. The trial court denied his court. Defens e counsel then requested permission to impeach the victim with State advised defense counsel that the pleas had not yet been accepted by the that he had pled guilty to three unrelated charges. On the day of trial, the The victim was deposed prior to trial. During his deposition, he stated

defendant was arrested. object in his hand and threatening to kill them. The police arrived and the defendant coming at them with his right arm raised, holding a dark - colored an apartment. When they later emerged into the hallway, they saw the the defendant pointed his gun in another direction, Polja cik and Marsh ran to pointing it at Poljacik, asked if he wanted the defendant to shoot him. When defendant go and told him to leave. The defendant pulled out a gun and, hit him in the head. Marsh also hi t him. After a minute or two, Poljacik let the down his cigarettes, attacked Poljacik. Poljacik caught him in a headlock and The defendant stepped back, and after taking off his shoes and putting

know who the defendant was and that the defendant should leave him alone. Poljacik if he had a problem with him. Poljacik said he did not, that he didn’t he scanned Poljacik from head to toe. After more looks, the defendant asked near the car where Marsh was talking. As the defendant walked past Poljacik, group of people. He and his girlfriend approached her car, w hich was parked sister. Around the same time, the defendant left one of the apartments with a friends. They stopped in the parking lot to talk to a friend of Marsh and her Poljacik (victim) and Rocky Marsh went t o Pine Tree Lane Apartments to visit The record supports the following facts. On May p. 3 31, p. 2 2002, Jeremy 3

evidence that the witness has been convicted of a crime shall be admitted if relevant part: “For the purpose of attacking the credibility of a witness, any party, inclu ding the party calling the witness.” Rule 609(a) provides in Rule 607 provides that “[t]he credibility of a witness may be attacked by

the applicability of those rules. See State v. Blackmer, 149 N.H. 47, 49 (200 p. 3 3). Hampshire Rules of Evidence 607 and 609. We therefore confine our review to legal bases that he cited in his argument before the trial court were New constitutional claims before the trial court or in his notice of appeal. The only a basis for admission of the victim’s deposition testimony, he did not raise any While the defendant cites the State Constitution in p assing in his brief as

identified two of these charges as felonies. charges. See North Carolina v. Alford, 400 U.S. 25 (1970). Defense counsel that he had testified in his deposition that he had entered Alford pleas on three In this case, defense counsel sought to elicit testimony from the victim

prejudice of his case. Id. that the trial court’s ruling was clearly untenable or unreasonable to the N.H. 782, 788 (2004). To meet this standard, the defendant must demonstrate discretion, we will not overturn a trial court’s ruling. State v. Wellington, 150 matter within its sound discretion. Absent an unsustainable exercise of that A trial court’s determination about the introduction of evidence is a

I. Admissibility of Vict im’s Pending Pleas

trial court it was deadlocked. argument; and (4) denying his request for a mistrial after the jury advised the following an alleged misstatement of the law by the prosecutor in her closing his request for a directed verdict; ( p. 3 3) refusing to give a curative instruction denying his request to impeach the victim about his pending pleas; (2) denying On appeal, the defendant contends that the trial court erred by: (1)

jury returned a guilty verdict. court gave them a deadlocked jury instructi on. An hour and a half later, the for further deliberations. The jury returned the next morning and the trial The court advised them they could go home but should return in the morning in the mornin g would change the outcome; they asked what they should do. had deadlocked 11 - 1 for conviction and that they did not believe that returning ask about substituting an alternate juror, but rather indicated that the jury back to request that the inquiry be put in writing. The written inquiry did not this point, defense counsel moved for a mistrial. The trial court sent the cl erk had asked whether an alternate could be substituted for one of the jurors. At checked on the status of deliberations. The clerk reported that the foreperson After the jury had been deliberating for about two hour s, the court clerk p. 4 4

justice would otherwise result. Cf. United States v. Frady, p. 4 456 U.S. 152, 163 sparingly, its use limited to thos e circumstances in which a miscarriage of raised by either party. See Sup. Ct. R. 16 - A. The rule should be used allow us to consider an error that affects substantial rights even though not We have, however, recently adopted the plain error rule, which would

preserved for our review. State v. Blackmer, 1 p. 4 49 N.H. 47, 48 - 49 (2003). nor listed in the defendant’s notice of appeal and has therefore not been clear from the record that this issue was neither raised before the trial court was incorrect, the trial court should have interceded to correct the error. It is On appeal, the defendant also argues that if his theory of self - defense

See id. reasonable juror could have found that the defendant acted in self - defense. reasonably resolved the conflicting e vidence in favor of the State and that no degree of force. Based upon the record, we conclude that the jury could have failed to retreat when he could safely do so and that he used an unreasonable defendant prov oked the victim verbally, that he attacked the victim, that he deadly force to repel deadly force. The record contains evidence that the The defendant concedes that he based his defense at trial on his use of

reasonable doubt). d efense becomes element of charged offense which State must prove beyond a 138, 1 p. 4 41 (2000) (when evidence of self - defense admitted, conduct negating evidence to negate his claim of self - defense. See State v. Santamaria, 145 N.H. motion for a directed verdict. He argues that the State presented insufficient The defendant next contends that the trial court e rred in denying his

II. Motion for Directed Verdict

of the trial court. admissible. See, e.g., N.H. R. Ev. p. 4 404(b). Accordingly, we sustain the decision whi ch defense counsel sought to introduce and which were not otherwise accepted by the trial court; he had therefore not been convicted of the offenses with prior convictions. In this case, the victim’s guilty pleas had not yet been agree. By its very language, Rule 609 is limited to impeachment of a witness inadmissible because the requirements of Rule 609 had not be en met. We The trial court ruled that the victim’s deposition testimony was

statement, regardless of the punishment.” its prejudicial effect to the defendant, or (2) involved dishonesty or false court determines that the probative value of admitting this evidence ou tweighs excess of one year under the law under which he . . . was convicted, and the examination but only if the crime (1) was punishable by . . . imprisonment in elicited from the witness or established by public record during cross - p. 5 5

instructed the jury on t he law and juries are presumed to follow instructions, for the subsequent event in the hallway. Because the trial court correctly response, the trial court instructed the jury that the defendant was not on trial the cour t’s instructions. During deliberations, the jury sent out a question; in jury should ignore counsel’s statements. The jury received a written copy of that if counsel stated the law differently from the way the court stated it, the court’s instructions addressed the principles of self defense and also advised Even if the prosecutor’s remarks were somehow improper, the trial

note, however, that the timing of the objection may affect the relief available. preserved for appellate review. State v. Hearns, 1 p. 5 51 N.H. 226, 232 (2004). We opponent’s closing argument are made wi thin a reasonable time and are thus issued an opinion holding that objections made immediately following an statement was made and was thus untimely. After the State filed its brief, we preserved be cause the objection was not made at the time the alleged improper impacts on his defense --.” The State argues that this issue has not been of serious bodily harm when he went out the second time, that somehow that arguing that the prosecutor “suggested that if [the defendant were] not in fear After the State completed its closing argument, defense cou nsel objected,

III. Closing Argument

instruction sua sponte on the issue of non - deadly force was plain error. cannot say that the trial court’s failure to direct a verdict or to give an RSA 627:9 (1996). For that reason, even assuming th ere were an error, we deadly or non - deadly force under RSA 627:9 and the defendant cites none. See pointing a gun at an individual without discharging it constitutes the use of We are aware of no cas e in which we have addressed whether the act of

contends that the trial court erred in failing to instruct the jury on this issue. conclusion that his use of the gun constituted non - deadly force. He also con sidered, before ruling on his motion, whether the evidence might support a argues that, although he did not raise the issue, the trial court should have verdict, arguing that the State had failed to meet its burden. On appeal he force to repel it. At the close of the State’s case, he moved for a directed victim had used deadly force on him, the defendant was ent itled to use deadly In this case, the defendant argued in his opening statement that if the

application of the State plain error rule. U.S. 4 p. 6 61, 466 - 67 (1997). We believe the same standards should inform our or public reputation of judicial proceedings. Johnson v. United State s, p. 5 520 substantial rights; and (4) the error must seriously affect the fairness, integrity there must be an error; (2) the error must be plain; (3) the error must affect Court has stated that the federal plain error rule conta ins four elements: (1) n. 14 (1982) (discussing federal plain error rule). The United States Supreme 6

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

the trial court’s denial of the defendant’s motion for a mistrial was error. the Jordan instruction. Based upon the record before us, we cannot say that writing. The jury deliberated for an additional ninety minutes after receiving substitute juror. The question posed to the clerk was not sent to the court in hold - out juror was aware of the foreperson’s inquiry to the clerk about a endorsed in State v. Jordan, 130 N.H. at 50. The record is unclear whether the half hours. The trial court gave the deadlocked jury instruction that we In this case, the total length o f deliberations did not exceed three and a

the record of coercion or pressure upon the jury. Id. challenged charge; (3) the total length of deliberations; and (4) any indicia in the content of the instruction; (2) the length of deliberations after the evaluating whether a jury instruction is coercive, we consider four fac tors: (1) deadlocked jury instruction. State v. Chapman, 149 N.H. 753, 757 (2003). In A trial judge enjoys broad discretion in determining whether to give a

instruction on deadlocked jury.” objection we had yesterday to the mistrial, we have no objection to your deadlocked jury instruction. Defense counsel responded, “Without waiving the deliberation, the trial court advised counsel that it intended to give the replaced. We note also that when the jury returned for a second day of foreperson’s question to the clerk about whether a hold - out juror could be note that the record is unclear as to whether the entire jury knew of the jury to rea ch a unanimous decision to convict. As a preliminary matter, we N.H. 48 (1987), was of such a coercive nature that it improperly swayed the day and its delivery of a deadlocked jury instruction, see State v. Jordan, 130 would not be helpful, the court’s decision to require the jury to return the next court that it wanted to replace the hold - out juror and that deliberating f urther request for a mistrial. He contends that because the jury had informed the The defendant also argues that the trial court erred in denying his

IV. Motion for Mistrial

would have understood them and in light of all evidence in case). evaluated by interpreting instructions in their entirety as reasonable juror Lamprey, 149 N.H. 3 p. 6 64, 366 (2003) (allegations of error in jury instructions are State’s closing argument requires that hi s conviction be reversed. See State v. argument that the trial court’s failure to give a curative instruction after the State v. Barnes, 150 N.H. 715, 718 (2004), we find no merit in the defendant’s