2003-614, STATE OF NH v. DOUGLAS AINSWORTH

five charges: attempte d murder of Officer Buskey; attempted murder of Officer where he fired at Officers Jeff Buskey and William Wright. He was indicted on shotgun at her through her window. He then drove to his mother’s home, defendant drove to the home of his former wife, Kerrell Betourne, and fired a The record supports the following facts. In September 2002, the

assault, see RSA 629:1 (Supp. 2004); RSA 631:1 (1996). We affirm. conduct, see RSA 631:3 (1996); and one count of attempted first - degree murder, see RSA 629:1 (Supp 2004); RSA ch. 630 (1996); one count of reckless jury trial in the Superior Court (Perkins, J.) on two counts of attempted GALWAY, J. The defendant, Douglas Ainsworth, was convicted after a

orally), for the defendant. Twomey & Sis ti Law Offices, of Chichester (Mark L. Sisti on the brief and

general, on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Jonathan V. Gallo, assistant attorney

No. 2003 - 614 Belknap

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

issue for appellate review. We agree. timely object to the court’s jury instructions, and thus has not preserved the instruction on self - defense. The State contends that the defendant failed to The defendant fi rst argues that the trial court should have given a jury

I. Jury Instruction

address each argument in turn. prejudicial than probative; and (4) denying his motion for a mistrial. We personnel files; (3) finding that the tape of the 9 - 1 - 1 call was not more give a jury instruction on self - defense; ( p. 2 2) den ying him access to the officers’ On appeal, the defendant argues that the trial court erred in: (1) failing to

curative instruction or a mistrial. Both requests were denied. three terrified children . . . .” Defense counsel objected and requested a you to care about these people who were targets. I’m asking you to care about defense attorney told you that she cares about the defendant . . . I’m asking defendant. In response, the State argued: “At the outset of this case, the testimony of the defendant’s children amounted to “gratuitous cruelty” t o the In her closing argument, defense counsel argued that portions of the

shooting. introduce into evidence the tape of Betourne’s 9 - 1 - 1 call from the night of the During the trial, the State was allowed, over the defend ant’s objection, to

the personnel records of the officers involved.” upon the basis that it “[did] not find that probable cause exist[ed] to produce have some b earing on his defense of self - defense. The court denied the motion court of its findings,” and alleged that information contained in them might requested that the State “conduct a good faith review of the files and notify the personnel records of both Officers Buskey and Wright. The defendant Also, prior to trial, the defendant filed a motion for disc overy requesting

responded affirmatively that the instructions were proper. instruction on self - defense. Defense counsel did not object, and in fact supplement it. Th e trial judge’s instructions to the jury did not include an the defendant’s notice to be inadequate, but allowed the defendant to against Officer Jeff Buskey . . . and Officer William Wright.” The court found stated “that he may rely on the defense of physical force to defend [him]self Prior to trial, the defendant filed a notice of self - defense in which he

Ms. Betourne; and reckless conduct against Officer Buskey. Wright; attempted murder of Ms. Betourne; attempted first - degree assault of p. 3 3

information that is material and relevant to his defense. State v. Gagne, 1 p. 3 36 defendant must establish a reasonable probability that the files contain In order to trigger in camera review of the officers’ personnel files, the

untenable or unreasonable to the prejudice of his case. Id. the defendant must demonstrate that the trial court’s rulings were clearly standard. State v. Amirault, 149 N.H. 541, 54 p. 3 3 (2003). To meet this standard, the admissibility of evidence under an u nsustainable exercise of discretion We review the trial court’s decisions on the management of discovery and

relevant to the criminal case. camera and make a determination whether it contains evidence deliver the file to t he judge. The judge shall examine the file in the judge shall order the police department employing the officer to that criminal case. If the judge rules that probable cause exists, cause exists to believe that the file contains evidence relevant to case, unless the sitting judge makes a specific ruling that probable in a criminal case shall be opened for the purposes of that criminal No personnel file on a police officer who is serving as a witness . . .

RSA 105:1 p. 3 3 - b provides in pertinent part:

1 05:1 p. 3 3 - b (2001). We agree. defendant failed to make a sufficient showing of probable cause under RSA Article 15 of the New Hampshire Constitution. The State responds that the to cross - examine and the right to put on all proofs favorable,” citing Part I, an unsustainable exercise of discretion because it “d en[ied] him both the right Next, the defendant argues that the denial of his discovery motion was

II. Personnel Files

preserved for our review. See Transmedia Restaurant Co., 149 N.H. at 457. nor a timely opportunity to correct any error; a ccordingly, the issue is not the court had neither an opportunity to rule in a timely fashion on the issue instructions before the trial court, but rather indicated satisfaction therewith, Because the defenda nt did not contemporaneously object to the jury

and criminal matters. Id. grounded in common sense and judicial economy, and applies equally to civil alleged error involves a jury instruction. Id. This long - standing requirement is correct an error it may have made and is particularly appropriate where an p. 4 454, 457 (200 p. 3 3). This requirement affords the trial court an opportunity to issue for appellate review. Transmedia Restaurant Co. v. Devereaux, 149 N.H. A contemporaneous objection is necessary to preserve a jury instruction 4

prejudicial feelings.” leading jurors to decide the case against him on the basis of “unfairly served to ‘inflame the passions of the jury’ with sympathy for Ms. Betourne,” of violating.” Thus, the defendant concludes, “playing the tape can only have the issue of [his] ability to form the intent required by the statute he is accused alcohol and Amitriptylene. He contends that “nothing in the tape addresse[d] window, arguing that he did so while suffering from the combined effects of tape should have been excluded because he admitted that he shot out the Betourne’s 9 - 1 - 1 call into evidence. The defendant contends that the 9 - 1 - 1 We now consider whether the trial court erred in admitting Ms.

III. 9 - 1 - 1 Tape

to produce witnesses). 296 (1999) (right to produce all favorable proofs gives defendant only the right records, or to put on all proofs favorable. But cf. State v. Graf, 1 p. 4 43 N.H. 294, was denied either the right to cross - examine based upon the inadmiss ible Accordingly, we conclude that the defendant has failed to demonstrate that he sustainable. See Amirault, 149 N.H. at 543; see also RSA 105:13 - b. existed to produce the personne l files of Officers Buskey and Wright is We conclude that the trial court’s determination that no probable cause

untenable or unreasonable to the prejudice of his case. See id. Thus, the defendant did not demonstrate that the trial court’s ruling was review of otherwise protected documents. See Amirault, 1 p. 4 49 N.H. at 544. present a plausible theory of relevance and materiality sufficient to justify from the officers’ personnel files, see Gaffney, 147 N.H. at 556 - 57, and did not substantial likelihood that evidence helpful to his defense would be obtained did not meet his burden of establishing that there was a realistic and material and relevant to his defense. See Gagne, 136 N.H. at 105. Thus, he reasonab le probability that the records contained information that was bearing on his defense of self - defense, the defendant failed to establish a representing only that the information contained in the files might have some conclude that the defendant’s representation falls short of meeting it. By Although this standard for in camera review is no t unduly high, we

Amirault, 1 p. 4 49 N.H. at p. 5 544. materiality sufficient to justify review of otherwise protected documents. requirement, the defendant must present a plausible theory of relevance and files. State v. Gaffney, 147 N.H. 550, 556 - 57 (2002). To meet this threshold evidence helpful to his defense would be obtained from the officers’ personnel burden to establish that there is a realistic and substantial likelihood that N.H. 101, 105 (1992); see Amira ult, 149 N.H. at 544. It is the defendant’s 5

the window.” Because the defendant admitted to shooting through the window The defendant testified that he “grabbed [his] rifle, and [he] shot a hole in

something criminal, that person has not committed a crime. criminal. And unless a person both intends and acts to do person must have physically acted to do something that is have mentally intended to do something that’s criminal, and that crime, that person must have done two things. That person must person’s intentions were . . . . So for a person to be guilty of a have to know both what a person’s actions were and what that In deciding whether a person is guilty of a crime, you as a jury

charge, the trial judge gave the following jury instructions, in pertinent part: attempted to purposely cause her death. See RSA 629:1. Relative to this charge of attempted murder of Ms. Betourne, the jury had to find that he tape is strengthened given that in order to find the defendant guilty of the an account of the events as they occurred. Moreover, the probative value of the prejudicial than probative. The 9 - 1 - 1 tape is as contemporaneous as possible trial court found the tape to be relevant, probative, and not substantially more The record supports the trial court’s admission of the 9 - 1 - 1 tape. The

case. Id. 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

the prejudice of his case. Id. defendant must show that the ru ling was clearly untenable or unreasonable to (2002). To show that the trial court exercised unsustainable discretion, the unsustainable exercise of discretion. State v. Jordan, 148 N.H. 11 p. 5 5, 117 of unfair prejudice, and we will not disturb its decision absent an determining whether probative value is substantially outweighed by the da nger cumulative evidence.” We accord the trial court considerable deference in or by considerations of undue delay, waste of time, or needless presentation of the danger of unfair prejudice, confusion of the issu es, or misleading the jury, evidence may be excluded if its probative value is substantially outweighed by New Hampshire Rule of Evidence 403 provides: “Although relevant,

evidence. See N.H. R. Ev. 403. We agree. prejudice, if any, did not substantially outweigh the probative v alue of this best evidence of the incident.” Thus, the State argues that the danger of unfair contemporaneous account of the events as they occurred and therefore the to the incident involving the defendant, the tape “represented a The State responds that although Ms. Betourne was present to testify as p. 6 6

a mistrial, we recognize that the trial court is in the best position to gauge the children,” wa s improper. When reviewing a trial court’s ruling on a motion for mistrial because the State’s closing argument, which referenced “three terrified Finally, we address the defendant’s argument that he was entitled to a

IV. Motion for a Mistrial

remarks on jury). is in best position to gauge any prejudicial ef fect of prosecutor’s closing testimony); see also State v. Wood, 150 N.H. 233, 235 (2003) (stating trial court (stating trial court is in best position to gauge prejudicial impact of particular admitting the tape at trial. See State v. Morrill, 151 N.H. 331, 333 (2004) that the trial court did not commit an unsustainable exercise of discretion in as to inflame a jury. See Jordan, 148 N.H. at 118. We conclude, therefore, was upset a nd afraid during the incident, the tape is not so unduly emotional credibility and reliability fall within jury’s province). Although Ms. Betourne where contested evidence carries no particular emotional charge, questions of prejudice. See State v. Cochran, 132 N.H. p. 6 670, 673 (1990) (reasoning that probative value is not substantially outweighed by the danger of unfair Having reviewed the contents of the tape, we conclude that the tape’s

to kill her. This recording supports the jury’s inference that the defendant intended

calling . . . and s howed up and I told him to leave. told him to leave. . . . And then yesterday he . . . started walked in on me on Sunday and I was getting dressed and I week and I threw him out and he showed up again. . . . He suppo sed to give me 24 hours notice . . . . He showed up this leave me alone. . . . I told him to . . . leave because he’s calling me . . . the last two days . . . and I hoped he would just I just told him to leave because he kept on harassing me and

stated: walked in the living room, th e gunshot went threw [sic] the window.” She also During the 9 - 1 - 1 call, Ms. Betourne told the dispatcher: “[W]hen I

convincing evidence it is able to produce. Jordan, 148 N.H. at 118. has the right to prove every essential element of the crime by the most prosecution, with its burden of establishing guilt beyond a reas onable doubt, prove that the defendant acted purposely when he fired at Ms. Betourne. The probative value does not end here, however, because the State was required to defendant’s physical actions was mi nimal. The inquiry as to the tape’s of Ms. Betourne’s home, the 9 - 1 - 1 tape’s probative value regarding the p. 7 7

declaration of a mistrial was necessary, and conclude that the trial court’ s trial court’s decision that neither an immediate curative instruction nor a presumed to follow the instructions of the court). We uphold, therefore, the at all.” See State v. Smith, 149 N.H. 693, 69 p. 7 7 (2003) (stating juries are “the facts of this case and . . . without prejudice . . . and without any sympathy shot into the house. Moreover, the jury was instructed to arrive at a verdict on defendant’s children, who testified that they were in fear after the defendant comments by the State were supported by testimony of Ms. Betourne and the their testimony, which she called “gratuitous cruelty.” The responding Defe nse counsel specifically referenced the defendant’s children and parts of State’s comments permissible as rebuttal to inferences created by defendant). closing argument. See State v. Laurent, 144 N.H. 517, 520 (1999) (holding prosecutor’s comments here were a permissible response to defense counsel’s evidence and intended to appeal to personal sympat hies of the jury, the comments made by the city’s attorney in Walton, which were unsupported by We are not persuaded by the defendant’s arguments. Unlike the

delive r a verdict based on sympathy and not on the facts of the case.” jury to consider them in their deliberations can be nothing but an appeal to that “[f]ollowing the reasoning of Walton, the prosecutor’s overt invitation to the terrified children” referenced by the State were not parties to the action, and should have been granted. The defendant argues further that th e “three not inadvertent, and because there was no curative jury instruction, a mistrial Here, the defendant contends that because the State’s comments were

408. personal interest and bias: (2) prejudicial; an d (3) not based on evidence. Id. at was: (1) calculated to encourage the jury to make a decision based upon new trial because we concluded that the argument made by the city’s attorney Walton v. City of Manchester, 140 N.H. 403 (1995). In Walton, we required a the ensuing curative instruction was not enough. Id. Next, the defendant cites was deliberate, the lingering prejudice could have affected the outcome, and 152, 158 (2004). In Ellsworth, the court found that the prosecutor’s comment prosecutor as to the defendant’s failure to testify. State v. Ellsworth, 151 N.H. which we reversed a conviction based upon an improper comment by the To support his argument, the defendant first cites State v. Ellsworth, in

State v. Pandolfi, 145 N.H. 50 p. 8 8, 512 (2000); cf. Lambert, 14 p. 7 7 N.H. at 296. remedial action is necessary absent an unsustainable exercise of discretion. We will not overturn the trial court’s decision on whether a mistrial or other whether a mistrial is approp riate. State v. Kerwin, 144 N.H. 357, 359 (1999). prejudicial nature of the conduct at issue and has broad discretion to decide 8

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

discretion. See State v. Hall, 14 p. 8 8 N.H. 671, 675 (2002). denial of the defendant’s motion was not an unsustainable exercise of