2005-485, STATE OF NEW HAMPSHIRE v. ANTHONY C. O'LEARY

The defendant, Anthony C. O’Leary, appeals his conviction of

brief and orally, for the defendant.

David M. Rothstein, deputy chief appellate defender, of Concord, on the

assistant attorneys general, on the brief, and Mr. Keefe orally), for the State.

Kelly A. Ayotte, attorney general (Charles J. Keefe and David W. Ruoff, 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. No. 2005-485 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Strafford Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as took her license and a necklace she was wearing. p. 2 ask for help. He left her body in the tall grass and bushes. Before leaving, he

Berwick, where he stopped and pulled her from the car while she continued to

the passenger’s seat and drove to Maine. He drove down a dirt road in South and pleaded for her life. Following the attack, the defendant moved Genaw to it. He began to slash and stab her brutally with the knife while she struggled

herself from the headlock. She dropped the knife and the defendant retrieved

then picked up a utility knife and cut the defendant’s fingers in an effort to free punched him in the leg because, according to him, she could not breathe. She him with a cigarette. He put her in a headlock in an effort to calm her, and she

and, as a result, erroneously instructed the jury that it could consider

defendant and he grabbed her. The defendant claimed she then tried to burn

provocation manslaughter as a lesser-included offense of first degree murder

car keys, but the defendant physically restrained her. She slapped the

fingers. seats of his car were covered in blood, and he was actively bleeding from his On appeal, the defendant argues that the trial court erred by treating

630:1-a. This appeal followed. her home to see if she was there. to pursue her. He would call various places looking for her or would drive past I(a)(1996). A jury found the defendant guilty of first degree murder. See RSA and continued to argue. During the argument Genaw attempted to take the extreme provocation, and, thus, he committed manslaughter. See RSA 630:2, seeing someone else. They drove to a secluded wooded area, parked the car victim, but contended that he did so under circumstances that amounted to cream. They began to argue about their relationship and whether she was murder. RSA 630:1-a. At trial, the defendant conceded that he killed the The grand jury indicted the defendant on one count of first degree

Massachusetts State Police cruiser. At the time of his arrest, he and the front The defendant drove to Massachusetts, where he nearly collided with a

defendant. The relationship ended in May; the defendant, however, continued

asked Genaw to go with him and talk. With Genaw driving, they left to get ice

engaged in February of 2004. In April 2004, Genaw became pregnant by the months before the murder. They began dating in the fall of 2003 and became times with a utility knife. The defendant met Genaw approximately eighteen saw the defendant drive past the home twice before stopping. The defendant at Genaw’s sister’s home at approximately 5:15 p.m. A witness testified that he appointment in Rochester at 7:00 p.m. that evening. He left work and arrived On the day of the murder, the defendant told a co-worker that he had an

the defendant killed Treasure Genaw by strangling her and stabbing her nine The jury could have found the following relevant facts. On June 7, 2004, manslaughter.

p. 3 manslaughter instruction.

consider the lesser-included offense[s] of [provocation and reckless] defendant not guilty of second-degree murder may you go on to entitled to because the record in this case did not support a provocation him not guilty of first-degree murder. Only if you find the

contends that the defendant received a more favorable charge than he was defendant is guilty of second-degree murder only if you first find any error was harmless beyond a reasonable doubt. Specifically, the State contends that the jury instructions were proper, but, in the alternative, that

defined that offense for you. You may consider whether the

more serious offenses, it unfairly subordinated his defense. The State

the court issued the following “acquittal first” instruction:

similar but less serious crime of second-degree murder as I have Genaw, you should consider whether the defendant is guilty of the could consider provocation manslaughter only if it first acquitted him of two first-degree murder in connection with the death of Treasure

in the case.”

630:2, I(a). In an effort to structure the jury’s consideration of those crimes,

The defendant argues that because the instruction informed the jury it find that the defendant is not guilty on the indictment alleging

offense and reverse only if the instructions did not fairly cover the issues of law the jury instructions adequately and accurately explain each element of the understood them, and in light of all the evidence in the case. We determine if The trial court also instructed the jury on provocation manslaughter. RSA

You should render a verdict on [first-degree murder] first. If you

disputed instructions in their entirety, as a reasonable juror would have and the lesser-included offense of second degree murder, RSA 630:1-b (1996). The trial court instructed the jury on first degree murder, RSA 630:1-a,

exercise of discretion, see State v. Poole, 150 N.H. 299, 301 (2003). and we review the trial court’s decisions on these matters for an unsustainable manslaughter. sound discretion of the trial court, State v. Evans, 150 N.H. 416, 420 (2003), should reduce the defendant’s intentional murder of the victim to provocation citations omitted). The scope and wording of jury instructions are within the the “acquittal first” instruction, the jury could not properly consider whether it State v. Bortner, 150 N.H. 504, 512 (2004) (quotations and

reviewing jury instructions, we evaluate allegations of error by interpreting the in clear and intelligible language, the rules of law applicable to the case. When “The purpose of the trial court’s charge is to state and explain to the jury,

second degree murder. Specifically, the defendant contends that, based upon provocation manslaughter only if it first acquitted the defendant of first and guilty of manslaughter based on recklessness. p. 4 degree murder, then you should go on to consider whether he is find the defendant not guilty of first degree murder or second

fundamental unfairness, thereby obviating consideration of the harmless error immaterial error. right to counsel, or adjudication by a biased judge, rise to the level of right to the basic trial process, such as the complete denial of a defendant’s

reversal without regard to the evidence in the particular case.”

required “without regard to the evidence in a particular case.” then you must consider whether or not that charge must be whether or not he is guilty of second degree murder. If you so find, guilty of first p. 4 degree murder, then you should go on to consider

the trial rather than on the virtually inevitable presence of

and ellipsis omitted). Errors that partially or completely deny a defendant the

constitutional errors as necessarily render a trial fundamentally unfair require Williams, 133 N.H. 631, 634 (1990). In Williams, we explained that “only such this error was harmless beyond a reasonable doubt. State v. the record, we conclude that the State has satisfied its burden of proving that There are instances, however, when the error is so prejudicial that reversal is Rose v. Clark, 478 U.S. 570, 577 (1986) (citation and quotation omitted).

manslaughter based on provocation. If you find the defendant not

for the criminal process by focusing on the underlying fairness of of the defendant’s guilt or innocence, and promotes public respect central purpose of a criminal trial is to decide the factual question The harmless-error doctrine recognizes the principle that the

pure “acquittal first” instruction. This was error. Nonetheless, after reviewing provocation manslaughter as a lesser-included offense to murder by giving a murder charge. Id. at 96. In contrast, the trial court in this case treated consider the defendant’s provocation defense regardless of the outcome on the should consider whether or not that charge should be reduced to Taylor defendant is guilty of first degree murder. If you so find, then you, 141 N.H. at 94. We noted that this instruction required the jury to

[I]n your deliberations you should first consider whether or not the

the jury: in first and second degree murder trials. The trial court in Taylor instructed discussed a proper method for giving a provocation manslaughter instruction to reckless manslaughter. State v. Taylor, 141 N.H. 89, 94 (1996). We also In State v. Taylor, we approved an acquittal first instruction with respect stopped, Genaw began twitching and gurgling. The defendant then got out of

p. 5 severing one of her ribs and puncturing one of her lungs. After the defendant

defendant said, “[I]t’s too late.” He stabbed her four times in the chest, loved him and she was sorry and asked him to help her. In response, the slouched down in the driver’s seat of the car, again told the defendant that she

that she was attempting to trick him, so he then slashed her stomach. She

the defendant that she loved him and would do anything for him. He believed her escape. He then sliced her throat severing her jugular vein. Genaw told to get out of the car, but the defendant held her by the throat and refused to let

defendant stabbed her in the left eye and sliced down. She screamed and tried

her eyes corroborate that the defendant strangled her in this manner. The with his left hand. The bruising on Genaw’s throat and broken blood vessels in The defendant released her from the headlock and grabbed her by the throat

she grabbed his utility knife and cut his fingers because she could not breathe.

the evidence of guilt of first degree murder. because the defendant was choking her, and again according to the defendant, nature, and the jury charge was inconsequential in relation to the strength of

being slapped or about the attempted cigarette burn. She could not breathe evidence of the defendant’s guilt of first degree murder is of an overwhelming confession, in an effort to calm her down, not because he was upset about cigarette. The defendant put her in a headlock, according to his own

trial court instructed the jury as the defendant requested. We agree. The

confrontation, according to the defendant, she attempted to burn him with a lit

could have found the defendant guilty of provocation manslaughter even if the favorable to the defendant supports the conclusion that no reasonable jury defendant, and the defendant grabbed her. As a result of this physical keys. The defendant restrained her from doing this; she then slapped the driver’s seat and the defendant in the passenger’s seat, she reached for the inconsequential in relation to the strength of the State’s evidence of guilt.” While the defendant and Genaw argued in her car, with Genaw in the quantity, or weight, and if the inadmissible evidence is merely cumulative or

The State contends that the evidence in this case, taken in a light most

State v. Pelkey, 145 N.H. 133, 137 (2000) (quotation omitted).

the alternative evidence of the defendant’s guilt is of an overwhelming nature, N.H. 115, 118 (2001). “An error may be harmless beyond a reasonable doubt if reasonable doubt that the error did not affect the verdict. State v. Etienne, 146 To establish that an error was harmless, the State must prove beyond a

U.S. at 579. that may have occurred are subject to harmless-error analysis.” Rose, 478 an impartial adjudicator, there is a strong presumption that any other errors 352 (1995). Generally, however, “if the defendant had counsel and was tried by doctrine. See Williams, 133 N.H. at 634; see also State v. Soucy, 139 N.H. 349, p. 6 [him] and [he] jabbed her in her left eye,” and down her cheek. The defendant

holding her neck [around her esophagus]. And [he] turned her face towards

defendant, “[his] hand [slid] up from being in a headlock with his elbow to her neck . . . [a]nd she dropped the knife [on] the seat.” Again, according to the headlock. According to the defendant, he then “loosened [his] grip . . . around

utility knife and cut the defendant’s fingers in an effort to free herself from the

to the defendant’s own confession, the victim while struggling, reached for a another out of passion or in the anger of the moment. Furthermore, according inflicted no injury, would be sufficient to cause a reasonable person to kill

adequate provocation. tried to burn him or attack him. mother and told her he killed Genaw in a jealous rage, not because she had

arm, and the cut to his fingers. The jury, however, regarding the attempted

jealous rage, he does not argue that these circumstances amounted to

wounds to her chest. Moreover, following his confession, he telephoned his

reasonable person standard.

provocation at issue here was an attempted cigarette burn on the defendant’s

the victim had deteriorated and that he told his mother that he killed her in a Although there is evidence in the record that the defendant’s relationship with the defendant telling Genaw that “it [was] too late,” before he inflicted the four reasonable person to commit the act. State v. Little, 123 N.H. 433, 436 (1983). provocation is adequate only if it is so severe or extreme as to provoke a

Criminal Code, of the common-law rule that measures provocation under a Smith, 123 N.H. 46, 49 (1983), we recognized the continuing validity, under the instruction. provocation warranting a finding of provocation manslaughter. In State v. No reasonable jury could have found that there was sufficient entitled to such an instruction.

disturbance caused by extreme provocation. This is clearly demonstrated by in a jealous rage. defendant was not acting under the influence of extreme mental or emotional defendant called his mother to tell her he had confessed to murdering Genaw Indeed, the evidence established beyond a reasonable doubt that the her head.” Following his statement to the Massachusetts State Police, the

evidence that would entitle the defendant to the provocation manslaughter

basis to support the theory of the requested jury instruction, the party is not 133 N.H. 747, 749 (1990). Where, however, there is simply no evidentiary must be given if such theory is supported by some evidence. See State v. Hast, We have said that a requested instruction on a party’s theory of defense

confession, she continued to gasp for help until “her eyes rolled in the back of the car and pulled her from the driver’s seat. According to the defendant’s own p. 7 7

concurred.

consider the parties’ remaining arguments. prejudiced by the court’s charge). In light of this disposition, we need not

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

error in the trial court’s instruction was harmless. response); instruction than that to which he was entitled, we cannot say that he was 141 N.H. 101, 105 (1996) (where the defendant received a more favorable evidence, the trial court’s error did not affect the verdict. See State v. Schultz, defendant received an instruction to which he was not entitled. Given the evidence of such severe or extreme behavior at trial. Id. Therefore, the reasonable person to commit the act. Little, 123 N.H. at 436. There was no killed victim, crime is murder); standard, and thus is adequate only if it is so severe or extreme as to provoke a As noted above, provocation is measured under a reasonable person

adherence to the common-law rule, we agree with the State, and find that any the accused retaliates; use of a deadly weapon is evidence of a disproportionate attack in response to slight provocation is murder). In light of our continued (provocation must be proportionate to manner of retaliation; therefore, violent that he was guilty of murder. (2006); State v. Darrian, 605 A.2d p. 7 716, 722 (N.J. Super. Ct. App. Div. 1992) instruction), rev’d on other grounds, People v. Hawthorne, 713 N.W.2d 724 disproportionate response thereby excluding voluntary manslaughter (Mich. Ct. App. 2005) (defendant’s use of gun when challenged to fist fight was

provocation, attacked with violence out of all proportion to provocation and to the manner in which the accused retaliated; therefore, if accused, on slight provocation will not be adequate since the provocation must be proportionate

People v. Matthews, 314 N.E.2d 15, 19 (Ill. App. Ct. 19 p. 7 74) (slight

App. Ct. 1990) (the provocation must be proportionate to the manner in which

disproportionate that the only reasonable conclusion a jury could reach was continued to attack the victim. His actions in response to her actions were so