2005-122, STATE OF NH v. DANIEL FICHERA

Access to the land was through a neighbor’s driveway and a trail. After the jointly owned five acres of undeveloped land off Piggott Hill Road in Milton. and one year of marriage. Prior to their separation, they lived in Milton, and

defendant and Monica King-Fichera separated after a seven-year relationship

Court (

The jury could have found the following facts. In May 2003, the

reverse and remand. (Supp. 2005), and criminal threatening, see RSA 631:4 (Supp. 2005). We a (1996), first degree assault, see RSA 631:1 (1996); kidnapping, see RSA 633:1 Mohl, J.) of attempted murder, see RSA 629:1 (Supp. 2005); RSA 630:1- DUGGAN, J. The defendant, Daniel Fichera, was convicted in Superior

brief and orally, for the defendant. Christopher M. Johnson, chief appellate defender, of Concord, on the

general, on the brief and orally), for the State. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Robert S. Carey, assistant attorney

page is: http://www.courts.state.nh.us/supreme. v.

errors in order that corrections may be made before the opinion goes to press. No. 2005-122 Hampshire, One Noble Drive, Concord, New Hampshire 03301, of any editorial Strafford Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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 catch her before she arrived at the home of a neighbor who called 911.

p. 2 The defendant told her that he intended to kill her and then himself.

left, she got up and ran into the woods. The defendant followed, but could not

and exclude testimony of defense experts on the issue of insanity.

several times with the butt of the shotgun and fired the shotgun into the air. proffered any evidence that his mental illness caused the charged conduct.

Fichera then lay down and “pretended to be comatose.” After the defendant

forth in RSA 628:2, at trial.” The State moved to strike the insanity defense

she wanted to make love and she said no. insanity defense. 2

Fichera, the defendant threatened her with a large knife. He then hit her head the defendant could not present an insanity defense because he had not Fichera with pepper spray. After unsuccessfully attempting to handcuff Kingwomen, divorce, revenge and prayer. The defendant threatened to spray Kingdefendant followed, hitting her repeatedly with the butt of the shotgun. King- Fichera’s chest. Although wounded, King-Fichera managed to run away. The you so much, . . . but you’re going to die.” He fired the shotgun into King- this Court and the State of his intention to assert the defense of insanity, as set

were compatible as husband and wife. The defendant asked King-Fichera if kidnapping and criminal threatening. Prior to trial, he timely filed a notice of

The court conducted a pretrial hearing, at which the State argued that

woman, and showed her a Bible with passages highlighted about adulterous the neighbor to reach an agreement concerning access rights.

leave. He then aimed the shotgun at her chest and told her, “[W]oman, I love of Insanity” stated: “Now comes [the defendant] . . . and respectfully notifies

See RSA 628:2, III (1996). The defendant’s “Notice of Defense

together and she said that she wanted to remain friends but did not think they The defendant was indicted for attempted murder, first degree assault, defendant asked King-Fichera whether there was a possibility of getting back sat at a picnic table and conversed cordially for about forty-five minutes. The

he forced King-Fichera to write a “confession” that she was an adulterous land off Piggott Hill Road. King-Fichera agreed to meet with the defendant and

As the sun was setting, King-Fichera told the defendant that she had to

they drove together to the Piggott Hill Road property. After they arrived, they

The defendant became angry and retrieved a shotgun. After a struggle, their neighbor had agreed to a “variance,” which would give them access to the

On October 28, 2003, King-Fichera met the defendant in Milton, and

The defendant subsequently contacted King-Fichera and told her that

defendant remained in Milton. separation, King-Fichera moved to Lebanon, New Hampshire, and the examination. p. 3 defense. The trial court sustained the State’s objection and disallowed crossbasis for the claims that King-Fichera was bipolar other than statements by the

that expert testimony is not required.

evidence of King-Fichera’s allegedly abnormal beliefs and that it knew of no

holding that insanity may be proven by lay witness testimony, and implying

reality. The State objected, arguing that the defendant had not presented any 3 matters was necessary to challenge King-Fichera’s credibility and perception of had reversed her tubal ligation. He argued that cross-examination on these

which he is indicted. present an insanity defense. In support of his position, he relies upon cases testimony in support of it. He argues that expert testimony is not required to rejected his insanity defense on the grounds that he presented no expert

mental condition and beliefs. We address each argument in turn. spirits, that she possessed shamanistic powers and that divine intervention and (2) barring him from cross-examining King-Fichera on issues related to her See, e.g., State v. Hudson, 119 N.H. 963, granting the State’s pretrial motion to strike the defendant’s insanity defense; him of the ability to form the specific intent for the crimes upon

At the outset, the defendant argues that the trial court erroneously

I. Insanity defendant can only present evidence as to one part of the analysis. a mental disease or defect . . . . By his own admission, the

about what he alleged was her belief in UFOs, her ability to communicate with prescribed lithium. The defendant also sought to cross-examine King-Fichera On appeal, the defendant argues that the trial court erred by: (1) show that King-Fichera had been diagnosed with bipolar disorder and offers no evidence that indicates his PTSD and depression deprived on his condition at the time of the incident . . . . The defendant None of the doctors upon which he relies . . . can offer any opinion

medical opinion evidence exists linking the defendant’s conduct to

what he characterized as her “mental health issue.” The defendant sought to During trial, the defendant sought to cross-examine King-Fichera on present is evidence that he suffered from PTSD and depression.

that his mental condition caused his conduct. The trial court agreed, ruling: Indeed, the defense counsel admitted at the hearing that no . . . .

In this case, the only evidence which the defendant can

about the defendant’s depression and post-traumatic stress disorder (PTSD) The State argued that the jury should not be permitted to infer from testimony insanity defense.”

p. 4 sufficient evidence at trial, the court could then deny a jury instruction on the

testimony to support the insanity defense” and that “if he failed to produce court could not validly rule that [he] had failed to proffer sufficient lay witness an insanity defense is an issue of first impression in New Hampshire. We will present evidence relevant to that defense.” He contends that “before trial, the

fact for the jury. whether a mental disease or defect caused the charged conduct is a question of The question of when a trial court may grant a pretrial motion to strike timely filed a Notice of Insanity Defense, he was entitled to the opportunity to defect; and, second, that a mental disease or defect caused his actions. Duckworth, 443 U.S. 713, 714-15 (1979) (per curiam)). held to satisfy federal constitutional standards.” Id. at 966-67 (citing Moore v. by lay witnesses,” Hudson, 119 N.H. at 966, and “lay testimony has . . . been been recognized in this State that even the condition of insanity may be proved N.H. at 449 (emphasis added); see also Plante, 134 N.H. at 462. “It has long any and all evidence of his mental state at the time of the crime.” Abbott, 127 (1875). Fourth, a defendant asserting an insanity defense “is free to present (1869), overruled on other grounds by Hardy v. Merrill, 56 N.H. 227, 234, 252

Abbott, 127 N.H. at 448; State v. Pike, 49 N.H. 399, 438 evidence. RSA 628:2, II (1996).

128 N.H. 57, 65 (1986), may form the basis of an insanity defense. Third, need to proffer such evidence prior to trial. He contends that “[b]ecause [he] State v. Place, 126 N.H. 613, 615 (1983), and depression, cf. State v. Mercier, insanity, disease or defect caused his actions.” The defendant argues that he did not first, that at the time he acted, he was suffering from a mental disease or State v. Plummer, 117 N.H. 320, 327 (1977). Thus, both PTSD, cf. varieties of mental diseases or defects that can form the basis for a claim of defense because the defendant “offered no evidence to show that a mental 394, 399 (2002). Second, the test for insanity does not define or limit the no test for determining whether a defendant is insane.” State v. Hall, 148 N.H. First, “sanity is a question of fact to be determined by the jury and . . . there is unique insanity defense. See State v. Jones, 50 N.H. 369, 393-400 (1871). There are four well-established principles relating to New Hampshire’s

The defendant has the burden of proving insanity by clear and convincing

at 448. A defendant asserting an insanity defense must prove two elements: defense. It argues, however, that the trial court properly struck the insanity Insanity is an affirmative defense in New Hampshire. Abbott, 127 N.H.

lay testimony and that expert testimony is not needed to support an insanity The State forthrightly concedes that a defendant may prove insanity by

Abbott, 127 N.H. 444, 448-49 (1985); State v. Rullo, 120 N.H. 149, 152 (1980). 966 (1979); see also State v. Plante, 134 N.H. 456, 460-62 (1991); State v. address the sufficiency of the notice of insanity defense under that rule. other order as the interest of justice requires. p. 5 may exclude any testimony relating to such defense or make such shown. If the defendant fails to comply with this rule, the Court

appeal that Rule 101 applies to the defendant’s insanity defense and we

or within such further time as the Court may order for good cause

his defense as required by Rule 101. Therefore, we assume for purposes of this court appears to have found that the defendant did not set forth grounds for defenses generally, also applies to the defendant’s insanity defense. The trial the prosecution, in accordance with the time limitations in Rule 98 therefor shall be filed with the Court, with a copy of same going to Criminal Code, a notice of such intention setting forth the grounds

with the requirements of RSA 628:2, III. insanity defense. Thus, the defendant’s notice of insanity defense complied requirements. It is undisputed that the defendant timely filed his notice of

assume that Superior Court Rule 101, which sets forth notice requirements for

If a defendant intends to claim any defense specified by the

Rule 101 provides:

court to exclude evidence of insanity for failure to comply with these time

628:2, III alone applies to the defendant’s insanity defense. Instead, the parties on appeal, neither the State nor the defendant specifically argues that RSA The trial court, however, did not base its order upon RSA 628:2, III, and, purpose to rely on such defense; and

cause permit, notifies the court and the state of his

his insanity defense within the statutory time limitations and permits a trial RSA 628:2, III unambiguously requires a defendant to notify the court of governed by RSA 628:2 (1996). RSA 628:2, III provides:

scheduled commencement of trial. (b) Such notice is given at least 30 days before the

not guilty or at such later time as the court may for good (a) The defendant, within 10 days after entering his plea of

Evidence of insanity is not admissible unless:

unsustainable exercise of discretion standard). Notice of an insanity defense is 400 (1993); cf. State v. Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion. See Exeter Hosp. v. Hall, 137 N.H. 397, uphold the trial court’s decision to strike an affirmative defense absent an that convinces us otherwise. p. 6 an interpretation, and the State does not refer to any authority to do so. The clear language of the rule is not susceptible of such

findings it makes in the course of pretrial proceedings. We decline

State’s argument is essentially the same argument as it made in evidence that his actions were caused by a mental disease or defect.” The the trial court test the validity of such grounds against any factual struck the defendant’s insanity defense because “the defendant offered no

Rule 101.

requirement that the defendant “set[] forth the grounds therefor” the added Here, as in Champagne, the State asks us to read into the Rule 101

defendant “set forth the grounds therefor” the added proviso that On appeal in this case, the State argues that the trial court properly

strike the defendant’s affirmative defense of renunciation. Id. adequately set forth the grounds of his affirmative defense and thus satisfied Id. Accordingly, we upheld the trial court’s order denying the State’s motion to complete [and] walked away and renounced any further participation,” defendant withdrew from any further negotiations before any negotiations were

renunciation.” adduced at the evidentiary hearing did not support the defendant’s claim of denying the motion to strike the renunciation defense because “the facts

The State essentially asks us to read into the requirement that a hearing. Id. at 429 (quotation omitted). We stated:

marijuana with the intent to sell. notice of his renunciation defense, which stated in pertinent part that “[t]he exact location for the transaction to take place. Id. (quotation omitted). We concluded that the defendant’s

On appeal, we rejected the State’s argument that the trial court erred by

the grounds” of an affirmative defense in Champagne, 152 N.H. at 428. renunciation defense, which the trial court denied following an evidentiary 427; see RSA 629:1, III(a). The State filed a pretrial motion to strike the the entry of a plea of not guilty.” notice that he intended to raise the affirmative defense of renunciation. Id. at

was later charged with attempted possession of five pounds or more of

place, but when they met on the scheduled date, they could not agree upon an 424. The defendant and the informant scheduled a date for the sale to take interested in purchasing ten pounds of marijuana. Champagne, 152 N.H. at 428-29 (2005). There, the defendant told a police informant that he was

We addressed the scope of the requirement that a defendant “set[] forth

written notice of an affirmative defense “within thirty (30) calendar days after Superior Court Rule 98 requires that a defendant give the court and the State which he based that defense. p. 7 give notice of his intent to raise an insanity defense and the grounds upon

on the date that this occurred.” The defendant’s offer of proof was sufficient to

happened, [and it is] not a great leap for a jury to conclude that he was insane PTSD] and he was receiving treatment for them up until the very day that this offered to show that “here we actually have two diagnoses [for depression and

disease or defect caused the charged conduct, we reverse and remand. on the grounds that the defendant had not offered evidence that his mental

defense). 7

suffering from [mental disease or defect] on the date in question.” Counsel

exercise of discretion in striking the defendant’s insanity defense prior to trial

defense because it is “a jury’s function” to determine the merits of an insanity

defense counsel recognized the need to show that “[the defendant] was question of fact for the jury. any way related to his action on October 28, 2003.” At the pretrial hearing, tending to demonstrate that those conditions [of depression and PTSD] were in

Because we conclude that the trial court engaged in an unsustainable

that trial court lacked authority to grant a pretrial motion to strike an insanity with State v. Lopez, 457 A.2d 20, 23 (N.J. Super. Ct. App. Div. 1983) (holding a jury may consider in deciding the issue of insanity. See Pike, 49 N.H. at 438. It is also consistent Hampshire’s unique insanity defense, which we have long recognized as a Our conclusion today is consistent with the fundamental nature of New the defendant’s insanity defense because the defendant “proffered no evidence

evidence,”

the standard jury instruction on insanity, which identifies specific factors that

We disagree with the dissent’s view that the trial court properly struck

Champagne, 152 N.H. at 429. determining the adequacy of the notice given pursuant to Rule 101, cf.

Plante, 134 N.H. at 460, that standard does not apply when

jury instruction on insanity if his insanity defense is supported by “some Instruction 3.07 (1985). While it is true that a defendant is only entitled to a

proffered at least some evidence of insanity prior to trial. The State relies upon trial court is authorized to strike the defense where a defendant has not The State further argues that, when dealing with an insanity defense, the

trial court made its decision on the State’s motion in this case. not have the benefit of our ruling in Champagne, which we issued after the Champagne, we decline to do so. Cf. id. We note that the trial court here did findings it makes in the course of pretrial proceedings. Cf. id. As in proviso that the trial court test the validity of such grounds against any factual p. 8 Fichera’s] own writings that [she believes] she has shawmanistic [

years the witness may have said concerning any number of issues really go to mental illness, they go to various expressions at times over the lithium.” Defense counsel also stated that “we have evidence . . . from [Kingin the past, been diagnosed with bipolar [disorder]. She was also prescribed conference, defense counsel told the court that King-Fichera “has, at one point

With respect to King-Fichera’s alleged beliefs, the court stated, “[They] don’t

examining King-Fichera on her alleged mental health issues. At a bench not to do things.

perception of reality.” regarding UFOs or any other subject.” necessary because “[a]ll of that goes straight to [her] credibility, and to her that cross-examination into her alleged beliefs and bipolar condition was and gifts . . . . She believes in UFOs. She had written a letter to Grafton

judgment, that’s not enough to attack someone’s credibility in the slightest.”

Later in the trial, the defendant again tried to establish a basis for cross- being, and at multiple times spirits have told her to do things and abilities. She believes that entities can possess another human intervention. She believes that she has shamanistic powers and unless it’s specific things she may have said at various times in her life . . . . . I don’t think any of those are appropriate areas for cross-examination credibility. The defendant offered to present his evidence to the court, arguing

instability and delusional thinking.” With respect to the alleged bipolar condition, the trial court stated, “In my through cross-examination into what he characterizes as “her mental with respect to King-Fichera’s alleged bipolar condition and her alleged beliefs. The trial court sustained the State’s objection. It made separate rulings

believes that surgical procedures have been reversed by divine

that King-Fichera had the alleged mental impairments or that they affected her prosecutor objected, arguing that the defendant had presented no evidence The defendant also alleged that King-Fichera had a “bipolar disorder.” The

court’s order, which barred him from impeaching King-Fichera’s credibility

which have told her not to go to court. She believes in UFOs. She [King-Fichera claims to have] acted at the direction of spirit voices,

During a bench conference at trial, the defendant alleged that:

constitutional right to confront adverse witnesses was violated by the trial again on remand we will address it here. The defendant argues that his Because the issue of the scope of cross-examination is likely to arise

II. Cross-examination credibility as a witness.” p. 9 mental health and various beliefs because they were not relevant to her at the trial.” that “[t]he trial court properly barred cross-examination into King-Fichera’s may not have the ability accurately to perceive the important matters at issue presently holds delusional beliefs about important matters in the witness’s life

affected her ability to perceive and recount events.” Finally, the State argues

sum, he argues, “A jury could reasonably conclude that a witness who

defendant offered no evidence that, on the date in question, these beliefs 9 examination into King-Fichera’s allegedly “delusional” beliefs because “the about herself, other people, and the other matters identified in the proffer.” In Second, the State argues that the trial court properly prohibited crosscredibility by showing that [King-Fichera] currently held delusional beliefs Second, he argues that “the proffered cross-examination related directly to

well as other proper subjects of cross-examination, the trial court may not incident that would have affected her ability to perceive and recount events.” fundamental. limits of cross-examination applies to attacks upon [a witness’s] credibility as thus tended to support the admission of the proffered cross-examination.” discretion of the trial court, and the broad discretion of the trial court to fix the “Although the latitude permitted on cross-examination is within the

Ball, 124 N.H. at 233. decided under the Sixth Amendment only to aid our State constitutional analysis. arguments under Part I, Article 15 of the State Constitution. We refer to cases State v. Ball, 124 N.H. 226, 232 (1983), we first consider the defendant’s New Hampshire Constitution, see Etienne, 146 N.H. at 117. Consistent with Douglas v. Alabama, 380 U.S. 415, 418 (1965), and by Part 1, Article 15 of the guaranteed by the Sixth Amendment to the United States Constitution, see evidence that King-Fichera suffered from a mental illness at the time of the State v. Etienne, 146 N.H. 115, 117 (2001). This right is Fichera about her alleged bipolar condition because “the defendant offered no The right to cross-examine adverse witnesses in criminal cases is testimony” and that “[t]he importance and contested nature of [her] testimony trial court properly prohibited the defendant from cross-examining King- Fichera’s] credibility, and the defense disputed the truth of much of her He first argues that “the prosecution’s case depended substantially on [King-

The State makes three arguments in response. First, it argues that the

establish that the trial court erred in barring the proffered cross-examination.”

counsel from cross-examining King-Fichera about these matters.

On appeal, the defendant argues that “two factors in combination

to court.” The trial court did not reconsider its prior ruling prohibiting defense County Superior Court . . . telling the judge there that a spirit told her not to go about which he was attempting to testify.” 10

p. 10 impairment of sight or hearing.

mental defect or treatment at a time probatively related to the time period evidentiary foundation.”

the witness’s “ability to comprehend, know, and correctly relate the truth.” To be relevant, the cross-examination must evidence an “impairment” of

640 (Ind. 1965). (D.C. 2002), cert. denied, 537 U.S. 963 (2002); Polson v. State, 207 N.E.2d 638, 44 A.L.R.3d at 1226; see also Velasquez v. United States, 801 A.2d 72, 80-81 perception of events to which she is testifying. See Mental State or Condition, defendant is unable to show that testify as it would be for the jury to know that he then suffered an the mental impairment affects the witness’s 1085 (1st Cir. 1989). The trial court may prohibit cross-examination if the

question have adopted the rule that “a defendant has the right to attempt to her psychiatric history in order to impeach her credibility, this “does not mean credibility. The overwhelming majority of courts that have addressed this However, while a defendant is entitled to cross-examine a witness about

ellipsis omitted). Greene v. Wainwright, 634 F.2d 272, 276 (5th Cir. 1981) (quotation and

witness’s mental incapacity at a time about which he proposes to truth. It is just as reasonable that a jury be informed of a affecting a witness’s credibility to aid in their determination of the [T]he jury should, within reason, be informed of all matters

that: examination into a witness’s alleged mental instability to impeach her 44 A.L.R.3d 1203, 1210-11 (1972 & Supp. 2005). The reason for this rule is to Impeach Competency or Credibility (hereinafter “Mental State or Condition”), Annotation, Cross-examination of Witness as to His Mental State or Condition, (2002); see also United States v. Butt, 955 F.2d 77, 82 (1st Cir. 1992); 330, 343 (5th Cir. 2001) (quotation omitted), cert. denied, 534 U.S. 1140

We have not before addressed to what extent a defendant may use cross-

discretion standard.” State v. Flynn, 151 N.H. 378, 388 (2004). examination thereafter is measured against an unsustainable exercise of constitutional standard is satisfied, and the judge’s limitation of cross- “Once a defendant has been permitted a threshold level of inquiry, however, the omitted), abrogated on other grounds by State v. Graf, 143 N.H. 294, 298 (1999). matter of inquiry.” State v. Ramos, 121 N.H. 863, 866-67 (1981) (citations completely deny a defendant the right to cross-examine a witness on a proper as schizophrenia or another psychosis. p. 11 record suggested that King-Fichera suffered from a severe mental illness, such credibility. examination into King-Fichera’s alleged bipolar condition and its effect on her purposes. The trial court had considerable discretion to prohibit cross-

such as schizophrenia, that dramatically impaired her ability to

allegedly showing that King-Fichera had “delusional” beliefs. Nothing in the

that King-Fichera’s alleged bipolar disorder was relevant for impeachment

disposition to lie or hallucinate, or suffered from a severe illness,

lithium made “at one point in the past,” and over 300 pages of documentation

the events to which she testified. Thus, the defendant did not demonstrate that this disorder caused her to lie or hallucinate or affected her perception of perceive or to recall events or to testify accurately is relevant . . . . straight to credibility, and to her perception of reality,” but offered no evidence help to the jury in its efforts to evaluate the witness’s ability to The defendant argued at trial that King-Fichera’s bipolar disorder “goes

of the events testified to, the witness exhibited a pronounced instability relevant to credibility only where, during the time-frame defect. Rather, federal courts appear to have found mental ill consisted of an alleged diagnosis of bipolar disorder and prescription for In this case, the defendant’s offer of proof that King-Fichera was mentally

Butt, 955 F.2d at 82-83 (quotation and citations omitted).

prior condition of mental instability that provides some significant

found relevant an informally diagnosed depression or personality in excluding records and limiting cross-examination.” Despite this precedent, we are aware of no court to have

condition at the time of the events testified to. Evidence about a impeachment of government witnesses based on their mental For over forty years, federal courts have permitted the

The reasoning in Jimenez is consistent with language of the First Circuit:

whose mental history is less severe, [trial] courts are permitted greater latitude remote in time from the events alleged in the indictment.” Id. “For witnesses schizophrenia or a psychosis will be relevant, unless the diagnosis is too impeachment purposes. . . . [T]he general principle [is] that a diagnosis of the severity and timing that make a witness’s mental illness relevant for Jimenez, 256 F.3d at 343 (quotation omitted). “No rule outlines with precision convincing evidence, that a defendant is insane p. 12 Hampshire, the affirmative defense of insanity requires proof, by clear and notice of such intention “setting forth the grounds therefor.” In New

defendants intending to claim a defense specified in the Criminal Code file

Court Rule 101, which the parties agree applies to this case, requires that affirmative defense was sufficient to allow an insanity defense at trial. Superior disagree with the majority’s conclusion that the defendant’s notice of 12

to establish an insanity defense using lay witness testimony. However, I reverse and remand for proceedings consistent with this opinion.

RSA 628:2, I, II (1996). respectfully dissent.

I agree with the majority’s reaffirmation of the rule permitting defendants about her alleged bipolar disorder and abnormal beliefs. Accordingly, we

exercised its discretion in striking the defendant’s insanity defense, I DALIANIS, J., dissenting. Because I believe that the trial court properly

GALWAY, J.