2004-045, STATE OF NH v. BRUCE BLOMQUIST

Kelly A. Ayotte

No. 2004-045 Carroll

herself at the defendant. The defendant stabbed both Jolene and George. defendant said, “George,” Jolene screamed, jumped off the bed and threw a knife and standing over her sleeping husband, George Frechette. As the

THE SUPREME COURT OF NEW HAMPSHIRE approximately 4:30 a.m., Jolene Frechette awoke to see the defendant holding

The jury could have found the following facts. On June 2, 2002, at

Andrew Winters

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. Opinions are available on the Internet by 9:00 (1996), of Jolene Frechette; and burglary, see RSA 635:1 (1996). We affirm. assault, see RSA 631:1 (1996); and second-degree assault, see RSA 631:2 George Frechette, see RSA 629:1 (Supp. 2005); RSA 630:1-a (1996); first-degree after a jury trial in the Superior Court (O’Neill, J.) for attempted murder of DUGGAN, J. The defendant, Bruce Blomquist, appeals his convictions

and orally, for the defendant.

attorney general, on the brief and orally), for the State. Errors may be reported by E-mail at the following address: , attorney general (Simon R. Brown, senior assistant

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 22 as disease or defect.

p. 2 disorder, but that the defendant’s conduct was not the product of a mental

chief forensic psychiatrist testified that the defendant had a mixed personality appeared intact and functioned overall within the average range. The State’s neuropsychologist who testified that the frontal system of the defendant’s brain

had abnormal functioning of the frontal part of his brain. The State called a

testified for the defendant that, as a result of chronic alcoholism, the defendant At trial, the defendant asserted a defense of insanity. A psychologist

stemming in part from the boundary dispute.

defendant’s attack on George was motivated by a longstanding grudge, money from him and called the police. The State argued at trial that the became involved. At one point, George felt the defendant was trying to extort

must address the State’s argument concerning issue preservation. State v. and her husband. A boundary line dispute arose in which the defendant Before considering the merits of the lesser-included offense issue, we

the defendant was living next door to the Frechettes at the home of his sister

growing up and had known one another for more than thirty years. In 2001, issue of insanity, he was entitled to make his closing argument after the State. The defendant and George Frechette had lived next door to one another Second, he argues that, because the defendant has the burden of proof on the degree assault on the charge of attempted murder of George Frechette. 2

charge. The State objected and the trial judge took the matter under

defendant’s throat and choke him.

later. court should have instructed the jury on the lesser-included offense of first-

on first-degree assault as a lesser-included offense to the attempted murder Parra, 135 N.H. 305, 308 (1992). At trial, the defense requested an instruction

the defendant against a bureau. As they wrestled, George managed to grab the

several days. The defendant was arrested approximately an hour and a half The defendant raises two issues on appeal. First, he argues the trial serious injuries, received emergency surgery and remained in the hospital for The Frechettes were taken by ambulance to the hospital. Both had insanity defense and convicted the defendant on all charges.

At the conclusion of the six-day trial, the jury rejected the

knife no longer had a blade. George got out from under the covers and pushed After the defendant stabbed George three times, George noticed that the

daughter, and leave the house. George put up his hands and yelled for Jolene to get Penny, their adult

unconscious, and threw him outside onto the ground. hallway, slammed his head into a sliding glass door rendering him

p. 3 defendant completely forfeited the lesser-included offense issue by failing to alone. In light of the State’s position, we will not address whether the

requested an instruction on both subsections (a) and (b) or on subsection (b)

the only preservation issue raised by the State is whether the defendant counsel know of his ruling on the next day. Counsel for the State stated that recollection is consistent with the trial judge’s statement that he would let

the trial judge had ruled on the instruction in an off-the-record colloquy. His

included offense issue was not preserved because he was “almost certain” that the prosecutor at trial, said that he was not taking the position that the lesserlesser-included offense instruction issue. Counsel for the State, who was also

took the matter under advisement completely precludes appellate review of the

counsel to raise the issue of the lesser-included offense after the trial court

counsel were questioned about whether the failure of the defendant’s trial A different preservation question arose at oral argument when both

on the lesser-included offense of first-degree assault under RSA 631:1, I(b).

encourage parties to reach agreements of fact in lieu of the record. See

the only issue preserved is whether the court should have given an instruction This request mirrors the language of 631:1, I(b) and not RSA 631:1, I(a). Thus, the circumstances of this case, we may properly consider it. Our rules instruction was that the defendant used a deadly weapon and acted purposely.

Bean v. Red Oak Property Management

opinion would give no weight to counsel’s representation, we believe that under The defendant’s trial counsel stated at trial that the factual predicate for the certain” that the issue in question was preserved below. While the concurring counsel for the State affirmatively represented to this court that he was “almost

The concurring opinion chooses to address this preservation issue, citing

court”).

RSA 631:1, I(a) (“purposely causes serious bodily injury to another”). We agree. deadly weapon”) and that the defendant did not request an instruction under manner, here the State affirmatively declined to assert the preservation issue -- RSA 631:1, I(b) (“purposely . . . causes bodily injury to another by means of a

parties and judge proceeded as though the issue were properly before the trial

opposing party on appeal did not address the preservation issue in any included offense instruction was limited to first-degree assault as defined by the opposing party objected on that ground. Unlike Bean, however, where the proposition that we may address the preservation issue regardless of whether

(claim of error adequately preserved for appeal where “evidence shows that the

In its brief, the State argues that the defendant’s request for a lesser-

give the requested instruction.

does not reflect any further discussion of the request; nor did the trial judge advisement, telling counsel he would “let them know tomorrow.” The record p. 4 State v. Watkins

lesser offense rather than the greater offense. trial must provide a rational basis for a finding of guilt on the

the evidence adduced at trial. Second, the evidence adduced at by means of a deadly weapon.” See

definition of the greater offense.” State v. Hall statutory elements of the offenses in question without reference to first degree assault against George . . . by purposely . . . causing bodily injury definition of the greater offense. This requires a comparison of the First, the lesser offense must be embraced within the legal

proof. See that the defendant used a deadly weapon. Attempted murder requires no such attempted murder. First-degree assault under RSA 631:1, I(b) requires proof

degree assault under RSA 631:1, I(b) is not necessarily included in attempted double jeopardy analysis, “The same evidence that the State offered to prove attempted murder for purposes of double jeopardy. He argues that under a offense analysis has two requirements: an area of law that is well-settled and straight-forward. The lesser-included into the lesser-included offense analysis. To do so would create uncertainty in

RSA 631:1, I(b), first-degree assault is not a lesser-included offense of

also be sufficient to prove the lesser offense; rather, to be necessarily included that the evidence offered by the prosecution to prove the charged offense would weapon is not embraced within the legal definition of attempted murder, first- With respect to the first requirement, the elements test, “it is not enough offense instruction because first-degree assault is the “same offense” as RSA 629:1; RSA 630:1-a. Accordingly, because use of a deadly

We decline the defendant’s invitation to inject a double jeopardy analysis

Applying the elements test to the first-degree assault elements under

The defendant urges us to hold that he was entitled to a lesser-included, 148 N.H. 760, 765 (2002) (quotation omitted).

parties as having entered into an agreement of fact that we may consider.

defendant preserved this issue for review, we see no reason not to treat the murder where each indictment alleged the same conduct). (1993) (double jeopardy bars prosecution for first-degree assault and attempted

Ct. R.

as to his recollection. Because it is apparent that both parties agree that the Like the concurring opinion, we do not doubt the word of counsel for the State

a judicial proceeding by the parties or their attorneys, and such stipulations 13(6). Indeed, courts generally look with favor upon agreements made in have been decided at separate proceedings. See p. 5 for a bifurcated trial. At a bifurcated trial, the issues of guilt and sanity would

We note here that the defendant could have argued last if he had opted

and did not allow the defendant to make a rebuttal argument. issue of insanity after the State’s closing. The trial court denied the motion

close last. In the alternative, he sought to present a rebuttal closing on the

request to argue last. Id State v. Baker have the State present its closing argument first and to have the defendant the trial, the defendant filed a Motion For Altered Trial Procedure, seeking to respect to his insanity defense.” Id insanity, when the defendant bore the burden of proof on that issue. Prior to

argument last. Id

commit an unsustainable exercise of discretion in denying the defendant’s prejudicial to the defendant, and we concluded that the trial court did not showing that the court’s decision to permit the State to close was unduly

defendant had no right to close even though he bore the burden of proof with defendant’s request to make a closing argument after the State on the issue of exercise of this discretion will not be set aside except for manifest abuse. The closing arguments is committed to the trial court’s discretion and the court’s

. at 776-77. We disagreed, recognizing that, “the order of

on appeal, claimed that he should have been allowed to make his closing of insanity and waived his right to a bifurcated trial. Id guilt. See. He was convicted and, with attempted murder of his wife. Baker, 120 N.H. at 774. He entered a plea See is directly on point. There, the defendant was charged usually make his closing argument last because he has the burden of proof. last closing argument on the issue of insanity. argument last because it has the burden of proof. See defendant waived his right to a bifurcated trial, he had no right to present the unsustainable exercise of discretion standard). Thus, here, where the (1988); cf. State v. Lambert, 147 N.H. 295, 296 (2001) (explaining We next consider whether the trial court erred by denying the respect to the defense of insanity. See State v. Sundstrom, 131 N.H. 203, 208 present the last closing argument even if he bears the burden of proof with I(b). discretion, a criminal defendant in a non-bifurcated trial has no right to

Baker, 120 N.H. at 777. Absent an unsustainable exercise of

closing argument last because it has the burden of proving the defendant’s id. However, in a non-bifurcated trial, the State will generally make its

N.H. 321, 324 (1978). Similarly, in the sanity phase, the defendant would

778 (1980). In the guilt phase, the State would usually make its closing

lesser-included offense instruction on first-degree assault under RSA 631:1, murder. The trial court correctly ruled that the defendant was not entitled to a that question under advisement [and] let you know tomorrow when you come

p. 6 objected. After hearing both parties, the trial judge stated that he would “take

defendant requested a lesser-included offense instruction, to which the State instruct the jury on the former offense. As related by the majority, the murder, the defendant contends that the trial court erred when it failed to

Arguing that first-degree assault is a lesser-included offense of attempted

subsequent substantive analysis of that issue. but not I(a). As such, I voice no opinion with regard to the majority’s

defendant preserved an argument for a jury instruction under RSA 631:1, I(b),

the more specific preservation question the majority addresses — whether the concerning the requested jury instruction. Consequently, I would not reach however, because I do not believe that the defendant preserved his argument

affirmance of the defendant’s convictions in this case. I write separately,

BRODERICK, C. J., concurring specially. I concur with the majority’s

. He argues that a 1987 to the present facts, we find that the defendant suffered.

specially. DALIANIS and GALWAY, JJ., concurred; BRODERICK, C.J., concurred

court acted within its discretion. Cf

our holding in Baker

insanity defense to present his closing argument last. See standard, enhances the importance of allowing the defendant asserting an proving insanity from preponderance of the evidence to a clear and convincing Affirmed

no undue prejudice by not closing last on the issue of insanity and the trial argument solely on the issue of insanity. Id Applying Baker

before the insanity defense becomes applicable.

N.H. 669, 673 (1999). We disagree. The statutory amendment does not alter insanity defense after the State’s closing argument.” Id

argument on the issue of insanity. However, we rejected this distinction in State had closed, while here he sought only to make a rebuttal closing amendment to RSA 628:2 (1996), which heightened the defendant’s burden of Finally, the defendant asks us to overrule Baker The defendant argues that Baker . at 208. not err by denying the defendant the opportunity to make a rebuttal closing would tend to confuse the jury.” Id. at 206. We held that the trial court did court’s reasoning that, “absent bifurcation, the requested order of arguments

bifurcated trial and argued that he should have been permitted “to argue the

, 131 N.H. at 208. There, the defendant had waived his right to a

defendant in that case sought to give his entire closing argument after the

not influence our preservation analysis.

counsel for the State as to his recollection. Such recollection, however, should

requested instruction in an off-the-record colloquy. I do not doubt the word of counsel for the State was “almost certain” that the trial judge had ruled on the to the court’s ruling,” because the State did not raise the issue and because

forfeited the lesser-included offense issue by failing to later object on the record

The majority decides not to address whether the defendant “completely

but I’m almost certain that would have happened.” counsel for the State replied, “I can’t say that. . . . It’s a very vague memory,

recalled the defendant preserving the issue at an off-the-record colloquy,

requested instruction. In response to further questioning as to whether he given prior notice to both parties as to whether he was going to give the did not “have a firm memory, but I’m almost certain” that the trial judge had

Berliner v. Clukay

alleged error involves a jury instruction. party objects on those grounds. may be considered by the court regardless of whether the opposing record,” the issue was not preserved. Counsel for the State continued that he [F]ailure of the moving party to comply with these requirements

opportunity to correct error is particularly appropriate where an At oral argument, the State agreed that, under a “straight reading of the demonstrate that she raised her issues before the trial court. . . . trial judge regarding jury instructions.

matters. State v. Ainsworth

why it did not make an error. Providing the trial court with the opportunity to correct an error it may have made, or clearly explain judicial economy and common sense, affording the trial court the with a record sufficient to decide her issues on appeal, as well as to It is the burden of the appealing party . . . to provide this court to any other statements or objections by either party, or any colloquy with the

brackets omitted). The requirement applies equally to civil and criminal

, 150 N.H. 80, 82-83 (2003) (citations, quotations, and

issue for appellate review. This requirement is grounded in both specific, contemporaneous objection is required to preserve an counsel responded, “Satisfied, Your Honor.” The record is otherwise silent as is on the record, anything else?” The State replied in the negative; defense after instructing the jury, the trial judge asked both counsel: “Other than what

defendant’s requested instruction on the lesser-included offense. Immediately in.” The next day, the trial judge instructed the jury, but did not include the though the issue was properly before the trial court. Id

p. 8 record demonstrated that both the parties and the trial judge had proceeded as

ratified the defendant’s representation in his motion to set aside. As such, the Consequently, both the State and the trial court had, in the record, effectively merits of the issue in its order on the defendant’s post-trial motion.

dispute the defendant’s representation. Finally, the trial court considered the

desire to introduce the evidence for the latter reason. Id

State objected on the merits to the motion to set aside the verdict, but did not to rebut the medical evidence as a distinct ground for admissibility. Third, the argued, at the pretrial hearing, the need for the evidence of prior sexual assault

that nothing in the pretrial motion had alerted the trial court to the defendant’s the defendant had not preserved this issue for appeal, the State correctly noted medical evidence used to corroborate the victim’s trial testimony. Arguing that

a lesser-included offense, and a subsequent declaration of satisfaction with the a record reflective only of the defendant’s initial proposal for an instruction on

argued that the evidence should have been allowed in order to attack the

verdict, in which he referred back to both his pretrial motion and the hearing following. First, the record included the defendant’s motion to set aside the. at 308-09. In holding that the issue was adequately preserved for appeal, we noted the colloquy of which counsel for the State has a vague memory. Instead, we have

addressed in State v. Parra The situation presented here is significantly different from that

the motion, but no stenographer was present. On appeal, the defendant ability to fabricate a detailed incident of sexual abuse. A hearing was held on that the evidence was relevant with regard to credibility to test the victim’s

counsel, subsequent to the judge’s instructions to the jury, or during a. at 308. discussion of the proposed instructions by the trial judge and opposing of the trial judge not to give the requested instruction, either during the initial

with instructions as given). did not contemporaneously object before trial court, but indicated satisfaction

The defendant had filed a pretrial motion to introduce this evidence, asserting assaulted on a previous occasion. State v. Parra, 135 N.H. 306, 307-08 (1992). the trial court erred by excluding evidence that the victim had been sexually appealed his conviction of aggravated felonious sexual assault, contending that

Here, we have no record of an objection by the defendant to the decision

trial court should have given jury instruction not preserved where defendant

Bean v. Red Oak Prop. Mgmt.

. . . .”). bears the burden of demonstrating that he objected in the appropriate forum Reynolds v. Cunningham, Warden, 131 N.H. 312, 314 (1988) (“[T]he petitioner

p. 9 issue]. She, however, never formalized an objection. A chambers

the next day to allow counsel to place their objections on the record. Berliner and the chambers conference concluded with an expressed intent to reconvene

to either the court’s instructions or its failure to use the specific instructions Likewise, following the trial court’s charge, defense counsel made no objection when counsel has made an earlier objection concerning the same issue. See included the instruction the defendant claimed on appeal was erroneous. appropriate standard to guide the jury’s [choice concerning that I recognize that an additional contemporaneous objection is not required

that defense counsel and the court reached any agreement on the instructions,

Defense counsel raised no objection to the court’s draft instructions, which the jury charge and articulated general concerns about an Berliner v. Clukay [underlying issue] with the trial court in chambers the day prior to We acknowledge that defense counsel discussed the

and the court reviewed the proposed instructions. The record did not indicate conclusion of the evidence, the day before final argument, and that counsel the proposed instructions was explored during a chambers conference at the

counsel, before it instructed the jury, to comment on its draft instructions. actually instructing the jury. parties that he had decided not to give the requested instruction prior to jury. court. The record is also silent as to whether the trial judge ever informed the with the charge and stated: defense counsel had failed to alert the trial court to any disagreement she had argument that the trial court had misinstructed the jury, we decided that

. at 84. In holding that the defendant had not preserved his

provided the requisite guidance. The record showed that the issue underlying

150 N.H. at 82-84. The following day, the trial court specifically invited

objection to admissibility of such evidence made during pretrial hearing). Here,

proposed jury instructions, which the trial court refused to give, would have permissive nature of the trial court’s jury instructions and contended that his

the overall preservation issue, there is nothing in the record to indicate that the instruction, or to the jury instructions as given. While the State is not arguing contemporaneously when prior bad acts evidence admitted at trial, when objected either to the trial judge’s decision not to give the requested e.g., State v. Simonds, 135 N.H. 203, 205 (1991) (defendant need not object Here, there is nothing in the record to indicate that the defendant , p. 10 10

Id

us.

objection is plainly expressed. None is evident on the record before

defendant’s request that we overrule State v. Baker

Baker

intentioned, cannot substitute for a formal objection, unless an objection. Exchange of views on the law, however cogent or wellthe applicable law does not constitute a specific, contemporaneous entitled to make his closing argument after the State. In response to the defendant’s contention that, with regard to the issue of insanity, he was Finally, I also agree with the majority’s conclusions concerning the

, its viability has not changed. statutory amendment cited by the defendant does not alter our holding in Providence Mut. Fire Ins. Co. v. Scanlon, 138 N.H. 301, 304 (1994). As the note that Baker has proven to be neither “unworkable [n]or badly reasoned,”

proposed instruction, without more, or to adopt a specific view of discussion directed at persuading the court to craft or utilize a

. (quotation omitted).