2007-396, STATE OF NH v. CHRISTOPHER LEGERE

The defendant, Christopher Legere, was convicted following

Christopher Legere, by brief, pro se

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

State. brief, and N. William Delker, senior assistant attorney general, orally), for the to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Thomas E. Bocian, attorney, on the

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

editorial errors in order that corrections may be made before the opinion goes No. 2007-396 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-northern judicial district 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 defendant depart in a white sport-utility vehicle.

p. 2 remove his shirt.

coming. The bar quickly emptied, and some witnesses reported seeing the statements.

clothing. The defendant was a member of the Outlaws. Denoncourt did not Three Cousins had a standing policy prohibiting support shirts and similar known as a meeting place for members of a rival group, The Outlaws. Also, and announced that everyone should leave because the Hells Angels would be collapsed and died. Immediately thereafter, Beardsell ran into Three Cousins Denoncourt’s death. The defendant objected to the admission of both Denoncourt in the chest. Denoncourt ran, but after approximately 350 feet he the unrelated murder of her boyfriend, Mark McManus, some months after Her memory loss was alleged to be a result of emotional trauma resulting from

indicating sponsorship of the Hells Angels motorcycle club. Three Cousins was

involved. During this fight, several gunshots were fired, one of which struck to have no current memory of the shooting or her interactions with the police. both counts. This appeal followed.

the State moved

Denoncourt was wearing what was known as a “support shirt,” with symbols about his shirt and that he ought not wear it inside Three Cousins. and Denoncourt began arguing after she told him that she was concerned the bar. Outside the bar a melee began, though it is not clear who was 24, 2006. The State sought to admit these statements because Diabo claimed second degree murder. Following a jury trial, the defendant was convicted on photographic line-up, as well as her recorded interview with the police on July statement to the police in which she identified the defendant from a

in limine for the admission of Diabo’s June 25, 2006

violation of his rights under the State and Federal Constitutions. During trial, introduction of a statement to the police by an eyewitness, Cheryl Diabo, in The defendant contends that the trial court erred in permitting the

objected because she was concerned about his intoxication. Also, Beardsell inside Three Cousins, and numerous people, including the defendant, exited

The defendant was subsequently indicted on two alternative counts of

ensued when Hill asked to ride Denoncourt’s motorcycle, but Beardsell At some point, the arguments outside attracted the attention of those William Hill and Tracey Beardsell outside. Shortly thereafter an argument and Bar (Three Cousins) in Manchester. When he arrived he encountered

June 24-25, 2006, Denoncourt rode his motorcycle to the Three Cousins Pizza The following facts appear in the record. During the overnight hours of claim under the State Constitution. p. 3 violated the State and Federal Constitutions. We deal first with the defendant’s defendant contends that the introduction of Diabo’s statement of identification

cooperating, and that she had stated she feared retaliation. On appeal, the

the defendant in a photographic line-up, that she was nervous about analysis, 3 Manchester Police Department, introduced evidence that Diabo had identified both questions. The State then, through Detective Joseph Mucci of the

standard, we confine our analysis to the

analysis in

United States Supreme Court has recently modified its Confrontation Clause

seeking information about whether Diabo had been threatened. She answered

N.H. 143, 148 (2008); professional opinion on whether Diabo was being “completely truthful” about State v. Ayer, 154 N.H. 500, 511 (2006), cert. denied, trying to portray herself as not having memory,” she could not give a Ohio v. Roberts, 448 U.S. 56, 66 (1980). See State v. Munoz, 157 applicable to claims under the State Constitution. Instead, we have applied the identification during the photographic line-up, but only through the police. adopted, and neither party argues that we should adopt, Crawford as trial court, however, did permit the State to introduce Diabo’s statement of see Crawford v. Washington, 541 U.S. 36 (2004), we have not

Constitution, as well as the New Hampshire Rules of Evidence. While the identification violated his confrontation rights under the New Hampshire During cross-examination, the defendant asked only two questions, both The defendant contends that admitting Diabo’s statement of despite reviewing her earlier statements, her memory had not been restored. (1983). she had no memory of the events surrounding Denoncourt’s murder and that

also opined that while she believed Diabo was not “deliberately or consciously

court did not permit the State to introduce the July 24 recorded interview. The

earlier hearing. After giving some background testimony, Diabo averred that In front of the jury, Diabo testified consistently with her testimony at the

continued treatment might aid in the recovery of her memory. Dr. Blencowe Blencowe, testified that Diabo did not have “true” memory problems, and that subsequent interactions with police. Diabo’s psychiatrist, Dr. Elizabeth circumstances surrounding John Denoncourt’s murder.” Therefore, the trial that it was “not convinced that [Diabo] does not have a present memory of the Following this hearing, the trial court issued an order stating, in part,

confirmed that she had lost her memory of Denoncourt’s shooting and her The trial court convened a hearing on the motion at which Diabo the declarant is actually cross-examined.”

p. 4 declarant testifies and is available for cross-examination, regardless of whether

only an opportunity for cross-examination; this requirement is satisfied if the identification of a person made after perceiving the person. This rule “requires examination concerning the statement, and the statement is one of

whether she was actually cross-examined. opportunity to cross-examine her, thus satisfying the rule, regardless of 4

in-court testimony, and frustrate the purpose of the rule.”

of the declarant in is not hearsay if the declarant testifies at trial and is subject to cross-

existence of a statement of identification.”

Legere’s State constitutional claim and his evidence rule claim alike would fail.” produced for cross-examination at trial. The defendant, therefore, had the

identification inadmissible. As regards Learn, the rule of evidence at issue professed memory loss becomes so pronounced as to render a prior compound confusion created by omissions or inconsistencies in the witness’s nothing in Delgado defines a point at which a witness’s memory loss, or

defendant argues that because Diabo’s memory loss was more acute than that 801(d)(1)(C) of the New Hampshire Rules of Evidence provides that a statement Citing People v. Learn, 863 N.E.2d 1173 (Ill. App. Ct. 2007), the

between a witness’s in-court and out-of-court statements; it turns on the

the New Hampshire Constitution. Conversely, if that rule covers the statement, Here, Diabo made an earlier statement of identification, and was [trial] court erred in admitting it both under the Rules of Evidence and under overlap: “Thus, if Evidence Rule 801(d)(1)(C) does not cover the statement, the Id.

prior identification that mirrored a witness’s in-court testimony would likely 383 (quotations and ellipses omitted). “Admitting only those portions of the to testify about details of the events underlying an earlier identification.” Id. at Diabo’s statement falls within a firmly rooted hearsay exception. Rule “to address situations where a memory loss makes it impossible for the witness

(1993). “Application of Rule 801(d)(1)(C) . . . does not hinge on a contradiction

by the defendant, his claims under the constitution and the rules of evidence

within a firmly rooted hearsay exception.” Even if we assume that Diabo was unavailable, we would conclude that

801(d)(1)(C), which he concedes is a firmly rooted hearsay exception. As noted of-court statement did not fall within New Hampshire Rule of Evidence Here, the defendant argues that Diabo was unavailable, but that her out-

Reliability “can be inferred without more in a case where the evidence falls particularized guarantees of trustworthiness. Roberts, 448 U.S. at 66. admissible if it bears adequate “indicia of reliability,” or if there is a showing of Under Roberts, a prior statement of an unavailable hearsay declarant is p. 5 5

Confrontation Clause.

examination.” guidance of other jurisdictions. that conversation. Because this is an issue of first impression in New Hampshire, we look to the

police and the prosecution.

decision indicates that the admission of a witness’s prior statements does not Crawford, the court noted that “[l]anguage from the Supreme Court’s Crawford

The defendant argued that admitting A.A.’s statements violated the

assessed in a particular manner: by testing in the crucible of cross- into evidence through other witnesses. Id.

someone in the prosecutor’s office, but could not remember the substance of effect, “unavailable” as pertains to a federal Confrontation Clause analysis. memory of his prior discussions. Id. He recalled only that he had talked with

State called A.A. to testify regarding information he gave in interviews with the opportunity to cross-examine.” was charged with shooting and killing another man. Id. at p. 5 560. At trial, the Constitution. similar facts. In State v. Holliday, 745 N.W.2d 556 (Minn. 2008), the defendant Recently, the Supreme Court of Minnesota addressed this issue on

(2007).

by the Sixth Amendment to the United States Constitution. In depends upon whether, despite her physical appearance at trial, Diabo was, in to cross-examine her about it. Accordingly, the admissibility of her statements identification was testimonial, and that the defendant had no prior opportunity

declarant is unavailable, and only where the defendant has had a prior and, therefore, its admission did not violate the rules of evidence or the State statements of witnesses absent from trial are admissible “only where the evidence tested by cross-examination, the Supreme Court held that testimonial

Crawford, p. 5 541 U.S. at 61. To preserve the goal of reliable cross-examination and thus satisfied the requirements of the rule.

beginning to cry and then not answering any more questions. United States Supreme Court stated that the Confrontation Clause’s “ultimate

introduction of Diabo’s identification violated his right to confrontation secured Relying upon Crawford, the defendant next contends that the

prior statement of identification fell within a firmly rooted hearsay exception Delgado, 137 N.H. at 382-83. For these reasons, we conclude that Diabo’s

contrast, Diabo did testify to background information and was available for

because she did not testify meaningfully to any background information before Learn determined that the witness did not “testify” as contemplated by the rule comparison difficult. See Learn, 8 p. 6 63 N.E.2d at 1178. Additionally, the court in there was significantly different from Rule 801(d)(1)(C), making any meaningful use of his prior testimonial statements.

trial, the Confrontation Clause places no constraints at all on the

problem.” admission of his out-of-court statements does not create a confrontation explain the prior statement.

recall the relevant events. way, and to whatever extent, the defense might wish,” concluded that: grounds, the testimony of a witness present at trial, but who claimed not to assertion that when the declarant appears for cross-examination at effective cross-examination, not cross-examination that is effective in whatever explain the statement, and is at odds with the Court’s more explicit “[g]enerally speaking, the Confrontation Clause guarantees an requiring that the record show the declarant actually did defend or opportunity for Supreme Court, after referencing Justice Harlan’s concurrence in Green that Following Green, in Delaware v. Fensterer, 474 U.S. 15, 20 (1985), the

Id. at 1 p. 6 62.

cross-examination, our cases, if anything, support the conclusion that the could be interpreted to mean that the declarant must actually defend or “where the declarant is not absent, but is present to testify and to submit to

California Supreme Court’s decision to exclude, on Confrontation Clause Green, 399 U.S. 149 (1970). In Green, the Supreme Court reversed the declarant testifies to the same matters in court.” upon a line of United States Supreme Court cases beginning with language still focuses on presence and ability to act without California v. reliability of some out-of-court statements cannot be replicated, even if the Pierre, 890 A.2d 474, 499-500 (Conn.), cert. denied, 547 U.S. 1197 (200 p. 6 6), The Minnesota court relied, as have other courts, see, e.g., State v.

Id. at 5 p. 6 65-66 (quotations and citation omitted).

statements as long as the declarant is present at trial to defend or explain it Confrontation Clause does not bar the admission of prior testimonial

interpretation both ignores the fact that the [Supreme] Court’s the use of his prior testimonial statements. It is therefore irrelevant that the with the Minnesota court’s conclusion that this

The Minnesota court noted that the Supreme Court’s conclusion that the

(quotations and citations omitted); see Holliday, 745 N.W.2d at 5 p. 6 65.

examination at trial, the Confrontation Clause places no constraints at all on upon the conclusion in Crawford that “when the declarant appears for cross-

examination and claims that he or she cannot remember either making the violate the Confrontation Clause where the witness appears for crossvery fact that he has a bad memory. p. 7 and even (what is often a prime objective of cross-examination) the

witness’ testimony.

witness’ bias, his lack of care and attentiveness, his poor eyesight,

attention of the factfinder the reasons for giving scant weight to the

the defendant has the opportunity to bring out such matters as the

infirmities through cross-examination, thereby calling to the success, but successful cross-examination is not the constitutional guarantee.” given a full and fair opportunity to probe and expose these the Confrontation Clause is generally satisfied when the defense is

concluding that a declarant’s appearance at trial removes all Confrontation 805, 807-08 (Ariz. Ct. App. 2007). Indeed, it specifically relied upon Green in See State v. Price, 146 P.3d 1183, 1191 (Wash. 2006); State v. Real, 150 P.3d unable to recollect the reason for that belief. It is sufficient that Crawford neither overruled nor undermined either Fensterer or Owens.

Id. at 560.

statement when memory loss is asserted will of course not always achieve Id. at 559 (citation omitted). “The weapons available to impugn the witness’ marred by forgetfulness, confusion, or evasion. To the contrary,

is not denied when a witness testifies as to his current belief but is presence of the accused. the Court stated that the opportunity for effective cross-examination to testify concerning the basis for the identification.” Relying upon Fensterer, identification statement of a witness who is unable, because of a memory loss, held that the Confrontation Clause was not “violated by admission of an called by the prosecution will refrain from giving testimony that is In United States v. Owens, 484 U.S. 554, 564 (1988), the Supreme Court

Id. at 21-22. admissible even though he had forgotten the basis for his professional opinion.

cross-examination, and the witness is testifying under oath in the opinion: the factfinder can observe the witness’ demeanor under notwithstanding the witness’ inability to recall the basis for his

The Confrontation Clause includes no guarantee that every witness

Id. at 16. The Court concluded that:

Thus, the Court concluded that the prosecution’s expert witness testimony was

cross-examination are fully satisfied in cases such as this one, the assurances of reliability our cases have found in the right of subject to cross-examination, providing a jury with the opportunity

p. 8 answer questions at trial.”

entire refusal to testify. The witness feigning memory loss is in fact

to cross-examine when a witness, properly or otherwise, simply refuses to loss brings this case within the rule of cases finding no adequate opportunity

The circumstance of feigned memory loss is not parallel to an

(1965). However:

First, the defendant argues that “[t]he falsity of Diabo’s claim of memory

Diabo’s statement. See Owens, 484 U.S. at 560. from Owens; and (3) there are no “realistic weapons” with which to attack claim of memory loss; (2) her claim of memory loss is factually distinguishable the grounds that: (1) there is good reason to doubt the genuineness of Diabo’s unavailable. a potential for delusional thoughts due to medication was not deemed The defendant urges us to distinguish Green, Fensterer, and Owens on

see People v. Learn, 863 N.E.2d at 1179. (Ct. App. 2007); People v. Sharp, 825 N.E.2d 706, 713 (Ill. App. Ct. 2005). But A.2d 422, 428-29 (Del. 2005); People v. Gunder, 59 Cal. Rptr. 3d 817, 823-24 e.g., Price, 146 P.3d at 644, 650; Real, 150 P.3d at 808; Johnson v. State, 878 Confrontation Clause does not bar the admission of a prior statement. Accord, willingly to questioning. conclude that when a witness is presented for cross-examination, the available because he was placed on the stand, under oath and responded Accordingly, like most courts that have considered the issue, we the witness claimed no memory of his prior statements, he was, nonetheless,

Id.

544 U.S. 928 (2005). Thus, a witness who claimed a lack of memory as well as v. Gorman, 854 A.2d 1164, 1177 (Me. 2004) (citation omitted), cert. denied, purposes. In Clause analysis when a witness who appears and testifies is impaired.” State witness is not constitutionally unavailable for purposes of Confrontation Likewise, the Supreme Judicial Court of Maine has concluded that “a

was not persuaded by the defendant’s argument and concluded that although from cross-examination in its entirety.” Pierre, 890 A.2d at 498. The court remember prior statements made to the police with a general unavailability defendant’s argument equates a declarant’s inability or unwillingness to

Pierre, the Supreme Court of Connecticut noted: “The

memory loss does not render a witness unavailable for Confrontation Clause Other jurisdictions considering the issue have also concluded that

U.S. at 59 n.9. As such, Green, Fensterer and Owens remain good law. Clause constraints on the use of prior testimonial statements. Crawford, 541 of cross-examination, that Diabo had a bad memory. p. 9 Moreover, the defendant was able to show that which is often a prime objective

the opportunity to confront her about any or all of these recollections.

opportunity to assess her testimony and its reliability and the defendant had boyfriend stayed with her during the course of the evening. The jury had the of the bar for a drink, that she was drinking “Absolut[] grapefruit,” and that her

requires a departure from

room after the party, that after cleaning up she went out into the main portion Clause and that her prior statement was not barred by it. that Diabo was not “unavailable” for purposes of the Federal Confrontation

examination. Thus, we do not agree that the severity of Diabo’s memory loss

was busier than usual that night, that she and her sister cleaned up the back

weapons” with which to test her credibility. For these reasons, we conclude Accordingly, we do not agree that the defendant was without “realistic

declarant that could not otherwise be established or challenged by crossleading up to it, imparts little, if any, information about the veracity of the statement was made, yet not recalling the reasons for it or the circumstances her boyfriend, setting up for her friend’s party in the back room, that the bar not agree. Diabo testified at trial about, for example: arriving at the bar with acute than that in out-of–court statement, whereas no such dispute could be raised here. We do weapons,” Owens, 484 U.S. at 560, with which to dispute the reliability of the Finally, the defendant contends that, in Owens, the defense had “realistic credibility of her earlier statement.

cross-examination),

a contrary result is compelled by that difference. Remembering that a prior the witness unavailable.” claim of memory loss is more severe than in Owens, we are not persuaded that

Second, the defendant argues that because Diabo’s memory loss is more

statement’s credibility. jury had the opportunity to assess her credibility and, by extension, the and subject to whatever cross-examination the defense wished to attempt, the authenticity of Diabo’s claim of memory loss, because she was present at trial

297, 302 (7th Cir. 1997) (witness feigning amnesia during trial still subject to cert. denied, 547 U.S. 1193 (2006); see also United States v. Keeter, 130 F.3d

memory is itself a factor for the trier of fact to establish, but does not render Gunder, 59 Cal. Rptr. 3d at 823-24. Moreover, “[t]he feigned or real absence of

which in turn gives it a basis for judging the prior hearsay to see the demeanor and assess the credibility of the witness, p. 10 “[t]hey are people that do legal – or illegal things with [members].” patch member.” He defined the term “associates,” in part, by stating that designate degrees of membership and what it means for a person to be a “full

their own rules, not society’s.” Katz then testified to the various terms used to

Outlaws defining themselves as “one percenters,” signifying that they “exist by for people that have violated the rules.” He also testified to groups like the out of the club or taking a beating, all the way up to – there’ve been homicides

consequences range “from being fined to taking a physical beating to be thrown

stated that if a member of the Outlaws did not follow the club’s rules, the club “would subject you to severe repercussions, to include violence.” He also auspices of regional and national bodies, and that unauthorized formation of a

the Outlaws, Katz testified that there are local chapters organized under the

groups, and about their size, history and organizational structures. Regarding

testimony. It is only the expert testimony that is now at issue.

Police, testified about the Outlaws, Hells Angels and other similar motorcycle

defendant was “an enforcer,” in part because it would be highly prejudicial.

of this evidence. The second was concerned with the admission of expert Angels support shirt. testifying witnesses. The first motion was directed at the general admissibility identity and motive to shoot Denoncourt, as well as the credibility of other particularly surrounding territorial issues; and

Outlaws;

At trial, the State’s expert witness, Terry Katz of the Maryland State testimony:

The trial court also ruled that the State could not introduce evidence that the

c. The shirt the victim was wearing on June 25, 2006 was a Hells

State contended that the evidence was relevant to the issues of the defendant’s b. That the Hells Angels and Outlaws have had a violent rivalry,

a. Relating to the histories (briefly) of the Hells Angels and

motions The trial court ruled, in relevant part, that it would allow expert

the Hells Angels, and the meaning of the symbols on Denoncourt’s shirt. The organizational structure of the Outlaws, the rivalry between the Outlaws and evidence about the defendant’s involvement with the Outlaws, the

in limine, to which the defendant objected, seeking the admission of

substantially outweighed its probative value. Prior to trial, the State filed two expert testimony about the Outlaws on the ground that its prejudice The defendant contends that the trial court erroneously admitted certain

II. Expert Testimony evidence offered by the prosecution is meant to be prejudicial.

p. 11 tendency of the evidence to prove his guilt, in which sense all

the trial court give, a limiting instruction to the jury. prejudice is not, of course, mere detriment to a defendant from the defendant raised only one objection. At no point did the defendant request, or other than the established propositions in the case. Unfair action that may cause a jury to base its decision on something

to protect him.

Outlaws was “Snitches are a dying breed.” During Katz’s testimony, the its instinct to punish, or trigger other mainsprings of human

probative value is substantially outweighed by the danger of unfair prejudice.” without the evidence.’ However, evidence that is relevant may be excluded if its determination of the action more probable or less probable than it would be event and was confronted by members of the Outlaws before police intervened

make an enemy of the Outlaws. He stated that one of the mottos of the appeal to a jury’s sympathies, arouse its sense of horror, provoke

tendency to make the existence of any fact that is of consequence to the man in Florida who had, unknowingly, worn a Hells Angels shirt to an Outlaws sometimes without knowledge of its meaning. He then offered the example of a that people not associated with the group can and do buy and wear this gear, because witnesses do not want to be involved because they do not want to Finally, he testified that cases involving the Outlaws are difficult to investigate its decision absent an unsustainable exercise of discretion.” Evidence is unfairly prejudicial if its primary purpose or effect is to experience, means fear. . . . So to be disrespected means you don’t fear me.” Id.; see N.H. R. Ev. 403.

Rule of Evidence 401 defines relevant evidence as ‘evidence having any untenable or unreasonable to the prejudice of his case. Id. “New Hampshire discretion, the defendant must show that the trial court’s ruling was clearly gear can be obtained in any number of ways, including over the Internet, and 152 N.H. 245, 249 (2005). To demonstrate an unsustainable exercise of

deference in determining the admissibility of evidence, and we will not disturb citizen would think of respect, respect in the Outlaw motorcycle gang, in my and should not have been admitted. “We accord the trial court considerable categories (a) and (b), as defined by the trial court, were unfairly prejudicial The defendant now argues that parts of Katz’s testimony falling into

territory. He also testified about the different groups’ “support gear,” that this restaurants, and that violence can result from one group’s invasion of another’s very territorial, that the territory can include clubhouses, bars and Katz also testified that, “[u]nlike what normal people or the average

between the Outlaws and the Hells Angels. He testified that the groups are Katz next testified about the decades-long antagonistic relationship testimony unnecessary.

p. 12 effect, or, if not, there was similar, less prejudicial evidence which made this

defendant, this testimony’s probative value was outweighed by its prejudicial not involved, most particularly, the incident in Florida. According to the relating to incidents of violence between the groups where the defendant was witness credibility. probative of both the defendant’s intent and motive, as well as on the issue of lengthy feud with the Hells Angels, we conclude that such testimony was highly

Outlaws’ territory while demonstrating support for a rival club. Moreover, it

claims of error.

follow club rules. Regarding category (b) evidence, he objects to evidence

a member of the Outlaws might have to a person who had ventured into

they ought not to have been admitted. We now turn to the defendant’s specific despite its relevance, parts of Katz’s testimony were sufficiently prejudicial that have been members of rival gangs . . . .”). The defendant, however, argues that with full members; and (5) the punishments visited upon those who do not of respect based upon fear; (4) “associates” who “do legal – or illegal things” intimidate; (2) “one percenters” who “exist outside society’s rules;” (3) a culture exist by their own rules, and who have a culture of respect founded upon fear,

who violated club rules. It, therefore, provided context for the kind of reaction and informed the jury of the manner in which the group would discipline those Katz’s testimony helped to explain the Outlaws’ code of conduct generally

particularly in homicide cases where the defendant and his victim are shown to

relevant to the rivalry with the Hells Angels or the Outlaws’ capacity to As to Katz’s testimony about the Outlaws being “one percenters” who

admissible, for example, as evidence of a possible motive for the crime,

the crimes and/or criminal propensities of the Outlaws, apart from that that of courts around the country. specifically Katz’s testimony relating to: (1) what he describes as evidence of The defendant first takes issue with some category (a) evidence,

some improper basis, commonly one that is emotionally charged.

Supp. 2008) (“Gang membership has frequently been found to be probative and Evidence of Accused’s Membership in Gang, 39 A.L.R.4th 775, 776 (1985 &

motive and the credibility of witnesses, is permissible, a view in accord with Additionally, he acknowledges that expert evidence, at least as is relevant to The defendant does not challenge Katz’s certification as an expert.

Yates, 152 N.H. at 249-50.

undue tendency to induce a decision against the defendant on Rather, the prejudice required to predicate reversible error is an fears retaliation for testifying is relevant to the credibility of that witness . . . .” p. 13 involved for fear of retaliation. “Evidence that a witness is afraid to testify or

she feared retaliation. At trial at least one witness expressed reluctance to be

telephone call, stated that she was afraid of what might happen to her because encountered reluctant witnesses. Even the defendant’s mother, in a recorded because she feared retaliation, and other officers testified that they had 13 territory. of being seen as having violated club rules by failing to protect the group’s

the perceived slight of wearing a Hells Angels support shirt in Outlaw territory.

Detective Mucci testified that Diabo was reluctant to cooperate with the police

violently defend his territory to build respect through fear, and to avoid the risk the jury a basis to evaluate their credibility. understanding that such fears were common in cases of this nature would give Id. Knowledge of the witnesses’ fears of retaliation coupled with the

aided the jury in understanding why the defendant might violently retaliate for such, this evidence helped to explain an otherwise inexplicable act, and the long-standing feud with rival groups, particularly the Hells Angels, (quotation omitted)). As such, Katz’s testimony about the culture of violence

otherwise inexplicable and incredible.”); explained why some witnesses might be reluctant to cooperate. For example, society’s rules was probative on the issue of witness credibility because it murder), they believed was their territory, demonstrated a motive for the defendant to Additionally, evidence of the Outlaws’ violent nature and disregard for to use violence to enforce their rules, and that there was a need to defend what violence to protect the group’s territory. Evidence that these groups are willing

Denoncourt “was wearing one of their shirts, coming to one of our bars.” As subculture in which this type of mindless retaliation promotes ‘respect.’” to imagine a clearer need for expert explication than that presented by a

See People v. Gonzalez, 135 P.3d 649, 657 (Cal. 2006) (“It is difficult expert testimony that makes comprehensible and logical that which is

served to explain the otherwise inexplicable by providing a motive for the

faced violent retribution explained why an Outlaws member might react with Furthermore, informing the jury that those who failed to follow the rules

that he believed the Hells Angels were attempting to downplay the fact that motive though motive not an element of the charged offense). rivalry was important when, in a recorded telephone call from jail, he stated (N.C. 1979) (evidence of defendant’s affiliation with Outlaws admissible to show violent relationship. The defendant himself believed that the issue of the State v. Ruof, 252 S.E.2d 720, 725

Rptr. 3d 124, 133 (Ct. App. 2005) (“The law does not disfavor the admission of

cert. denied, 931 A.2d 1095 (Md. 2007); People v. Gonzalez, 25 Cal.

952, 961 (Md. Ct. Spec. App.) (the evidence of defendant’s gang affiliation murder of a man for wearing a particular shirt. See Ayala v. State, 923 A.2d

support for a group with which the Outlaws had a long, hostile and even clarified that it was not simply support for a rival group that was at issue, but another’s support gear. p. 14 club. He spoke generally about the incident to explain one group’s reaction to mention any violence and did not mention the defendant, or anyone in his local

reference to this incident was not unfairly prejudicial because Katz did not

support shirt in an area understood as belonging to the Outlaws. Additionally, the defendant’s motive in confronting Denoncourt for wearing a Hells Angels affiliated with a group through their social interactions and relationships with wearing one club’s clothing in another’s territory. As such, it was probative of

substantially outweighed its probative value. 14 evidence was prejudicial, we do not agree that the danger of unfair prejudice upholding club rules and why witnesses might fear being involved. While this

the organization and Katz made clear that associates are not members, but are spoke of the Florida incident. His testimony demonstrated the gravity of

context of explaining the reasons why a member might act violently in

was made in the context of describing the general hierarchy and functioning of dangers created by wearing it in “rival territory.” It was in this context that he part, as “people that do legal – or illegal things with [members].” The statement Next, the defendant objects to Katz’s testimony defining “associates,” in

deal harshly with breaches of acceptable protocol, his statements were in the chapter. While he testified that these groups have a violent past and that they and the history of their rivalry, not at the defendant or any member of his local for people to wear it, and whether those wearing it understand the potential context, was probative. Katz was asked to explain support gear, what it means As for the Florida incident, we find that Katz’s testimony, considered in

outweighed by the danger of unfair prejudice. inadmissible; the question is whether the probative value is substantially

Katz’s testimony was directed at the general functioning of these groups

antipathy toward the Outlaws” and the defendant as a member. against . . . gangs may exist, particularly in metropolitan areas.”); and, by extension to the defendant, and because it “fosters in the jury an prejudicial because it attributes a propensity to commit crimes to the Outlaws, R. Ev. 403. The defendant contends that Katz’s testimony was unfairly

potential for prejudice, however, does not necessarily make the evidence 2004), superseded by People v. Partida, 122 P.3d 765 (Cal. 2005). This (Ct. App. 2007); People v. Partida, 16 Cal. Rptr. 3d 777, 785-86 (Ct. App. tangential to the charged offenses. People v. Albarran, 57 Cal. Rptr. 3d 92, 99 (Ill. 2003). This risk is of particular concern where the evidence is only Davis, 779 N.E.2d 443, 456 (Ill. App. Ct. 2002), appeal denied, 787 N.E.2d 176

707, 715 (Ill. App. Ct. 1998) (“Courts acknowledge that a strong prejudice introduction of gang evidence is apparent. See People v. Cruzado, 700 N.E.2d As to prejudice, we note that the potential for prejudice in the prejudice.

p. 15 unnecessarily cumulative. its probative value was not substantially outweighed by the danger of unfair argues that the challenged evidence was minimally probative and the defendant’s motive. In light of this alternative evidence, the defendant

defendant’s motive to attack a supporter of the Hells Angels. We conclude that concluded, the rivalry between these groups was probative as to the Outlaws’ violence and criminal nature. He makes a similar argument regarding antagonism” between the Outlaws and Hells Angels. As we have already

testified that the groups were known to be violent or that other people in defendant, which diminished any potential prejudice from Katz’s statements.

get people to cooperate. Thus, there was no need to introduce evidence of the this statement, however, Katz was asked to explain the “relationship of

were not as forthcoming as they might otherwise have been. Had Katz simply testimony in evidence of illegal activity by social acquaintances of the

witnesses do not want to be involved in cases like this one and it is difficult to some cases associates of – of those two organizations.” Immediately preceding regard to witness credibility, the defendant argues that Katz testified that introduced the objectionable portions of Katz’s testimony. As an example, in contends. agree that the evidence was as lacking in probative value as the defendant the extent to which the issue is established by other evidence). We do not

only of why the defendant acted the way that he did, but also why witnesses that night, though not with the defendant. Therefore, there was already lived by their own rules and without regard to society’s rules, was evidence not have been “associates,” admitted that they might have been using illegal drugs Katz’s testimony about the violent nature of these groups, and that they acquaintances of the defendant who were at Three Cousins, and who might stabbings, assaults. A variety of violence directed against members, and in been killed between the gangs in gang fights. There have been severe beatings, probative, the State had other, more pertinent evidence and need not have to Katz’s testimony that “[t]here [have] been homicides where individuals have (probative value must be considered in the context of its incremental value and

or any person the defendant knew. Also, as pointed out by the State,

The defendant contends that even if the above-challenged evidence was incidents of violence that did not involve the defendant. Specifically, he objects

See Gonzalez, 25 Cal. Rptr. 3d at 133.

“associates” do illegal as well as legal things, he did not mention the defendant have a basis for evaluating that witness’s credibility. While Katz did state that jury determined that any witness could be considered an “associate,” it would Finally, the defendant objects to Katz’s testimony relating to other

the defendant, whom they knew to be a member of the Outlaws. Thus, if the members. Here, many witnesses to the incident were social acquaintances of p. 16 Patti’s testimony about McManus violated

defendant now argues that because McManus died prior to trial, admitting and, therefore, the trial court did not err in admitting it.

objected to Patti’s testimony on the ground that it constituted hearsay. The defendant was not substantially outweighed by the danger of unfair prejudice not relate any of the substance of McManus’ statements. The defendant “shaken up” and was “concerned for his safety” during the interview. Patti did rulings were clearly untenable or unreasonable to his prejudice.

the issue has not been preserved.

inadmissible hearsay. As neither

reasons, we conclude that the probative value of the evidence challenged by the have requested a limiting instruction. He did not do so. For the above McManus the day after the shooting. Patti testified only that McManus was Id. challenged evidence when he believed other evidence was available, he could meet this standard, the defendant must demonstrate that the trial court’s exercise of discretion standard. State v. Hall, 152 N.H. 374, 378 (2005). To trial court’s decision on the admissibility of evidence under an unsustainable As to the defendant’s argument under the rules of evidence, we review a

raised in the trial court as an objection to Patti’s testimony, we conclude that

raised during Patti’s testimony was that his statements constituted must state explicitly the specific ground of objection. Id. The sole objection appellate review. State v. Winstead, 150 N.H. 244, 246 (2003). The objection John Patti of the Manchester Police Department testified that he interviewed contemporaneous and specific objection is required to preserve an issue for issues in dispute. Further, had the defendant feared the jury’s use of the issue has not been preserved. The general rule in this jurisdiction is that a As to whether Patti’s testimony violated Crawford, we conclude that the

evidence.

in admitting certain evidence about Mark McManus. During trial, Detective minimally probative or unnecessarily cumulative, but was highly probative on Finally, in his pro se brief, the defendant argues that the trial court erred conclude that the challenged evidence was not, as the defendant contends, and Outlaws or the degree to which witness intimidation is a factor. We III. Testimony of Detective John Patti

an understanding of the nature of the relationship between the Hells Angels unrelated incidents might not be cooperative, he would not have given the jury ambit of Rule 803(3). p. 17 then-existing state of McManus’ mind. Thus, his testimony falls within the

testifying that McManus was concerned for his safety, Patti was relating the

for example, concern about the fates of Denoncourt or the defendant. In does not explain his state of mind. Concern for one’s safety is not the same as, remembered. We do not agree. Stating that McManus was merely “concerned”

time of his interview was not an unsustainable exercise of discretion.

remembered or believed” is not excluded by the hearsay rule. is not because it expresses a statement of memory or belief to prove the fact health), but not including a statement of memory or belief to prove the fact

court’s decision to admit Patti’s testimony about McManus’ state of mind at the

“concern” was admissible, the statement that he was “concerned for his safety” BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, JJ., concurred. condition (such as intent, plan, motive, design, mental feeling, pain, and bodily

the police, which included concern for his safety. We conclude that the trial

declaration was made.

The defendant argues that even if a general statement of McManus’ declarant’s then existing state of mind, emotion, sensations, or physical of Evidence 803(3). That rule states, in relevant part, that, “A statement of the is admissible under the exception to the hearsay rule in New Hampshire Rules

introduced to show McManus’ state of mind at the time he was interviewed by

the mental state of the declarant and have reference to the time at which the 803(3). To be admissible under this exception, the declaration must concern

concerns are inadmissible hearsay. The State counters that Patti’s testimony The defendant contends that Patti’s statements regarding McManus’