2007-611, STATE OF NH v. DIEGO DURAN

from Colombia.

Hampsey

part, reverse in part and remand.

See RSA 651:3, I (2007); RSA 651-A:23 (2007). We affirm in

calculation of his pretrial confinement credit time he spent awaiting extradition III (2007). He also appeals the trial court’s decision to exclude from the evidence to support a jury instruction on accomplice liability. See RSA 626:8, (2007). He appeals his conviction, arguing that the State presented insufficient defendant, Diego Duran, was convicted of manslaughter. See RSA 630:2 DUGGAN, J. After a jury trial in the Superior Court (, J.), the

defendant. brief, and Theodore Lothstein, assistant appellate defender, orally, for the David M. Rothstein, deputy chief appellate defender, of Concord, on the

brief and orally), for the State. to press. Errors may be reported by E-mail at the following address: Kelly A. Ayotte, attorney general (Thomas E. Bocian, attorney, on the editorial errors in order that corrections may be made before the opinion goes

No. 2007-611 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Hillsborough-southern judicial district

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

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

him in the head. The defendant eventually returned to Colombia. in a fight with another Colombian and had punched him in the face and kicked

shoes, but she was unable to see. Later that night, Concepcion passed out. him against a wall and kicked him. He offered to show Torres the blood on his “hijo de puta” (son of a bitch). He said he had struck Otero in the head, threw

had killed somebody in Nashua. Later, he told another friend that he had been

and Concepcion then reentered the club. blunt force head trauma resulting from at least two blows. six weeks later. The medical examiner ruled the death a homicide caused by

faster, saying the helicopter was looking for him because he had just killed that

sleep and borrow some money. While speaking with his friend, he said that he

touched Otero’s head at some point, leaving blood on his shoe. The defendant himself as he jumped on Otero’s head. Concepcion admitted that his foot out the back. The police found Otero alive, but unconscious. He died about 2 alley. The defendant grabbed onto a ledge on a wall and used it to steady

were looking for him. When they heard a helicopter, he told Torres to drive back of her car, telling her he did not want to sit in the front because people route, she saw the defendant and stopped to give him a ride. He got into the Eventually, the two stopped arguing but continued to drink heavily. Some time after the assault, the defendant went to a friend’s house to

police. When the police arrived, Ledesma, Concepcion and the defendant went the club and returned with Concepcion. Otero was still on the ground in the

with his foot while talking.

them to a party. Ledesma then asked her to go buy cigarettes for him. En began arguing over which region was better, trading insults and epithets. After Torres left the club, she met Ledesma and Concepcion and drove Otero were from regions with a history of animosity toward each other, and Luis Otero Rivera (Otero), another Colombian national. The defendant and

A patron later found Otero in the alley and told the owner to call the The defendant punched Otero, who fell to the ground. The defendant went into

Concepcion speaking with a group of people and making a stomping motion asked if he wanted to see and showed him the body. Later, Ledesma saw Back inside, Concepcion told Ledesma they had beaten somebody up,

and nightclub in Nashua. While at the club, the defendant was introduced to

Later, the defendant and Otero resumed their argument outside Tu Casa.

evening of October 26, they invited the defendant out to Tu Casa, a restaurant Ledesma lived next door in a house owned by Simon Concepcion. On the a Colombian national, was living in Nashua. Zulkerine Torres and Frank The following facts appear in the record. In October 2002, the defendant, unsustainable exercise of discretion.

to overrule our decision in

N.H. 245, 249 (2005). untenable or unreasonable to the prejudice of his case. State v. Yates, 152 To prevail, the defendant must show that the trial court’s ruling was clearly

We review a trial court’s decision to give a jury instruction for an Relying upon our decision in extradition in Colombia should be credited toward his pretrial confinement. based upon some evidence in the record to support a rational finding of State’s requested instruction on accomplice liability must, therefore, have been his pretrial confinement while awaiting extradition from Colombia and asks us conviction.” Id. (quotation omitted). The trial judge’s decision to give the the existence of a fact, but must be real and of such quality as to induce scintilla, evidence cannot be vague, conjectural, or the mere suspicion about means more than a minutia or a scintilla of evidence.” Id. “To be more than a Nashua, I was drunk and I had been taking drugs.” State v. Larose, 157 N.H. 28, p. 3 33 (2008) (quotation omitted). “‘Some evidence’ to New Hampshire testified that the defendant said, “That thing up there in “some evidence to support a rational finding in favor of that [instruction].” A trial judge’s decision to give a jury instruction must be based upon

liability. Second, the defendant argues that he should have been credited for there was insufficient evidence to support a jury instruction on accomplice On appeal, the defendant makes two arguments. First, he argues that

Nashua Police taking custody of the defendant in Miami. This appeal followed. court refused to grant pretrial confinement credit for any time prior to the Hampshire. The Nashua detective accompanying him on his flight from Miami

court sentenced the defendant to fifteen to thirty years in prison. During the instruction. The jury returned a guilty verdict on manslaughter. The trial accomplice liability. The trial court, over the defendant’s objection, gave the At the conclusion of the trial, the State requested a jury instruction on

October 21, 2005, the defendant was transferred from Colombia to New New Hampshire. On March 17, 2005, Colombia granted extradition, and on arrest warrant. After his arrest, the defendant challenged his extradition to Colombian authorities arrested him on May p. 3 3, 2004, on an international alone. p. 4 Concepcion, while the defense argued Concepcion had committed the crime never introduced evidence tending to show he was an accomplice with

mental state for the offense. an instruction on accomplice liability. The fact that the State’s primary theory

throughout the case was that the defendant caused Otero’s death and the State

the offense; and (3) under section IV, the accomplice shared the requisite liability”). The issue before us is whether there is sufficient evidence to warrant

as to any relationship between the two. He argues that the State’s theory

accomplice liability.

sufficient for the commission of the offense. 4

the accomplice’s acts solicited, aided or attempted to aid another in committing prove that: (1) the accomplice had the purpose to make the crime succeed; (2) prepare a defense to the substantive offense for principal or accomplice another in its commission. Thus, to prove accomplice liability, the State must and holding that indictment as a principal “is sufficient to allow defendant to rebutted by Ledesma’s prior deposition testimony, leaving the jury to speculate abandonment of common law distinctions between principal and accomplice, Ledesma offered at trial about the defendant and Concepcion’s complicity was See State v. Barton, 142 N.H. 391, 395 (1997) (noting request for the accomplice liability instruction. He argues that any testimony theory puts the defendant on notice to prepare a defense as to principal or defendant as the primary actor, we have previously determined that such a We begin by noting that even if the State’s theory at trial focused on the kind of culpability, if any, with respect to that result that is

commission of the offense and that he actually solicit or aid or attempt to aid

The defendant argues there was no evidence upon which to base the

122 N.H. 565, 570 (1982); State v. Goodwin, 118 N.H. 862, 866 (1978).

offense, an accomplice in the conduct causing such result is an paragraph III, when causing a particular result is an element of an

requirements that the defendant act with the purpose of promoting the State v. Anthony, 151 N.H. 492, 493-95 (2004). Section III contains dual The State must prove the elements of both section III and section IV.

IV. Notwithstanding the requirement of a purpose as set forth in . . . . to aid such other person in planning or committing it; person in committing it, or aids or agrees or attempts commission of the offense, he solicits such other (a) With the purpose of promoting or facilitating the of an offense if: III. A person is an accomplice of another person in the commission

RSA 626:8 provides, in relevant part: not the sufficiency of the evidence to warrant an instruction.

p. 5 unsustainable exercise of discretion for the trial judge to give the instruction.

the credibility of the witness and the proper weight to be given to the evidence,

element.

supporting all three requirements for accomplice liability, it was not an

support a rational conclusion that the defendant acted recklessly. the head, threw him against a wall and kicked him. Such acts aided the Colombia while awaiting extradition. rebutted by Ledesma’s deposition testimony. This argument, however, goes to on Otero’s head. Indeed, the defendant told Torres that he had struck Otero in Harnum beaten somebody in the alley. The defendant argues that this testimony was, thereby entitling him to credit for his pretrial confinement in shoe after the event. Ledesma testified that Concepcion told him “they” had The defendant next argues that we should overrule our decision in

with two other defendants). succeed. present during robbery, threatened to tear telephone from the wall, and left Because there was more than a minutia or scintilla of evidence

unconscious in the alley. There was, therefore, “some evidence” that would the defendant repeatedly jumped up and down on Otero’s head as he lay defendant were in the alley together, and that the latter jumped up and down 630:2, I(b); RSA 626:2, II(c) (2007). As noted above, there was testimony that there was testimony from multiple witnesses that Concepcion had blood on his possessed the requisite mens rea for manslaughter, recklessness. See RSA Finally, the State presented evidence showing that the defendant

introduced evidence that the defendant was in the alley for the purpose of introduced evidence that the defendant had the purpose to make the crime N.H. at 570 (defendant aided armed robbery when arrived with others, was

Second, the State introduced evidence that Concepcion and the

Concepcion testified that he was present when the defendant kicked Otero and

of witnesses . . . is the province and obligation of the jury.”). The State thus supporting all three elements of accomplice liability. First, the State Huard, 138 N.H. 256, 259 (1994) (“Common sense evaluation of the credibility

purpose of ensuring the crime succeeded by encouraging the other offender).

See Goodwin, 118 N.H. at 866-67 (defendant’s presence had the

After reviewing the evidence, we conclude that there was “some evidence”

analysis. at trial was that the defendant acted as a principal does not change our in p. 6 6

v. Director, N.H. Div. of Motor Vehicles, 149 N.H. 502, 504 (2003) (quotation mere exercise of judicial will with arbitrary and unpredictable results.” Jacobs legal standards are open to revision in every case, deciding cases becomes a extradition from Florida. demands respect in a society governed by the rule of law, for when governing Generation Servs. Co., 15 p. 6 6 N.H. 656, 659 (2008). “The doctrine of stare decisis We do not lightly overrule a prior opinion. Alonzi v. Northeast

Harnum. 198. The trial court in this case reached the correct result under our holding form of custody over which New Hampshire can exercise its control.” Id. at under Florida authority because the term custody “necessarily presupposes a confined in jail defendant was not in custody “for purposes of New Hampshire law” while defendant received credit only so long as he was “in custody.” Id. at 198. The extradition.” Id. at 197. Furthermore, Harnum said that a awaiting extradition and thus did not encompass the defendant’s time awaiting Harnum reasoned that “awaiting trial,” by its plain meaning, could not mean p. 6 651-A:23 and “in custody” in RSA 651:3, I. Harnum, 142 N.H. at 197-98. Harnum focused upon the phrases “awaiting and during trial” in RSA or 6. (Emphasis added.) imposed and against any minimum term authorized by RSA 651:2 RSA 651-A:23 against the maximum term of imprisonment that is sentence and not under any sentence of confinement.

equal to the number of days during which the prisoner was against both the maximum and minimum terms of his sentence correction, any jail or any other place shall be granted credit physical custody of New Hampshire authorities, and not that “awaiting Any prisoner who is confined to the state prison, any house of

(Emphasis added.) RSA p. 6 651-A:23 provides, in relevant part:

defendant] is sentenced shall be credited in the manner set forth in All the time actually spent in custody prior to the time [the

Id. RSA p. 6 651:3, I, provides, in relevant part:

conclude that a defendant is awarded pretrial credit only for time spent in the Harnum construed RSA p. 6 651-A:23 (1996) and RSA 651:3, I (1996) to

the “custody” of New Hampshire authorities. Id. at 197-98. confinement credit only for that time spent “awaiting and during trial” and in Harnum, 142 N.H. at 19 p. 6 6. The court held that a defendant receives pretrial probation violation and later extradited to New Hampshire, tried and convicted. In Harnum, the defendant was arrested in Florida for a New Hampshire existing decisions.”

p. 7 to the consequences of overruling.

a prisoner shall be granted credit for time spent in “the state prison,

principles of law that eluded [our] predecessor and justify departures from

that no party has relied upon our prior holding so as to lend a special hardship significant application or justification. of corrections, changed, or come to be seen so differently, as to have robbed the old rule of any jail or any other place. . . .” (Emphasis added.) more than a remnant of abandoned doctrine; and (4) whether facts have so any house give full consideration to the plain language in RSA 651-A:23, which states that Here, departure from Harnum is justified because the majority opinion failed to rule today. At oral argument, he also argued that controlled by other statutes and should have no bearing upon our analysis. Planned Parenthood v. Casey, 505 U.S. 833, 866 (1992). concerning awaiting other judicial proceedings, the State argues these are “awaiting extradition” from “awaiting trial.” As for the defendant’s arguments “[We] are sometimes able to perceive significant facts or understand

recognize the vast majority of jurisdictions have decided to the contrary and the narrow confines of the decision. believe there are principles of law the Harnum court did not consider. We also We agree with the defendant that Harnum should be overruled. We related principles of law have so far developed as to have left the old rule no See RSA 651-A:19 (2007) (concerning credit for parolees).

majority of jurisdictions allow such credit weighs in favor of our adopting a new

clear guidance to courts as to what time will be credited in distinguishing The State responds that Harnum is hardly unworkable, as it provides

receive credit for their confinement because they are not “awaiting trial” within probable cause hearings, sentencing hearings or probation hearings would not particular, he argues, Harnum means that defendants awaiting arraignment, would lend a special hardship to the consequences of overruling; (3) whether own facts and does not provide sound precedent for future cases. In practical workability; (2) whether the rule is subject to a kind of reliance that Harnum was tailored to its including: (1) whether the rule has proven to be intolerable simply in defying of the law and is, as a rule, unworkable. He argues that the fact that a reason doomed.” The defendant argues that Harnum is inconsistent with the development

factors guide our judgment, but no single factor is wholly determinative.

judgment of whether a decision has come to be seen as such an error,

Id. at 504-05 (quotation omitted). Several factors inform our

has come to be seen so clearly as error that its enforcement was for that very whether we would decide the issue differently de novo, but whether the ruling omitted). “Thus, when asked to reconsider a holding, the question is not isolation, p. 8 any jail or any other place shall be granted credit.” By reading RSA 651:3, I, in credit. RSA 651-A:23, in turn, states that “any prisoner who is confined to . . .

Justice Powell wrote in his concurring opinion in directs one to RSA 651-A:23 to determine who is eligible to receive confinement

legislature did not see fit to include, nor delete those that it did. between in-state and out-of-state jails. We will not add words that the 8 distinction between in-state and out-of-state custody, nor does it distinguish

less deference to a decision that was rendered without benefit of a full airing of Social Services of City of New York, 336 U.S. 658 (1978), “we owe somewhat however, does not read RSA 651:3, I, and RSA 651-A:23 as a whole. Monell v. Department of statutory language, it would have been difficult to reach the result it did. As credited in the manner set forth in RSA 651-A:23.” Its plain language thus Had the Harnum court properly perceived the significance of that

not see fit to include. presumed not to use superfluous language. any other place” language in RSA 651-A:23. The statute, however, makes no subvert those we do not; we read the statute as a whole. Harnum construed “in custody” to render irrelevant the “any jail or

meaning.

controlled the custody and the status of the defendant’s case. This analysis, location of the custody was irrelevant because the determining factor was who RSA 651:3, I, states that a defendant who is “in custody” “shall be discuss the “ p. 8 any jail or any other place” language in RSA 651-A:23. The Home Builders v. O’Connor, 157 N.H. 387, 388 (2008). manner when such a reading would lead to an absurd result. Great Traditions

neither consider what the legislature might have said nor add words that it did any other place” is superfluous language. The legislature, however, is See id. We will not pick and choose those portions of the language we find controlling and

DaimlerChrysler Corp. v. Victoria, 153 N.H. 664, 666 (2006). We do

and, if possible, construe that language according to its plain and ordinary When interpreting statutes, we look to the language of the statute itself,

recognized rules of statutory interpretation. making these definitions the linchpin of its analysis, the court saw no need to By appraising this language as irrelevant, Harnum failed to follow the wellstatutory language superfluous and irrelevant is not a proper interpretation. Frialator, 142 N.H. 573, 578 (1998). Thus, an interpretation that renders

If the majority’s reading is correct, the legislature’s addition of “any jail or

Hampshire custody and awaiting trail to exclude awaiting extradition. By trial” in RSA 651-A:23. In doing so, it construed custody to mean solely New focused on the language “in custody” in RSA 651:3, I, and “awaiting and during neither analyzes the text or seems to consider it relevant. Instead, Harnum Although both the majority and dissenting opinions quote this language, trial, and the defendant is therefore entitled to credit.

p. 9 extradition is time spent under the control of the State prior to

question compels the conclusion that time spent awaiting Substantive evaluation of the character of the time period in not alter or diminish the event’s consequence to the defendant. . . .

court in the past, as we have noted that application of a label does

arbitrary application of labels has, however, been eschewed by this

announce that the time was not spent “awaiting trial.” This slice off some preliminary phase of a criminal proceeding and “awaiting a competency determination.” It is always possible to

who are “awaiting indictment,” “awaiting arraignment,” or majority of jurisdictions that have decided this issue. completion of the trial and sentencing. In so holding, we join the overwhelming ultimately convicted and sentenced.” reason for the foreign incarceration is the offense for which the defendant is served in presentence confinement while awaiting extradition when the sole

1999); State ex rel. Curry v. Thompson, 967 P.2d 522 (Or. 1998). Indeed, the extreme, the majority’s argument would also deny credit to those Harnum. See Nieto, 70 P.3d at 748; State v. Cooper, 990 P.2d 765 (Kan. App. cannot be “awaiting extradition” while “awaiting trial.” Taken to its states have decided the issue since we decided Harnum; all three rejected behind this putative dichotomy is the debatable notion that one and during trial” encompasses all time from the moment of arrest through the Nieto, 70 P.3d at 748. At least three

“[T]he overwhelming majority of states allow for the granting of credit for time 505; Nieto v. State, 70 P.3d 747, 748 n.7 (Nev. 2003) (listing the jurisdictions). as “no more than a remnant of abandoned doctrine.” See Jacobs, 149 N.H. at circumstances. The defendant argues that Harnum’s rule should thus be seen At least thirty-nine other jurisdictions give credit in similar

the words “while awaiting extradition.” The unstated assumption indictment. Such a reading of the statute makes little sense. Rather, “awaiting would presumably not grant credit for time spent in jail between the arrest and technically only after indictment that a defendant is “awaiting trial,” Harnum The majority’s reading of the statute was flawed. Because it is brackets omitted). Harnum, 142 N.H. at 200-01 (Broderick, J., dissenting) (quotations and

defendant would require modification of RSA 651-A:23 by adding

The majority . . . [reasons] that granting credit to this

by the dissent in Harnum. The dissent stated: literal interpretation that leads to an absurd result. Instead, we are persuaded Furthermore, Harnum’s interpretation of “awaiting trial” is the kind of

concurring). all the relevant considerations.” Monell, 436 U.S. at 709 n.6 (Powell, J., error. We therefore overrule p. 10 to act. These circumstances place the burden upon this court to rectify its own issue nor one creating a constituency on behalf of which the legislature is likely

enact separate legal provisions.

confinement credit, however, is not such a case. It is neither a socially divisive

interpretation. obviously a necessity.” an offense if he escapes from official custody.”).

State wishes to punish defendants who flee the jurisdiction, the legislature can decided perpetuate as a rule of law. Harnum. As the Harnum dissent noted, if the

credit while awaiting extradition. Under the second case. legislature] can correct our mistakes through legislation,” that is not always the than in constitutional adjudication because, in the former situation, [the especially wary of altering course under pressure. The granting of pretrial constituents. It is in cases of such political importance that a court must be law, it will leave future alterations to the political branches and their active

See Casey, 505 U.S. at 866. Once the court issues a rule of

controversy in which a high court is asked to step in and resolve a question of commercial context, “where advance planning of great precision is most Justice O’Connor wrote in Casey, there are some cases of widespread shoulders of the legislature the burden to correct our own error. See id. As reasonably on the rule’s continued application.” See id. Neither will we always place on the principles of stare decisis to allow a decision that was wrong when it was Monell, 436 U.S. at 695. We are unwilling to mechanically apply the structured their conduct in reliance upon defendants not receiving pretrial

Although stare decisis generally “has more force in statutory analysis

rule of law does not weigh against overruling Harnum.

for granting pretrial confinement credit while awaiting extradition is a factor we classic case falling into this category is one creating a rule within the

into “the cost of a rule’s repudiation as it would fall on those who have relied

Furthermore, in this case, no party can reasonably argue they have

one direction). consideration that a majority of other jurisdictions have decided an issue in Assoc. Prop.-Liab. Ins. Trust, 147 N.H. 396, 403 (2002) (taking into

recognize that it is virtually alone in reaching such a result. The vast support over the proper scope of pretrial confinement credit, but the decision does not It appears the Harnum court was aware of some level of disagreement

reasoning in Harnum [is] unpersuasive.” Nieto, 70 P.3d at 748. Nevada Supreme Court expressly rejected Harnum’s reasoning, stating, “the p. 11 11

for time he spent in any jail after his May 3, 2004 arrest in Colombia.

BRODERICK, C.J.