2007-398, STATE OF NH v. MATTHEW KINCAID

passenger in the vehicle, was killed. The defendant was indicted for negligent vehicle crash on Constitution Avenue in Concord. Randall Holmes, a record. In September 2004, the defendant was arrested following a single The following facts were found by the trial court or are supported by the

RSA 630:3 (Supp. 2001) (amended 2006). We affirm. jury in Superior Court (Mangones, J.) on two counts of negligent homicide. See BRODERICK, C.J. The defendant, Matthew Kincaid, was convicted by a

brief, and Mr. Sisti orally), for the defendant. Sisti Law Offices, of Chichester (Mark L. Sisti and Adam Cook on the

on the brief and orally), for the State. Kelly A. Ayotte, attorney general (Nicolas Cort, assistant attorney general,

to press. Errors may be reported by E-mail at the following address: Opinion Issued: November 20, 2008

No. 2007-398 editorial errors in order that corrections may be made before the opinion goes Merrimack Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

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

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 State Constitution, 265-A:16 (Supp. 2008)). We first address the defendant’s claims under the unconstitutional statute, former RSA 265:93 (2004) (current version at RSA

content, post-arrest statements, and field sobriety tests under a facially

that the trial court erred when it admitted evidence of his blood alcohol

to stand trial.” the Fourteenth Amendment to the United States Constitution. He also argues a competency hearing.” to due process under Part I, Article 15 of the New Hampshire Constitution and by failing to hold a hearing on his competency, the trial court violated his right

understanding of the proceedings against him.” understanding. Second, the defendant must have a factual as well as rational court should consider evidence of a defendant’s irrational behavior, In determining whether to order a competency hearing, the trial

regard to a defendant’s competency, numerous factors should be considered: his [attorney].” The Trial Court (In determining whether a “bona fide or legitimate doubt” exists with injury, and thus “could not intelligently and rationally discuss the case with

Id. at 715 (quotation omitted).

bona fide or legitimate doubt arises whether a criminal defendant is competent must defendant’s behavior, we grant deference to its decision regarding the need for order an evidentiary hearing on the issue of competency “whenever a omitted). We have held that a trial court, in order to comply with due process, his counsel meaningfully in his defense at trial. The defendant maintains that Id. (quotation and citation

to consult with and assist his lawyer with a reasonable degree of rational two-pronged.” Id. “First, the defendant must have a sufficient present ability Dusky v. United States, 362 U.S. 402, 402 (1960), and adopted by this court, is “The test for competency, as formulated by the United States Supreme Court in defendants from standing trial if they are legally incompetent.” Id. at 714. evaluation. He claimed he could not remember the accident due to a head process guarantees under both the Federal and State Constitutions protect

“As the trial court is in the best position to evaluate [a] criminal cannot remember anything about the accident, and thus was unable to assist opinions for guidance only. post-trial motion for a competency evaluation and hearing. He asserts that he Id. at 232-33. State v. Ball, 124 N.H. 226, 231-33 (1983), and cite federal

defendant filed a motion to stay sentencing, pending a competency hearing and

(

On appeal, the defendant argues that the trial court erred in denying his

hearing and imposed sentence. This appeal followed.

convicted. After his conviction, he retained new counsel. Subsequently, the Fitzgerald, J.) denied his motions, and the defendant was subsequently content, post-arrest statements, and field sobriety tests. The Trial Court homicide. Prior to trial, he moved to suppress evidence of his blood alcohol defendant’s post-trial motion for a competency evaluation:

p. 3 of an event that led to his arrest. As the trial court observed in its order on the

scene that “he had not hit his head.”

understanding without necessarily remembering the details or circumstances with and assist his trial counsel with a reasonable degree of rational right to a competency hearing. There are many ways a defendant can consult 3

represented by two conscientious defense counsel in these

first prong of the competency test articulated in facial injuries.” The record shows the defendant told a police officer at the defendant states: “Level of Consciousness: Alert,” and “[patient has] minor fracture.” The Concord Fire Department Patient Record Report concerning the

automatically raise a bona fide or legitimate doubt triggering a due process

had been litigated at trial over a number of days. Defendant was This matter [of the defendant’s negligent homicide charge]

competence. claims, in essence, that because he could not remember what happened, the proceedings, provides substantial evidence of the defendant’s

the diagnosis as “facial laceration,” and notes “no evidence of mandibular

process. has no memory of the accident. That claim alone, however, does not reasonable degree of rational understanding.” defendant’s claim of amnesia, we assume, without deciding, that the defendant Although the record before us does not appear to provide support for the

behaved irrationally or that his demeanor at trial was out of the ordinary. He assist in his defense, or rationally comprehend the nature of the

The Concord Hospital Radiology report from the night of the crash lists

this case, we disagree. hearing as it deems necessary, so as to uphold a defendant’s right to due particular facts and circumstances of the case before it and order a competency Id. at 714. Given the facts of sufficient present ability to consult with and assist his [trial counsel] with a leading up to it, and what transpired immediately thereafter, he lacked “a he argues that because he is not able to remember the crash, the events

In this case, the defendant claims amnesia. He does not allege that he a trial record void of any indication that the defendant could not evidentiary hearing into the defendant’s competence. In addition, speculation that the defendant is incompetent, it need not order an

not exclusive. A trial court should exercise its discretion based upon the Id. at 715 (citations and quotations omitted). The list of factors, however, is

competency. Where a trial court has before it only a tentative his demeanor at trial, and any prior medical opinion on alcohol content. p. 4 address only his contention that the trial court erred in admitting his blood

statements and field sobriety tests, those issues are deemed waived, and we

failed to brief his arguments with respect to the admission of his post-arrest unconstitutional statute, former RSA 265:93. Because the defendant has statements and evidence of his field sobriety tests pursuant to a facially

requiring a nexus between probable cause and the evidence sought. the defendant argues that the statute authorizes seizure of evidence without

15,

circumstances of the crime with which he is charged.”

rule on the constitutionality of RSA 265:93, finding that the statute was not In denying the defendant’s pre-trial motion, the trial court declined to when it admitted evidence of his blood alcohol content, his post-arrest

brief failed to further elaborate on argument). With respect to its admission, defendant’s brief claimed violation of right to due process, claim waived where Constitution provides no greater protection to the defendant than Part I, Article See, e.g., State v. Chick, 141 N.H. 503, 504 (1996) (although

notion that an accused possesses that ability only if he is able to remember the one’s own defense, . . . it is clear that the cases without exception reject the legitimate doubt arose as to the defendant’s competency. no definitive judicial explanations of what constitutes the ability to assist in

Next, the defendant argues that the trial court committed reversible error

we do under the State Constitution. present a defense.”) see id. at 714, we reach the same result under the Federal Constitution as

before us, that it erred in denying his motion. As the United States a hearing to assess a defendant’s competence, we cannot say, on the record at 715. Given our deference to the trial court’s decision regarding the need for

discretion, the trial court could reasonably have concluded that no bona fide or jurisdictions. As the Ohio Supreme Court has observed: “Although there are representation that the defendant suffered amnesia. In the exercise of its The record before the trial court essentially contained only a

believe that appellant’s amnesia alone denied him . . . the opportunity to (1987); appear to have been raised during the two year run-up to trial. see also Com. v. Barky, 383 A.2d 526, 528 (Pa. 1978) (“We do not N.E.2d 407, 413 (Ohio 1986) (quotations omitted), issues concerning the competency of defendant to stand trial cert. denied, 479 U.S. 1101 motions to suppress and similar pre-trial motions. However, no State v. Brooks, 495

remembering an event, our analysis is consistent with that employed by other counsel with a reasonable degree of rational understanding without necessarily In concluding that a defendant can consult with and assist his trial

issues . . . had been raised by the defense in the context of matters. . . . A number of pretrial motions had been filed. Various p. 5 5

the defendant’s blood could be tested

that can be decided on a nonconstitutional ground).

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

had no right under RSA 26 p. 5 5:92 to refuse to consent to tests of his (emphasizing court’s policy against reaching a constitutional issue in a case blood, breath and urine by virtue of RSA 265:84. Further, . . . he constitutional challenge to it. See Anglin v. Kleeman, 140 N.H. 257, 260 (1995) trial court did not rely upon RSA 265:93, we need not address the defendant’s The defendant does not challenge this ruling on appeal. Because the probable cause and exigency. (Emphasis added.)

testing mandates of RSA 26 p. 5 5:93.

The defendant here had impliedly consented to tests of his

trial court order provided:

felony and impliedly consented to the blood draws that were seized pursuant to implicated. The trial court concluded that the defendant was arrested for a