2009-516, State of New Hampshire v. Gary Richard

Following a jury trial in the Superior Court (Barry

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Lisa L. Wolford about dental treatment for his damaged teeth. We affirm. doubt that he did not act in self-defense; and (2) permitted the victim to testify instruct the jury that the State had the burden to prove beyond a reasonable On appeal, the defendant argues that the trial court erroneously: (1) failed to assault and two counts of second degree assault. See RSA 631:1, :2 (2007). defendant, Gary Richard, was convicted on alternative theories of first degree

and orally, for the defendant.

attorney general, on the brief and orally), for the State.

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 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 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 burst through the door of Timothy’s room. The defendant told Timothy he was p. 2 approximately thirty minutes, the defendant, nude and armed with the pole, The defendant continued to scream at Timothy from his bedroom. After

off the lights. he would kill him if he did that again. Timothy went to his bedroom and shut Timothy threw the pole into a corner of the room and told the defendant that Timothy turned and grabbed the pole from the defendant, who fell to the floor. As Timothy left the bedroom, the defendant struck him with the pole.

Timothy “beat the s--- out of me.” The police took the defendant to the police the police arrived, the defendant, who had a bloody lip, told the officers that wallet and cigarettes. On his way out, he spat blood at the defendant. When Timothy started to leave the apartment, but went back to get his keys, 2

his room and attacked him. 436 (1966), and claimed that he had acted in self-defense after Timothy entered speech, weaving when he walked, and had difficulty standing. station, where he waived his Miranda it. The defendant had consumed alcohol that evening and was slurring his rights, see Miranda v. Arizona, 384 U.S. to use [the pole], [he should] use it . . . now,” and to stop threatening him with Timothy told his father that he was going to bed, that if the defendant “want[ed] because he and Donna “were scared about [Timothy] flipping out . . . on us.” to seven foot pole. The defendant testified that he had the pole in his room bedroom to confront him. The defendant was sitting on his bed, holding a six defendant a “few times” to prevent the defendant from hitting him again. Annoyed by the defendant’s remarks, Timothy went into the defendant’s back, spat out his teeth, and pushed the defendant; Timothy punched the “physical force on [Timothy]” if Timothy allowed Donna to enter the home. defendant thrust the pole into his face, knocking out three teeth. Timothy fell that Timothy take Donna’s keys and cell phone. He also threatened to use that he needed to sleep. As Timothy reached over to close the door, the Throughout the evening, the defendant continued to yell and to insist “a piece of crap.” Timothy offered to leave in the morning and told his father

to get a real job.” berated him, stating that he was a “piece of crap” and a “low life” who “needed prohibit her from entering their home. Timothy refused, and the defendant The defendant asked Timothy to take Donna’s keys and cell phone, and to approximately 5:00 p.m., and saw the defendant and Donna arguing outside. the defendant’s fiancée. On April 23, 2008, Timothy arrived home from work at an apartment in Merrimack with his father (the defendant) and Donna Lalicata, The jury could have found the following facts. Timothy Richard lived in person was about to use unlawful, non-deadly force against him. In p. 3 person to defend himself if, one, he actually believed that the other Self-defense - - a person has a right to use non-deadly force on another

“model jury instruction,” and stated it would give the following instruction: trial court indicated that its self-defense instruction was “[p]retty much” the The trial court then outlined its planned instructions. Specifically, the

beyond a reasonable doubt, that the defendant did not act in self-defense. defense, but failed to instruct the jury that the State had the burden to prove, be submitted before the case goes to trial.” failed to submit them prior to trial. The trial court instructed the jury on selfaccept[ ] any proposed instructions at this point” because “[t]hey’re supposed to The court declined to accept the instructions because the defendant had defendant about jury instructions. The trial court stated that it would “not case, the trial court held a bench conference with counsel for the State and the erroneously instructed the jury on self-defense. At the close of the defendant’s

We first consider the defendant’s argument that the trial court

imminent use of unlawful, non-deadly force by” Timothy. See justified in order to defend himself from what he reasonably believed to be the defense.” he might argue that “the activity that [he] is alleged to have engaged in was prove beyond a reasonable doubt that the defendant did not act in self- Prior to trial, the defendant filed a notice of self-defense, indicating that

in self-defense. When there is some evidence of self-defense, the State must read, in relevant part: “Evidence has been presented that the defendant acted instructions. One of the instructions, entitled “SELF-DEFENSE – GENERALLY,” (2007). At the close of evidence, the defendant submitted several proposed jury

about a prior violent confrontation with Timothy. defendant struck Timothy in the face with the pole. The defendant also testified defendant in the mouth. After Timothy lunged at the defendant again, the the pole. Timothy said, “[Y]ou think that’s going to help you?” and punched the Timothy, enraged, barged into his room, at which time the defendant picked up day and returned to his bedroom and undressed. According to the defendant, confrontation with Timothy, the defendant suggested that they talk the next asked Timothy not to cook for the whole family. Following another angry Timothy cooking dinner. The defendant was angry because he had repeatedly to bed. He woke later in the evening and went downstairs, where he found Wal-Mart to buy butane for the grill, and, after returning home, felt ill and went At trial, the defendant testified that, on the night in question, he went to p. 4 A. Invited Error

you.” reason to approach the bench?” Counsel for the defendant replied: “No, thank defense. After instructing the jury, the court asked whether counsel had “any to prove beyond a reasonable doubt that the defendant did not act in selfdefense, the trial court failed to instruct the jury that the State had the burden that the defendant is guilty, and instructed the jury on the elements of selfthe jurors that the State had the burden to prove beyond a reasonable doubt The trial court then instructed the jury. Although the court instructed

Thank you.” I’m inclined to go with what I have.” Counsel for the defendant said: “Okay. about a proposed deadly force instruction, the court stated: “All right. I’m - - The trial court asked the parties “What do you have?” After a discussion

reasonable grounds for the belief.

necessary under the circumstances as long as at the time there [were]

The Defendant can use the amount of force which he believed was

force. to use excessive force in self-defense - - only a reasonable amount of

force he used was necessary for self-defense. A person is not permitted . . . third, the Defendant must reasonably believe that the amount of

. . . .

person is about to use unlawful, non-deadly force. . . .

concluded that the defendant failed to submit the jury instructions in a timely he did not act in self-defense. The State argues that the trial court correctly the jury that the State had the burden to prove beyond a reasonable doubt that Rather, the Defendant must reasonabl[y] believe that the other violation of his state and federal due process rights when it failed to instruct instructions prior to trial, and that the trial court committed structural error in The defendant argues that he had no obligation to submit jury

defense does not require an actual danger to the Defendant. was about to use unlawful . . . non-deadly force against him. Selfreasonable ground[ ] for the Defendant to believe that the other person existed, the belief must be reasonable. In other words, there must be a

Second, even if the Defendant actually believed that such danger

that he was in imminent danger of being injured by the other person. other words, Defendant could use non-deadly force if he actually believed p. 5 In deciding whether to adopt a rule that precludes plain error analysis in

Some courts hold that, without exception, invited error precludes plain error the case of invited error, we look to other jurisdictions’ treatment of this issue.

supra at 1712-13. thorough trial preparation and professional accountability. See Comment, encourages the legitimacy and finality of trial court verdicts, predictability, and supra at 1712. Like other, similar doctrines, the doctrine of invited error error.” State v. Redding, 172 P.3d 319, 325 (Utah Ct. App. 2007); Comment, “ensure[s] that the trial court has the first opportunity to address the claim of reversal on appeal under the doctrine of plain error. Applying invited error also prevent a party from purposely creating error at trial and then later seeking Cir. 1997); see Comment, supra at 1721. In other words, the doctrine seeks to proposed instructions to the trial court . . . .” State v. Nightingale having the verdict vacated.” United States v. Barrow, 118 F.3d 482, 490 (6th instruction issue for our review, counsel must do more than merely submit an erroneous ruling and later seeking to profit from the legal consequences by defense instruction to the trial court. We disagree. “To preserve a jury (2004). The invited error doctrine is designed to deter “a party from inducing preserved his argument about the jury instructions by submitting a self- Circuit’s Prioritization of Procedure over Justice, 72 U. Cin. L. Rev. 1707, 1720 At oral argument the defendant for the first time claimed that he Refusing to Review Ford v. Garcia’s Invited Error Demonstrates the Eleventh “classified as waiver or estoppel.” Comment, A Foolish Consistency: How Goodale, 144 N.H. at 227 (quotation omitted). Invited error is sometimes which [a party] has led the trial court, intentionally or unintentionally.” The doctrine of invited error precludes appellate review of “error into

instructions, including plain error review. argues that invited error precludes appellate review of the trial court’s jury that invited error does not preclude plain error review. In response, the State argues that the trial court’s error is reversible under a plain error analysis, and intentional relinquishment of a known right has occurred.” Alternatively, he invited error doctrine” because “it is not clear from the record that an ambiguity arising from the exchange . . . should not be resolved to invoke the counsel was “at best ambiguous.” The defendant contends that “[a]ny erroneous instructions” and that the exchange between the trial court and contends that defense counsel did not “clearly express approval of the court’s objection to the court’s jury instructions.” Id. Alternatively, the defendant ___, ___ (decided July 23, 2010). “[C]ounsel must actually make a specific

(1999). under the doctrine of invited error. See State v. Goodale, 144 N.H. 224, 227 instruction issue. Specifically, the State argues that we should decide this case manner. The State also contends that the defendant failed to preserve the jury p. 6 6

to the third and fourth prongs of plain error review, which require us to 983 (plain error). Indeed, the exception appears to be similar, if not identical, omitted)); Green, 272 F.3d at 754 (“manifest injustice”); McNabb, 887 So. 2d at F.3d at 151 (error “taint[s] the integrity of the judicial process” (quotation Second, the exception to the rule is imprecise. See, e.g., Hopkins, 310

here “invited” the trial court’s error. Indeed, based upon the record before us, it is unclear whether the defendant error occurs and that jury instruction may not be challenged on appeal.”). party indicates to the district court that a jury instruction is acceptable, invited United States v. Gates, 351 Fed. Appx. 3 p. 6 62, 370 (11th Cir. 2009) (“[W]hen a the defendant intentionally relinquished or abandoned a known right”), with determine “whether the defendant induced or caused the error” and “whether Cir. 1997) (recognizing that invited error doctrine requires appellate court to “invited” is opaque. Compare United States v. Perez, 116 F.3d 840, 845 (9th respects. First, the standard by which courts determine whether an error is At the present time, the scope of the doctrine is unclear in a number of

aff’d, 887 So. 2d 998 (Ala. 2004), cert. denied, 543 U.S. 1005 (2004). Crim. App. 2001) (invited error waived unless it rises to the level of plain error), injustice” (quotation omitted)); McNabb v. State, 887 So. 2d 929, 983 (Ala. Cir. 2001) (court will not reverse on the basis of invited error “absent manifest denied, 537 U.S. 1238 (2003); United States v. Green, 272 F.3d 748, 754 (5th did not taint the integrity of the judicial process” (quotation omitted)), cert. defendant requested jury instruction as matter of trial strategy and “error . . . Cir. 2002) (holding that defendant cannot complain of invited error where of invited error. See, e.g., United States v. Hopkins, 310 F.3d 145, 151 (4th At the same time, many courts have adopted an exception to the doctrine

appellate relief.” Griffin, 294 Fed. Appx. at 395 (quotation omitted). relief for plain error,” while “a party that has waived a right is not entitled to party that has forfeited a right by failing to make a proper objection may obtain United States v. Eisom, 585 F.3d 552, 55 p. 6 6 (1st Cir. 2009). Accordingly, “a is the intentional relinquishment of a known right.” Id. (quotation omitted); see “Whereas forfeiture is the failure to make the timely assertion of a right, waiver 294 Fed. Appx. 393, 395 (10th Cir. 2008), cert. denied, 129 S. Ct. 13 p. 7 73 (2009). which is associated . . . with the idea of forfeiture.” United States v. Griffin, that invited error is “a species of waiver,” distinguishable from “plain error, complaining of it invited the error.”). This conclusion follows from the notion fundamental . . . . Instead . . . we will not find reversible error when the party (“If an error is invited, we do not consider whether the alleged error is denied, 519 U.S. 1020 (1996); State v. Logan, 30 P.3d 631, 632-33 (Ariz. 2001) Griffin, 84 F.3d 912, 924 (7th Cir.) (same), cert. denied, 519 U.S. 999, and cert. (invited error waives all claims of error including plain error); United States v. analysis. See, e.g., United States v. Mitchell, 85 F.3d 800, 807 (1st Cir. 1996) 7

reasonable doubt that the defendant did not act in self-defense. Under the to instruct the jurors that the State had the burden to prove beyond a We next consider whether the trial court committed plain error by failing

B. Plain Error

precludes review for plain error. attendant benefit. We therefore decline to adopt the rule that invited error considerable and unnecessary complexity into our appellate process with little the rule would not serve the ends of justice. The rule would introduce rule, and, particularly, the scope of the exception, we conclude that adoption of Given the uncertainty of the content and application of the invited error

mechanism.” Id. at 1 p. 7 722. options and subjugates the interests of justice to the demands of a procedural “removes any discretionary remedy from the appellate court’s panoply of invited error ban denies appellate review to all.” Id. at 1721. The doctrine as the malicious lawyer. In order to eliminate the machinations of a few, the relevant law and penalizes the ill-prepared or unwitting lawyer just as harshly process, the doctrine of invited error “assumes a complete familiarity with the In accomplishing its goal of discouraging manipulation of the trial

times, see Comment, supra at 1 p. 7 721. assumption that lawyers have a complete familiarity with the relevant law at all (noting that “[n]o ethical defense lawyer would do such a thing”), as well as the this type of error, see Perez, 116 F.3d at 849-50 (Kleinfeld, J., concurring) verdict[s] vacated.” Barrow, 118 F.3d at 490. We question the frequency of ruling[s] and later seeking to profit from the legal consequences by having the the doctrine is to prevent unscrupulous lawyers from “inducing . . . erroneous nature of most errors in the trial court. As noted above, the primary purpose of Third, the doctrine rests upon a questionable assumption about the

apply to plain errors). (Minn. Ct. App. March 2, 2010) (noting that “the invited-error analysis does not (quotations omitted)); State v. Vallejo, No. A09-4 p. 7 75, 2010 WL 696055, at *2 2010) (“An invited error is waived, unless it rises to the level of plain error.” State, No. CR-06-0323, 2010 WL 29 p. 8 83206, at *20 (Ala. Crim. App. July 30, exception arguably allows for a version of plain error review. See Doster v. while the invited error doctrine purports to preclude plain error review, the may conduct plain error review in the presence of “manifest injustice”). Thus, integrity of the judicial process”); Green, 272 F.3d at 754 (implying that court (suggesting that invited error doctrine does not apply where error “taint[s] the State v. Russell, 159 N.H. 475, 489 (2009); see Hopkins, 310 F.3d at 151 affect[s] the fairness, integrity or public reputation of judicial proceedings.” consider whether the error at issue “affect[s] substantial rights” and “seriously prove beyond a reasonable doubt” (citation omitted)); State v. Kousounadis

We next consider whether the error was plain. “Plain is synonymous

instruction omitting an element of the offense charged is structural error). 159 N.H. 413, 429 (2009) (reaffirming under State Constitution that a jury defense, and could have confused the jury. See, that the State had the burden to prove that the defendant did not act in self- defense becomes an element of the charged offense, which the State must reasonable doubt. However, the jury instructions did not adequately explain N.H. at 645 (“when evidence of self-defense is admitted, conduct negating the innocence and the State’s burden to prove the defendant’s guilt beyond a (1993) (quotations omitted). We conclude that it was. See id.; cf. McMinn, 141 The State relies upon the trial court’s instructions about the presumption of burden to prove, beyond a reasonable doubt, that the defendant did not act in, 507 U.S. 725, 734 adequately explained the State’s burden of proof on self-defense, we disagree. trial court erred when it failed to instruct the jury that the State had the Turning to the first prong of the plain error test, we conclude that the Although the State argues that the trial court’s charge to the jury defendant bore the burden of proving the justification of self-defense instead”). prove the absence of self-defense beyond a reasonable doubt, and that the reasonably have concluded that it was not necessary for the prosecution to Islands v. Smith, 949 F.2d 677, 6 p. 8 81 (3d Cir. 1991) (noting that “a juror could

636, 645 (1997); see RSA 625:10, :11, III(c) (2007). the State must prove beyond a reasonable doubt. State v. McMinn, 141 N.H. conduct negating the defense becomes an element of the charged offense that some evidence of self-defense, it must instruct the jury on self-defense because self-defense “constitutes a defense to any offense”). Once the trial court admits defense to the crime of assault. See miscarriage of justice would otherwise result. Russell RSA 627:1 (2007) (conduct justifiable as self-defense when he struck Timothy with the pole. Self-defense is a complete

4 p. 8 89-90. looked to federal plain error analysis in applying our plain error rule. Id. at fairness, integrity or public reputation of judicial proceedings. Id. We have error must affect substantial rights; and (4) the error must seriously affect the find plain error: (1) there must be an error; (2) the error must be plain; (3) the

be used sparingly, its use limited to those circumstances in which a trial court or the supreme court.” Sup. Ct. R. 16-A. However, the rule should rights may be considered even though it was not brought to the attention of the v. Matey, 153 N.H. 263, 266 (2006). “A plain error that affects substantial plain error rule, we may consider errors not raised before the trial court. State put the implants in. p. 9 months after the implant to -- you know -- for that to harden. And they’d then they’d install studs. Those would sit in -- because it takes six would take -- they would build up the bone in different sequences. And They told me a few options. One option would be . . . implants which

that: of medical treatment or diagnosis pursuant to Rule 803(4). Timothy testified objection, finding that the question called for statements made for the purposes arguing that the question asked for hearsay. The trial court overruled that Timothy how he would “correct” his missing teeth. The defendant objected, Hampshire Rule of Evidence 803(4). On direct examination, the State asked Richard to testify about corrective options for his teeth, pursuant to New The defendant argues that the trial court erroneously permitted Timothy

II. New Hampshire Rule of Evidence 803(4)

overwhelming. Cf

reversible error under plain error review), cert. denied, 437 U.S. 907 (1978). Cir.) (self-defense instruction that failed to properly assign burden of proof not 159 N.H. at 491-92; United States v. Jackson, 569 F.2d 1003, 1010-1011 (5th fourth prong of the plain error standard to reverse the conviction. See Russell, was guilty. For these reasons, we decline to exercise our discretion under the State had the burden to prove, beyond a reasonable doubt, that the defendant defendant’s bedroom. Moreover, the trial court instructed the jury that the events, as the defendant testified that he struck Timothy with the pole in the Evidence that the defendant did not act in self-defense was Timothy’s testimony, it was directly at odds with the defendant’s version of room, and two teeth on the floor. While the physical evidence corroborated room, blood on the walls, the pole leaning up against the wall of Timothy’s testified that the police found blood on the floor of the hallway near Timothy’s with the pole. The State also presented the testimony of Officer Killkelley, who burst into his bedroom, called him a “piece of crap,” and hit him in the face Lalicata. After he went to sleep, the defendant screamed at him, and then question. Timothy testified that his father had argued with him and with Timothy that his father was intoxicated and belligerent on the night in

. id. at 492. Here, the State presented testimony from

proceedings.” Id. at 489 (quotation omitted). did not “seriously affect the fairness, integrity or public reputation of judicial Even assuming that the error did so, see id. at 491, we conclude that the error rights under the third prong of the analysis. See Russell, 159 N.H. at 489. We next consider whether the error affected the defendant’s substantial doubt that it did not affect the verdict. State v. Kelley p. 10 An error is not harmless unless the State proves beyond a reasonable

some work as a result of the injuries. injuries made it more difficult for him to speak and eat, and that he had lost “serious bodily injury.” See the State introduced photographs of his injuries. Timothy testified that his was harmless. The State was required to prove that the defendant caused testified about the negative impact of these injuries on his daily activities, and Assuming there was error here, we agree with the State that any error that blood filled his mouth, and that he experienced cuts and redness. He assault, and the injuries that he sustained, including that he lost three teeth, Timothy with the pole in the mouth. Timothy testified in detail about the evidence of serious bodily injury. The defendant admitted that he struck Timothy’s teeth was cumulative and inconsequential in relation to the State’s Timothy’s mouth was overwhelming, and that evidence of treatment options for of any part of the body.” RSA 625:11, VI (2007). Evidence of the injury to permanent or protracted loss of or impairment to the health or of the function “[s]erious bodily injury” as “any harm to the body which causes severe,

Id erred, any error was harmless beyond a reasonable doubt.. merely cumulative or inconsequential in relation to the State’s evidence of guilt. unreliable hearsay evidence.” The State responds that even if the trial court overwhelming nature, quantity or weight and if the inadmissible evidence is the State to prove an element of its case – serious bodily injury – through reasonable doubt if the alternative evidence of the defendant’s guilt is of an argues that the error prejudiced his case because “[t]he court’s ruling enabled a patient to a medical treatment provider, not the reverse.” The defendant relation to the State’s evidence. Id. An error may be harmless beyond a the excluded evidence, including whether the evidence was inconsequential in evidence because “[t]he plain language of the rule exempts statements made by strength of the State’s evidence presented at trial, as well as the character of The defendant argues that the trial court erroneously admitted this (2009). In determining whether the State has met its burden, we consider the

clearly unreasonable to the prejudice of his case. Id. at 248-49. (2009). To meet this threshold, the defendant must show that the decision was unsustainable exercise of discretion. State v. Dodds, 159 N.H. 239, 248 We will not reverse the trial court’s admission of evidence absent an

or worry about breaking. screw in like teeth . . . so that it wouldn’t be something I need to take out It’d be another three months just for the studs and then they’d . . . p. 11 11

BRODERICK, C.J., and DALIANIS, HICKS and CONBOY, J J., concurred.

Affirmed

light of the above, we conclude that the trial court’s error, if any, was harmless. up the bone because . . . after the teeth are removed, the bone shrinks.” In he had spoken to a dentist, and that he needed “to see an oral surgeon to build Timothy offered the testimony at issue here, Timothy had already testified that pole that the defendant used to strike Timothy. Finally, we note that, before Officer Killkelley testified that he found blood on the walls, two teeth, and the defendant and their observations of the inside of the apartment; for example, observations of Timothy and his injuries after the altercation with the Similarly, Officers Sullivan, Dillon and Killkelley testified about their