2009-416, State of New Hampshire v. Roger Leveille

Michael A. Delaney

No. 2009-416

Hillsborough-southern judicial district

arrived home from plowing snow for the city of Nashua. He began to plow the children in the other half. On the evening of February 13, 2008, the defendant sister, Christine Nelson, lived with her husband, Gregory Ellis, and their jury in Superior Court (Nicolosi children lived in one half of a two-family duplex in Hudson. The defendant’s DALIANIS, J. The defendant, Roger Leveille, appeals his conviction by a The following facts are not in dispute. The defendant and his wife and

Pamela E. Phelan

concerning accident. We affirm. (2007). He argues that the trial court failed to give the proper jury instruction

and orally, for the defendant.

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 was discharged and a mental state. p. 2 of a voluntary act and in this case, the allegation is that the gun

accidental. As you were previously instructed, a crime is made up

Mr. Leveille contends that the shooting of Mr. Ellis was

The trial court’s accident instruction stated:

murder, see

matters for an unsustainable exercise of discretion. Id. discretion of the trial court, and we review the trial court’s decisions on these in clear and intelligible language, the rules of law applicable to the case.” State necessary and the scope and wording of the instruction are within the sound “The purpose of the trial court’s charge is to state and explain to the jury, cover the issues of law in the case. Id. Whether a particular jury instruction is each element of the offense and reverse only if the instructions did not fairly determine whether the jury instructions adequately and accurately explain evidence in the case. State v. Littlefield, 152 N.H. 331, 334 (2005). We as a reasonable juror would have understood them, and in light of all the allegations of error by interpreting the disputed instructions in their entirety, The defendant was indicted on three alternative charges: attempted reaching a verdict.” Id. When reviewing jury instructions, we evaluate and has discretion to decide whether a particular charge will assist the jury in trial court . . . need not use the specific language requested by the defendant v. Johnson, 157 N.H. 404, 407 (2008) (quotation and brackets omitted). “The

opinions for guidance only. State v. Ball, 124 N.H. 226, 231, 233 (1983). XIV. We first address his claims under the State Constitution, and cite federal process and a fair trial. See N.H. CONST. pt. I, art. 15; U.S. CONST. amend. an accident,” in violation of his state and federal constitutional rights to due bore the burden to prove beyond a reasonable doubt that the shooting was not the trial court’s instruction “failed to properly instruct the jury that the State but gave its own accident instruction. On appeal, the defendant argues that such instruction. The trial court rejected the defendant’s proposed instruction, accident, to which the State objected, arguing that he was not entitled to any accidentally. The defendant submitted a proposed jury instruction regarding degree assault. At trial, there was some evidence that the defendant shot Ellis acquitted the defendant of attempted murder but found him guilty of first RSA 631:1, and second degree assault, see RSA 631:2 (2007). The jury

RSA 629:1 (2007); RSA 630:1-a (2007), first degree assault, see

thereafter, Ellis suffered a gunshot wound. during which the defendant retrieved a gun from his truck and, shortly thereafter, Ellis came outside. He and the defendant had an altercation, who was inside her home, and they exchanged heated words. Shortly Nelson’s car, which was blocking his path. The defendant telephoned Nelson, driveway, but his truck became stuck when he tried to maneuver around p. 3 Hampshire Criminal Code, State v. Rosciti

all of the evidence presented at trial related to two possibilities about how the Although “accident” is not a recognized defense under the New acted with a requisite mental state, then you must find him not guilty.” Nearly find that the State has not proved, beyond a reasonable doubt, that Mr. Leveille defendant’s intending for it to occur.” Finally, the court reiterated that “if you something that occurs “without intention or design” and “without the mental state beyond a reasonable doubt.” It then defined “accident” as went on to state that “[t]he State must prove both the physical deed and a the jury that “a crime is made up of a voluntary act and . . . a mental state.” It conduct would cause a certain result.” The instruction began by explaining to he acted with the mental state of “knowingly,” such that he “was aware that his jury that, to find the defendant guilty of first degree assault, it must find that Just before the trial court gave the accident instruction, it instructed the

requisite mental state, then you must find him not guilty. proved, beyond a reasonable doubt, that Mr. Leveille acted with a intending for it to occur. That’s if you find that the State has not

doubt that what happened on that night was not an accident. We disagree. accurately set forth that it was the State’s burden to prove beyond a reasonable The defendant contends that the instruction failed to clearly and unexpected event that takes place without the defendant’s

state]. . . .”); Morris v. State of Md. intention or design on a defendant’s part. It means a sudden, 715 F.2d 106, 110 (4th Cir. 1983). the State must prove that the defendant acted [with the requisite mental An accident is an unexpected happening that occurs without beyond a reasonable doubt that the defendant did not act accidentally; that is, Criminal Jury Instructions 3.01 (1985) (“The State has the burden of proving a reasonable doubt that the conduct at issue was not an accident. See N.H. mental state, it follows that, here, the State bore the burden of proving beyond State bears the burden of proving that the defendant acted with the requisite 631:1; Com. v. Podkowka, 840 N.E.2d 476, 482 (Mass. 2006). Because the element of the crime charged; that is, that he acted “knowingly,” see RSA aptly points out, a claim that he acted accidentally negates an essential crime.” State v. Singleton, 974 A.2d 679, 691 (Conn. 2009). As the defendant raises the . . . question of whether [the defendant] intended to commit the omitted). “Accident” has been described as a “failure of proof” defense, “which by some evidence.” State v. Blackstock, 147 N.H. 791, 798 (2002) (quotation held that “an instruction on accident should be given if the theory is supported

crime. beyond a reasonable doubt for the defendant to be found guilty of a The State must prove both the physical deed and a mental state than the State Constitution with regard to his claims of error. See p. 4 The Federal Constitution affords the defendant no greater protection

supported by some evidence. See the requirement for a jury instruction on accident, since the theory was plainly BRODERICK, C.J., and DUGGAN, HICKS and CONBOY, JJ. , concurred. In addition, we observe that the record in this case unquestionably met Affirmed

Bujnowski, 130 N.H. 1, 5 (1987). is the prosecutor’s duty to seek justice, not merely to convict. State v. align its objections with settled legal principles. As we have previously noted, it given the evidence presented at trial, and we urge the State, in the future, to instruction regarding accident. We believe that objection was unwarranted discretion. cannot say that the trial court’s instruction was an unsustainable exercise of prosecutor, who is not counsel on appeal, objected to the trial court giving any Although the defendant may have preferred a different accident instruction, we New Hampshire has a model jury instruction regarding accident. See Blackstock, 147 N.H. at 798. Yet, the defendant did not have to produce any evidence or to prove his innocence. defendant acted “knowingly.” In addition, the jury was instructed that the the State could prove the requisite mental state only by proving that the and fairly covered the issues of law in the case. They conveyed to the jury that “reasonable doubt”). instructions adequately and accurately explained each element of each offense trial courts use model charge regarding burden of proof and the definition of reasonable doubt that the defendant’s conduct was not an accident. The N.H. 832, 838-39 (1979) (exercising supervisory jurisdiction to suggest that instructions in their entirety that the State had the burden of proving beyond a practicable, in order to avoid needless litigation. Cf. State v. Wentworth, 118 We conclude that a reasonable juror would have understood from the recommend that trial courts use New Hampshire Model Jury Instructions when have used this instruction but chose not to do so. We take this opportunity to N.H. Criminal Jury Instructions 3.01 (1985). We note that the trial court could

appeal but not briefed. See State v. Blackmer, 149 N.H. 47, 49 (2003) We decline to address arguments raised by the defendant in his notice of (1975). Accordingly, we reach the same result under the Federal Constitution. Parker, 142 N.H. 319, 321 (1997); Mullaney v. Wilbur, 421 U.S. 684, 701-02

off accidentally. shooting occurred: either the defendant intended to shoot Ellis or the gun went