2009-321, State of New Hampshire v. Darlene Nightingale

Michael A. Delaney

No. 2009-321

Sullivan

school. See by a jury of felony sale of a controlled drug (Oxycontin) within 1,000 feet of a DALIANIS, J. The defendant, Darlene Nightingale, appeals her conviction

Force. We affirm. she participated in another drug transaction for the New Hampshire Drug Task Lisa L. Wolford motion to dismiss; and (4) allowing the confidential informant to testify that instruction to limit the jury’s consideration of that evidence; (3) denying her her motion to preclude certain evidence; (2) denying her request for a jury appeal, she argues that the Superior Court (Arnold, J.) erred by: (1) denying

RSA 318-B:2, I (Supp. 2009); RSA 318-B:26, V (Supp. 2009). On

and orally, for the defendant.

assistant 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 defendant told the detective that she could meet him between 9:00 and 10:00 p. 2 boyfriend would call the police if she brought them to her own house. The Plainfield house of her friend, Pat Poulin, because she was worried that her purchased three eight balls of cocaine, but that she had left them at the middle of the back seat. The defendant told the detective that she had seat, the informant was in the passenger seat, and the detective sat in the Farms, and Detective N. entered her van. The defendant was in the driver’s At approximately 10:37 p.m., the defendant arrived at Cumberland

Stevens High School. in Claremont for the Oxycontin sale. This store is less than 1,000 feet from The parties agreed to meet at the Cumberland Farms store on Pleasant Street basically tide them over for the night until I could get the cocaine the next day.” were not going to be happy. So at least . . . I could get some Oxycodones . . . to [for my] . . . customers . . . . And if I didn’t have the cocaine, my customers . . . Detective N. explained at trial: “I was portraying a role of wanting the cocaine until the next day when [he] would have a chance to get the cocaine.” As but that she had offered to sell him Oxycontin that night “to tide [him] over had said that he could not purchase the cocaine from her until the next day, approximately 10:15 p.m., the informant told Detective N. that the defendant defendant had purchased three eight balls of cocaine in Concord. At text messages. At around 7:00 p.m., the informant told Detective N. that the Detective N. about the planned cocaine purchase by phoning and sending him 10:30 a.m. Throughout the day, the informant kept in close contact with The defendant and the informant left Claremont for Concord at around

fact, Detective N. boyfriend, “Porter,” wanted to buy an eight ball of cocaine. “Porter” was, in After speaking with Detective N., the informant told the defendant that her exdefendant. An eight ball is approximately three and one half grams of cocaine. that he would be interested in buying an “eight ball” of cocaine from the her to Concord to buy cocaine. The informant called Detective N., who said On October 21, 2007, the defendant asked the informant to accompany

target the defendant, who shared a house with Nicole Moulton. informant’s “case agent” at the task force, Detective N., asked the informant to three prospective targets, her cooperation “would work in [her] favor.” The cooperative and helped in roughly two or three controlled buys” from two or regarding drug transactions. The informant understood that “if [she were] she could obtain help with this charge in exchange for providing information habitual offender. She contacted the New Hampshire Drug Task Force to see if confidential informant was arrested for driving after having been certified as a The jury could have found the following facts. In July 2006, the

I. Background other purposes, such as proof of motive, opportunity, intent, p. 3 acted in conformity therewith. It may, however, be admissible for prove the character of a person in order to show that the person Evidence of other crimes, wrongs, or acts is not admissible to

Rule 404(b) provides:

the prejudice of the defendant’s case. State v. Russell discretion, and will reverse only if it was clearly untenable or unreasonable to We review the trial court’s ruling for an unsustainable exercise of

and brackets omitted). trial to the evidence.” State v. Glodgett, 144 N.H. 687, 694 (2000) (quotation pitfall of justifying the court’s pretrial ruling upon the defendant’s response at hearing.” Id. at 483 (quotation omitted). “We so limit our review to avoid the evidence before trial, “we consider only what was presented at the pretrial (2009). Because the trial court ruled upon the admissibility of the challenged

ruled that they “indicate[d] a plan to sell cocaine” to the detective. motion in “the context of the sale as well as the defendant’s motive for selling.” The court The defendant first argues that the trial court erred when it denied her Oxycontin were admissible. These conversations, the trial court ruled, showed A. Admissibility of “Cocaine Conversations” defendant said that she could not sell him the cocaine yet, but would sell him which Detective N. placed an order for an eight ball of cocaine and in which the II. Analysis evidence was admitted at trial without objection) but that the conversations in evidence of the trip to Concord was inadmissible (although we note that this fact, granted this motion in part. In its order, the trial court ruled that Rule of Evidence 404(b). The record on appeal reveals that the trial court, in and argues on appeal, that this evidence is inadmissible under New Hampshire traveled to Concord to buy cocaine. The defendant argued to the trial court,

limine to exclude evidence that she and the informant allegedly

within 1,000 feet of a school. left the vehicle. Thereafter, the defendant was charged with selling Oxycontin hand. He wrapped the pills in a cellophane wrapper from a cigarette pack and the defendant opened the prescription bottle and dumped the pills into his detective for sixty dollars. The detective handed the defendant the money, and they were ten milligrams. The defendant offered to sell ten of the pills to the whether the pills were ten or twenty milligrams, to which she responded that opened her purse and removed a prescription bottle. The detective inquired a.m. the following day to sell him one of the eight balls. The defendant then prejudice.” State v. Sonthikoummane p. 4 particular testimony, and what steps, if any, are necessary to remedy that “The trial court is in the best position to gauge the prejudicial impact of

evidence, stipulation or inference. State v. Howe something other than the established propositions in the case. State v., 159 N.H. 366, 378 (2009). (3) the extent to which the issue upon which it is offered is established by other mainsprings of human action that may cause a jury to base its decision on (2) its potential for appealing to a juror’s sense of resentment or outrage; and arouse its sense of horror, provoke its instinct to punish, or trigger other (1) whether the evidence would have a great emotional impact upon a jury; prejudicial if its primary purpose or effect is to appeal to a jury’s sympathies, charged. Id time, or needless presentation of cumulative evidence.” Evidence is unfairly. Among the factors we consider in weighing the evidence are: the defendant on some improper basis, commonly one that is emotionally issues, or misleading the jury, or by considerations of undue delay, waste of predicate reversible error is an undue tendency to induce a decision against is substantially outweighed by the danger of unfair prejudice, confusion of the State v. Giddens Under Rule 403, relevant evidence “may be excluded if its probative value, 155 N.H. 175, 180 (2007). Rather, the prejudice required to which sense all evidence offered by the prosecution is meant to be prejudicial. detriment to a defendant from the tendency of the evidence to prove guilt, in Ainsworth, 151 N.H. 691, 696 (2005). Unfair prejudice is not, of course, mere

wrongs or acts” may be admitted, Rule 404(b) does not apply here. See Although this test must be applied before evidence of “other crimes, Hampshire Rule of Evidence 403. Kulikowski, 132 N.H. at 287. apply, see id., and the applicable test for admissibility is found in New Barnes the defendant. State v. Beltran, 49 F.3d at 1149 (emphasis added). Therefore, Rule 404(b) does not the crime charged in the indictment “are part of a single evidence is not substantially outweighed by the danger of unfair prejudice to criminal episode.” LaDue proof that the defendant committed the act; and (3) the probative value of the, 561 F.3d 855, 857-58 (8th Cir. 2009). The conversations at issue and F.3d 1144, 1149 (6th Cir. 1995) (quotation omitted); see other than proving the defendant’s character or disposition; (2) there is clear United States v. evidence of the crime charged in the indictment.” United States v. Barnes Other bad acts evidence is admissible when: (1) it is relevant for a purpose, 49 “other crimes, wrongs or acts,” but rather are “inextricably intertwined with Kulikowski, 132 N.H. 281, 287 (1989). The challenged conversations are not

burden of demonstrating the admissibility of other bad acts. Id.

accident. preparation, plan, knowledge, identity, or absence of mistake or p. 5 B. Jury Instructions

instruct the jury as follows regarding the cocaine evidence: her requested limiting instruction. The defendant proposed that the court The defendant next asserts that the trial court erred when it failed to give

probative value. Id 5 defendant from admission of this evidence substantially outweighed its Next, we consider whether the danger of unfair prejudice to the

substantially outweigh its probative value.” Id prejudicial, we cannot conclude that the evidence was so inflammatory as to

omitted). the decision.” State v. Wamala, 158 N.H. 583, 591-92 (2009) (quotation result on mistaken grounds, we will affirm if valid alternative grounds support determination nonetheless because “where the trial court reaches the correct trial court applied Rule 404(b), instead of Rule 403, we uphold its

Although the evidence of the challenged conversations “may have been emotional impact upon the jury than the charged sale of Oxycontin. See id. who sold the Oxycontin to the detective. While at the motion in him Oxycontin instead to “tide [him] over” was likely to have any greater that the detective originally sought to buy cocaine and that the defendant sold despite her claims to the contrary, it was the defendant, and not the informant, Additionally, the conversations were relevant and probative to show that,. In the context of this case, we cannot say that evidence

Oxycontin. is relevant to show that it was she, and not the informant, who sold him evidence that the defendant spoke with the detective about selling him cocaine the informant “sold a guy pills” and the defendant “just drove her there,” the defendant’s friend, Nicole Moulton, testified that the defendant told her that First, we consider the probative value of the evidence. Howe limine hearing

overall plan, which began with her plan to sell him cocaine. to show that selling Oxycontin to Detective N. was part of the defendant’s was to pay her mortgage. The conversations were also relevant and probative context of the sale as well as the defendant’s motive for selling” drugs, which found, the challenged conversations were relevant and probative to show “the evidence may have limited probative value. Id. Here, as the trial court aptly 378. This entails analyzing how relevant the evidence is. Id. Relevant

unsustainable exercise of discretion. State v. Miller, 155 N.H. 246, 252 (2007). Accordingly, we will not disturb the trial court’s decision absent an on the admissibility of potentially unfairly prejudicial evidence. Id. and brackets omitted). Thus, we give the trial court broad latitude when ruling a jury instruction issue for appellate review. Ainsworth

p. 6 As a general rule, a contemporaneous objection is necessary to preserve

defendant has not preserved her argument for our review. had “[n]othing to add.” Under these circumstances, we conclude that the When the court later read it to the jury, defense counsel stated that counsel instruction, defense counsel said: “I say leave it in,” and “I think it’s fine.” to counsel or later when given to the jury. When the trial court read this The defendant, however, did not object to this instruction either when first read

you and should not be considered for any other purpose. presented to provide context and background for the charge before

and offered to sell cocaine to Detective [N]. This evidence was

Specifically, the State claims that the defendant possessed cocaine

other illegal acts that are not charged in the indictment. The State has introduced evidence that the defendant committed

as follows: The court declined to give this instruction, instructing the jury, instead,

in the indictment.

proven that the defendant committed the particular crime charged Keep in mind that your duty is to decide whether the State has

charged. The defendant’s character is not an issue in this case.

proof that the defendant was disposed to commit the crime

may not consider this evidence of the defendant’s character as however, use this evidence for any other purpose. Specifically, you

the person who committed the offense charged. You may not, whether a mistake has been made in identifying the defendant as prior illegal acts, then you may use that evidence in deciding

crime charged. If you believe that the defendant committed the

proposed instructions to the trial court, see Fischer v. Hooper, 143 N.H. 585, instruction issue for our review, counsel must do more than merely submit common sense and judicial economy. Id. at 694. To preserve a jury instruction. Id. at 693-94. This long-standing requirement is grounded in have made and is particularly fitting when an alleged error involves a jury the identity of the defendant as the person who committed the requirement affords the trial court an opportunity to correct an error it may

deciding whether the State has proven beyond a reasonable doubt You may consider this evidence for the narrow purpose of

and offered to sell [it] to Detective [N].

Specifically, the State claims that the defendant possessed Cocaine committed other illegal acts that are not charged in the indictment. The State here has introduced evidence that the defendant could justify a court’s refusal to allow the prosecution to proceed.” United p. 7 cases of prosecutorial misconduct, the government’s refusal to grant immunity “[T]he [federal] circuits have agreed,” however, “that in certain extreme

against self-incrimination.” State v. MacManus immunity conferred upon a defense witness who exercises [his] privilege “It is well-settled that a defendant has no constitutional right to have 7

brief, we review her claim under only the Federal Due Process Clause. See defendant has not cited a specific provision of the State Constitution in her which the defendant now claims violated her due process rights. Because the immunity to Poulin or dismiss the indictment. The court refused to do either, argued that the court should either compel the State to grant derivative use immunity. After the court sustained Poulin’s assertion of this right, the defendant RSA 516:34 (2007) gives prosecutors, not judges, the power to confer witness

a Richards detective that she left cocaine at Poulin’s house, she did not, in fact, do so. At State v. Dellorfano, 128 N.H. 628, 632 (1986). no cocaine was actually bought, and that, although the defendant told the question but there was no conversation about buying drugs in Concord, that traveled to Concord with the defendant and the informant on the day in Poulin, one of her witnesses. The defendant expected Poulin to testify that he motion to dismiss after the State refused to grant derivative use immunity to The defendant next contends that the trial court erred when it denied her

C. Use Immunity Constitution and refused to answer any questions about the trip to Concord. asserted his right to remain silent under the Fifth Amendment to the Federal

hearing, see State v. Richards, 129 N.H. 669, 673-74 (1987), Poulin

not the permissible use that the jury could make of the evidence. This claim was broad terms “context” and “background,” without more, insufficiently defined On appeal, the defendant complains that the trial court’s use of the

appeal.” Id. the defendant’s objection[, w]e decline to consider it for the first time on 565. As “[t]he trial court was never given the opportunity to assess the merit of instruction was not communicated to the court . . . .” Eldredge, 135 N.H. at made to the trial court. “Any infirmity in the scope or clarity of the limiting

specific objection to the court’s jury instructions. See Berliner, 150 N.H. at 84. preserve a jury instruction issue for our review, counsel must actually make a the evidence itself, see State v. Eldredge, 135 N.H. 562, 564-65 (1992). To Clukay, 150 N.H. 80, 84-85 (2003), or object generally to the admissibility of 597 (1999), debate possible instructions with the trial court, see Berliner v. contends was error. p. 8 the testimony under the “opening the door” doctrine, which the defendant was arrested and prosecuted for selling heroin to her. The trial court admitted with the drug task force on another case involving a target named “Joe,” who the informant to testify that, before targeting the defendant, she had worked Finally, the defendant argues that the trial court erred when it allowed

D. Informant’s Testimony 8

constitutional violation.” Id The facts in this case, however, “are not within a country mile of [such] a

would have prevented the defendant’s conviction.” Id. Poulin’s testimony, therefore, was not “the sort of exculpatory evidence that eventually did, sell Oxycontin to Detective N. See Rogers, 159 N.H. at 58. defendant elsewhere or precluded the possibility that she agreed to, and detective regarding the cocaine. His testimony could not have placed the defendant’s own statements as well as the testimony of the informant and particularly exculpatory. At best, Poulin would have only impeached the “trivial interest” in withholding immunity. Nor was Poulin’s expected testimony

Mackey legitimate, good faith objections by the prosecutor to a grant of immunity.” immunity.” Id posits that a strong need for exculpatory testimony can override even. evidence that can be secured in no way other than through the grant of The defendant “relies upon the so-called ‘effective defense theory,’ which of justice -- the defendant has an overwhelming need for specific exculpatory trivial interest in withholding immunity and -- to avoid a complete miscarriage to this rule “upon very extreme facts,” such as when “the prosecutor has only a F.3d at 28. The First Circuit has recognized that there might be an exception immunity in the face of a good faith refusal of the prosecutor.” Mackey, 117 (3d Cir. 1980). The majority view is that “courts have no power to compel one circuit.” Id.; see Government of Virgin Islands v. Smith, 615 F.2d 964, 974 , 117 F.3d at 28. “This theory,” however, “has been accepted in only

dismiss rather than force the State to grant immunity to Poulin. Due Process Clause for the trial court to deny the defendant’s motion to omitted); see Rogers, 159 N.H. at 59. Thus, it was not error under the Federal declined to grant immunity to Poulin. Mackey, 117 F.3d at 27 (citation government misconduct, or that the government acted in bad faith” when it N.H. 50, 59 (2009). “In this case, there is no indication of affirmative prosecution’s denial of immunity to defense witnesses.” State v. Rogers, 159 considered when analyzing a trial court’s refusal to dismiss after the “[I]n federal courts, prosecutorial overreaching is essentially the only factor States v. Mackey, 117 F.3d 24, 27 (1st Cir.), cert. denied, 522 U.S. 975 (1997). boyfriend.” Additionally, the informant was angry with the defendant and p. 9 she gave her a false story about being abused at the hands of her exthat [the defendant], being an abuse survivor, would be an easy target for her if could manipulate” the defendant. The informant, defense counsel said, “knew defendant’s name to the drug task force because the informant “knew that she Defense counsel also told the jury that it was the informant who gave the

protection.” serious driving offense by falsely pretending to be a woman in need of criminal, and that criminal is [the informant], attempting to get away with a going to beat her up.” This case, defense counsel stated, “is really about a telling her that “if [the informant] didn’t get drugs for her ex-boyfriend he was the defendant was even in the car was because the informant had lied by pills and took his money. Defense counsel explained that the only reason that culprit in this case was the informant; it was she who gave the detective the In her opening statement, defense counsel told the jury that the real

reasonably concluded otherwise. statement did not create a misleading advantage. We hold that the trial court

Alternatively, the defendant contends that her counsel’s opening 9

See misleading advantage and, thus, trigger the specific contradiction doctrine. we have previously held that remarks in opening statements can create a contends, “no misleading advantage could have been created.” To the contrary, [the informant] through cross examination.” Absent these actions, she neither introduced evidence that invited rebuttal from the State, nor impeached apply here because, “at the point at which it was invoked, [the defendant] had The defendant argues that the specific contradiction doctrine does not

860, 874 (1991). State v. Goodman, 145 N.H. 526, 529-30 (2000); State v. Fecteau, 133 N.H.

misleading advantage. Id

case. Id. at 586. court’s decision was clearly untenable or unreasonable to the prejudice of her standard. Id. at 590. To prevail, the defendant must show that the trial “opening the door” doctrine under our unsustainable exercise of discretion doctrine. We review the trial court’s decision to admit evidence under the

previously suppressed or otherwise inadmissible evidence to counter the creates a misleading advantage and the opponent is then allowed to introduce more broadly applied when one party has introduced admissible evidence that testimony to counter the prejudice. Id. The “specific contradiction” doctrine is evidence has been erroneously admitted, and the opponent seeks to introduce The “curative admissibility” doctrine applies when inadmissible prejudicial admissibility” and “specific contradiction” doctrines. Wamala, 158 N.H. at 589. The opening the door doctrine comprises two doctrines, the “curative p. 10 10

Affirmed

this misleading impression. See multiple buys before the task force would help her, was necessary to counter previously targeted another person and that she was required to participate in BRODERICK, C.J., and DUGGAN, HICKS and CONBOY, JJ., concurred. have reasonably determined that the informant’s testimony that she had the informant and Detective N. had only one target, the defendant, and could defense counsel’s opening statement created the misleading impression that Based upon the above, the trial court reasonably could have found that

court’s decision to admit this testimony. to a given subject during its opening statement.”). We find no error in the trial State v. Guill, 228 P.3d 1152, 1163 (Mont. 20 p. 10 10) (“A party may open the door (Md. 2009) (opened door doctrine applies in context of opening statements);

informant’s friend. wanted to take revenge on her for something the defendant had done to the