2009-831, State of New Hampshire v. Ricardo Prudent

Michael A. Delaney

No. 2009-831

Hillsborough-southern judicial district

television set. See class A misdemeanor criminal mischief for purposely damaging his girlfriend’s CONBOY, J. The defendant, Ricardo Prudent, appeals his conviction of

Stephanie Hausman

law when it instructed the jury venire on nullification. We affirm. had engaged in physical altercations with his girlfriend, and by misstating the the Superior Court (Lynn, C.J.) erred by refusing to strike testimony that he

RSA 634:2 (2007) (amended 2009, 2010). He argues that

brief 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 evidence, we conclude that its admission was harmless. “It is well settled that p. 2 Assuming, without deciding, that the trial court erred by admitting the

admitting the evidence, the error was harmless beyond a reasonable doubt. and 404(b). The State disagrees but argues that even if the trial court erred by altercations was inadmissible under New Hampshire Rules of Evidence 403

The defendant first contends that the evidence of the physical

(2) misstating the law on jury nullification. (1) admitting evidence of the physical altercations at the club; and On appeal, the defendant argues that the trial court erred by:

mischief. her car. The jury found the defendant guilty of misdemeanor criminal the defendant grabbed the back of her jacket and subsequently threw her into At trial, Steinmetz was allowed to testify, over objection, that at the club

jury in a criminal case has the power, but not the right, to nullify. the venire at length on jury nullification, including advising the venire that a a pamphlet, and about half raised their hands. The trial court then instructed courthouse. The trial court asked the venire whether any of them had received people had been distributing pamphlets on jury nullification outside the On the day of jury selection, the trial court was informed that a group of

must say so.” Steinmetz had paid $2,250 for the television in September 2005. if he meant to “screw up” Steinmetz’s television, he replied, “Yeah, I was mad I defendant admitted that he had thrown the iron at the television. When asked and left. The iron broke the television screen. At the police station, the your f**king TV goodbye,” threw the iron at Steinmetz’s fifty-two inch television, question. Again, she responded that it was. The defendant then stated, “kiss he was standing on the cord. He picked up the iron again and repeated his responded that it was, he threw the iron; however, it did not travel far because up an iron and asked her whether their relationship was over. When she apartment to determine whether she had forgotten anything. He then picked

After Steinmetz gave the defendant his belongings, he entered the

apartment and stood in the doorway while she collected his things. retrieve his belongings. The defendant, however, followed her upstairs to her asked the defendant to wait in the lobby while she went to her apartment to argue on the drive home. When they arrived at Steinmetz’s apartment, she her car and drove her back to her apartment in Nashua. They continued to The two argued, and then the defendant threw her into the passenger seat of her own, but the defendant stopped her by grabbing the back of her jacket. she wanted to leave, and he became upset. Steinmetz attempted to leave on Massachusetts. Shortly after they arrived, Steinmetz told the defendant that the venire on jury nullification. This issue is raised as plain error. See p. 3 Next the defendant argues that the trial court erred in its instructions to

harmless error beyond a reasonable doubt. not affect the jury’s verdict. Thus, the State has met its burden of proving and that any error in the admission of evidence of the physical altercations did We conclude that the evidence of the defendant’s guilt was overwhelming,

instruction violated his right to have the jury deliberate without improper against the law and a violation of the jurors’ oath. He contends that this juries do not have the right to nullify and by implying that jury nullification is The defendant argues that the trial court erred by instructing the venire that We first address whether the trial court’s instruction constituted error.

he meant to “screw up” Steinmetz’s television. the damage to the television; and (7) the defendant’s admission to police that damaged television; (6) the defendant’s confession to the police that he caused testimony that she paid $2,250 for the television; (5) photographs of the successfully, threw the iron through the television screen; (4) Steinmetz’s their relationship was over, the defendant at first unsuccessfully, and then her upstairs to her apartment; (3) Steinmetz’s testimony that after learning that her apartment building while she retrieved his belongings, but that he followed (2) Steinmetz’s testimony that she asked the defendant to wait in the lobby of 489 (2009) (quotation omitted). or public reputation of judicial proceedings.” State v. Russell, 159 N.H. 475, substantial rights; and (4) the error must seriously affect the fairness, integrity, must be an error; (2) the error must be plain; (3) the error must affect Ct. R. 16-A. For a claim to be successfully raised as plain error: “(1) there

defendant had been arguing since they were at the club in Saugus; The evidence at trial included: (1) Steinmetz’s testimony that she and the pecuniary loss in excess of $100 and not more than $1,000,” RSA 634:2, II-a. RSA 634:2, I, and that he “purposely cause[d] or attempt[ed] to cause having such a right, purposely or recklessly damage[d] property of another,” prove that he, “having no right to do so nor any reasonable basis for belief of was overwhelming. To prove the defendant’s guilt the State was required to The State argues that the alternative evidence of the defendant’s guilt

evidence of guilt.” Id. (quotations omitted). merely cumulative or inconsequential in relation to the strength of the State’s overwhelming nature, quantity, or weight, and if the inadmissible evidence is reasonable doubt if the alternative evidence of the defendant’s guilt is of an State v. Wall, 154 N.H. 237, 245 (2006). “An error may be harmless beyond a beyond a reasonable doubt, that the verdict was not affected by the admission.” the erroneous admission of evidence may be harmless if the State proves, nullification and its potential effect concerning both civil and criminal cases. p. 4 the trial court delivered an extensive instruction concerning the history of jury Nevertheless, in explaining the concept of jury nullification to the venire,

Wentworth

the venire and to the jury at the close of the case. omitted). Here, the trial court gave the standard Wentworth instruction both to State v. Hernandez still acquit the defendant.” Sanchez, 152 N.H. at 629 (quotations and brackets juror would have understood them, and in light of all the evidence in the case. beyond a reasonable doubt all the elements of the offense charged, they could error by interpreting the disputed instructions in their entirety, as a reasonable nullification instruction that even if the jurors found that the State proved given to empanelled juries. Under that standard, we evaluate allegations of held that “the effect of ‘should’ in the charge provides the equivalent of a jury instructions given to the venire under the standard used to review instructions, 118 N.H. at 839 (quotations omitted; emphasis added). We have The State contends, and the defendant does not contest, that we review It is well established that the model charge set forth in State v. the defendant guilty. the offense charged beyond a reasonable doubt, you should find However, if you find that the State has proved all of the elements of the crime charged, you must find the defendant not guilty. whether the State has proved any one or more of the elements of The test you must use is this: if you have a reasonable doubt as to

innocence, and reasonable doubt, includes the following instruction: charge, which addresses the State’s burden of proof, the presumption of nullification instruction.” State v. Sanchez, 152 N.H. 625, 629 (2005). That Wentworth, 118 N.H. 832, 838-39 (1978), “provides the equivalent of a jury

about that. decisions on these matters for an unsustainable exercise of discretion. Id it’s not — it’s against the law, there’s nothing anybody can do. are within the sound discretion of the trial court, and we review the trial court’s to exercise that power even if sort of wrongly, so to speak, because instruction is necessary, and the scope and wording of the jury instructions, nobody, including the judge, is entitled to intrude, the jury decides the deliberation — in the sort of confines of the jury room where, 159 N.H. 394, 400 (2009). Whether a particular jury power to do so and if they do so and, you know, nobody knows it in [J]urors do not have the right to not follow the law. They have the

court to the venire: influence from the court. He points to the following statements of the trial clear or, equivalently, obvious.” United States v. Olano p. 5 court constituted error, such error is not plain. “Plain is synonymous with Assuming that the additional discussion of jury nullification by the trial

defendant that’s on trial did or did not possess marijuana.

alleged in some indictment or other charging document this marijuana to be illegal, but whether on a particular occasion as is not to decide[ ] whether it’s a good idea or a bad idea for hypothetical, you know, my marijuana case hypothetical, your job

Your job here is to decide what the facts are, so that in my

Later, the trial judge stated:

the right not to follow the law. power to remove that juror because the juror – jurors do not have

instructions that expand upon Wentworth venire, even if accurate, “chilled” the jury’s ability to nullify. Because The defendant suggests that the trial court’s lengthy instructions to the

Under the law, I as the judge or any judge would have the

instruction as may be necessary under the circumstances. State v. Hokanson, caution trial judges to limit further explanation of nullification to such

affirm. plain error.” State v. Panarello, 157 N.H. 204, 209 (2008). Accordingly, we remains unsettled at the time of appeal, a decision by the trial court cannot be don’t think marijuana should be against the law. improper as a matter of law. “When the law is not clear at the time of trial and rule on whether particular instructions that expand upon Wentworth may be Wentworth correctly states the law regarding jury nullification, we have yet to (1993) (quotations omitted). While our case law has made it clear that

didn’t possess marijuana, I’m going to vote not guilty because I

evidence is as to whether the defendant possessed marijuana or going to vote that way, I’m going -- I don’t really care what the sorry I don’t think marijuana ought to be against the law and I’m was selected one of the jurors were to say, you know, Judge, I’m somebody’s charged with possession of marijuana, if after the jury If in this trial -- the hypothetical trial I’m talking about where

explaining the jury’s role in the hypothetical case, the trial judge stated: nullification in the context of a hypothetical marijuana possession case. In end of that matter.” The trial court then went on to discuss the concept of a defendant not guilty. And if the jury finds the defendant not guilty that’s the case, no matter how strong the evidence may be, the jury has the power to find As to jury nullification in criminal cases, the trial court stated: “In a criminal p. 6 6

Affirmed

DALIANIS, C.J.