2010-458 The State of New Hampshire v. Michael Soto

Following a jury trial in Superior Court (Smukler

Getman, Schulthess & Steere, P.A.

named Bill threatened Roney White’s young cousins with a knife at a 7-Eleven in Manchester on the evening of January 2, 2007. On the previous day, a man The defendant’s conviction arises out of the fatal shooting of Aaron Kar

first-degree murder. See RSA 626:8, 630:1-a, I(a) (2007). We affirm. defendant, Michael Soto, appeals his conviction for being an accomplice to

Clara E. Lyons on the brief, and Mr. Schulman orally), for the defendant.

THE SUPREME COURT OF NEW HAMPSHIRE

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 an informant. p. 2 introduction of an audio recording of Roscoe White discussing the crime with (2) in not giving a reckless manslaughter instruction; and (3) in permitting the court erred: (1) in not giving the jury a provocation manslaughter instruction; as an accomplice in Kar’s death. On appeal, the defendant argues that the trial The jury convicted the defendant of first-degree murder based on his role

wounds. returned to the Blazer, and the men drove away. Kar later died from his Roscoe. Roscoe left with a mask on, shot Kar in the leg and abdomen, wiped the gun with his shirt, racked the slide to cock it, and handed it to the shooter based on his blood relationship with Roney. The defendant then corner and discussed who would do the shooting. They settled on Roscoe as After driving past the group once or twice, they parked the Blazer around the suspected had been involved in Roney’s attack gathered near a dumpster. attackers. A short time later, they found a group of people whom they 2 defendant had brought a gun, the six men set out in the Blazer to find Roney’s Roney’s attackers and confront them. After Roscoe confirmed that the Roscoe shared with Roney, smoked marijuana, and settled on a plan to find red Chevrolet Blazer. The men met Clagon, Alleyene, and Roscoe in the room Clagon’s cousin Kim and her children drove from Nashua to Manchester in a That evening, the defendant, his brother Sergio, Andrew Gonzalez, and

asking them to bring a gun. Roscoe failed to get his own gun to work, he called some friends in Nashua, the possibility of an armed fight in retaliation for the attack on Roney. After thereafter, Alleyene, Clagon, and Roscoe met at Roscoe’s house and discussed Raymond Alleyene. Roney’s mother took him to the hospital. Shortly injured, Roney stumbled home to his mother and two brothers, Roscoe and Roney with a baseball bat as he was walking alone on Nashua Street. Badly The next day, at around 2:30 p.m., Bill and another person attacked

night. moving vehicle. No further encounter between the two groups occurred that Clagon, and unsuccessfully attempted to hit one of them with a stick from the which included Roney, his brother Roscoe White, and their friend Anthony and his friends drove past a small group of people standing on the street, fled the scene. Later that night, apparently in response to Roney’s actions, Kar standing outside the store, Roney punched him in the face in retaliation and cousins, he directed them to identify the man with the knife. Finding Bill store close to Roney’s home. When Roney learned of the incident from his p. 3 3

but not as serious a crime as first or second-degree murder. disturbance in response to extreme provocation has committed a serious crime – manslaughter – to human frailty,” reflected in the fact that a person killing under an extreme mental or emotional greatly provoked he may be, does not kill.”). Provocation manslaughter is, therefore, a “concession may suffer a temporary loss of reason and control. See id. at 495 (“[T]he reasonable man, however recognition that, in certain extreme circumstances, even an average person of ordinary disposition acceptable, non-blameworthy conduct; rather it is a fiction that stands for a centuries-old context, however, the reasonable person standard in the provocation context is not a standard of 2 W. LaFave, Substantive Criminal Law reasonable person to kill another person out of passion. §15.2(b)(10), at 504 (2d ed. 200 p. 3 3). Unlike in the tort State v. Smith 1 adequacy of the provocation and the severity of the response by a “reasonable person” standard. to manslaughter, the provocation must be so severe or extreme as to provoke a Most modern formulations of the common-law “heat of passion” doctrine measure both the 630:2, I(a) (2007). Under the common-law rule, to reduce the crime of murder 1 by extreme provocation but which would otherwise constitute murder.” RSA . . . [u]nder the influence of extreme mental or emotional disturbance caused circumstances whatever, it appears that the party reflected, deliberated, or was some evidence to support a rational finding in favor of that defense. State reasonable person would have cooled. Id “A person is guilty of manslaughter when he causes the death of another The defendant was entitled to the requested jury instruction only if there. § 15.2(d), at 507. “[I]f, from any the time elapsing between the provocation and the killing is such that a defendant so provoked will not be entitled to a manslaughter instruction where Substantive Criminal Law § 15.2(c), at 506 (2d ed. 2003). And even a still the defendant must have been actually provoked. 2 W. LaFave, N.H. 46, 48 (1983). Even if a reasonable person would have committed the act,

unsustainable exercise of discretion. Id. and we will uphold the denial of a requested jury instruction absent an the record for evidence supporting the defendant’s requested jury instruction, may properly deny the party’s request.” Id. (quotation omitted). We will search instruction, the party is not entitled to such an instruction, and the trial court there is simply no evidentiary basis to support the theory of the requested jury evidence” requires more than a minutia or scintilla of evidence. Id. “Where . . . v. Balliro, 158 N.H. 1, 5 (2008) (quotation and brackets omitted). “Some

provision of the manslaughter statute].” We disagree. that Soto had been adequately provoked within the meaning of [the provocation argues that “there was overwhelming evidence to support a jury determination thereby reducing his criminal liability from murder to manslaughter. He emotional disturbance caused by extreme provocation, see RSA 6 p. 3 30:2, I(a), jury to consider whether the defendant acted under an extreme mental or The defendant first argues that the trial court should have instructed the

630:2, II (2007). convicted of manslaughter may be sentenced to no more than thirty years imprisonment. RSA imprisonment without the possibility of parole. RSA 630:1-a, III (2007). By contrast, a person of mitigating circumstances that can negate the mens rea 2 In our statutes, a person convicted of first-degree murder must be sentenced to life that otherwise constitutes a crime, provocation manslaughter comprises a set traditional defenses that serve to discharge a defendant’s liability for conduct the law conceives as a lesser degree of culpability for acts done under the provocation is best understood as a “partial defense” because, unlike reduces, but does not eliminate, the punishment for murder, of Superior Court Rules 98(B) and 101, and we decline to do so today. Rather, based on what 2 defenses of insanity or self-defense, provocation under RSA 630:2, I(a) only as a true “defense” under the Criminal Code triggering the notice requirements Rev. 1027, 10 p. 4 45 (2011) (recognizing this widely-accepted approach). Unlike the We have never treated provocation manslaughter under RSA 630:2, I(a) Manslaughter as Partial Justification and Partial Excuse, 52 Wm. & Mary L. offense than murder under the Code. See Berman & Farrell, Provocation warrant a jury in finding the defendant guilty of a separate, less culpable intentional murder and, even where they do not have this negation effect, can

harmless. See O’Leary, 153 N.H. at 713-17. error, we affirmed the defendant’s conviction because we found the error first acquitted the defendant of first and second-degree murder; despite this “lesser-included offense” of provocation manslaughter only after the jury had concluded that the trial court erred when it instructed the jury to consider the degree murder charges. See as a lesser-included offense of murder, see id. Consistent with this holding, in O’Leary, we only after the jury had fully deliberated on both the first-degree and second- has approached provocation manslaughter in two arguably inconsistent ways: charges rather than as a lesser-included offense meriting the jury’s attention Before applying these principles to the facts, we note that our case law and second-degree murder, effectively treating provocation as a defense to both instructed the jury to consider provocation manslaughter alongside both first 96. We approved of the jury instructions in Taylor because the trial court to provocation manslaughter as a defense to murder. See Taylor, 1 p. 4 41 N.H. at included offense of murder, see Little, 123 N.H. at 435-36, in Taylor we referred decision in Little, which referred to provocation manslaughter as a lesser- 14 (2006); State v. Taylor, 141 N.H. 89, 94-96 (1996). In contrast to our 1983 (1983), and as a “defense” to murder, see State v. O’Leary, 153 N.H. 710, 713-

disturbance.” p. 4 40 Am. Jur. 2d Homicide § 60, at 648 (2008). to murder, being attributable to malice and revenge, and not to mental presumption there was time or opportunity for cooling, the killing will amount cooled any period of time before the fatal stroke was given, or if in legal p. 5 5

the Criminal Code. See RSA 626:2, II(a) (2007). 630:1-a, I(a) is different from the general definition of “purposely” which applies to other crimes in II (2007). This specific definition applicable to the first-degree murder offense proscribed by RSA defendant’s acts in furtherance of this object were deliberate and premeditated. See RSA 630:1-a, that the defendant’s conscious object was to cause the death of another; and (2) that the 3 The definition of “purposely” found in the first-degree murder statute has two components: (1)

beyond a reasonable doubt even if the jury concludes that the defendant acted be found guilty of this crime if the State proves the foregoing two elements the crime of provocation manslaughter in its deliberations, the defendant may purposely or knowingly. The jury should also be instructed that, if it reaches caused the death of the victim; and (2) that the defendant acted either manslaughter, the elements of this offense being: (1) that the defendant murder, it should then go on to consider whether he is guilty of provocation instruction and told that if it finds the defendant not guilty of second-degree extreme provocation. Once again, the jury should be given the acquittal first under the influence of extreme mental or emotional disturbance caused by it can operate both to reduce the mens rea death of the victim; (2) that he acted knowingly; and (3) that he did not act Although provocation is only a partial rather than a full defense, because degree murder under RSA 630:1-b, I(a): (1) that the defendant caused the State has proved, again beyond a reasonable doubt, the elements of secondpursuant to the foregoing instructions, it should next consider whether the indicating that, if the jury finds the defendant not guilty of first-degree murder provocation. The jury should also be given an acquittal first instruction influence of extreme mental or emotional disturbance caused by extreme definition of that term in RSA 630:1-a, II; and (3) that he did not act under the 3 the death of the victim; (2) that he acted “purposely” under the special State must prove beyond a reasonable doubt: (1) that the defendant caused should be instructed that to find the defendant guilty of first-degree murder the evidence to support a rational finding of provocation manslaughter, juries murder prosecution under RSA 630:1-a, I(a), where a defendant presents Mullaney v. Wilbur, 421 U.S. 684, 704 (197 p. 5 5). For example, in a first-degree extreme mental or emotional disturbance caused by extreme provocation. See rational finding that he caused the death at issue under the influence of a reasonable doubt when the defendant presents some evidence to support a a murder prosecution, the State must prove the absence of provocation beyond self-defense. Accordingly, to guide trial courts in the future, we advise that, in conclude that provocation, when properly raised, should be treated similarly to a basis for the jury’s invocation of the community’s sense of compassion, we required for murder and to provide

provocation. influence of extreme mental or emotional disturbance in response to extreme p. 6 6

revenge, on the other. See passion following extreme provocation, on the one hand, from a desire for search for one’s provokers. The law is careful to distinguish a sudden rush of how to retaliate, taking the time to smoke marijuana, and again driving to state after driving to a different city, meeting with several friends to discuss defendant, a reasonable person would not remain in that extreme emotional before, and that such attack both actually and reasonably provoked the assuming that Kar was the person with Bill during the attack on Roney the day from which the defendant had no time to regain control of his passions. Even This sequence is not consistent with a sudden emotional disturbance

need not be proved). (1977) (quoting New York statute providing that in prosecution for manslaughter, provocation defendant only with violating RSA p. 6 630:2, I(a). Cf. Patterson v. New York, 432 U.S. 197, 199 n.3 eliminate the need to disprove this circumstance beyond a reasonable doubt by charging the to accept the fact that the defendant meets the criteria for adequate provocation, it can Darcy, 121 N.H. 220, 221 (1981). That is, in circumstances where the prosecution is prepared account of the fact that this offense can be charged as a stand-alone crime. See, e.g., State v. 4 The instruction on the elements of provocation manslaughter specified in the text also takes

at least a few minutes during which the defendant and the victim are N.E.2d 412, 425 (Mass. 2007) (“[W]here the alleged provocation is followed by (four and a half hours sufficient to show cool state of mind); Com. v. Colon, 8 p. 6 66 § 15.2(d), at 507; see also State v. Ramirez, 569 P.2d 201, 213 (Ariz. 1977) which a reasonable person’s passions would have cooled. See LaFave, supra the defendant has killed after a period of reflection and deliberation during provocation manslaughter instruction is simply not appropriate where, as here, “smooth.” State v. Henson, 197 P.3d 456, 464 (Kan. 2008). A gun, wiped it off, cocked it, and gave it to Roscoe, telling him the gun was After the group settled on Roscoe as the shooter, the defendant pulled out a and discussed for about seven or eight minutes who would do the shooting. they were looking for, they drove past once or twice, parked around the corner, they set out to find Roney’s assailants on the street. When they found the men at least an additional half-hour. Then, with the defendant’s brother driving, Manchester took about one-half hour and the discussion in Roney’s home took marijuana, and discussed how to avenge the attack on Roney. The drive to to Manchester, met with Roscoe and several others at Roscoe’s home, smoked time, the defendant located a loaded gun, drove with his friends from Nashua and the moment the defendant and his friends found and killed Kar. In that the moment the defendant learned by telephone that Roney had been attacked a provocation instruction was warranted. At least two hours passed between the undisputed facts culminating in Kar’s death reveal no evidence upon which Turning now to the circumstances of the instant case, we conclude that

extreme provocation. 4 under the influence of extreme mental or emotional disturbance caused by p. 7 7

jury consider any lesser-included offenses. State v. Cameron In general, a defendant charged with one offense is entitled to have the

greater offense; and second, the evidence adduced at trial must provide a inquiry: first, the lesser offense must be embraced within the definition of the defendant is entitled to a lesser-included offense instruction involves a two-part decisions. See Beck v. Alabama, 44 p. 7 7 U.S. 625, 637-38 (1980). Whether the opted to charge and minimizing the risk that juries will make “all or nothing” providing juries an alternative to convicting on only the crime the prosecution 350 (1981). This rule safeguards criminal defendants’ due process rights by , 121 N.H. 348,

of human life. See commits his deadly act.” LaFave, supra RSA 630:1-b, I(b) (200 p. 7 7). death of Kar under circumstances manifesting extreme indifference to the value voluntary manslaughter if . . . he has actually cooled off by the time he indictment with second-degree murder for allegedly recklessly causing the actually cooled off. “[A defendant] cannot have his homicide reduced to defendant with first-degree murder, he also was charged in a separate Equally implausible is the defendant’s contention that he had not reckless second-degree murder. In addition to the indictment charging the instruct the jury on reckless manslaughter as a lesser-included offense of The defendant next argues that the trial court erred by refusing to

his discretion in refusing to instruct the jury as to provocation manslaughter. that the gun was “smooth.” For these reasons, the trial judge acted well within mind to wipe the gun down with his shirt, rack the slide, and advise Roscoe response, and locating Roney’s assailants, the defendant had the presence of Nashua to Manchester with a gun, meeting his friends to plot a violent (quotation omitted)). Even after learning of the attack on Roney, driving from LaFave, supra § 15.2(a), at 494 (“A passion for revenge, of course, will not do.” uncontrollable passion but by a desire to avenge the beating of his friend. See killing reveal a calm and calculating state of mind, guided not by a sudden, N.E.2d 61 p. 7 7, 626 (Ind. 2004). Here, the defendant’s actions leading up to the emotional response to a sufficiently provoking event. Washington v. State, 808 sufficient to warrant a provocation instruction; the law requires an extreme

sufficient cooling time). N.W.2d 346, 351 (Mich. 1991) (going to safe harbor and retrieving gun adequate opportunity for his anger to subside.”); People v. Pouncey, 4 p. 7 71 then returns to attack the victim, the defendant is considered to have had provocation exists, if a defendant leaves the scene of the provocation . . . and v. Keohane, p. 8 829 N.E.2d 1125, 1130 (Mass. 2005) (“[E]ven where sufficient manslaughter based on provocation is not warranted.” (emphasis added)); Com. separated, and then the defendant seeks out the victim, a charge of voluntary 8

– had cocked the gun for him. Roscoe did not intelligibly answer the prompted the informant to ask Roscoe if he meant that “Mikey” – the defendant already “cocked back” and referred in the same sentence to “Mike,” which and following the shooting. He also told the informant that the gun was confessed to having shot the victim and shared certain details leading up to unrelated matter) and a confidential informant. In that recording, Roscoe a conversation between Roscoe (who was at the time incarcerated on an Finally, the defendant objects to the admission of a jailhouse recording of

convicted the defendant of purposeful

harmless beyond a reasonable doubt. therefore conclude that any error in failing to give such an instruction was included offense of murder. See extreme indifference to life) even if it had received such an instruction. We considered the still less serious offense of reckless manslaughter (not involving indifference to the value of human life, it follows that the jury would not have reckless was not affected by the error. State v. Hernandez second-degree murder under circumstances manifesting an extreme harmless only if it is determined, beyond a reasonable doubt, that the verdict had the option of convicting the defendant of the less serious offense of reckless manslaughter was harmless beyond a reasonable doubt. An error is first-degree murder even though they lesser offense of second-degree murder. Because the jury in this case The State contends that any error in failing to instruct the jury on must first acquit the defendant of first-degree murder before considering the Further, the judge issued an “acquittal first” instruction, telling the jury they offenses, correctly identifying their elements for the jury’s consideration. RSA 630:1-b, I(b) (2007). The trial judge instructed the jury as to both circumstances manifesting extreme indifference to the value of human life, see The State concedes, as it must, that reckless manslaughter is a lessermurder, requiring that the defendant caused Kar’s death recklessly under death purposely, see RSA 630:1-a, I(a) (2007); and reckless second-degree two offenses: first-degree murder, requiring that the defendant caused Kar’s was harmless beyond a reasonable doubt. The defendant was charged with however, any error in refusing to instruct the jury on reckless manslaughter of human life) in giving Roscoe the gun used to kill the victim. In this case, merely recklessly (rather than recklessly with extreme indifference to the value trial would have supported a rational conclusion that the defendant acted N.H. 413, 416 (1979). We also assume without deciding that the evidence at

The State bears the burden of proving that an error is harmless. Id.

154 N.H. 1 p. 8 8 p. 9 9, 192 (2006). rational basis for a guilty finding on the lesser offense. See State v. Thomas, 9

Affirmed

DALIANIS, C.J., and DUGGAN, HICKS and CONBOY, JJ., concurred.

overwhelming evidence to support a finding of guilt beyond a reasonable doubt. conversation between Roscoe and the confidential informant, there remained

Given this evidence, even absent the disputed portion of the recorded handed the gun to Roscoe, who then walked around the corner and shot Kar. most importantly, both Clagon and Gonzalez testified that the defendant the shooting; Gonzalez testified that the defendant volunteered to do it. And, located their targets, they parked around the corner to discuss who would do that it did not affect the verdict. Hernandez Clagon and Gonzalez both testified that, after the defendant and his friends For an error to be harmless, the State must prove beyond a reasonable doubt person, if he had brought “the thing” and the defendant confirmed that he had. constituted error, we agree with the State that any such error was harmless. arrived at Roscoe’s home in Manchester. Roscoe asked the defendant, in the other end of the line to “bring that thing,” the defendant and his brother sometime after Roscoe placed a telephone call to Nashua asking the person on implicated him in the scheme to kill Kar. For example, Clagon testified that, Roscoe’s intent to kill, the other evidence against the defendant overwhelmingly some probative weight to the State’s contention that the defendant shared wholly unnecessary to a finding of accomplice liability. Even if that fact lent Second, whether or not the defendant cocked the gun is, on the facts here, making the disputed portion of the recording cumulative as to that fact. testified at trial that the defendant cocked the gun before handing it to Roscoe, defendant’s argument is unavailing for two reasons. First, Andrew Gonzalez Roscoe. The defendant does not dispute the former point. As to the latter, the Assuming without deciding that the admission of the exchange the shooting, and (2) the defendant’s role in cocking the murder weapon for prove (1) Roscoe’s role as the shooter and his recollections of certain details of 567 (2003) (quotation omitted). Here, the recorded conversation tended only to strength of the State’s evidence of guilt.” State v. Thompson, 14 p. 9 9 N.H. 565, inadmissible evidence is merely cumulative or inconsequential in relation to the defendant’s guilt is of an overwhelming nature, quantity, or weight, and if the be harmless beyond a reasonable doubt if the alternative evidence of the , 159 N.H. at 402. “An error may

statement against penal interest, and that any error was harmless. rights. The State contends that the court properly admitted the recording as a inadmissible hearsay and otherwise violated his state and federal confrontation informant’s question. The defendant argues that this recording contained