2010-383 The State of New Hampshire v. John Stowe

Michael A. Delaney

No. 2010-383

Rockingham

arguing that the Superior Court (McHugh report to law enforcement, RSA 641:4, and of unsworn falsification, RSA 641:3, LYNN, J. The defendant, John Stowe, appeals his convictions of false

Dorothy E. Graham

falsification conviction. complaint. We affirm the false report conviction and reverse the unsworn argument; and (3) denied his motion to dismiss the unsworn falsification curative instruction on the State’s misstatements of law made during closing cross-examination of a crucial State witness; (2) denied his request for a

brief, for the defendant.

attorney general, on the brief), 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 that purportedly demonstrated Nixon’s bias and hostility towards him, and p. 2 of the Federal Constitution. He sought to cross-examine Nixon about events Article 15 of the State Constitution and the Sixth and Fourteenth Amendments examination of Nixon, thereby violating his rights to confrontation under Part I, The defendant first argues that the trial court erred in limiting his cross-

appeal followed. unsworn falsification charge. The jury found him guilty on both counts. This count of unsworn falsification. At trial, he unsuccessfully moved to dismiss the charged with one count of giving a false report to law enforcement and one interviewed him in March of that year. Subsequently, the defendant was In January 2007, the investigating officer briefly spoke with Nixon, then

tractor that the defendant had reported as stolen. yard in Derry. The police matched the tractor’s VIN numbers with that of the About a week later, the tractor was located in some woods behind a towing tractor was no longer there. They left a copy of the warrant at the work site. photograph of it. The police obtained a search warrant but discovered that the sites. Dunn informed the police of the tractor’s location and provided a suspicions he had about a tractor he had transported to one of Nixon’s work 2006, Brian Dunn, also an employee of Nixon, contacted the police regarding had developed a close friendship, and socialized frequently. On September 6, Frederick Nixon, who owned a demolition company. The defendant and Nixon During the time frame relevant to this case, the defendant worked for

falsification.” statements made herein are punishable pursuant to RSA 641:3, unsworn contained the following notification: “I understand that false written explained that a false report would result in “consequences.” The form itself repossessed it. The defendant completed a written statement, and the officer he returned home. He told the officer that he had assumed that John Deere take possession of it, went on a business trip, and discovered it was gone when left the tractor on his lawn in the spring or summer of 2005 for John Deere to In February 2006, the defendant told a Derry police officer that he had

that the tractor had been stolen. hearing, the trial court ordered the defendant to file a police report indicating that he did not know what happened to the tractor. During a subsequent court because the tractor was not at the expected location. The defendant claimed financed through it. John Deere was unsuccessful in doing so, however, Company was authorized to repossess a tractor that the defendant had

We recite the facts drawn from the record. In 2005, John Deere p. 3 3

be charged with grand larceny. Nixon did not contact the police, but moved the defendant discouraged him from calling the police by telling him that he might court had required him to report it as stolen. Nixon explained that the of his company’s job sites. He contacted the defendant, who told him that the September 2006, he was “horrified” that police officers had been searching one Nixon testified that after the police attempted to seize the tractor in

site in North Conway where the defendant was managing a job. point, the tractor was repaired at Nixon’s workplace and then moved to a work could not discover it. Nixon complied, moving it to a friend’s home. At some 2006, the defendant asked him to change the tractor’s location so his ex-wife want his ex-wife to learn about the tractor. According to Nixon, some time in parked on the side of his house to prevent detection, explaining that he did not 2005 and 2006. He also testified that the defendant had asked him to keep it the defendant had allowed him to use the tractor for several projects during There is no doubt that Nixon was a key State witness. He testified that

unreasonable to the prejudice of his case.” Id cross-examination, including attacks upon a witness’s credibility.” Brum. (quotation omitted). defendant demonstrates that the court’s ruling was clearly untenable or The trial court has “broad discretion to fix the limits of proper areas of State Constitution, referring to federal decisions only for guidance. See trial court’s decision limiting the scope of further cross-examination unless the We first consider the defendant’s constitutional arguments under the record reveals that a threshold level of inquiry was allowed, we will uphold the discretion standard.” Id. (quotation and ellipsis omitted). “Thus, when the examination thereafter is measured against an unsustainable exercise of constitutional standard is satisfied, and the [trial court’s] limitation of cross- “Once a defendant has been permitted a threshold level of inquiry the permit sufficient cross-examination to satisfy a constitutional threshold.” Id. the right to cross-examine a witness upon a proper matter of inquiry and must N.H. at 416. The trial court, however, “may not completely deny a defendant

of witnesses. Etienne, 146 N.H. at 118. Etienne, 146 N.H. at 118. This includes the right to expose the possible biases face to face, and be fully heard in his defense. N.H. CONST. pt. I, art. 15; examination provides the defendant a right to meet the witnesses against him to cross-examine adverse witnesses in criminal cases is fundamental). Cross- (2007) (quotation omitted); see State v. Etienne, 146 N.H. 115, 117 (2001) (right part I, article 15 of the State Constitution.” State v. Brum, 155 N.H. 408, 416 credibility through cross-examination is an incident of rights guaranteed by Ball, 124 N.H. 226, 2 p. 3 31-33 (1983). “The opportunity to impeach a witness’s State v.

conclude that the defendant has failed to establish error. about an alleged prior false statement Nixon had made to the police. We thief and a liar.” See p. 4 of inquiry regarding Nixon’s bias against him and motive for casting him “as a We first consider whether the defendant was permitted a threshold level

criminal charges before it. [would] run the risk of undue prejudice” and would distract the jury from the mind,” and that the details formulating their disdain were “totally irrelevant, another,” was not disputed by the State and was “crystal clear in the jury’s both the defendant and Nixon, including “their disdain and dislike for one presentation of his character as not “an angel.” It ruled that the character of confrontation” regarding Nixon’s bias and motive, as well as the State’s not allow a “trial within a trial,” and that the defendant had “adequate The trial court denied the defendant’s request, determining that it would

Nixon, which was part of the basis of the hostilities. conduct, he would open the door to testimony that he had embezzled from argued that if the defendant elicited testimony on the specific instances of confusion of the issues, and constitute “a trial within a trial.” The State also underlying their hostilities would be irrelevant, be a waste of time, cause between the two men was not in dispute, and testimony on specific events made in prior court proceedings. It also contended that the “bad blood” credibility by questioning him at length about inconsistent statements he had defendant had an adequate opportunity to cross-examine Nixon on his threatening complaint against him. The State objected, arguing that the that Nixon had lied to a police officer during the investigation of a criminal further challenge Nixon’s credibility, the defendant sought to elicit testimony custody proceeding where Nixon’s income and finances were at issue. To Nixon, and the fact that the defendant had testified at Nixon’s divorce and between them, criminal threatening complaints the defendant had filed against time Nixon gave his statement to the police, including a physical confrontation defendant sought to cross-examine him about events that occurred around the To establish Nixon’s bias against him and motive to lie to the police, the as grounds for impeachment were relevant to the defense, but the State Brum, 155 N.H. at 416. Clearly, Nixon’s bias and motive

account of the defendant’s involvement with the tractor throughout 2005-2006. have taken it because all three had asked to borrow it. He denied Nixon’s from his home, and also posited that Nixon or two of his other friends may seen it since. He assumed that John Deere had retrieved it while he was away parked the tractor on his lawn in the spring or summer of 2005 and had not Testifying on his own behalf, the defendant maintained that he had

involvement with the tractor. later seized it. In March 2007, Nixon informed the police of the defendant’s this.” The defendant had some friends again move the tractor, and the police tractor to yet another location and then told the defendant, “I’m all done with error. p. 5 for appellate review, we conclude that the defendant has failed to demonstrate Constitution. Assuming, without deciding, that his argument was preserved Constitution and the Sixth and Fourteenth Amendments to the Federal discredit Nixon, contrary to Part I, Article 15 of the New Hampshire which denied him the opportunity to make a threshold level of inquiry to and that the trial court’s ruling was an unsustainable exercise of discretion dishonesty that was admissible under New Hampshire Rule of Evidence 608(b), 5 investigating police officer, the defendant argues that it is a specific instance of

With respect to the alleged false statement Nixon made to an

trial in violation of Part I, Article 15 of the New Hampshire Constitution.” State defendant’s ability to effectively impeach the principal witness against him at conclude that the trial court’s decision did not “impermissibly limit the engaging in a threshold inquiry on the matters of bias and motive. We events giving rise to the hostilities does not equate to precluding him from trial court restricted the defendant from inquiring about the specific underlying their disdain for one another was apparent during their testimony. That the indeed, the trial court remarked that the demeanor of the witnesses regarding trial court’s finding that the hostility between the men was obvious to the jury; threshold level of inquiry on Nixon’s bias and motive. The record supports the On this record, we conclude that the defendant was permitted an ample

court’s ruling on that basis. unreasonable to the prejudice of his case, and, thus, we do not review the trial does not argue that the trial court’s decision was clearly untenable or the same result under the Federal Constitution. We note that the defendant engaging in a separate federal analysis. But see id. at 255-56. Thus, we reach the identical arguments under the Federal Confrontation Clause, without v. Miller, 155 N.H. 246, 254 (2007) (quotation omitted). The defendant makes

“weren’t speaking.” the police in January 2007, he and the defendant “despised each other” and close friends, and on re-cross, Nixon agreed that at the time he first contacted asked several questions establishing that Nixon and the defendant had been two men] at [the] point” when he contacted the police. On re-direct, the State Nixon agreed on cross-examination that there was “no love lost between [the relationship between the two men “[broke] down,” he contacted the police. defendant’s involvement with the tractor for three months, but, after the looking for the tractor in September 2006, he did not inform them of the examination, eliciting testimony that when Nixon first learned the police were with the defendant. Defense counsel reiterated the point on crosspolice about the defendant’s involvement with the tractor, he had a “falling out” the State elicited testimony from Nixon that around the time he talked to the correctly argues that these issues were not in dispute. On direct examination, of his case. See p. 6 the investigating officer was clearly untenable or unreasonable to the prejudice decision precluding him from questioning Nixon regarding his statements to We conclude that the defendant has failed to establish that the trial court’s statements he made under oath at a prior court proceeding and to the police. on numerous alleged inconsistencies between his testimony at trial and record demonstrates that the defendant was permitted to cross-examine Nixon ambiguous, thereby making the probative value marginal. Moreover, the statement to the police and his later testimony at the court proceedings was could have found that the purported discrepancy between Nixon’s initial admitted to making non-threatening phone calls. However, the trial court phone calls to the defendant, and about Nixon’s prior statement that he officer’s testimony at the prior court proceeding that Nixon denied making any Essentially, the defendant wanted to question Nixon about the investigating

criminal threat. made phone calls to [the defendant], but that he did not make a at a prior hearing . . . that he did in fact tell [the officer] that he making the threatening calls to the defendant . . . . Nixon testified

criminal threatening complaint against Nixon, Nixon denied police officer] testified that in the course of investigating Stowe’s During a prior hearing in district court, [the investigating

State v. Kornbrekke, 156 N.H. 821, 824-25 (2008); see also

examine Nixon: The defendant points to the following evidence he sought to use to cross-

also consider Rule 403. Brum When exercising its discretion under Rule 608(b), the trial court must

case. Id. court’s decision was clearly untenable or unreasonable to the prejudice of his prevail under this standard, the defendant must demonstrate that the trial absent an unsustainable exercise of discretion. Miller, 155 N.H. at 249. To to determine the admissibility of evidence, and we will not upset its ruling notes to Rule 608(b)) (quotation omitted). The trial court has broad discretion prejudice, confusion of issues, or misleading the jury.” Id. (citing reporter’s Rule 403 requires that probative value not be outweighed by danger of unfair

collateral to the case at hand.” Miller, 155 N.H. at 249. avoid a trial within a trial; that is, to avoid the litigation of issues that are statements.” State v. Hopkins, 136 N.H. 272, 276 (1992). “The objective is to “extrinsic evidence, such as calling other witnesses, to rebut the witness’s the witness gives it. Id. Rule 608(b) prohibits the examiner from introducing 155 N.H. at 249. Generally, however, the examiner must take the answer as probative of the witness’s character for truthfulness or untruthfulness. Miller, Rule 608(b) permits a cross-examiner to inquire into conduct that is defendant? Isn’t that what we’re here to decide? After all, he’s p. 7 about Nixon and Leavitt. Well, wasn’t it really all about the 7 We talked about credibility. Defense counsel, again, it’s all

arrest and charge.” argue that the State “erroneously plac[ed] evidentiary value on [the defendant’s] (Emphases added.) He particularly relies upon the emphasized language to

credibility? After all, isn’t he the one charged with lying here, lying Isn’t what this case really comes down to, the defendant’s

. . . .

that stand? Whether or not he is to be believed? whether or not you thought he was telling the truth up there on charged with lying. And might it be pertinent, his credibility,

The defendant points to the following excerpts of the State’s closing:

flat out lying. That’s what it’s about. statement to the police ? Walking into Officer Jackson that day and to the police, making a false written statement, making a false oral

See Ball, 124 N.H. at 231-33. under the State Constitution, referring to federal decisions only for guidance. reasonable doubt.” We first consider the defendant’s constitutional arguments prosecution of its burden to prove each element of the offense beyond a defendant] guilty if it found [his] testimony not credible[,] . . . relieving the assess his credibility”; and (2) it “conveyed that [the jury] could find [the defendant] was charged with an offense involving dishonesty as a basis to material respects: (1) it “told the jury that it could use the fact that [the contends that during its closing argument, the State misstated the law in two give a curative instruction when the State misstated the law to the jury. He the Fifth and Fourteenth Amendments to the Federal Constitution by failing to process and a fair trial under Part I, Article 15 of the State Constitution and The defendant next argues that the trial court violated his rights to due

Constitution. Miller, 155 N.H. at 255-56. Thus, we reach the same result under the Federal Confrontation Clause, without engaging in a separate federal analysis. But see 254. The defendant makes the identical arguments under the Federal that is, Nixon’s untruthfulness. See Brum, 155 N.H. at 416; Miller, 155 N.H. at opportunity to make a threshold level of inquiry on a proper matter of inquiry; trial court violated his State constitutional rights by denying him the Brum, 155 N.H. at 413. We similarly reject the defendant’s argument that the defendant. Viewed in context, the State was remarking on the credibility p. 8 Further, the State did not impermissibly shift the burden of proof to the

inferences of guilt from the evidence.” State v. DiNapoli and discuss the evidence presented to the jury and to urge the jury to draw “A prosecutor has great latitude in closing argument to both summarize

defendant was charged with crimes as evidence of guilt. his tractor as stolen].” It did not tell the jury that it could use the fact that the [was] to determine [whether the defendant] was lying that day [that he reported making false statements to the police, and emphasized that the jury’s “job . . . pointed out only that the defendant was the person who stood charged with defendant’s credibility, and urge the jury to refocus on that issue. The State counter defense counsel’s attempt to deflect the jury’s focus from the Rather, the purpose of the challenged remarks, when taken in context, was to communicate to the jury that the charging instruments had evidentiary value. We agree with the trial court that the State’s closing remarks did not

identified.

jury. establish that the trial court erred in refusing his request to re-instruct the DiNapoli, 149 N.H. at 520, we conclude that the defendant has failed to previously given adequately covered the legal issues that the defendant that the defendant raised a constitutional argument before the trial court, see and denied his request for re-instruction, ruling that the jury instructions where prosecutor “blatantly misstated the law”). Assuming, without deciding, cf court rejected the defendant’s characterization of the State’s closing argument,. State v. Watkins, 148 N.H. 760, 769 (2002) (curative instruction appropriate evidence of guilt, and (2) the burden of proof rested with the State. The trial defendant’s due process rights. See State v. Parker, 142 N.H. 319, 322 (1997); trial court re-instruct the jury that (1) the charging instruments were not made by a prosecutor during closing statements may implicate a criminal language. In objecting to the State’s closing, the defendant requested that the (2003) (quotation and ellipsis omitted). However, certain improper comments (Emphasis added.) Again, he particularly relies upon the emphasized, 149 N.H. 514, 520

half. That’s his story. To find him not guilty, you have to believe grand, and manages thereafter to hide it from him for a year and a tractor, this piece of equipment he thinks is worth ten, fifteen good friend Jay Nixon steals out of his front yard, steals this The defendant wants you to believe . . . that his best friend,

that story.

of proof to him, he points to the following statements in the State’s closing: To support his argument that the State impermissibly shifted the burden p. 9 9 by an entity “authorized by law” to produce forms with such notification. See are punishable under RSA 641:3 for unsworn falsification) was not generated that the form he completed (which provided notice that false written statements conviction under RSA 641:3, I, as a matter of law. The defendant contends the complaint, and the evidence presented against him, cannot sustain a motion to dismiss the unsworn falsification charge because the facts alleged in Finally, the defendant argues that the trial court erred in denying his

Constitution. separate federal analysis; thus, we reach the same result under the Federal arguments under the Federal Confrontation Clause, without engaging in a covered during the general instructions. The defendant makes the identical that the trial court erred when it refused to re-instruct the jury on the law falsification charge. We agree with the parties’ interpretation of the statute. not misstate the law in its closing and that the defendant failed to establish had to decide the credibility of the witnesses. We conclude that the State did each element of the charged crime beyond a reasonable doubt; and (5) the jury criminal cases are presumed innocent, and the State had the burden of proving was “duty bound” to follow the judge’s instructions; (4) all defendants in statements about the law that differed from the judge’s instructions, the jury not influence the jury’s decision in reaching a verdict; (3) if counsel made has been charged with a crime or crimes was not evidence of guilt and could and apply the law given to it by the court; (2) the mere fact that a defendant instructed the jury that: (1) when reaching a verdict, it was required to follow

requests that we reverse the defendant’s conviction on the unsworn an offense under RSA 641:3, I. The State agrees with the defendant and unsworn falsification,” the evidence proffered by the State did not give rise to that make false written statements of suspects or witnesses punishable under administrative rule “specifically authorizes municipal police to create forms RSA 641:3, I. According to the defendant, because no statutory provision or

Moreover, we note that before closing arguments, the trial court

reported it to the police as stolen. evidence it presented that the defendant knew where the tractor was when he Throughout the State’s closing, it argued the defendant’s guilt based upon the established guilt beyond a reasonable doubt based on the evidence presented. the defendant, it could find him guilty without regard to whether the State State’s remarks as somehow communicating to the jury that if it disbelieved tractor in 2005 and 2006. We reject the defendant’s characterization of the to diametrically opposed accounts of the defendant’s involvement with the contest between Nixon and the defendant, two key witnesses who had testified p. 10 10

statements on the form is punishable as unsworn falsification under RSA municipal police to create forms which state that making false written The State concedes that it is unaware of any provision of law authorizing

commissioner may prescribe. Falsification of the application shall be subject to by filing an application with the commissioner, on such form as the provides, “A transporter[ ] [of motor fuel or products] license may be obtained bearing such notification. For example, RSA 260:42, II (Supp. 20 p. 10 10) expressly falsification of persons who make false statements on or pursuant to a form Several statutory provisions authorize prosecution for unsworn

authorized by law,” RSA 417-A:3-b, I. believe to be true, on or pursuant to a form bearing a notification authorized by maximum fine without suspension or diminution, along with other penalties or she makes a written or electronic false statement which he or she does not falsification under RSA 641:3, and, upon conviction, to imposition of the RSA 641:3, I, provides: “A person is guilty of a misdemeanor if . . . [h]e the statement of residency . . . shall be subject to prosecution for unsworn department,” RSA 417-A:3-b, III, and provides, “A person who falsely attests to “sign a statement of residency . . . form prescribed by the insurance A:3-b (2006) requires applicants seeking automobile insurance coverage to prosecution for unsworn falsification.” (Emphasis added.) Similarly, RSA 417-

making a false statement on or pursuant to the form. power under RSA 641:3, I, to subject a person to criminal prosecution for words, if such a form’s notification is not “authorized by law,” the State has no punishable as unsworn falsification, must be “authorized by law.” In other indicates that notification on a form, warning that false statements are (Emphasis added.) The phrase “notification authorized by law” plainly law to the effect that false statements made therein are punishable . . . .”

omitted). words of the statute considered as a whole. Jennings, 159 N.H. at 3 (quotation (2007). We are the final arbiters of the legislative intent as expressed in the according to the “fair import of its terms and to promote justice.” RSA 625:3 641:3, I, is a provision within the Criminal Code; we therefore construe it the entire statutory scheme. State v. Jennings, 159 N.H. 1, 3 (2009). RSA legislature’s intent in enacting them and the policy sought to be advanced by scheme and not in isolation. Id. Our goal is to apply statutes in light of the N.H. at 515. We also interpret a statute in the context of the overall statutory said nor add language that the legislature did not see fit to include. Lamy, 158 statute as written and will neither consider what the legislature might have 5 p. 11 11, 515 (2009); see RSA 21:2 (2000). We interpret legislative intent from the the plain and ordinary meaning to the words used. State v. Lamy, 158 N.H. determine the meaning of a statute, we first examine its language and ascribe Our standard for statutory construction is well-established. To 11

Affirmed in part; and reversed

DALIANIS, C.J.