2010-130 The State of New Hampshire v. Andre Rivera

Michael A. Delaney

defendant, Christopher Gagne, Troy Whipple, Ryan Mead, and Jordan Webster Stephanie Hausman The jury could have found the following facts. In August 2007, the

No. 2010-130 Rockingham

indictment; and (2) provided erroneous instructions to the jury. We affirm.

conviction, arguing that the trial court: (1) erred in refusing to dismiss the murder, see RSA 626:8 (2007); RSA 630:1-b, I(b) (2007). He appeals his defendant, Andre Rivera, was convicted of accomplice to reckless second-degree LYNN, J. Following a jury trial in Superior Court ( Nicolosi, J.), the

brief and orally, for the defendant. ___________________________

general, on the brief and orally), for the State. a.m. on the morning of their release. T , attorney general (Ann M. Rice, associate attorney 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

page is: http://www.courts.state.nh.us/supreme.

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as facilitate the specific actus p. 2 the grounds that it failed to allege that he acted with the purpose to promote or Prior to trial, the defendant moved to dismiss the murder indictment on

charges.

to commit burglary, and burglary. He was found guilty by a jury on all three degree murder under an “accomplice in conduct” theory, as well as conspiracy The defendant was subsequently indicted on charges of reckless second-

Whipple and Mead. Webster, and the defendant left the house, ran back to the car, and left with drawer. Gagne told the others that he had shot Violette, after which Gagne,

were in the basement, and the defendant was looking through a dresser

Gagne shot him. Gagne then ran downstairs. The defendant and Webster Violette struggled. Gagne testified that when Violette pulled out his gun, companions. Webster and the defendant promptly ran downstairs. Gagne and

Violette had a gun in his pocket and shouted this information to his

defendant began punching Violette, who fought back. Gagne noticed that

Gagne ordered him to turn around and “give [them] his things, his stuff.” The entered through a side door. They found Violette upstairs in the kitchen. Whipple and Mead waited outside while Webster, Gagne, and the defendant

wooded hiding place to collect Gagne’s gun, and then to Violette’s house.

The interpretation of a statute is a question of law, which we review de

others to Mead’s father’s house to change cars for the robbery, then to a Whipple and Mead met at Gagne’s brother’s house. The defendant drove the On the night of August 12, 2007, the defendant, Gagne, Webster,

in the words of the statute considered as a whole.” Id

of the murder charge. On appeal, the defendant challenges both rulings. required the jury to find he acted with such purpose in order to find him guilty trial, also denied the defendant’s request for a jury instruction that would have

of the Criminal Code according to the fair import of their terms and to promote

interpretation, we are the final arbiters of the legislature’s intent as expressed novo Whipple called Violette to arrange to buy drugs from him.. State v. Dodds, 159 N.H. 239, 244 (2009). “In matters of statutory [Violette] or me, it’s him.” The defendant replied, “Do what you got to do.” the possibility of an armed standoff with Violette, Gagne stated, “If it’s him

gun, which caused Violette’s death. The trial court denied the motion, and at

his gun to subdue Violette while the others searched the house. In discussing

which he normally kept in a safe. The group decided that Gagne would bring The others agreed to this plan. Whipple told the others that Violette had a gun, Violette, whom the defendant knew to be a drug dealer, of money and drugs.

he had stolen a few days earlier. The defendant suggested robbing Jason discussed committing a robbery. Gagne had a Mac 11 submachine gun, which p. 3 IV. Notwithstanding the requirement of a purpose as set forth in

facilitate the offense. An accomplice in conduct can be found

person in planning or committing it . . . . committing it, or aids or agrees or attempts to aid such other necessary that the accomplice act with a purpose to promote or establish accomplice liability under this section, it shall not be sufficient for the commission of the offense. In other words, to

prosecutions:

commonly pertains to situations “where unanticipated commission of the offense, he solicits such other person in

kind of culpability, if any, with respect to that result that is

commentaries describe the relevance of RSA 626:8, IV to homicide Commentaries § 2.06 cmt. 7, at 321 (1985) (emphasis added). The conduct for which the actor is responsible . . . .” Model Penal Code and

for guidance. See State v. Lamy, 158 N.H. 511, 515 (2009). As discussed by RSA 626:8 (emphasis added). We look to the Model Penal Code commentaries accomplice in the commission of that offense, if he acts with the offense. with respect to that result, as required for the commission of the accomplice acted purposely, knowingly, recklessly, or negligently was a reasonably foreseeable consequence of the conduct and the criminally liable for causing a prohibited result, provided the result

of an offense if: III. A person is an accomplice of another person in the commission an offense, an accomplice in the conduct causing such result is an paragraph III(a), when causing a particular result is an element of

Model Penal Code. See

might have said or add language it did not see fit to include. State v. Hynes

§ 571:8 cmts. at 17 (1969). It provides, in relevant part: Laws, Report of Commission to Recommend Codification of Criminal Laws

Our accomplice statute, RSA 626:8, was based upon section 2.06 of the

isolation. Id. interpret a statute in the context of the overall statutory scheme and not in 159 N.H. 187, 193 (2009), cert. denied, 130 S. Ct. 1083 (2010). Finally, we

intent from the statute as written and will not consider what the legislature ordinary meaning. Dodds, 159 N.H. at 244. Further, we interpret legislative itself, and, if possible, construe that language according to its plain and justice. See RSA 625:3 (2007). We first look to the language of the statute p. 4 Such recklessness and indifference are presumed

Id actor is an accomplice in the commission of [a] robbery.

conduct that directly resulted in Violette’s death, i.e. State was required to prove that he aided and had the purpose to promote the manifesting an extreme indifference to the value of human life. The defendant argues that, in order to prove second-degree murder, the

make out a case of murder exist is afforded by the fact that the presumption that the requisite recklessness and indifference to extreme indifference to the value of human life. . . . [T]he

(b) He causes such death recklessly under circumstances

. . .

I. A person is guilty of murder in the second degree if: 4 second-degree murder, the statute provides, in relevant part,

moreover that he was reckless under circumstances manifesting dangerous conduct

night or if the actor is armed with a deadly weapon. burglary is a class A felony when perpetrated in the dwelling of another at RSA 630:1-b, I (emphasis added). RSA 635:1, I and II (2007) provide that

statute, RSA 630:1-b (2007). With respect to the mental state required for

the theory that the defendant was reckless as described, and defendant’s situation. A murder prosecution could be brought on that the accomplice (a) “intended to promote or facilitate another’s unlawful or of conduct that a law-abiding person would have observed in the

committing or attempting to commit any class A felony. of, or in an attempt to commit, or in immediate flight after defendant’s accomplice-in-conduct charge was the second-degree murder causes the death by the use of a deadly weapon in the commission

We have interpreted RSA 626:8, III and IV to require that the State prove to him, its disregard involved a gross deviation from the standard

492, 495 (2004) (quotations omitted). Here, the statute underlying the the underlying statute with respect to the result.” State v. Anthony, 151 N.H.

purpose of the defendant’s conduct and the circumstances known . cmt. 7, at 321 n.70 (quotations, ellipses, and citations omitted). such a nature and degree that, considering the nature and death would result from the assisted conduct, the risk being of

that the defendant consciously disregarded a substantial risk that A manslaughter prosecution could be brought on the theory p. 5 5

reasonably foreseeable consequence of the accomplice’s actions. RSA 626:8, IV

The defendant points to the following language in Anthony

for the State to establish criminal liability for the crime if the result was a

remained with the victim.

need not have acted with a purpose to promote or facilitate that result in order III(a),” in the case of a prohibited results crime such as murder, the accomplice that “[n]otwithstanding the requirement of a purpose as set forth in paragraph

an earlier version of RSA 626:8. Compare These cases are inapplicable to the question at hand because both dealt with

victim; and searching the victim’s property while Gagne, armed with a gun, entering the home with his companions; confronting and scuffling with the omitted)), and the plurality opinion in State v. Etzweiler companions, one of whom he knew was armed with a gun, to Violette’s home; present above, beyond, and regardless of the substantive offense.” (quotation

superseded by legislative amendments to the statute in 2001, which clarified 626:8, IV (2007). Our interpretations of the earlier versions of RSA 626:8 were Paragraph IV specifically provides that, in such a case, “it shall not RSA 626:8, IV (1974) and RSA

substantive offense with the purpose of facilitating the substantive offense.”). (“[U]nder our statute, the accomplice must aid the primary actor in the the formulation stated in paragraph III. See, 12 p. 5 5 N.H. 57, 65 (1984)

burglary of a house occupied by a person he knew to have a gun; driving his N.H. 348, 3 p. 5 52 (1999) (“Section III . . . sets forth the elements which must be We also disagree with the defendant’s reliance on State v. Locke, 144 accomplice’s intent to promote or facilitate another person’s conduct offense.” (Emphasis added.) necessary that the accomplice act with a purpose to promote or facilitate the

causing such result is an accomplice in the commission of that offense . . . .”). particular result is an element of an offense, an accomplice in the conduct the requirement of a purpose as set forth in paragraph III(a), when causing a

causing a prohibited result is an element of an offense, paragraph IV modifies omitted). This passage addresses RSA 626:8, III alone. Id. However, when foreseeable consequence of the defendant’s actions in planning an armed constitutes the actus reus of the offense.” Anthony, 1 p. 5 51 N.H. at 494 (quotation

facilitate the commission of the offense’ is that it requires proof of the argument: “[T]he standard interpretation of the phrase ‘intent to promote or actus

can flow from conduct “provided the result was a reasonably foreseeable

conduct. We agree with the State that Violette’s death was a reasonably the direct, not the “reasonably foreseeable,” consequences of the defendant’s reus of a prohibited results crime would limit accomplice liability to only State to prove that the defendant had a purpose to promote or facilitate the consequence of the conduct.” RSA 626:8, IV (emphasis added). To require the

language of RSA 626:8, IV. Paragraph IV plainly states that accomplice liability We believe the defendant’s reading of the statute is contradicted by the the State’s burden, articulated in Anthony p. 6 the defendant’s facilitation of the armed burglary of Violette’s home satisfied

instructions recited the elements of accomplice to second-degree murder, as

In response, the State contends that the indictment and the jury

The jury was instructed in accordance with the indictment.

him with a gun in the chest. Christopher Gagne caused the death of Jason Violette by shooting commit theft therein. In the commission of such burglary,

by entering Jason Violette’s home with them with the purpose to

aided Christopher Gagne and/or Jordan Webster in such burglary

and/or Jordan Webster, Andre Rivera acted in concert with and deadly weapon as defined in RSA 635:1, by Christopher Gagne facilitating the burglary of the dwelling of another at night with a

to the value of human life. With the purpose of promoting or

Violette under circumstances manifesting an extreme indifference aiding Christopher Gagne, recklessly caused the death of Jason [m]urder . . . in that Andre Rivera, acting in concert with and

Andre Rivera . . . did commit the crime of [s]econd [d]egree

that: not promoting or facilitating second-degree murder. The indictment alleged

to the result.” Anthony, 151 N.H. at 495. We agree. with the culpable mental state specified in the underlying statute with respect separate proof of any culpability with regard to the death.” Model Penal Code

commission of any felony. . . . As thus conceived, the rule operated without murder if a death results from conduct during the commission or attempted “referred the jury to the wrong conduct and the wrong substantive offense,” classic formulation of the felony-murder doctrine declares that one is guilty of

underlying offense – in this case, recklessness. See

The defendant further argues that the indictment and jury instructions conduct formulation is indistinguishable from a felony murder scheme. “The We disagree with the defendant’s assertions that our accomplice-inb, I(b).

State prove that the defendant possessed the mental state required by the imposition of guilt regardless of the actor’s mental state, but requires that the § 210.2 cmt. 6, at 30-31 (1980). Our statutory scheme does not allow

plurality in Etzweiler and reiterated by the court in Locke.”). 626:8 as a legislative rejection of the interpretation of that statute stated by the (2007); see Anthony, 151 N.H. at 494 (“We read the 2001 amendment to RSA p. 7 Affirmed

motion to dismiss and in instructing the jury as it did.

Accordingly, we conclude that the trial court did not err in denying the

there was a stand-off. be armed and had discussed the possibility that Gagne would shoot Violette if

Webster searched the house; the defendant was also aware that Violette might

agreed that Gagne would hold Violette at gun point while the defendant and

instruction made clear that the presumption applied to the mens

instructed the jury, “You may loaded gun, with the intention of stealing money and drugs; the men had Violette’s home at night with two other men, one of whom he knew carried a recklessly with extreme indifference to human life. The defendant entered

committing or attempting to commit a class A felony.” (Emphasis added.) This

mental state. The transcript does not support this interpretation. The court DALIANIS, C.J., and DUGGAN, HICKS and CONBOY, JJ., concurred.

even without the operation of the presumption, that the defendant acted

second-degree murder if you find that a person used a deadly weapon while

on this presumption to show causation, rather than to show the defendant’s

acted recklessly with extreme indifference to the value of human life. See that the evidence was sufficient for a jury to find beyond a reasonable doubt, actus reus, of the crime of murder. Further, the State asserts, and we agree,

extreme indifference to the value of human life required for the crime of

630:1-b. The defendant appears to argue that, at trial, the State wrongly relied

participation in an armed burglary, a class A felony, is proof that the defendant As the defendant concedes, there is a statutory presumption that