2009-109 The State of New Hampshire v. Marilyn Demond-Surace

Michael A. Delaney

No. 2009-109

Sullivan

conviction on two counts of vehicular assault, see DUGGAN, J. The defendant, Marilyn Demond-Surace, appeals her

riding on a motorcycle. The accident occurred on July 26, 2005, which was a convictions stem from a 2005 motor vehicle accident that killed two people The jury could have found the following facts. The defendant’s

Robert A. Stein & Associates, PLLC

remand. following a jury trial in the Superior Court (Tucker, J.). We reverse and

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 impairment and the defendant’s speech was clear. p. 2 glass of wine at her sister’s. Reichert did not observe any signs of alcohol detected a faint odor of alcohol. The defendant told Reichert that she had one to speak with her to see if he could detect an odor of alcohol. Reichert also spoke with her and noticed a slight odor of alcohol. Lyles then asked Reichert vehicle, she saw a motorcycle and a woman lying in the road. Lyles also briefly airbags in her Jeep deployed and she hit her brakes. Then, upon exiting her who appeared dazed. The defendant told police that she heard a crash, the Department arrived at the scene. Reichert briefly spoke with the defendant, Corporal Aaron Reichert and Officer Todd Lyles of the Charlestown Police

defendant also repeatedly told Corcoran that she never saw Aiken. Shortly thereafter, Chapin heard the defendant say, “I never saw him.” The lying in the road and had to swerve into the left lane to avoid hitting her. middle of the road. As Corcoran crested the hill, he saw the Jeep and Flaig next to a Jeep Cherokee, entangled in the motorcycle and Flaig lying in the When he crested the hill, he saw smoke and debris. He observed Aiken lying illuminate at the top of the hill and then lost sight of him for “a brief second.” As Chapin approached a hill on Route 12, he saw Aiken’s brake light

hour and Chapin estimated that Aiken was traveling about fifty miles per hour. Aiken. Corcoran estimated that Aiken was traveling under fifty-five miles per miles per hour in a fifty mile-per-hour zone, and both were gaining ground on Corcoran. Corcoran was driving fifty-five miles per hour and Chapin sixty-five glove he had dropped. Chapin retrieved his glove and eventually passed Corcoran dropped back after realizing that Chapin had stopped to retrieve a headed north on Route 12, Aiken and Corcoran initially rode side-by-side, but each carried a passenger, and Timothy Chapin, who rode alone. As they traveling in a group that included Michael Corcoran and Pat Dezaffra, who motorcycle and traveling on Route 12 in the opposite direction. They were The victims, Justin Aiken and Robin Flaig, were riding together on a

northbound traffic. because the grade of the road made it difficult for southbound drivers to see turning. Local police officers also considered this intersection to be dangerous dangerous, and indicated that she always came to a complete stop prior to her. The defendant was familiar with the intersection, which she considered traffic in the opposite direction and did not see any headlights coming toward on Route 12. She later told police that she came to a complete stop, looked for Claremont Road, she turned on her left signal and moved into the left turn lane traveling south on Route 12. As she approached the intersection at Old The defendant was driving home from dinner at her sister’s house and

Claremont Road in Charlestown. clear night, at approximately 9:45 p.m. at the intersection of Route 12 and Old alcohol about her.

p. 3 she said that she had one glass of wine and that people smelled hearing, that you would ask the jury to find that from the fact that that she had consumed alcohol. And you said I think at the And you were limiting -- you simply wanted the jury to know

. . . .

suggest impairment for obvious reasons.

limine, my understanding was that the State was not going to

My understanding when we had the hearing on [the] motion in

could not argue or elicit testimony that the defendant was impaired: Additionally, during the trial, the court again re-emphasized that the State motion in that “as far as the jury is going to know, she was sober. She wasn’t impaired.” As noted above, prior to trial, the trial court denied the defendant’s glass of wine upon this representation. Specifically, the court told the State part, based its decision to allow evidence of the defendant’s consumption of one defendant was impaired or showed any signs of impairment. The court, in represented that it did not have any witnesses that would testify that the of a small amount of alcohol.” During the motion hearing, the State that “it is not illegal or improper to drive a motor vehicle after the consumption negligent. The court also denied the defendant’s request to instruct the jury consumption was relevant on the issue of whether she was criminally alcohol consumption. The court agreed with the State that evidence of alcohol of Class A felony aggravated negligent homicide, see Five months after the accident, the defendant was indicted on two counts limine to preclude the State from introducing evidence regarding her

See RSA 265:79-a. indictments and filed two informations charging her with vehicular assault. No. 2007-422 (N.H. May 20, 2008). The State then nol prossed those defendant’s consent. We affirmed that ruling. See State v. Demond-Surace, related to blood alcohol tests because the tests were taken without the trial court subsequently granted the defendant’s motion to exclude all evidence two counts of Class B felony negligent homicide, see RSA 630:3, I (2007). The

pre-trial motion to preclude all evidence regarding her alcohol consumption. The defendant did not object to any of this testimony, nor did she renew her also noticed the defendant’s speech was slurred as she spoke on the phone. accident at 11:30 p.m. and immediately detected a strong odor of alcohol. He Claremont Police Department arrived at the hospital nearly two hours after the hospital, he detected a strong odor of alcohol. Officer Greg Belisle of the Lyles then accompanied the defendant to the hospital, and while at the which are based upon her contention that the State’s use of alcohol evidence in p. 4 earlier order. In this regard, the defendant makes two arguments, both of allowed the State to use evidence regarding her alcohol consumption given its We begin with the defendant’s arguments that the trial court improperly

the accident. her closing argument regarding the defendant’s actions immediately following and (5) failure to grant a mistrial for statements made by the prosecutor during negligence; (4) permitting Trooper Daniel Brow to testify as an expert witness; dismiss for insufficiency of the evidence; (3) instruction to the jury on criminal elements of criminally negligent vehicular assault; (2) denial of her motion to dismiss the informations against her because they did not properly allege the She also assigns error to the trial court’s: (1) denial of her motion to

evidence that she consumed one glass of wine. argument regarding the defendant’s alcohol consumption and admitting failing to grant a mistrial for statements made by the prosecutor in her closing defendant was impaired.” Specifically, she argues that the trial court erred by the core of its criminal negligence claim . . . and allowed the State to imply the contends that the trial court impermissibly allowed the State to “use alcohol as order that the State had to “stay away from impairment.” The defendant On appeal, the defendant’s arguments largely focus upon the court’s

followed. The jury subsequently convicted the defendant on both counts and this appeal

without regard to impairment. glass of wine; and arguing the fact of alcohol consumption, period, odor of alcohol; a statement about consumption of alcohol, one wanting to introduce that evidence was simply that there was an impairment. The basis of your introducing that evidence or So I mean I don’t -- I think you have to stay away from

handed down in the earlier charge. and arguably would work against the suppression order that was impaired in terms of whether she was negligent isn’t . . . relevant

the other circumstances in the case. So whether or not she was was relevant to the question of negligence in conjunction with all argument was it was not relevant to the question of impairment; it

And the whole basis of my admitting the evidence was -- your

drinks she had.” Finally, the court again stated: officer infer or suggest that [the defendant] was wrong about the number of The court then specifically told the State that “you can’t infer or have the whether a mistrial is warranted. State v. Ainsworth p. 5 the prosecutor’s conduct had on the jury and has broad discretion to decide The trial court is in the best position to gauge any prejudicial effect that

refused to give the cautionary instruction regarding alcohol consumption. to testimony elicited by the defendant on cross-examination. The court also matters that were not supported by the evidence.” argument regarding the defendant’s alcohol consumption was a fair response jury a desire to punish the defendant and cause it to base its decision on denied the motion for a mistrial because it found that the prosecutor’s for a cautionary jury instruction regarding her alcohol consumption. The court alcohol impairment, dishonesty, and callousness were likely to provoke in the but moved for a mistrial immediately following the closing argument and asked disregard of the trial court’s ruling. She further argues that the “suggestions of said she looked.” The defendant did not immediately object to either argument, regarding the purpose of admitting evidence of her alcohol consumption and in glass of wine, but there was a strong odor three hours later. But then she also prosecutor’s argument was contrary to the State’s prior representations prosecutor told the jury, “There was an odor of alcohol. She said she had one lying regarding the number of drinks she had consumed. She argues that the two officers . . . .” Then, toward the end of her closing argument, the court’s earlier ruling that the State could not imply that the defendant was 5 at the hospital there was a strong odor of alcohol. And that was observed by The defendant asserts that the argument was improper in light of the the prosecutor continued, “But the evidence here is that some three hours later testified that a faint odor of alcohol was consistent with her claim. However, defendant admitted to consuming one glass of wine and that Officer Reichert During her closing argument, the prosecutor told the jury that the

State v. Boetti, 142 N.H. 255, 260 (1997). need to ensure that a defendant’s rights are not compromised in the process.” we must balance “a prosecutor’s broad license to fashion argument with the Id. In examining claims of prosecutorial misconduct during closing argument, remedial action is warranted absent an unsustainable exercise of discretion. We will not overturn the trial court’s ruling on whether a mistrial or other

address her first argument. the motion for a mistrial, we begin with her latter argument and need not prior to the accident. Because we conclude that the court erred in its ruling on closing argument that the defendant lied about having only one glass of wine to grant a mistrial because the prosecutor impermissibly implied during her contends that the trial court unsustainably exercised its discretion in refusing inadmissible because it was irrelevant and unfairly prejudicial. She also

evidence that she consumed one glass of wine prior to the accident was contravention of this order unfairly prejudiced her. She first argues that guilt from the evidence, see p. 6 defense counsel’s closing arguments and to urge the jury to draw inferences of While a prosecutor may ordinarily use a closing argument to respond to

wine with dinner. with dinner . . . . There is nothing illegal about having a glass of from the evidence . . . that my client admitted to a glass of wine no proof of what the odor has to do with this accident. We know was strong, if it was weak, where was it or how was it . . . . There is the night in question. But everyone was asked about the odor, if it with one drink of wine, which is what my client said she had on The State makes a big deal about the odor. The odor is consistent

particular, defense counsel argued in his closing argument that: argument and testimony elicited by the defendant throughout the trial. In 6 prosecutor’s argument was a permissible response to defense counsel’s closing Despite the trial court’s order, the State still contends that the

argument was improper. prosecutor’s argument. Accordingly, in light of that order, the State’s closing N.H. 368, 374 (1999), the court’s order in this case specifically prohibited the

made a distinction unsupported by our case law. See excluded all evidence that the defendant was impaired by alcohol, the court only one drink. In allowing evidence that the defendant consumed alcohol despite having clear that the State could not “suggest” that the defendant lied about having State was still required to abide by the court’s order, which made unmistakably the difficulties both parties faced in complying with this directive. However, the death of another while driving under the influence of alcohol). We recognize homicide even if the evidence was insufficient to convict him of causing the alcohol consumption was relevant to charge of criminally negligent vehicular degree”); State v. Ebinger, 135 N.H. 264, 267 (1992) (evidence of defendant’s a specific blood alcohol content, so long as the State proves “impairment to any 314, 316 (1989) (explaining that an individual can be impaired without proof of

Nonetheless, the court excluded all evidence regarding alcohol impairment. negligently, including whether she exhibited any signs of alcohol impairment. State from introducing other evidence relevant to whether the defendant drove Nothing in the order excluding the blood alcohol tests necessarily precluded the could not prove criminal negligence by making reference to those tests. related to the defendant’s blood alcohol tests. Because of this order, the State court was concerned with the prior order requiring the exclusion of all evidence whether the defendant exhibited signs of impairment. We can infer that the The court did not make clear why it chose to exclude evidence regarding instruction to the jury. Id

p. 7 affected the outcome of the case. Mussey Finally, we consider whether there was any prejudice that may have

The second factor is whether the court gave an adequate curative 7

N.H. 743, 747 (2009) (explaining that a defendant’s act of crossing a double have been critical to obtaining a conviction. Compare State v. Shepard, 158 not overwhelming, and, indeed, the defendant’s alcohol consumption may well 151 N.H. 152, 157-58 (2004). Here, the evidence against the defendant was upon the strength of the evidence against the defendant. State v. Ellsworth, omitted)). Additionally, in analyzing prejudice, we have previously focused instruction bears the weight of judicial disapproval.” (quotation and brackets did not give a curative instruction. See id. (“A trial court’s immediate curative note that the defendant faced a higher likelihood of prejudice because the court

instruction. heavily in favor of the defendant because the court did not give a curative the substance of defense counsel’s request”). Accordingly, this factor weighs had already requested a differing instruction because the court was aware “of court’s proposed curative instruction was unnecessary where the defendant seek a curative instruction. Cf. id. at 348 (explaining that objection to the trial decided” that there was no error to cure and the defendant was not required to permissible. At that point it was apparent that the court had “conclusively providing a curative instruction was unnecessary because the argument was prosecutor’s argument, the court concluded that granting a mistrial or given the unique circumstances of this case. consumption. Additionally, following the defendant’s objection to the by the court’s instructions, we cannot say that her conduct was deliberate cautionary instruction to clarify the purpose of evidence regarding her alcohol created difficulties for both parties. While the prosecutor should have abided instruction to cure the alleged error, she did repeat an earlier request for a sought to differentiate between alcohol consumption and impairment, which (2002). We first note that while the defendant did not specifically request an intentionally ignored the court’s instructions. As already noted, the court instruction issue for appellate review. State v. Dowdle As for the first factor, the record does not reflect that the prosecutor, 148 N.H. 345, 347 Generally, a contemporaneous objection is required to preserve a jury because the defendant did not specifically request a curative instruction.

p. 7 affected the outcome of the case. Id. (3) whether any prejudice surviving the court’s instruction likely could have whether the trial court gave a strong and explicit cautionary instruction; and factors: (1) whether the prosecutor’s improper argument was deliberate; (2) Mussey, 153 N.H. 272, 280 (2006). In doing so, we balance the following must next determine whether the error requires reversal of the verdict. State v. Having concluded that the prosecutor’s argument was impermissible, we draw inferences of guilt from the evidence.” State v. Sanchez p. 8 summarize and discuss the evidence presented to the jury and to urge them to from the facts proven and has great latitude in closing argument to both We again emphasize that “a prosecutor may draw reasonable inferences

defendant was impaired, e.g. away from impairment.” Accordingly, any evidence regarding whether the inconsistent enforcement of the court’s instruction that the State had to “stay to those tests. Any unfair prejudice to the defendant resulted from the blood alcohol tests only required the exclusion of evidence specifically related have already explained, the prior order excluding the results of the defendant’s consumed one glass of wine was irrelevant and unfairly prejudicial. As we not address the defendant’s argument that the admission of evidence that she court’s subsequent failure to take remedial action require a new trial, we need Based upon our ruling that the prosecutor’s improper argument and the

argument. 8 to the jury and the defendant could not rebut the prosecutor’s impermissible not impaired. Additionally, the State had the final opportunity to argue its case full opportunity to call witnesses or present evidence to establish that she was eliminated the issue of alcohol impairment from the trial, she did not have a the court’s order. Because the defendant knew that the trial court had prejudice to the defendant, who likely prepared her trial strategy based upon evidence inadmissible. admissible on retrial unless the trial court finds other grounds rendering such than the previously suppressed results of the blood alcohol tests, should be

Moreover, the unique circumstances present in this case heightened the

likely affected the case’s outcome. grant a mistrial or issue a limiting instruction prejudiced the defendant and prosecutor’s failure to abide by the order and the court’s subsequent failure to heart of the court’s order. In light of this, we are convinced that the having only one glass of wine. Thus, the prosecutor’s comment struck at the specifically prohibited the State from suggesting that the defendant lied about State not to present evidence that the defendant was impaired and, moreover, 628 (2005) (quotation omitted). However, in this case, the court ordered the

contravention of that order. prosecutor’s improper argument then highlighted this for the jury in direct to show that the defendant consumed more than one glass of wine, the did produce some evidence, arguably in violation of the court’s order, tending defendant’s alcohol intake and its effect upon his behavior). While the State 135 N.H. at 267 (explaining that jury was properly permitted to consider the yellow line was not caused by, inter alia, alcohol consumption) with Ebinger, particular mental state, the State must plead the specific acts satisfying the p. 9 The defendant contends that when a crime charged requires proof of a

RSA 626:2, II(d).

situation.

from conduct that a reasonable person would observe in the that [her] failure to become aware of it constitutes a gross deviation from [her] conduct. The risk must be of such a nature and degree protected against double jeopardy. Cf unjustifiable risk that the material element exists or will result with adequate specificity to allow the defendant to prepare for trial and to be constitutionally sufficient provided that it informs a defendant of the charge and plainly, substantially and formally, described to him.” An information is subject shall be held to answer for any crime, or offense, until the same is fully Part I, Article 15 of the New Hampshire Constitution provides that “[n]o

offense when [she] fails to become aware of a substantial and

injury, to wit: severe trauma resulting in death. by Justin Aiken and caused [the victims] to sustain serious bodily materially contributed to a collision with a motorcycle being driven

A person acts negligently with respect to a material element of an

defined in RSA 626:2, II(d) (2007). Shepard and prove beyond a reasonable doubt that the defendant acted negligently as In order to obtain a vehicular assault conviction, the State must allege

operation of her propelled vehicle, [the defendant] caused or constitute an immediate hazard and as a result of her unlawful

may have committed the crime need not be identified. Id. a crime has been identified with factual specificity, acts by which the defendant (1994) (stating that indictment is sufficient under same circumstances). Once

approaching from the opposite direction which was so close as to defendant] failed to yield the right of way to a motorcycle Claremont Road in Charlestown, New Hampshire in that [the driving a propelled vehicle, to wit: a 1994 Jeep Grand Cherokee on did negligently cause serious bodily injury to [the victims] while did commit the crime of Vehicular Assault in that [the defendant]

defendant: which were identical other than the names of the victims, alleged that the her alcohol consumption contributed to her negligence. The informations, because they did not allege any acts amounting to criminal negligence or that The defendant argues that the State’s informations were insufficient

may assist in proving the State’s case.

so, [she] takes the chance that evidence presented in [her] case

defendant is not required to present a case, if [she] chooses to do

State. We review the entire trial record because, even though the

favorable to the State, could have found guilt beyond a reasonable the evidence and all reasonable inferences from it in the light most defendant must prove that no rational trier of fact, viewing all of To prevail on [her] challenge to the sufficiency of the evidence, the inferences arising therefrom in the manner most favorable to the

Further:

of a motion to dismiss, we view the evidence and reasonable guilty of the crime charged. When reviewing the trial court’s denial was insufficient to prove beyond a reasonable doubt that [she] was entirety, giving the State the benefit of all reasonable inferences, The defendant had to establish that the evidence viewed in its 10 motion to dismiss: close of the State’s case and prior to closing arguments. To succeed on her The court denied her motion to dismiss for insufficient evidence both at the was wrongful or a gross deviation from the conduct of a reasonable person. the evidence was insufficient because the State did not prove that her conduct matter of law to permit the jury to find criminal negligence. She contends that Finally, the defendant argues that the evidence was insufficient as a

omitted).

, 152 N.H. 331, 349-50 (2005) (quotation and brackets

260. to become aware of a substantial and unjustifiable risk.” Pittera, 139 N.H. at specific acts of the defendant or circumstances that would constitute a failure allegations she had to meet at trial, and they did not need to allege “other Accordingly, the informations provided the defendant with notice of the and some of the acts that were alleged to constitute the defendant’s negligence. statutes). They also provided the date of the offense, the names of the victims (charging document generally sufficient if it recites the language of the relevant vehicular assault statute. See State v. Davis, 149 N.H. 698, 704 (2003) the defendant acted negligently in addition to all of the other elements of the State v. Pelky, 131 N.H. 715, 720 (1989). Here, the informations alleged that not specify an overt act that satisfies the crime’s requisite mental state. See 626:2, II (delineating the four culpable mental states), and an information need mens rea standards are now defined by statute, see Laws 1971, 518:1; RSA elements of that mental state. However, we have previously explained that p. 11 Nonetheless, the defendant argues that just as in Shepard Id “fail[ed] to perceive a more than ordinary risk.” Id timed left turn not rising to the level of criminal negligence, it is clear that she 11 1,043 feet. While the defendant seeks to characterize her behavior as a poorly on Route 12 to be approximately 3,800 feet and a second officer measured it at determined the defendant’s line of sight from her position in the left turn lane evidence that she consumed alcohol and still emanated a strong odor of alcohol were also on and working on the night of the crash. Additionally, one officer combined the defendant’s significant failure to perceive the motorcycle with motorcycle louder than normal. The motorcycle’s headlight and running lights alcohol or was speeding. Id. at 747. In this case, the jury could have motorcycle equipped with a “Screaming Eagle” muffler, which made the in Shepard that there was no evidence that the defendant had consumed The accident occurred on a clear July night and the victims were riding on a not present any evidence of wrongful conduct. However, we specifically noted defendant’s place, would have seen Aiken’s motorcycle and avoided hitting it., the State did Here, the jury could have found that a reasonable person, in the

isolation. to the State and examine each evidentiary item in context, not in

In Shepard

for two seconds. Shepard, 158 N.H. at 747. showed only that the defendant inexplicably drifted over the double yellow line a breakdown lane). We overturned Shepard’s conviction because the evidence however, we still consider the evidence in the light most favorable area); Ebinger, 135 N.H. at 266-67 (defendant was intoxicated and traveling in (defendant was driving boat at excessive speed and too close to a swimming inattentive and traveling at excessive speed); Pittera, 139 N.H. at 261 747; see also, e.g., Littlefield, 152 N.H. at 353 (defendant was intoxicated, the defendants’ wrongful conduct caused their failure to perceive a risk. Id. at doing so, we explained that in our prior cases, the evidence established that blameworthiness in the conduct that caused it.” Id. (quotation omitted). In a “failure to perceive a more than ordinary risk” and “some serious brackets and ellipsis omitted). We held that criminal negligence requires both general sense of right and wrong.” Shepard, 158 N.H. at 746 (quotation, and its seriousness must be apparent to anyone who shares the community’s negligence is appreciably more serious than that for ordinary civil negligence, all rational conclusions except guilt. Under this standard, , we emphasized that “[t]he carelessness required for criminal

(2010). concluded was erroneously admitted. State v. Horak, 159 N.H. 576, 582 the evidence claim, we consider all evidence, including evidence that we have . at 350 (quotation omitted). We also note that in reviewing a sufficiency of

doubt. When the evidence is solely circumstantial, it must exclude p. 12 Reversed and remanded

defendant’s remaining arguments. Because we reverse and remand for a new trial, we need not reach the

DALIANIS, C.J.