2004-833, 2006-919, State of New Hampshire v. Dickens Etienne

Michael A. Delaney

2006-919

Nos. 2004-833

Hillsborough-northern judicial district

following a jury trial, for the first-degree murder of Larry Lemieux. See CONBOY, J. The defendant, Dickens Etienne, appeals his conviction,

Christopher M. Johnson witness and the State’s failure to disclose exculpatory information; and (4) (3) failing to order a new trial based upon perjured testimony of a State’s or defense of another in its jury instructions; (2) permitting hearsay testimony; Court (Barry, J.) erred by: (1) incorrectly defining the elements of self-defense 630:1-a, I(a) (1996 & Supp. 2005). On appeal, he argues that the Superior RSA

brief and orally, for the defendant.

THE SUPREME COURT OF NEW HAMPSHIRE assistant 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 told Rivera not to allow Lemieux back into the house. The defendant, Pierre, p. 2 The defendant was upset when he learned what Lemieux had done, and

Pierre and informed them of what had occurred in Hannaford’s apartment. where he attempted to sexually assault her. Rivera called the defendant and on January 28, Lemieux went upstairs to Jennifer Hannaford’s apartment, informed Lemieux that he was not allowed to enter. At approximately 2 a.m. had gone to Foxwoods Casino in Connecticut. Rivera answered the door and apartment. The defendant was not at home, as he, Pierre, Roux and Garcia In the late evening of January 27, 2004, Lemieux went to the defendant’s

killing Lemieux. “get his some day.” The defendant later told Gomez that he was thinking about Battistelli overheard the defendant and Pierre discussing that Lemieux would seeing, that he had a “bad feeling” that the defendant did not like him. going to kill him. Lemieux told Autumn Millette, another woman he was was going to have to leave town because either the defendant or Pierre was In January 2004, Lemieux told Tina Gobis, whom he was dating, that he

around his children. 2 Hannaford and her children, and Pierre had concerns about Lemieux being their relationship ended in December 2003, Lemieux continued to visit with floor above the defendant in the Central Street apartment building. Although became strained. Lemieux had briefly dated Jennifer Hannaford, who lived one Around the same time, the relationship between Lemieux and Pierre also not permitted to be in the apartment or around Jette unless he was present. with somebody like ‘D.’” The defendant, upset, informed Lemieux that he was “hit on” Jette in December 2003, asking, “what somebody like [Jette was] doing

Tensions developed between Lemieux and the defendant after Lemieux

among his friends and acquaintances. I. Facts and Lemieux’s friend, Latorre Johnson. The defendant was known as “D” Pierre. The defendant and his friends were also acquainted with Larry Lemieux defendant’s child, and her sister, Jennifer Hannaford, had three children with were particularly close, because Amy Hannaford was then pregnant with the Pierre, Jose Gomez, Michael Roux and David Garcia. The defendant and Pierre Jette’s friend, Jenna Battistelli. The defendant’s other friends included Louis Manchester with his girlfriend, Cameo Jette, his friend, Israel Rivera, and defendant lived in a second-floor apartment at 265 Central Street in The jury could have found the following facts. In January 2004, the

the extent of his perjured testimony. We affirm. failing to order the State to immunize a witness for the purpose of ascertaining did so reluctantly. p. 3 in a cab. The men went down to the front porch of the building, though Roux overheard that Lemieux was on his way and that Gomez was also on his way, Rivera and the defendant retrieved his .9-millimeter Ruger pistol. Battistelli the apartment, Pierre retrieved a .44-caliber pistol and some bullets from grocery shopping, and Pierre told her to bring them upstairs right away. Inside apartment first. Jennifer Hannaford and her children were returning from The defendant, Pierre, Roux and Garcia reached the Central Street

meet him on Central Street and bring a gun. “We have to wrap him up,” meaning kill him. The defendant told Gomez to telephoned Gomez and said that Lemieux had been disrespectful to him and Lemieux. Lemieux told Pierre he was going to Central Street. The defendant intended to allow them to arrive at the Central Street apartment before told Lemieux that they were approaching Nashua, a lie Garcia believed was Foxwoods. Although the defendant was already at the Bedford toll plaza, he resumed telephone contact with the defendant, who was still on his way from defendant threatened to kill him. Lemieux then returned to Johnson’s car and Lemieux told Gobis that he had been speaking to the defendant and that the nigger,” and that he was on his way to Central Street. Once off the telephone, telephone call. Gobis heard Lemieux say, “[Y]es, I did call you a bitch ass been speaking with Pierre. While at Gobis’s apartment, Lemieux received a Lemieux say into the telephone, “I’ll be there,” and Lemieux told him he had Johnson and drove to Gobis’s apartment. On the way there, Johnson heard Lemieux left Vaillancourt’s apartment driving Johnson’s car, picked up

negative, but Pierre and the defendant appeared upset and angry. had called him a “bitch” or a “bitch ass nigger.” Lemieux responded in the speak with the defendant and Pierre. The defendant asked whether Lemieux Manchester from Foxwoods, Lemieux called Garcia’s cellular telephone to the telephone. While the defendant, Pierre, Roux and Garcia were returning to indicated that Lemieux was willing to have a “fist fight” with whoever was on of y’all bitch ass niggers.” According to multiple witnesses, this phrase aggravated Lemieux yelling into the telephone, “I’ll shoot the fair one with any “forget about ‘D.’” After that conversation, Vaillancourt overheard an Central Street apartment when he was not there and by saying “f*** ‘D’” or called Johnson to ask if Lemieux had “disrespected” him by going to the telephone. Johnson told him that the defendant was looking for him, and had When Lemieux awoke later that morning he spoke with Johnson by

whose apartment Lemieux was staying. in Manchester who were close to Lemieux, including Nancy Vaillancourt, at snowing, but the defendant and Pierre made several telephone calls to people Roux and Garcia did not return to Manchester immediately because it was that his friend Heather had heard it on the news. The defendant sought p. 4 Lemieux had been shot in the back of the head and the defendant explained arrest. He added that he had not been there. The officer asked how he knew shot in the back of the head, and that Garcia and all of his friends were under status. He told the detective that he had heard his friend Lemieux had been Sergeant Enoch Willard and said he was there to check on his friends’ bail Upon arriving at the police station, the defendant approached Detective

station to clear his name,” the defendant left. afternoon. After asking Metsch whether he should “go down to the police called his sister to have her verify that he had been in Boston with her that Lemieux. He responded that he had not been in Manchester at the time, and friend Heather Metsch, who told the defendant she had heard that he had shot Around 6:30 p.m., the defendant visited the Manchester home of his

onto the ice. drove to the Brighton Reservoir where he threw his gun, magazine and bullets left his sister’s home at 3 p.m., after approximately twenty minutes there, and that he had heard about what had happened at the apartment. The defendant Massachusetts number and told her he was at his sister’s home in Boston, and about being his alibi for the shooting. He telephoned Jette from a sister’s home, where he gave her a bag of his soiled clothing and spoke with her showered and changed his clothes. He and Rivera then visited the defendant’s to Rivera’s brother’s home in Brighton, Massachusetts, where the defendant New Hampshire, Pierre got out of the car. The defendant and Rivera continued Rivera drove toward Massachusetts. At some point, while they were still in After the shooting, the group dispersed. The defendant, Pierre and

hands were inside his jacket when he was shot. He died immediately. raised his gun, and shot Lemieux in the head behind his right ear. Lemieux’s each other in Haitian Creole, and then the defendant stepped behind Lemieux, chamber.) The witnesses all agreed that the defendant and Pierre spoke to chamber, and the slide would have to have been pulled in order to load the Lemieux’s gun was found, it was loaded, but there was no bullet in the bullet in the chamber of his gun, he would have to take action to do so. (When statements. Pierre testified that he understood that, if Lemieux did not have a shoot it out.” Neither Johnson nor Pierre testified to hearing any of these you reaching?” Garcia reported hearing Lemieux say, “F**k it. We can just want to shoot the fair one?” and heard either Pierre, Garcia or Roux ask, “Why Witness accounts differed as to what was said next. Rivera heard, “So you was in his waistband, and the defendant’s gun was plainly visible in his hand. defendant, Rivera and Garcia stood in the area behind Lemieux. Pierre’s gun six inches apart. Roux stood in the doorway leading to the porch while the hands in his pockets. He approached Pierre so they stood face to face, about Lemieux arrived shortly thereafter and walked onto the porch with his p. 5 5

but had not seen what happened. When asked directly who shot Lemieux, being present when Lemieux was killed, but then stated that he had been there The police interviewed Rivera on April 28, 2004. Rivera initially denied

about two months. I go to trial in two months.” asked Jette to “please stay away from the people that used to know me for sure no one show[ed] up in court” and that they were “out to do anything.” He from a particular house because his “boys from Boston” were “here to make Garcia. In April 2004, the defendant sent Jette a letter telling her to stay away Garcia and Johnson, and that he wanted to see what Pierre could do about asked Amy Hannaford to tell Pierre that the only people “telling lies” were his prison unit so the group could get their stories straight. The defendant Roux and Gomez should get into trouble so that they would be transferred to trying to set them against each other. The defendant also wrote that Pierre, Lemieux’s death, and that Gomez was smart enough to know that people were believed that Garcia and Johnson were lying about his involvement in was coming into town to make sure that no one testified against him, that he intimidate witnesses against him. His letters to Gomez stated that his brother The letters also included statements indicating the defendant sought to

responders who attempted to resuscitate Lemieux. Lemieux’s death on various people, including Pierre, Johnson, and the first could confirm it. In his letters to all three recipients, the defendant blamed early letters to Jette likewise insisted that he was not there, and that Jette calling him so many times to tell him not to meet with ‘P.’” The defendant’s was going to get killed two weeks before that, and that’s why on that day I try “Tell Autumn for what it’s now worth I did not kill Larry and that I knew Larry Lemieux in defense of himself or Pierre. The defendant also wrote Hannaford, that he was not involved with the murder, but later asserted that he shot Hannaford, Gomez and Jette. In his letters to Hannaford, he initially insisted In February and March of 2004, the defendant sent letters to Amy

witnesses, and that Gomez needed to kill Johnson. that Pierre had killed Lemieux, that Garcia and Johnson were the only the Manchester District Court. At that time, the defendant indicated to Gomez The defendant and Gomez next saw one another in the holding area at

the police station to check on Gomez’s bail status, the defendant was arrested. The defendant left the station and met up with Jette. When they returned to believed him to be guilty of killing Lemieux, he was ending the conversation. interview with the detective by stating that because he thought the detective to find out what had happened. The defendant terminated the fifty-five minute two were not friends, the defendant stated that he wanted to bail everyone out who was not a friend. When asked why he wanted to bail out Johnson if the information on the arrest and bail status of his friends, as well as Johnson, p. 6 6

Pierre to “tell them the truth” – i.e. a gun. In an August 2004 letter, the defendant asked Amy Hannaford to tell which he claimed that he shot Lemieux in self-defense after Lemieux pulled out wrote letters in July 2004 to the Governor and to a superior court judge in Despite his earlier denial that he was Lemieux’s killer, the defendant II. Jury Instructions

trial. Based on this information, he filed motions for a new trial, for a Richards Office on an unrelated case and that Gomez had committed perjury during the withheld evidence regarding Gomez’s cooperation with the Attorney General’s defendant learned of information leading him to believe that the State had another. The jury found the defendant guilty as charged. Following trial, the Lemieux. At trial, he claimed to have acted in self-defense and defense of In July 2004, the defendant was indicted for the first-degree murder of instructions adequately and accurately explain each element of the offense and of all the evidence in the case.” Id. “We determine whether the jury their entirety, as a reasonable juror would have understood them, and in light we evaluate allegations of error by interpreting the disputed instructions in v. Hernandez, 159 N.H. 394, 400 (2009). “When reviewing jury instructions, in clear and intelligible language, the rules of law applicable to the case.” State “The purpose of the trial court’s charge is to state and explain to the jury,

Hannaford and had said he was returning with a gun. degree murder conviction. “justified” in shooting him because Lemieux had tried to rape Jennifer along with the defendant’s arguments in his mandatory appeal from his first- defendant wrote to Jette that the person who killed Lemieux had been the defendant’s discretionary appeal from those rulings, which we address “changed his mind,” and that Garcia wanted to change his mind. Finally, the attorney-client privilege. The trial court denied all three motions. We accepted that Rivera and Gomez were “keeping it real” with him, that Johnson had hearing, see Rivera and Roux were saying they were not present when Lemieux was shot, State v. Richards, 129 N.H. p. 6 669, 673-74 (1987), and to pierce the therefore, “that hit [was] off.” He wrote in later letters to Jette that Pierre, he had received word from Johnson that he was not going to testify, and, brother that he had done a good job of looking out for the defendant because In a May 2004 letter to Jette, the defendant told her to tell Johnson’s

than trying to get Pierre to be quiet. when he was shot. The defendant wrote that this would be of more help to him

to the reservoir in Brighton. Eventually he admitted that the defendant shot Lemieux and he led the police Rivera at first could not speak, his body shook and he broke down crying. legislature deliberately omitted the necessity requirement in the application of p. 7 necessity requirement. RSA p. 6 627:4, I. Thus, the defendant asserts, the believes to be necessary,” but as to deadly force it did not provide such a

person may defensively “use a degree of such force which he reasonably deadly force. As to non-deadly force, the legislature explicitly provided that a force, with RSA 627:4, I (2007), which defines when a person may use non- RSA 627:4, II (2007), which defines when a person is justified in using deadly suffice to prevent harm from the attacker’s use of deadly force.” He contrasts deadly force be necessary, in the sense that no lesser, non-deadly force would 7 “nothing in the language of RSA 627:4, II, . . . requires that the actor’s use of The defendant argues that this instruction was erroneous because

long as, at the time, there were reasonable grounds for his belief.

force which he believed was necessary under the circumstances as reasonable amount of force. The defendant can use the amount of

is not permitted to use excessive force in self-defense, only a

A. The Necessity for the Use of Deadly Force

two claims of error in turn. constituted structural error, requiring reversal. We address the defendant’s State’s proposals. The defendant now argues that the jury instructions defendant’s objections, but gave instructions that were consistent with the together, had provoked the use of deadly force. The trial court noted the used was necessary for self-defense or defense of others. A person upon self-defense if he, the third person, or he and the third person acting The defendant must reasonably believe that the amount of force he necessary to defend against deadly force; and (2) that a defendant may not rely defendant may use only the amount of force that he reasonably believes is The trial court instructed the jury as follows: to certain aspects of the State’s proposed instructions, including: (1) that a instructions on defense of self and defense of another. The defendant objected Prior to trial, both the defendant and the State submitted proposed jury

State v. Kousounadis, 159 N.H. 413, 423 (2009). “[t]he interpretation of a statute is a question of law, which we review de novo.” State v. Lambert, 147 N.H. 295, 296 (2001) (quotation omitted). However, ruling was clearly untenable or unreasonable to the prejudice of his case.” decision is not sustainable, the defendant must demonstrate that the court’s unsustainable exercise of discretion.” Id. “To show that the trial court’s court, and we review the trial court’s decisions on these matters for an and wording of jury instructions, are within the sound discretion of the trial case.” Id. “Whether a particular jury instruction is necessary, and the scope reverse only if the instructions did not fairly cover the issues of law in the p. 8 8

State v. McKeown, 159 N.H. 434, 435-36 (2009).

and not in isolation. Id. interpret a statute in the context of the overall statutory scheme scheme. State v. Lamy, 15 p. 8 8 N.H. 511, 515 (2009). Accordingly, we law, which we decide de light of the policy sought to be advanced by the entire statutory Code provisions. The interpretation of a statute is a question of statutes in light of the legislature’s intent in enacting them, and in Resolving this dispute requires that we interpret pertinent Criminal of the statute to discern legislative intent. Id. Our goal is to apply (2008). Absent an ambiguity we will not look beyond the language determine legislative intent. State v. Formella, 158 N.H. 114, 116 doing so, we must first look to the plain language of the statute to import of [its] terms and to promote justice.” RSA 625:3 (2007). In 422 (2008). We construe the Criminal Code “according to the fair a statute considered as a whole. State v. Gallagher, 157 N.H. 421, arbiter of the intent of the legislature as expressed in the words of (2007). In matters of statutory interpretation, we are the final

necessary. eliminate the common-law requirement that the actor’s use of deadly force be deadly force, but not non-deadly force, did not clearly signal its intent to State concludes that the legislature, by applying these limitations to the use of performing an act which he is not obligated to perform,’ RSA 627:4, III(c).” The thereto,’ RSA 627:4, III(b), or ‘[c]omply with a demand that he abstain from RSA 627:4, III(a), ‘[s]urrender property to a person asserting a claim of right the third person can, with complete safety’ either ‘[r]etreat from the encounter,’ the use of ‘deadly force’ unless that person has first determined whether ‘he and “the plain language of the statute explicitly requires that a person not resort to legitimate defense and the needless sacrifice of human life.” The State adds that non-deadly force may be used and by attempting to strike a balance between law principle of necessity by limiting the circumstances under which deadly and It argues: “To the contrary, [the statute] actually seems to embrace the commonintent to abrogate the common law governing the permissible use of deadly force. The State responds that the self-defense statute does not reflect a clear

requires reversal. explicitly mandated in the statute, reduced the State’s burden of proof and trial court’s jury instruction, which included a necessity requirement not necessary to counter the attack. The defendant contends, therefore, that the deadly force to have to determine, at risk of legal culpability, the degree of force defensive deadly force because it did not wish to require a person faced with part: p. 9 In contrast, with regard to non-deadly force, RSA 627:4, I, provides in pertinent

retreat. him at his direction and was acting pursuant to RSA 627:5, he need not (d) If he is a law enforcement officer or a private person assisting

same encounter. harm, the actor has provoked the use of force against himself in the justifiable when, with the purpose of causing death or serious bodily which he is not obliged to perform; nor is the use of deadly force (c) Comply with a demand that he abstain from performing an act

or (b) Surrender property to a person asserting a claim of right thereto;

aggressor; or retreat if he is within his dwelling or its curtilage and was not the initial (a) Retreat from the encounter, except that he is not required to

he and the third person can, with complete safety: 9 himself or a third person from deadly force by the other if he knows that III. A person is not justified in using deadly force on another to defend

deadly force. It provides: RSA 627:4, III (2007) (amended 2011) sets forth limitations upon the use of 1

N.H. 567 (2002), discussed below. to retreat, rather than explicitly remove necessity from the analysis after State v. Warren, 147 to remove necessity from the deadly force analysis, since the legislature saw fit to amend the duty the use of deadly force, it also undermines the defendant’s argument that the legislature intended efficacy of the State’s argument that the requirement of retreat constitutes a balance implicit in aggressor. This change does not affect our analysis. Although it could be read to reduce the person . . . . the duty to retreat when the actor is “anywhere he or she has a right to be” and was not the initial The legislature’s most recent amendment to the statute, effective November 13, 2011, removes (a) Is about to use unlawful, deadly force against the actor or a third 1

he reasonably believes that such other person: II. A person is justified in using deadly force upon another person when

case, under which deadly force may be used: RSA 627:4, II(a) (2007) sets forth the circumstances, relevant to this p. 10 10

strict, or restrictive, interpretation. Where there is any doubt about their benefits not recognized by the common law have frequently been held subject to “Statutes which impose duties or burdens or establish rights or provide

Schneider Corp., 117 N.H. 566, 568 (1977). § 61.2, at 340-43 (7th ed. 2008) (footnotes omitted); see Bolduc v. Herbert common law.” 3 N. Singer & J.D. Singer, Statutes and Statutory Construction have less weight when their application would produce a result in derogation of that expression of one thing implies the exclusion of another, have been held to “Maxims of interpretation based on customary language usage, such as the rule interpretation, and we ultimately find that interpretation more persuasive. supported by the principle expressio application of force”), is supported by numerous competing canons of statutory various canons of statutory interpretation. The defendant’s interpretation is have endeavored to avoid the combat or the injury by means other than the necessity requirement as “the consequence of a condition that the actor must We acknowledge that the competing interpretations are supported by belief in the necessity of the defensive action,” and viewing the statute’s implicit n.1, at 35 (1985) (interpreting statutes such as ours as implicitly “demand[ing] commentary to the Model Penal Code, see Model Penal Code § 3.04 cmt. 2(a), 2(a) State’s interpretation of the statute, also the interpretation supported by the statute and omitted in another.” (quotation and brackets omitted)). However, the requirement of reasonable necessity for the defensive use of non-deadly est exclusio alterius is strengthened where a thing is provided in one part of the irrevocable consequences of the use of deadly force: The explicit statutory Sec’y of State, 161 N.H. 127, 133 (20 p. 10 10) (“The force of the maxim expressio unius specific circumstances set forth in the statute. Our analysis is grounded in the one thing in a statute implies the exclusion of another. See City of Manchester v. implies that reasonable necessity is not required for the use of deadly force in the unius est exclusio alterius, the expression of necessity in the non-deadly force provision, and not in the deadly force provision, for the defensive use of deadly force, or the explicit requirement of reasonable implicitly indicate that reasonable necessity under the circumstances is required interpretations: Either the restrictions placed upon the use of deadly force amount of such force may result in death. The statute as a whole is thus susceptible of at least two reasonable reasonable necessity in the defensive use of deadly force recognizes that any which, by definition, would result in death; the implicit requirement of recognizes that there are infinite degrees of force potentially available – none of force

believes to be necessary for such purpose. other person, and he may use a degree of such force which he reasonably believes to be the imminent use of unlawful, non-deadly force by such order to defend himself or a third person from what he reasonably A person is justified in using non-deadly force upon another person in p. 11 11

State v. Warren

upon that right based upon “the general principle that the law places great common law for its balance of the right to defend oneself and the restrictions Aldrich v. Wright In our interpretations of the self-defense statute, we have looked to the

should not be excessive in relation to the harm threatened.

defen[s]e are to be considered. far as it is not reasonably necessary, it is aggression.” Id and impracticability of other more tardy and less vigorous kinds of. divisible into two parts; so far as it is reasonably necessary, it is resistance; so On the question of the reasonable necessity of his act, the insufficiency “necessary”; and (2) that the force used in response to the threat resistance starts beyond the reasonable necessity of the case, it may be respect of consequences, and exceedingly imminent in point of time. . . . necessary for defen[s]e, the excess is aggressive and not defensive.” Id. “When force, purely defensive at first, increases and becomes more than is reasonably consequences contrasted with each other.” Aldrich, 53 N.H. at 402. “When it should be proportioned to the apparent danger, viewed in the light of those measured by the consequence of using it, and the consequence of not using it: previously stated, “Defensive force, in its kind, degree, and promptness, is

, 147 N.H. 567, 569 (2002) (citations omitted). As we have

deadly force should be used only when, and to the extent, danger, should be resorted to only when the danger is immense in basic bodily integrity. Implicit in this rule are the notions: (1) that legally reasonable that the destruction of it, as a means of averting the use of unlawful deadly force or an imminent threat to life or only if such force is necessary to protect himself (or another) from The immense value at which the law appraises human life makes it a person is generally justified in using deadly force upon another use of deadly force. Our common law has long required reasonable necessity to justify the, 53 N.H. 398, 407 (1873). In other words,

statute clearly expresses such an intention.” (quotations omitted)). law: we will not construe a statute as abrogating the common law unless the (“In enacting legislation, the legislature is presumed to be aware of the common (2005) (quotation omitted); see also State v. Hermsdorf, 135 N.H. 360, 363 (1992) clearly expresses that intent.” State v. Elementis Chem., 152 N.H. 794, 803 we will not interpret a statute to abrogate the common law unless the statute Statutory Construction § 61.1, at 314 (7th ed. 2008). “We have often stated that the most, change in the common law.” 3 N. Singer & J.D. Singer, Statutes and meaning or intent they are given the effect which makes the least, rather than p. 12 12

legislature has undertaken in the wake of Warren longstanding requirement of reasonable necessity is found in the actions the A further indication of the legislature’s intent not to abrogate the

change the law from what a court has construed it to be.” (quotation omitted)); heavily in favor of a judicial interpretation, since the legislature has power to Construction § 49.5, at 35 (7th ed. 2008) (“[P]rinciples of stare decisis weigh necessity. See 2B N. Singer & J.D. Singer, Statutes and Statutory our holding that the deadly force provision implicitly required reasonable amended RSA 627:4 twice since Warren, and the amendments did not vitiate

necessity requirement. in construing the language of the statute that on its face did not contain a cohabitant. See id. at 569-71. Thus, in Warren we looked to the common law justification for the use of deadly force did not apply where the assailant was a the necessity requirement, we concluded that the “defense of dwelling” threat to life or basic bodily integrity.” Warren, 147 N.H. at 569. In applying deadly force only to meet the use of unlawful deadly force or an imminent established common law principle that a person is generally justified in using curtilage.” We rejected the defendant’s argument and acknowledged “the wellcommission of a felony against the actor within such actor’s dwelling or its believes that such other person . . . [i]s likely to use any unlawful force in the The defendant’s arguments in this case are similar to those in Warren justified in using deadly force upon another person when he reasonably statutory provision was RSA 627:4, II(d) (1996), which states that “[a] person is “such a result would be absurd.” Id. at 569 (quotation omitted). The relevant life in determining the reasonable necessity of killing a human being,” and that general principle that the law places great weight upon the sanctity of human defendant’s literal reading of the statute “would be inconsistent with the deadly force against him. Warren, 147 N.H. at 569. We found that the his roommate even if he believed that his roommate was about to use only nonentitled to a jury instruction that he was justified in using deadly force against which the defendant’s literal reading of RSA 627:4 led him to argue that he was

added). instruction. Vassar, 154 N.H. at 374 (quoting RSA 627:4 II(a)) (emphasis force,’” and that the defendant was therefore entitled to a self-defense believed deadly force was necessary to stave off the threat of ‘unlawful, deadly “jury could have concluded from the testimony that the defendant reasonably Most recently, in State v. Vassar, 154 N.H. 370 (2006), we reasoned that the legislative indication, we will not construe a statute to change the common law.” privilege to use deadly force in self-defense without retreating. Absent a clearer the legislature’s use of the term ‘dwelling’ was meant to restrict the common-law State v. Pugliese, p. 12 120 N.H. 728, 731 (1980), we held, “We are not persuaded that of killing a human being.” Warren, 147 N.H. at 569 (quotation omitted). In weight upon the sanctity of human life in determining the reasonable necessity p. 13 13

3 N. Singer & J.D. Singer, Statutes and Statutory Construction the great weight that law and society place on the sanctity of human life, see human life. Given the constitutional recognition of the natural right to life, and with other related statutes. or another from the use of deadly force, he would still be justified in taking a consideration of the statute read as a whole and in conjunction complete safety,” take some action short of using deadly force to protect himself consistent with the purpose of the legislation, or is evident from a than those specifically set forth in RSA 627:4, III knew that he could, “with retroactivity, unconstitutionality, is in keeping with good policy, is defendant’s reading of the statute, even if a person faced with a situation other its abrogation of the common law is supported by public policy. Under the Here, the rule supporting interpretation of a statute to avoid or minimize

the common law is favored where the result avoids absurdity, from the legislature’s silence regarding the reasonable necessity requirement in being”), the legislature most likely did not intend this result. We decline to infer sanctity of human life in determining the reasonable necessity of killing a human wall is a statement of fact properly illustrating the weight to be given to the e.g., State v. Grierson, 96 N.H. 36, 40 (1949) (“This maxim of retreating to the

An interpretation which preserves rights or benefits enjoyed under

(7th ed. 2008) (footnotes omitted).

the legislature’s adoption of our long-standing interpretation of the statute. not to amend the pertinent provisions of RSA 627:4 in light of Warren indicates prior judicial interpretation.” (quotation omitted)). The legislature’s decision without change in RSA 502:24, and constitutes a legislative adoption of its been placed by the Bench and Bar, has been re-enacted by the Legislature p. 13 130 (1957) (“The statute on which this repeated practical construction has course of the five subsequent amendments.”); State v. Deane, 101 N.H. 127, thereof], the General Court would presumably have clarified the text in the (2009) (“If we had incorrectly construed the statute in [our earlier interpretation unaffected parts of the law.”); see also State v. Moran, 158 N.H. 318, 323 indicate approval of interpretations pertaining to the unchanged and which have received a contemporaneous and practical construction may action by amendment or appropriations with respect to other parts of a law interpretation as presumptive evidence of its correctness. Likewise, legislative there is more reason to regard the failure of the legislature to change the contemporaneous interpretation has been called to the legislature’s attention, agency.”); id. § 49.10, at p. 14 142-44 (“Where action upon a statute or practical and intent to adopt the construction placed on the statute by the administrative left intact the portion sought to be construed, the legislature has declared an id. § 49.5, at 107 (“If the legislature has amended portions of a statute, but has 14 harm, the defendant or third person provoked the use of harm [sic acting together, with a purpose of causing death or serious bodily the use of force against himself in the same encounter or, three, if causing death or serious bodily harm, the third person provoked

the issue of provocation by a defendant. See person in the same encounter. Or, two, with the purpose of person, the use of deadly force is not justifiable. We have previously addressed the actor provoked the encounter, whether alone or in concert with a third reference to the effect of provocation by a third party. Thus, to the extent that The statute addresses only provocation by the actor and makes no

encounter.” harm, the actor has provoked the use of force against himself in the same not justifiable “when, with the purpose of causing death or serious bodily defense, however, unless he uses words to bring about a fight in which he RSA 627:4, III provides, in pertinent part, that the use of deadly force is 240 (2001) (“A defendant does not lose the right to use deadly force in self-

with the purpose of causing death or serious bodily harm, the deadly force on another to defend himself or a third person if, one,

reversal. proof was improperly “narrowed,” resulting in structural error, requiring provoked the encounter. Thus, the defendant argues, the State’s burden of he did not have the right to use deadly force if a third person – here, Pierre – The defendant argues that these instructions erroneously advised the jury that A person does not -- a person also does not have the right to use

against the defendant or the third person in the same encounter. ]

The trial court instructed the jury, as proposed by the State, as follows:

B. Provocation of the Attacker’s Use of Force

use of deadly force were not erroneous. that the trial court’s instructions requiring reasonable necessity for the defensive sees fit, should it disagree with our interpretation). Accordingly, we conclude 405, 409-10 (2010) (noting that the legislature is free to amend the statute as it reasonably necessary under the circumstances. Cf. State v. Chrisicos, 159 N.H. entrenched principle that in order for a killing to be justified, it must be not find that the legislature has expressed an intent to abrogate the deeply Given our common law and the canons of statutory interpretation, we do

have the right to kill when it is not necessary under the circumstances. the deadly force provision of the justification statute that New Hampshire citizens p. 15 15

constitutional safeguards providing a fair trial; therefore, if the trial Such defects arise from errors that deprive a criminal defendant of the A structural defect affects the very framework in which a trial proceeds.

State v. O’Leary

499 U.S. 279, 308-12 (1991)). errors. See State v. Ayer, p. 15 150 N.H. 14, 24 (2003) (citing Arizona v. Fulminante, omitted). Errors fall into one of two categories: (1) structural defects; or (2) trial the error at issue is subject to harmless error analysis.” Kousounadis required without regard to the evidence in a particular case.” Id. (quotation Some errors require outright reversal. Thus, we must first determine whether “There are instances, however, when the error is so prejudicial that reversal is “Not all constitutional errors . . . are subject to harmless error analysis., 153 N.H. 710, 714 (2006) (citation and quotation omitted).

rather than on the virtually inevitable presence of immaterial error. criminal process by focusing on the underlying fairness of the trial defendant’s guilt or innocence, and promotes public respect for the purpose of a criminal trial is to decide the factual question of the The harmless-error doctrine recognizes the principle that the central

N.H. at 427.

at trial focused their arguments on the issue of provocation by the defendant defending when he killed Lemieux, had provoked the use of force; both parties at trial or on appeal, that Pierre, the person the defendant was purportedly boundaries of the defense of others justification, as neither party argued, either disproving a defense. regard an instruction that effectively relieves the State of part of its burden of This case does not present us with a proper opportunity to decide the of an offense constitutes structural error, and asserts that we must similarly 29, the defendant counters that a trial court’s failure to instruct on an element acted in defense of himself or another. Citing Kousounadis, p. 15 159 N.H. at 428- State of its duty to disprove, beyond a reasonable doubt, that the defendant third person was error, the error was harmless because it did not relieve the Thus, the State asserts that, even if the instruction regarding provocation by a .

third person may be justified. believe in the third person’s innocence before deadly force in defense of the be sufficient to bar the defense, and whether the defendant must reasonably specific issues raised here: whether a third person’s provocation alone would his legal defense, they were correct.”). We have not, however, addressed the which he intended at the outset to kill his opponent was sufficient to destroy instruction that a defendant’s use of words alone to bring about a fight in Gorham, 120 N.H. p. 16 162, 164 (1980) (“[I]f the jury concluded after the court’s intended at the outset to kill or seriously injure his opponent.”); State v. 16

State v. Dupont

the weight of the evidence). State on an element of the offense charged, requiring reversal without regard to doctrine. transferred interests “were securities” was akin to directing a verdict for the (1990) (holding that in a securities fraud case, instructing jury that certain amenable to harmless error analysis”); State v. Williams, 133 N.H. 631, 633-34 element at issue, “requires reversal of the defendant’s conviction and is not instruction amounting to presumption of defendant’s mental state, the only citation omitted)); State v. Hall, 148 N.H. 394, 400 (2002) (holding jury and thus is not subject to harmless error analysis” (brackets, quotations and partially or completely denies a defendant the right to the basic trial process, instruction that omits an element of the offense charged is an error that e.g., Kousounadis, 159 N.H. at 429 (“[u]nder our State Constitution, a jury burden of proving an element of the offense constitutes structural error. See, have, however, held that an erroneous jury instruction relieving the State of its unfairness, thereby obviating consideration of the harmless error harmless-error analysis.” Id adjudication by a biased judge, rise to the level of fundamental. (quotation, brackets and ellipsis omitted). We presumption that any other errors that may have occurred are subject to confession, the complete denial of a defendant’s right to counsel, or counsel and was tried by an impartial adjudicator, there is a strong error analysis.” Kousounadis, 159 N.H. at 427. “Generally, if a defendant had determining which constitutional errors are or are not subject to harmless Ayer “[W]e have never clearly defined any single analytical framework for

the basic trial process, such as the introduction of a coerced Errors that partially or completely deny a defendant the right to

, 150 N.H. 14, 24 (brackets, quotations and citations omitted).

cannot be cured by jury instructions. beginning to end, and therefore constitutes an irreparable injustice that structural defect, however, infects the entire conduct of the trial from determine whether the error was harmless beyond a reasonable doubt. A quantitatively assessed in the context of other evidence in order to error occurs during the presentation of a case to a jury and can be punishment may be regarded as fundamentally fair. In contrast, a trial as a vehicle for the determination of guilt or innocence, and no criminal structural defect exists, a criminal trial cannot reliably serve its function proceeds after such an error occurs, justice will not still be done. When a p. 17 17

Id This case does not share the infirmity common to Kousounadis

element of the offense that the State must prove beyond a reasonable doubt.

need not be negated by the State. and must be submitted to the jury for determination. The latter must be negated by the State by proof beyond a reasonable doubt constitute pure defenses, and, thus, negating such a defense becomes an

element of the charged offense, see

offense. See, e.g., Kousounadis, 159 N.H. at 428-29 (“The failure to instruct denied the defendant the jury’s determination as to a factual element of the Soucy and Williams, in which the trial court’s jury instructions effectively

State v. McMinn [State v. Hast affirmative defense is a defense overriding the element. The former legislature has thus determined that self-defense and defense of others A pure defense is a denial of an element of the offense, while an such defense beyond a reasonable doubt.” RSA 626:7, (I)(a) (2007). The a matter declared by this code to be . . . [a] defense, the state must disprove defense to any offense,” RSA 627:1 (2007), and “[w]hen evidence is admitted on self-defense is admitted, conduct negating the defense becomes an or any “[c]onduct which is justifiable under [RSA chapter 627] constitutes a . at 352-53 (citations omitted). Our Criminal Code provides that self-defense

required even if the evidentiary support is “not overwhelming,” (1996).

here. I, Article 15 of the New Hampshire Constitution therefore informs our analysis parties’ differing burdens and of what must be submitted to the jury under Part disprove beyond a reasonable doubt). Moreover, when evidence of therefore, not subject to harmless error analysis). Soucy ’s analysis of the consideration was error rendering the trial fundamentally unfair, and, (ruling that trial judge’s exclusion of supervening causation evidence from jury reasonable doubt, see burdens when the defendant has raised a defense. See Soucy, 139 N.H. at 352 , 141 N.H. 636, 645 (1997). In Soucy, we analyzed the relative

Once evidence of self-defense is admitted, an instruction is the State must prove beyond a reasonable doubt, RSA 625:10

requiring a jury instruction on a defense that the State must 139 N.H. 349, 352-53 (1995) (discussing the evidentiary support RSA 626:7, I(a) (1996); cf. State v. Soucy, the burden of disproving this statutory defense beyond a

charged.” State v. Soucy, 139 N.H. 349, 351 (1995) (emphasis added). defendant to a jury determination on all the factual elements of the crime “[P]art I, article 15 of the New Hampshire Constitution entitles a criminal p. 18 18

See the State had proven all elements of the offense beyond a reasonable doubt. conclude that the defendant’s conviction was based upon the jury’s finding that third person, constituted an erroneous statement of law, we nonetheless to find that the State had disproved the defense if it proved provocation by a Assuming, without deciding, that factual alternative (2), allowing the jury omitted)). not possible to conclude that the error did not affect the verdict.” (quotation affected the jury’s verdict. If there is no verdict on an element of the crime, it is third person provoked the use of harm [sic the crime. The appellate court must assess the possibility that the error himself in the same encounter,” or (3) “acting together, . . . the defendant or existence of a verdict of guilty beyond a reasonable doubt on the elements of the same encounter,” or (2) “the third person provoked the use of force against “the defendant provoked the use of force against himself or a third person in Kousounadis, 159 N.H. at 428 (“Harmless error analysis depends upon the were undertaken with the purpose of causing death or serious bodily harm: (1) alternatives, any one of which would negate the defense, if such provocation instruction went on to present the jury with three factual provocation defense of others, you must find the defendant not guilty.” The trial court’s reasonable doubt as to whether the defendant acted in self-defense or in defendant did not act in self-defense or in defense of others. If you have a person in the same encounter.” charged the jury: “[T]he State must prove beyond a reasonable doubt that the the State.” Specifically as to the “defense of others” justification, the court] against the defendant or the third Here, the jury charge placed the “burden of proving guilt . . . entirely on

Kousounadis

mandatory presumption on an element, Hall, 148 N.H. at 398-99. by withholding evidence on an issue, Soucy, 139 N.H. at 352, or by creating a determined an essential element of the crime,” Williams, 133 N.H. at 634-35,

, 159 N.H. at 428-29, or because “the judge, and not the jury, offense, either because the element was not submitted to the jury,

structural error, it is clear that the jury did not decide all of the elements of the Constitution). In the cases where we found the court’s instructions constituted own judgment contrary to Part I, Article 15 of the New Hampshire instruction probably had the effect of superseding the exercise of the jurors’ with State v. Jones, 125 N.H. 490, 494 ( p. 19 1984) (finding that a judge’s could not possibly have invaded the jury’s exclusive fact-finding province.”) 383 (1988) (“Under the facts of this case, the trial court’s supplemental charge citation, and parenthesis omitted)). Compare State v. Bundy, 130 N.H. 382, means determination by a jury that all elements were proved” (quotation, verdict, and deprives a defendant of his right to a jury trial. . . . [T]rial by jury the jury on one element of a crime is thus indistinguishable from a directed 19

reasonable doubt that the error did not affect the verdict.” O’Leary “To establish that an error was harmless, the State must prove beyond a

instruction, we find that the State has met this burden. See id. offense beyond a reasonable doubt, regardless of any error in the provocation based upon the jury’s finding that the State had proven all elements of the instruction did not contribute to the defendant’s conviction. Compare 714. Because we have concluded above that the defendant’s conviction was encounter, the record establishes beyond a reasonable doubt that such, 153 N.H. at defense or defense of others by establishing a third party’s provocation of the instructions erroneously advised the jury that the State could disprove self- State the burden of proof as to all elements of the offense. To the extent the subject to harmless error analysis. provocation were erroneous, the error was not structural, and therefore is Thus, we conclude that the jury instructions properly assigned to the Williams). Thus, even assuming that the court’s instructions as to third party defendant on this lesser standard,” and reversal was required pursuant to stepped behind Lemieux and fired the only shot in the encounter. the arrest was a law enforcement official, the jury may have convicted the a gun plainly visible in his hand. And ultimately, it was the defendant who to “wrap up” Lemieux. It was the defendant who was waiting on the porch with could convict the defendant if he should have known the individual effecting Gomez to meet the defendant on Central Street and to bring a gun with which Reid, 134 N.H. 418, 423 ( p. 19 1991) (finding where the jury “was instructed that it arrive on Central Street before Lemieux. It was the defendant who asked State v. distance from Manchester in order to allow the defendant and his friends to Lemieux told Gobis. It was the defendant who lied to Lemieux about his speaking with Pierre, it was the defendant who threatened to kill Lemieux, as say into the telephone, “I’ll be there,” and understood that Lemieux had been telephoned Johnson looking for Lemieux. While Johnson overheard Lemieux telephone calls to people who were close to Lemieux, it was the defendant who response to the news from Manchester, both the defendant and Pierre made who told Rivera not to allow Lemieux back into the house. Although, in Lemieux had defied him by going to his apartment when he was not there and provoked the encounter. It was the defendant who was upset to learn that Further, the evidence does not support a finding that Pierre alone

Lemieux to fight. was a red herring and that the defendant was the person who provoked the defendant’s justification defense, argued that the Pierre/Lemieux dispute stand to benefit from the error if it had argued that Pierre’s provocation vitiated party, Pierre, had provoked the encounter. The State, the party that would because neither the defense nor the State argued to the jury that the third First, we conclude that the error could not have affected the verdict doubt that it did not affect the verdict.” Id p. 20 “An error is not harmless unless the State proves beyond a reasonable

overwhelming.

between Etienne and Lemieux, and because other evidence of guilt was “[t]alking a lot of s**t” about him and threatening to do something to him, and a reasonable doubt because the testimony was cumulative as to the animosity shooting, that the defendant said that he had heard that Lemieux was that even if the admission of this testimony was error, it was harmless beyond a dispute between Lemieux and the defendant in the weeks leading up to the and Lemieux,” an important and contested issue at trial. The State responds feeling” because the defendant did not like him. Gomez testified that there was evidence for the hearsay purpose of proving enduring hostility between Etienne testified without objection that Lemieux had previously said that he had a “bad prejudicial value was significant. He asserts that “the jury likely used the between the two. Autumn Millette, another romantic partner of Lemieux, admitted for its content, then its probative value was minimal, while its Lemieux and the defendant, the record contains ample evidence of animosity because it does not fall within any hearsay exception, and if it was not State that it was harmless. As to the specific issue of hostility between The defendant argues that this evidence was erroneously admitted Assuming without deciding that there was error here, we agree with the

the State’s evidence of guilt.” Id. the inadmissible evidence is merely cumulative or inconsequential in relation to the defendant’s guilt is of an overwhelming nature, quantity or weight and if error may be harmless beyond a reasonable doubt if the alternative evidence of the evidence was inconsequential in relation to the State’s evidence.” Id. “An at trial, as well as the character of the excluded evidence, including whether has met its burden, we consider the strength of the State’s evidence presented . “In determining whether the State

defense’s motion to strike. but only to show that Lemieux had made the statement. The court denied the explained that he did not offer the evidence for the truth of the matter asserted, objected and further moved to strike Gobis’s response, the prosecutor this question and Gobis testified that Lemieux had told her. When the defense defendant and Larry Lemieux?” The court overruled the defense’s objection to asked, “[H]ow did you know there was any sort of dispute between the that question after Gobis answered in the affirmative. The prosecutor then him and . . . [the defendant]?” The court sustained the defense’s objection to ever tell you whether or not there was any source of dispute or tension between During the testimony of Tina Gobis, the State asked, “Did Larry Lemieux

III. Admission of Gobis’s Testimony Regarding a “Dispute” time of the murder. He wrote to Jette that Lemieux had drawn first, but the p. 21 friends were in custody. He then said that he had left Manchester around the Heather upon his return to Manchester that Lemieux had been shot and his had been in Boston at the time of the murder and had learned from his friend repeatedly changed his story to conform to the discovery. He claimed that he alibi, and disposed of the gun, magazine, and bullets. He first also lied and gave his soiled clothing to his sister, talked about her providing him with an The defendant then fled the scene, took a shower, put on clean clothing,

placement of the shot prevented the bullet from hitting Pierre, who was face to arm, and shot Lemieux at a downward angle behind the right ear. The careful said something to Pierre in Haitian Creole, stepped behind Lemieux, raised his began arguing with Pierre, the defendant then moved the gun to his right hand, Lemieux with a gun clearly visible in his left hand. After Lemieux arrived and The defendant and his friends armed themselves. The defendant waited for truly was. He asked Gomez to meet him at Central Street and to bring a gun. kill Lemieux by telling Lemieux he was much farther from Manchester than he On the day Lemieux was killed, the defendant gave himself time to prepare to Further, other evidence overwhelmingly established the defendant’s guilt.

consideration of Gobis’s objected-to statements.

developing animosity between the defendant and Lemieux, without

The record thus contains overwhelming alternative evidence of the

day of the murder the defendant had “threatened to kill him.” because either Pierre or the defendant was going to kill him, and that on the without objection, that Lemieux had told her that he was going to leave town whether Lemieux had said “f*** ‘D’” or “forget about ‘D.’” Gobis herself testified, “disrespect[ed] him,” and that the defendant had sounded upset while inquiring that the defendant had asked whether Lemieux had gone to Central Street and in the hours leading up to the murder. Johnson testified, without objection, with Jette. She further testified that there had been a dispute at Central Street his some day” and that the defendant had been upset about Lemieux flirting objection, that the defendant and Pierre had discussed that Lemieux would “get concerned because Jette was afraid of Lemieux. Battistelli testified, without upset about the calls from Central Street, and that the defendant had been about the situation between Lemieux and Jette, that the defendant had been been upset and had several conversations, including with Lemieux and Garcia, that there was tension between them. He also testified that the defendant had defendant and Lemieux had a dispute in late December or early January and killing Lemieux, and finally that he needed to kill him. Garcia testified that the the defendant. Gomez also testified that the defendant said he was considering that the defendant had been angry after Lemieux “hit on” Jette while belittling p. 22 22

argument, relied upon this purported lack of a plea deal and argued that deals or offers of leniency. The defendant claims that the State, during closing testimony that he was testifying without the benefit of any immunity, plea defendant contends that Gomez’s credibility was bolstered by his trial conviction, and, therefore, Gomez’s credibility was a major issue at trial. The material in establishing the premeditation element of his first-degree murder At trial, Gomez presented testimony that the defendant argues was

A. Background

IV. Motion for New Trial committed perjury.” attorney-client privilege to ascertain the extent to which Gomez claims he and found that it was “unnecessary to immunize Gomez or to penetrate the dated September 12, 2006, the trial court denied the motion for a new trial, for the purpose of exploring his allegedly perjured trial testimony. In an order perjury. The defendant asked the court to order the State to provide immunity to Gomez relating to a plea bargain concerning Gomez and that Gomez committed right against self-incrimination in response to several areas of questioning. a new trial. He argues that the State failed to disclose exculpatory evidence held a Richards hearing, during which Gomez asserted his Fifth Amendment pierce Gomez’s attorney-client privilege. Over Gomez’s objection, the trial court The defendant asserts that the trial court erred in denying his motion for he moved for a Richards hearing, see Richards, 129 N.H. at 673-74, and to material prosecution witness, provided perjured testimony at trial. Thereafter, alleging that: (1) the State withheld exculpatory evidence; and (2) Gomez, a established that the error, if any, was harmless beyond a reasonable doubt. On January 20, 2005, the defendant filed a motion for a new trial, the defendant’s guilt, Gobis’s testimony was cumulative, and the State has between the defendant and Lemieux, as well as the overwhelming evidence of In light of the alternative evidence establishing the dispute and animosity

N.H. 331, 335 (2005) (flight demonstrates consciousness of guilt). guilt.” State v. Bean, 153 N.H. 380, 387 (2006); see also State v. Littlefield, 152 wanted. These facts were all “evidence of the defendant’s consciousness of intimidated, and put “hits” on the witnesses who were not saying what he Lemieux because Lemieux had pulled out a gun. He also threatened, bribed, Lemieux was going to be killed. He then finally claimed that he had killed present when Pierre killed Lemieux. He also admitted that he had known person who killed Lemieux in self-defense was not him, and that he had been depending upon the basis for the motion. Here, the defendant argues both that p. 23 The standards that the trial court applies to a motion for new trial differ

United States Constitution, and RSA 526:1 (2007). Constitution, the Due Process Clause of the Fourteenth Amendment to the for a new trial, which was grounded in Part I, Article 15 of the New Hampshire Gomez’s allegedly false testimony formed the basis of the defendant’s motion The State’s alleged withholding of this purportedly exculpatory evidence and

activities in the Manchester area.

interview pertained to Mr. Gomez’s knowledge of illegal drug

Manchester Police Department. The subject matter of our

letter was to a proffer conducted on May 7, 2004 at the The consideration to which I refer in the [June 30, 2004]

Etienne’s case. time was he offered, or given any consideration in connection with “cooperation” in the matter of State v. Dickens Etienne. At no Mr. Gomez did not receive any consideration for his

counsel, Adam Bernstein. Attorney Morrell explained the letter’s contents to the proffer letter, dated June 30, 2004, between Susan Morrell and Gomez’s 2004, the defendant’s trial counsel obtained from the Attorney General’s Office and that he had spoken with the defendant after the trial. On December 7, Tinklepaugh and told her that “perjury was done,” that he was “asked to do it,” On December 4, 2004, Gomez met with defense investigator Kathy

Gomez’s “attempts to cooperate with the State.”

recommending a suspended sentence on Gomez’s drug charges and referencing counsel learned of a proffer letter from the Attorney General’s Office both sets of charges. After the defendant’s trial was concluded, defense defendant’s trial, Gomez testified regarding the sentences he had received for Susan Morrell, of the New Hampshire Attorney General’s Office. At the Hillsborough County Attorney’s Office; the drug charges were prosecuted by Lemieux’s murder and were prosecuted by Jennifer Sandoval, of the physical evidence and felon in possession of a handgun charges related to asserts were unrelated to the prosecution of Lemieux’s murder. The falsifying Lemieux’s murder; and (2) charges involving drug trafficking, which the State physical evidence and being a felon in possession of a handgun following pleaded guilty to, and been sentenced on: (1) charges alleging falsifying The State acknowledges that, at the time of his testimony, Gomez had

from the State. Gomez had no motive to lie because he had not received any consideration p. 24 24

and the burden shifts to the State to prove, beyond a reasonable doubt, carries this burden, there is a presumption that the evidence is material is whether the State knowingly withheld the evidence. If the defendant Once the defendant proves that the evidence is favorable, the next issue

either to guilt or to punishment.” State v. Lucius

land” is synonymous with “due process of law.” Bragg v. Director, may include impeachment evidence.” Shepherd judgment of his peers, or the law of the land.” The “law of the, 159 N.H. at 170. or presentation of the defense.” Dewitt law, exiled or deprived of his life, liberty, or estate, but by the, 143 N.H. at 33. “Favorable evidence the discovery of admissible evidence, or otherwise relevant to the preparation property, immunities, or privileges, put out of the protection of the (2009). “Favorable evidence includes that which is admissible, likely to lead to withheld by the State was favorable. State v. Shepherd, 159 N.H. 163, 170 Thus, the defendant has the initial burden to show that the evidence

the verdict.” Id evidence favorable to the accused where the evidence is material. beyond a reasonable doubt that the omitted evidence would not have affected knowingly withheld favorable evidence, the burden shifts to the State to prove and material.” Id. “If, however, the defendant establishes that the prosecution defendant must prove that the prosecution withheld evidence that is favorable State v. Dewitt, 143 N.H. p. 24 24, 33 (1998). “Generally, to secure a new trial, a

“shall be arrested, imprisoned, despoiled, or deprived of his id. possession of favorable evidence is subject to this same duty. See Part I, Article 15 of our State Constitution provides that no citizen (1995). An investigating officer or other law enforcement official in

process right imposes on the prosecutor the “duty to disclose N.H. Div. of Motor Vehicles, 141 N.H. 677, 678 (1997). This due

B. Failure to Disclose Exculpatory Information

opinions for guidance only, id. at 232-33. State Constitution, State v. Ball, 1 p. 24 24 N.H. 226, 231 (1983), citing federal States and New Hampshire Constitutions. We first address his claim under the information by the State in violation of his due process rights under the United The defendant contends that he was denied access to exculpatory

turn. perjured himself constituted newly discovered evidence. We address each in that the prosecution failed to provide, and that Gomez’s assertion that he the letter from Morrell to Gomez’s counsel constituted exculpatory evidence p. 25 25

evidence.” Id “We next consider whether the State knowingly withheld the exculpatory

satisfied his burden of showing that the undisclosed evidence was favorable. in fact, received a plea deal. Under these circumstances, the defendant has defense’s argument and given greater weight to its assertions that Gomez had, [Gomez’s] attempts to cooperate with the State,” would have strengthened the

withholding of the evidence, not simply its existence. Since no one person in The trial court reasoned that the “knowingly” requirement must apply to the Attorneys Ruoff and Keefe pursuant to State v. Lucius, 140 N.H. 60, 63 (1995). Morrell’s knowledge of the existence of the proffer letter must be imputed to context. The trial court rejected the defendant’s argument that Attorney it did not rise to the level of “knowingly,” as the term is used in the criminal recommendation is for a suspended sentence reflects consideration for defendant.” The court found that while the omission was potentially negligent, General’s Office to Gomez’s counsel, stating that “[t]he fact that this and therefore, could not have knowingly withheld the evidence from the had become part of the prosecution’s “team.” The letter from the Attorney evidence, since they “were completely unaware of the existence of the proffer, insufficient sentence on his drug charges, and asserted repeatedly that Gomez Attorneys David Ruoff and Charles Keefe, had not “knowingly” withheld the

. The trial court found that the prosecution, represented by

that the undisclosed information is favorable,” id “We initially address whether the defendant here met his burden to prove Gomez’s testimony was not credible because he had received an allegedly had been facing. In his closing argument, defense counsel argued that implying it was inadequate in light of his criminal history and the charges he that he had received no deal on the drug charges, and attacked his sentence by At trial, the defense cross-examined Gomez extensively about his belief different.” [United States v.

helped the defense in the preparation or presentation of its case.” Id. admissible, but instead whether it is favorable – i.e., whether it would have “our inquiry in this due process analysis is not whether the evidence is . at 171, bearing in mind that

Shepherd, 159 N.H. at 170-71.

Dewitt, 143 N.H. at 33. ] Bagley, 473 U.S. [667,] 682 [(1985)]; see disclosed to the defense, the result of the proceeding would have been demonstrate “a reasonable probability that, had the evidence been materiality, we apply the federal standard; i.e., the defendant must Dewitt, 143 N.H. at 35. When the defendant retains the burden to prove defendant retains the burden to prove that the evidence is material. See fails to prove the State knowingly withheld the evidence, then the State v. Lucius, 140 N.H. 60, 63-64 (1995). If, however, the defendant that the undisclosed evidence would not have affected the verdict. See p. 26 26

See jurisdictions imputing knowledge among attorneys in the prosecutor’s office. Further, as noted by the defendant, there are numerous cases from other

Ct. App. Div. 1994). A.2d 820, 837 (Md. 2010); State v. Landano, 637 A.2d 1270, 1287 (N.J. Super. , e.g., Giglio v. United States, 405 U.S. 150, 154 (1972); Diallo v. State, 994

than we have already taken in Shepherd conduct). Imputing knowledge among attorneys in the same office is a shorter leap Code Comments for guidance in interpreting our own rules of professional (2004); see also Veale, 154 N.H. at 731 (noting that we look to the ABA Model would constitute a firm. See ABA Model Code of Prof’l Conduct R. 1.0 cmt. [3] Shepherd N.H. 507 (2011). The criminal division of the Attorney General’s Office likewise The trial court reached its decision without the benefit of our decision in N.H. 730, 732 (2007), modified on other grounds by State v. Thompson, 161 the appellate defender to be attorneys in the same “firm.” State v. Veale, 154 of Prof’l Conduct R. 1.0 cmt. [3] (2004). We consider the public defender and attorneys in the same firm. See N.H. R. Prof. Conduct 1.10(a); ABA Model Code Moreover, for purposes of conflicts of interest, we impute knowledge among

with investigation and presentation of the case). prosecutor’s possession or in possession of law enforcement agency charged (prosecutor’s duty to produce exculpatory evidence extends only to evidence in 139 N.H. at 327, 330; cf. State v. Lavallee, 145 N.H. 424, 427 (2000) Theodosopoulos), 153 N.H. 318, 320 (2006); Lucius, 140 N.H. at 63; Laurie, presentation of the case. See id.; Petition of State of N.H. (State v. possession of a law enforcement agency charged with the investigation and State when favorable evidence is within the control of the prosecutor or in the a line of cases, of which Dewitt is the only outlier, imputing knowledge to the after trial. Shepherd, 159 N.H. at 167-68, 171. Shepherd is the most recent of case with the incomplete report had not become aware of its redaction until trial court’s findings of fact suggested that the attorneys who prosecuted the report constituted evidence “knowingly withheld” by the State, although the

. There we held that a prosecution expert witness’s redaction of a

(emphasis added). did not apply Laurie ’s more stringent burden of proof. Dewitt, 143 N.H. at 35 remanded for a determination of “whether the State knowingly withheld” it, and acknowledging that it was “clear that the State withheld the evidence,” we enforcement had the information both prior to and at trial.” Despite 330. The trial court relied on our holding in Dewitt, 143 N.H. at 35, where “law withheld” the evidence for burden-shifting purposes. See Laurie, 139 N.H. at the defense, the court concluded that the prosecution had not “knowingly but also of its value as impeachment evidence and that it was not provided to the Attorney General’s Office knew not only of the existence of the evidence, p. 27 27

trial court’s determination as a mixed question of law and fact and review it de materiality determination. The defendant contends that we should treat the We have not previously stated the standard of review for such a was not material because the defense had other avenues of impeachment by that it could have achieved through the use of the undisclosed evidence; (2) it because the defense succeeded on cross-examination of Gomez in achieving all found that it was not material for three reasons: (1) it was “cumulative” that it “would have served to impeach Gomez’s credibility,” but ultimately The trial court found that the undisclosed information was favorable in that the undisclosed evidence would not have affected the verdict.” Lucius novo Hampshire Constitution unless the State proves, beyond a reasonable doubt,. Because the State does not argue otherwise, we will do so in this case. “Nondisclosed, exculpatory evidence is material under the New

verdict.” beyond a reasonable doubt that such evidence would not have affected the verdict.’” Shepherd apparently received for his drug charges, . . . the State has demonstrated reasonable doubt, that ‘the undisclosed evidence would not have affected the State knowingly withheld the evidence pertaining to the consideration Gomez favorable evidence, “the burden then shifts to the State to prove, beyond a 140 N.H. at 63-64. In this case, the trial court found that, “even assuming the the information was “withheld.” Assuming the State knowingly withheld did not disclose the letter to the defendant prior to trial, so we will assume that, proffer letter was favorable to the defendant. The parties agree that the State the State on the drug charges. As we have concluded, the evidence of Gomez’s that the State possessed the information regarding Gomez’s cooperation with 118 N.H. 416, 419 (1978). “Materiality therefore is the key to the problem.” Id the State would be favorable to the defense. Thus, the defendant established. aside unless a nondisclosure had an influence on the jury.” State v. Breest homicide case, and that showing that he had received favorable treatment from, “Not every nondisclosure is necessarily error, and a conviction need not be set Ruoff knew both that Gomez would be an important prosecution witness in the knew of Gomez’s plea bargain on his drug charges, and Attorneys Keefe and, 159 N.H. at 171-72 (quoting Laurie, 139 N.H. at 330). witness for the State in the defendant’s homicide prosecution, Attorney Morrell received consideration on his drug charges and that he was testifying as a Although no single attorney knew both that Gomez had given and

exculpatory evidence here. for purposes of determining whether the State “knowingly withheld” criminal bureau of the Attorney General’s Office should be imputed to the State Accordingly, we conclude that the knowledge of any attorney in the received any consideration for his testimony at the defendant’s trial. Cf p. 28 joined the prosecution’s team. It would not have established that Gomez would have supported the defendant’s assertion that Gomez had allegedly had attempted to cooperate with the State on the unrelated drug charges, and The proffer letter, if disclosed, would have provided evidence that Gomez

of the prosecution’s “team.” had received an insufficient sentence for his drug charges and had become part argued during its closing that Gomez’s testimony was not credible because he Gomez’s criminal history and the charges he had been facing. The defense also and attacked the sentence by implying that it was inadequate in light of 28

undisclosed information. See him, and the remaining avenues of impeachment were unaffected by the therefore, was only one of the areas in which the defense attempted to discredit cooperation with the State to receive consideration in an unrelated case, well as the lies he had apparently told to police on prior occasions. Gomez’s had received no such deal, established the actual sentence Gomez received, firearm and hiding Lemieux’s gun, the charges leading to his imprisonment, as charges. The defense questioned Gomez extensively about his belief that he serving at the time. He discussed his actions with regard to possessing a credible witness because he had, in all likelihood, received a “deal” on his drug clothing and fielded questions from both parties about the sentence he was respects. Gomez testified while wearing his New Hampshire State Prison The defendant challenged Gomez’s credibility in several additional

The defense strategy included an argument that Gomez was not a already been shaken due to extensive cross-examination, does not create a undermine the credibility of the key Government witness whose credibility has Cir. 2000) (“Impeachment evidence, even that which tends to further

differed from the actual agreement”). and his understanding of his plea agreement, even if that understanding testimony and allowing cross-examination of the witness “regarding the terms an absence of “sine qua non” on the part of the State in return for its witness’s v. Bader, 148 N.H. 265, 272-73 (2002) (upholding trial court’s determination of

evidence of premeditation before the jury. disregard Gomez’s testimony altogether, there was overwhelming additional altered the outcome because even if the impeachment had caused the jury to We also find, beyond a reasonable doubt, that the evidence would not have altered defense counsel’s strategy, which centered on impeachment of Gomez.

We likewise conclude that the undisclosed evidence would not have

element of premeditation. Gomez’s testimony was not the “primary, exclusive, or crucial evidence” of the which to challenge Gomez’s credibility; and (3) it was not material because p. 29 29

or not to kill, and the formation of a definite purpose to kill.” State v. Patten reasonable doubt of some reflection and consideration upon the choice to kill “The elements of premeditation and deliberation require proof beyond a

period of premeditation and deliberation is required.” State v. Elbert, 125 N.H. object of the requirement is to rule out action on sudden impulse, no particular 148 N.H. 659, 660-61 (2002) (citation and quotation omitted). “While the

test,” Kyles v. Whitley letter might have had. We note that the materiality standard “is not a sufficiency of evidence determine the effect that impeachment of Gomez by means of the undisclosed 97, 112 (1976)). We therefore consider the other evidence in the record to the context of the entire record.’” Id. (quoting United States v. Agurs, 427 U.S. strategy.” Laurie, 139 N.H. at 332. “The absent evidence ‘must be evaluated in trial, and in light of the relationsh[i]p of the evidence to the defendant’s trial element. Cf must review the evidence in light of the role [Gomez’s] testimony played in the of premeditation, was not the primary, exclusive, or crucial evidence of that determine whether the failure to disclose the evidence requires reversal, we Furthermore, Gomez’s testimony at trial, while providing some evidence the defendant guilty is not dispositive.” Laurie, 139 N.H. at 332. “To determine materiality, “the fact that other evidence might be sufficient to find , 514 U.S. 419, 434 (1995), and in an inquiry to

and to the defendant’s actions thereafter. the events leading up to the homicide, to the circumstances of the homicide, kill the defendant, Dedrick, 135 N.H. at 509, here many witnesses testified to testimony was the only evidence tending to show that the victim intended to officer heard an unsolicited confession, Laurie, 139 N.H. at 332, or a witness’s defendant’s guilt or innocence. Unlike cases, for example, in which only one brackets omitted)). Here, Gomez’s credibility was not determinative of the evidence affecting credibility falls within the Brady rule.” (quotation and given witness may well be determinative of guilt or innocence, nondisclosure of assault.”); State v. Dedrick, 135 N.H. 502, 508 (1992) (“When the reliability of a defendant have actual knowledge of the circumstances surrounding the alleged particularly apparent in this case where only the complaining witness and the Dewitt, 143 N.H. at 34 (“The usefulness of impeachment evidence is to a line of impeachment questioning that may have affected the verdict.”); complaining witness’s] credibility . . . . The undisclosed evidence could have led

., e.g., Shepherd, 159 N.H. at 172 (“The State’s case hinged on [the

society”). been shown to have been a convicted criminal and anything but a pillar of determination of the credibility or character of the witness “who had already deal with the State been disclosed, it would not have affected the jury’s cumulative or collateral.”); Breest, 118 N.H. 421 (had evidence of the witness’s reasonable doubt that did not otherwise exist where that evidence is bringing Lemieux to Foxwoods for a “wood ride,” meaning they would murder p. 30 Gomez told Detective Patti that Gomez and the defendant had discussed killed. Detective John Patti testified, without objection, that in February 2004, told Amy Hannaford and Jette that he had known that Lemieux was going to be The record also contained letters the defendant had written in which he

immediately ended his life. examiner testified that the bullet severed Lemieux’s spinal cord and 30 behind Lemieux, pointed the gun at him, and then shot him. The medical shot him. Johnson and Rivera both also testified that the defendant moved something to Pierre in Haitian Creole, and then moved behind Lemieux and hand when Lemieux arrived, that he moved the gun to his right hand, said Garcia testified that the defendant had been holding the gun in his left

meet Lemieux. upstairs shortly before the murder, and Roux was reluctant to go outside to they expected a fight: Pierre told Jennifer Hannaford to take the children obtained a gun and Rivera gave Pierre bullets. The men behaved as though Central Street. The defendant retrieved his .9-millimeter Ruger pistol, Pierre did. Garcia further testified that the defendant had asked Gomez to go to be arriving at Central Street because he wanted to get there before Lemieux and angry, and that the defendant had lied to Lemieux about when they would Garcia testified that on the day of the shooting, the defendant was upset

Lemieux told her that the defendant “threatened to kill him.” that the defendant and Lemieux had argued on the telephone, and that Manchester who might know where Lemieux could be found. Gobis testified mother of Pierre’s children. The defendant proceeded to telephone people in sexually assault Jennifer Hannaford, the aunt of his then-unborn child and the that Lemieux had defied him by going to his apartment and had attempted to The night before the murder, the defendant was upset when he learned

because of Lemieux’s interaction with Jette. would “get his some day.” The defendant banned Lemieux from his home him. Battistelli overheard the defendant and Pierre discussing that Lemieux tense. Lemieux told Gobis that either the defendant or Pierre was going to kill Prior to the homicide, the relationship between the defendant and Lemieux was overwhelming evidence of the defendant’s premeditation and deliberation. been convinced to disregard Gomez’s testimony at trial, there remained Even if the impeachment evidence had been disclosed and the jury had

606, 614 (1902). consideration . . . it matters not how brief it is.” State v. Greenleaf, 71 N.H. 1, 12 (1984). If the amount of time has been “sufficient for some reflection and p. 31 31

exculpatory evidence has been withheld); United States v. Huddleston

forth in Laurie State’s use of any perjured information was knowing, then the test is that set use of perjured testimony and its unwitting use of such testimony. If the We first note the different standards applicable to the State’s knowing

(comparing the federal standard for a motion for new trial based upon newly evidence. See United States v. Connolly, 504 F.3d 206, 211-13 (1st Cir. 2007) then the test is the one applicable to any motion based upon newly discovered perjured testimony, and the testimony was discovered to be false after trial,

, as discussed above; if, however, the State unwittingly presented

not material. did receive,” and that, even if he had testified falsely, his false statements were the State, that his testimony reflected only his “discontent with the sentence he finding that Gomez had not lied as to whether he received consideration from C. Gomez’s Alleged Perjury false statements were not material. The trial court agreed with the State, did not commit perjury, and even if Gomez’s testimony was not truthful, his testifying pursuant to a deal with the State. The State responds that Gomez the nondisclosure of the evidence refuting Gomez’s statements that he was not namely, Gomez’s post-trial statement that he had committed perjury, and in defendant’s arguments are based both in the discovery of “new evidence,” and, more broadly, as to his testimony inculpating the defendant. The Gomez’s testimony was perjured, both as to his plea bargain with the State The defendant asserts that he is entitled to a new trial on the basis that

Federal Constitution. Constitution, see premeditation, killed Lemieux. See Laurie, 139 N.H. at 330, we reach the same result under the fact that the State Constitution affords greater protection than does the Federal Gomez’s testimony, that the defendant purposely, with deliberation and the State’s alleged failure to disclose exculpatory information. In light of the The jury was thus presented with overwhelming evidence, aside from affirm the trial court’s denial of the defendant’s motion for new trial based on further impeachment by the proffer letter would have altered the result,” we testimony may have bolstered the State’s case, it was not of such a nature that Because the record supports the trial court’s finding that “while Gomez’s

counsel’s strategy or the ultimate verdict. agreement and plea deal in the other cases would not have affected defense shown beyond a reasonable doubt that disclosure of Gomez’s immunity

meaning that Lemieux was going to be killed. Lemieux during the ride, and that the defendant had said, “It’s a wrap,” impact of newly discovered evidence on the credibility of a key

demands a new trial. Where the overriding question is the possible

State v. Jaroma discovered evidence suggesting perjury by a prosecution witness It is a question of fact for the trial court as to whether newly

State v. Cossette exercise of discretion]. (quotation omitted). Moreover, probable, so that the Trial Court’s conclusion is clearly unreasonable.” Id. trial court’s decision unless it conclusively appears that a different result is Williams, 142 N.H. 662, 668 (1998) (quotations omitted). “We will sustain the newly discovered evidence is a question of fact for the trial court.” State v. “The question of whether a new trial should be granted on the basis of

motion.” Bader, 148 N.H. at 282 (quotation omitted). testimony is a species of newly discovered evidence for purposes of a new trial , 151 N.H. 355, 361 (2004) (citations omitted). “Recanted

a particular case unless there has been an [unsustainable reached upon another trial. court’s determination of whether a new trial should be granted in evidence is of such a character that a different result will probably be the superior court. Accordingly, we will not overturn the trial admissible, material to the merits and not cumulative; and (3) that the new trial are questions of fact entirely within the jurisdiction of failing to discover the evidence at the former trial; (2) that the evidence is It is well settled that the questions involved in an application for a evidence, the defendant must prove: (1) that he was not at fault for To prevail on a motion for a new trial based upon newly discovered

147 N.H. at 296 (explaining unsustainable exercise of discretion standard).

, 139 N.H. 611, 613 (1995) (quotation omitted); see Lambert,

and a further hearing would be equitable.” case when through accident, mistake or misfortune justice has not been done evidence is statutory. RSA 526:1 provides: “A new trial may be granted in any The authority for granting a new trial based upon newly discovered

conclusion in this case”). presented false or perjured testimony [and t]here is no basis for such a provides that a new trial is warranted where the prosecution knowingly 284-85 (distinguishing State v. Yates, 137 N.H. 495 (1993), since “[t]hat case same manner as any other newly discovered evidence”); Bader, 148 N.H. at testimony was unwitting, a motion for a new trial “should be treated in the F.3d 214, 217 (1st Cir. 1999) (holding where prosecutor’s use of perjurious recantation is not credible. State v. Mills p. 33 evidence will not be met if the trial judge finds as a threshold matter that the witness, the third prong of the three-prong test applicable to newly discovered When the purported new evidence is a recantation by a prosecution

record supports the trial court’s findings and conclusions. Gomez’s perjured testimony would have affected the outcome of the trial.” The committed perjury at trial, . . . the defendant has not demonstrated that found that Gomez had not committed perjury but that, “even assuming Gomez brother,” as evidenced in letters between Gomez and the defendant. The court It also noted that, following the trial, Gomez considered the defendant his “little police regarding his possession of a gun and the act of hiding Lemieux’s gun. family,” and found Gomez’s credibility bolstered by his admissions of lying to reports that Gomez testified at trial because the defendant had threatened his of other witnesses. The trial court further noted, “It is apparent from the police corroborated by letters written by the defendant himself and by the testimony weeks after the shooting through the time of the trial, and was substantially testimony by Gomez, noting that his testimony had been consistent from mere As to the circumstances of the shooting, the trial court found no false

by multiple other pieces of evidence, including letters written by the defendant homicide.” Furthermore, the court noted, “his trial testimony was corroborated had “on multiple occasions, provided virtually the same story regarding the trial judge here found that Gomez had not committed perjury, noting that he evidence is credible, then whether different result on retrial is probable). The for new trial based upon recantation, trial judge determines whether new People v. Minnick, 263 Cal. Rptr. 316, 318 (Ct. App. 1989) (in deciding motion , 136 N.H. 46, 51 (1992); see also

premeditated plan to kill Lemieux. perjury related to his incriminating testimony about the defendant’s Lemieux’s killing, and, since Gomez was not present at the shooting, his “may have done it,” Gomez’s admission of perjury referred to testimony about see it.” The defendant argues that, since Gomez spoke of how the defendant defendant] may have done it but he didn’t do it the way they wanted people to coming forward because “he wanted to make it right,” clarifying that “[the about Gomez’s testimony after the defendant’s conviction, and that Gomez was to do it.” She further testified that Gomez had conversed with the defendant testified that Gomez told her that “perjury was done” and that “[h]e was asked working with the public defender on the defendant’s case. Tinklepaugh stems from Gomez’s conversation with Kathy Tinklepaugh, an investigator In this case, the evidence suggesting perjury beyond the plea information

Bader

, 148 N.H. at 283 (quotation omitted).

so long as there is evidence to support them. prosecution witness, we must affirm the findings of the trial court p. 34 Bader

convicted.

testimony, the defendant would most likely not have been

leave the court with a firm belief that but for the perjured process violation must be of an extraordinary nature. It must It is our belief that the perjured testimony which will trigger a due

. . . .

alerted to the recantation, leaves the conviction in place. the verdict rise to the level of a due process violation, if a state, appellant was innocent of the charged crimes. In this sense, his recantation, if recantations of material testimony that would most likely affect much. . . . [The witness’s alleged recantation] gave no indication that the determine the credibility of every recantation of testimony. Only (“[E]ven assuming that the recantation were true, it would not prove very a finding of guilt beyond a reasonable doubt. See Connolly, 504 F.3d at 216-17 jury, even in the absence of Gomez’s trial testimony, overwhelmingly supported 302, 314 (1st Cir. 1991). As we discussed above, the evidence presented to the conjecture, or unsupportable surmise.” United States v. Natanel, 938 F.2d appraisal of the record as a whole, not on the basis of wishful thinking, rank required probability of reversal must be gauged by an objectively reasonable discovered evidence to warrant a retrial in a criminal case, the existence of the , 148 N.H. at 286 (quotation and brackets omitted). “For newly

We do not believe that due process demands a hearing to

Cossette character that a different result will probably be reached upon another trial.” Even assuming that the recantation was credible, it was not “of such a

United States v. Walker, 151 N.H. at 361. other witnesses, mitigating the significance of any possible recantation.” In addition, Gomez’s “testimony at trial was also corroborated by several

would be willing, under oath, to admit to perjury.” Id. at 216. the fact that “no evidence has been presented suggesting that [Gomez] himself suspicious.” Connolly, 504 F.3d at 215 (quotations omitted). We also consider meaningful indicia of reliability and, therefore, was properly regarded as highly Thus, Gomez’s “recantation, like many jailhouse recantations, lacked any the witness’s testimony is supported by substantial corroborating evidence.”). 504 F.3d at 217 n.6 (“[T]he force of impeachment evidence is diminished when

that recantations are generally viewed with considerable skepticism.”) as to his recantation. See Connolly, 504 F.3d at 214 (“It is well established court’s determination as to Gomez’s original account, and thus, its skepticism himself and the testimony of other witnesses.” The record supports the trial p. 35 35

Kivlin to immunize a defense witness denied the defendant a fair trial.”

defendant’s conviction. Kivlin look to whether the proffered testimony would have prevented the tenor of the State’s evidence.” State v. Monsalve exculpatory or would present a highly material variance from the

showing that the testimony is material, exculpatory and not State v. Rogers F.2d 434, 441-42 (2d Cir. 1991) (stating defendant must make prosecution would deprive a defendant of due process on the facts of his case,” MacManus on the facts of the defendant’s case, the executive branch’s refusal, 130 N.H. 256, 259 (1987); see Blissett v. Lefevre, 924 Although “situations could arise in which to deny immunization from, 145 N.H. at 722; State v.

defendant to meet a high burden. In conducting our review, we directly exculpatory or of a highly material variance, requires the by the defendant that the testimony sought would be directly The first part of our analysis, whether the proffered testimony was First, “no such violation will be recognized . . . without a showing Rogers, 159 N.H. at 57 (brackets omitted).

, 145 N.H. at 721 (quotation and ellipses omitted).

falls within these narrow circumstances, we then decide whether, 270 (1990). Second, “if the defendant demonstrates that his case

test: order to establish a due process violation, the defendant must meet a two-part , 159 N.H. 50, 57 (2009) (quotation and brackets omitted), in

D. Failure to Grant Immunity to Gomez claim, we will be brief. (2001) (quotation omitted). Because our analysis above is dispositive of this federal case law only to aid in our analysis.” State v. Kivlin, 145 N.H. 718, 721 the defendant’s due process claim under our State Constitution, and reference and Fourteenth Amendments to the United States Constitution. “We analyze rights under Part I, Article 15 of the New Hampshire Constitution and the Fifth purportedly exculpatory testimony, thus violating the defendant’s due process compel the State to immunize Gomez in order to learn the extent of his Finally, the defendant argues that the trial court erred by failing to

affirm that decision. not of a character that would alter the result upon retrial, and we therefore untenable for the trial court to conclude that the purported new evidence was testimony existed.”). Under these circumstances, it was not unreasonable or effect upon the outcome of a new trial in which substantial corroborating believed, would merely be impeaching and, consequently, would have a limited only a reasonable amount of force. The defendant can use the

p. 36 A person is not permitted to use excessive force in self-defense,

force he used was necessary for self-defense or defense of others.

The defendant must reasonably believe that the amount of

The trial court instructed the jury, in pertinent part, as follows:

concur, however, in the remainder of the opinion. respectfully dissent from Part II(A) of the majority’s thoughtful opinion. I force the defendant was permitted to use in self-defense or defense of others, I believe that the trial court erred in instructing the jury regarding the amount of DALIANIS, C.J., concurring in part and dissenting in part. Because I

Rogers exculpatory evidence that would have prevented the defendant’s conviction,” evidence of the defendant’s guilt, he could not have offered “the sort of Regardless of what Gomez would have testified to, in light of the other

in part and dissented in part. DUGGAN, HICKS and LYNN, JJ., concurred; DALIANIS, C.J., concurred

Affirmed.

Constitution. Kivlin, 145 N.H. at 721, we reach the same result under the Federal as much protection as the Federal Constitution under these circumstances, see agree. rights under the State Constitution. As the State Constitution provides at least the jury reasonably could have found premeditation and deliberation.” We investigating his purported perjury did not violate the defendant’s due process and his entire testimony is excised, there was a wealth of evidence from which the trial court’s decision not to grant Gomez immunity for the purpose of The trial court concluded that “even if Gomez committed perjury at trial committed the crime of which he was convicted. Id. Thus, we conclude that place the defendant elsewhere or preclude the possibility that the defendant” , 159 N.H. at 58. Even a complete recantation by Gomez “could not State v. Winn material” when the variance is irreconcilable with the State’s case.

another source), cert. denied

Id. at 58.

variance from the tenor of the State’s evidence is only “highly , 502 U.S. 852 (1991). Furthermore, a cumulative, as well as that he cannot obtain the evidence from deadly force by such other person, and he may use a degree of

p. 37 reasonably believes to be the imminent use of unlawful, nonperson in order to defend himself or a third person from what he

A person is justified in using non-deadly force upon another

pertinent part: In contrast, with regard to non-deadly force, RSA 627:4, I (2007) provides, in

retreat. him at his direction and was acting pursuant to RSA 627:5, he need not (d) If he is a law enforcement officer or a private person assisting

same encounter. harm, the actor has provoked the use of force against himself in the justifiable when, with the purpose of causing death or serious bodily act which he is not obliged to perform; nor is the use of deadly force (c) Comply with a demand that he abstain from performing an

thereto; or (b) Surrender property to a person asserting a claim of right

aggressor; or retreat if he is within his dwelling or its curtilage and was not the initial (a) Retreat from the encounter, except that he is not required to

he and the third person can, with complete safety: himself or a third person from deadly force by the other if he knows that A person is not justified in using deadly force on another to defend

2011) set forth the following limitations upon the use of deadly force: At the time of the events at issue in this case, RSA 627:4, III (2007) (amended

third person . . . . (a) Is about to use unlawful, deadly force against the actor or a

when he reasonably believes that such other person: A person is justified in using deadly force upon another person

used are set forth in RSA 627:4, II (2007): The circumstances, relevant to this case, under which deadly force may be

grounds for his belief.

circumstances as long as, at the time, there were reasonable

amount of force which he believed was necessary under the p. 38 38

in the statutory language. This is contrary to our well-established rule that additional limitation upon the defensive use of deadly force that appears nowhere construction, legislative history, and public policy grounds to impose an statute that would support its position. Rather, it relies upon canons of statutory reasonable interpretations, but fails to identify any ambiguous language in the we decide de The majority contends that the statute is susceptible of at least two to construe RSA 627:4. The interpretation of a statute is a question of law, which (2010). Deciding whether the trial court’s instructions were erroneous requires us omitted in another. City of Manchester v. Sec’y of State, 161 N.H. 127, 133 as here, the limitation at issue was included in one part of the statute but The force of this familiar canon of statutory construction is strengthened when, Campaign for Ratepayers’ Rights, 162 N.H. 245, 251 (2011) (quotation omitted). expression of one thing in a statute implies the exclusion of another.” Appeal of demonstrates its intent that no such limitation apply, for “[n]ormally the apply in RSA 627:4, III. Its failure to include a necessity limitation further defensive deadly force because it specifically listed the limitations it intended to confident that the legislature considered the issue of limitations upon the use of words that the lawmakers did not see fit to include). Furthermore, we can be to include. See State v. Villeneuve, 160 N.H. 342, 347 (2010) (court will not add requirement, for to do so would be to add words that the legislature did not see fit is faced with the use of deadly force against him. We should not impose such a unambiguously provided that such a requirement does not apply when a person “necessity” requirement in the deadly force provisions, the legislature so. See Correia v. Town of Alton, 157 N.H. 716, 719 (2008). By not including a legislature knows how to include a “necessity” requirement when it intends to do of the word “necessity” in the non-deadly force provision shows that the The language of the statute, I believe, is plain and unambiguous. The use

the overall statutory scheme and not in isolation. Id. at 436. entire statutory scheme. Id. Accordingly, we interpret a statute in the context of intent in enacting them, and in light of the policy sought to be advanced by the legislative intent. Id purpose.. Our goal is to apply statutes in light of the legislature’s ambiguity we will not look beyond the language of the statute to discern statute to determine legislative intent. McKeown, 159 N.H. at 435. Absent an RSA 625:3 (2007). In doing so, we must first look to the plain language of the Criminal Code according to the fair import of its terms and to promote justice. expressed in the words of a statute considered as a whole. Id. We construe the statutory interpretation, we are the final arbiter of the intent of the legislature as

novo. State v. McKeown, 159 N.H. 434, 435 (2009). In matters of

such force which he reasonably believes to be necessary for such p. 39 39

. . . .

toward another person is justifiable when the actor believes that such force provisions of this Section and of Section 3.09, the use of force upon or (1) Use of Force Justifiable for Protection of the Person. Subject to the

(2) Limitations on Justifying Necessity for Use of Force.

provides in relevant part: Thus, the Commission had before it Model Penal Code § 3.04, which

use of unlawful force by such other person on the present occasion. is immediately necessary for the purpose of protecting himself against the created by legislative directive in 1967. Recommend Codification of Criminal Laws (Commission), which was The revised Criminal Code was recommended by the Commission to in this state.” Id “produc[ing] a more concise and simplified criminal law than now applies part of the revision of the Criminal Code, Laws 1971, 518:1. In the Report, the Commission identified its “basic aim” as RSA 627:4 (2007 & Supp. 2010) (amended 2011) was adopted in 1971 as

State v. Kousounadis, 159 N.H. 413, 424-25 (2009).

New York Penal Law, 1967.” Report, supra at iii. Michigan Revised Criminal Code, Final Draft – September 1967, and the variety of sources, but “found especially useful the Model Penal Code, the this task, the Commission reviewed draft laws and comments from a wide . at iv; see also N.H.S. Jour. 1641-42 (1971). In performing

language for each draft section, see, e.g., id. at iii. Code that does so. at iv, and included comments that detail the source of the recommended legislature specifically declined to adopt the very language of the Model Penal (Report) providing a comprehensive draft revised Criminal Code, see Report supports the State’s interpretation in this case, it fails to address the fact that the the Report of Commission to Recommend Codification of Criminal Laws analysis. Although the majority notes that the Model Penal Code commentary 1969, the Commission, chaired by Chief Justice Frank R. Kenison, issued language, in my opinion, the legislative history does not support the majority’s Laws 1967, ch. 451. In April Moreover, even if I agreed that we should look beyond the statute’s plain

discern legislative intent. See, e.g., McKeown, 159 N.H. at 435. absent an ambiguity, we will not look beyond the language of the statute to p. 40 Report

or a forcible sex offense. . . . of such dwelling, or is committing or about to commit kidnapping of a dwelling while committing or attempting to commit a burglary person, or is likely to use any unlawful force against the occupant about to use unlawful, deadly force against the actor or a third

person when he reasonably believes that such other person is

are defined in section 572:9. II. A person is justified in using deadly force upon another

made between the use of deadly and non-deadly force, terms which

the absence of some aggression against the actor. Distinctions are

purpose. . . .

circumstances in which force may be used against another even in such force which he reasonably believes to be necessary for such

articulate the law relating to self-defense as well as the Revised Criminal Code, Final Draft, and undertakes to clarify and non-deadly force by such other person, and he may use a degree of what he reasonably believes to be the imminent use of unlawful, another person in order to defend himself or a third person from

This section is a modification of § 615 of the Michigan

on the amount of force applied only to the use of non-deadly force: deadly force, and that it was fully aware that the explicit “necessity” limitation I. A person is justified in using non-deadly force upon that it intentionally made distinctions between the use of deadly force and non- Commission reveal that it chose not to adopt the Model Penal Code’s language, the use of unlawful, deadly force is not so limited. The comments of the of unlawful non-deadly force, while the use of defensive deadly force against force employed is “necessary” to defend himself or a third person from the use before us today – the actor must believe that the degree of defensive non-deadly , supra at 20. This language reflects the distinction seen in the statute

572:4 Physical Force in Defense of a Person.

Model Penal Code

recommended the following, in pertinent part: Commission did not adopt the Model Penal Code language, however. Instead, it response to both non-deadly force and deadly force must be “necessary.” The makes clear, the Model Penal Code requires that the amount of force used in

§ 3.04 (1985) (emphasis added). As the emphasized language

by force or threat . . . . death, serious bodily injury, kidnapping or sexual intercourse compelled the actor believes that such force is necessary to protect himself against (b) The use of deadly force is not justifiable under this Section unless p. 41 41

common law. See or intent of a statute, effect should be given that makes the least change to the The majority also contends that when there is doubt about the meaning

common law “unless the statute clearly expresses that intent.” State v. we have often stated that we will not interpret a statute to abrogate the The majority looks to the common law to support its position, noting that

accord with its plain language, see burglars who are likely to use any State v. Warren, 147 N.H. 567, 569 (2002). absurd result, requiring us by necessity to construe the statute other than in its use to prevent kidnapping or a forcible sex offense and against curtilage), as well as when a literal reading of the self-defense statute led to an preservation of the actor or a third person. Paragraph II sanctions deciding whether the term “dwelling” in the self-defense statute includes State v. Pugliese, 120 N.H. 728, 731 (1980) (court looked to common law in common law in the past to construe an ambiguous statutory term, see, e.g., Construction § 61.1, at 314 (7th ed. 2008). I agree that we have looked to the Report 3 N. Singer & J.D. Singer, Statutes and Statutory

canon. history clearly reveals the legislature’s intent, I see no need to consider this construction is to divine legislative intent. Where, as here, the legislative Furthermore, it is axiomatic that the purpose of canons of statutory The use of deadly force is governed by broader criteria than construction, I would conclude that the statute “clearly expresses that intent.” reasons set forth above, even if I were to apply this canon of statutory Elementis Chem., 152 N.H. 794, 803 (2005) (quotation omitted). For the

rule that in order to repel unlawful and non-deadly force an as well as in defense of the actor. Paragraph I provides the general use of deadly force. . . .

intent. demonstrates that the plain language of the statute accords with the legislature’s non-deadly force to defend against non-deadly force. Thus, the legislative history thereafter, adopted language imposing such a limitation only upon the use of rejected by the Commission. Instead the Commission, and the legislature upon the use of deadly force to defend against deadly force was considered and demonstrates that language that would have imposed a “necessity” requirement , supra at 20-21 (first emphasis added). Accordingly, the legislative history

Both sorts of force may be used in defense of a third person II(a)–(d) deals with rules concerning limitations on the defensive

be agreed that the general rule ought not to apply. provisions of I(a)–(c) deal with situations where it would generally amount of force necessary for the purpose may be used. The p. 42 42

the legislature. See believe that we should not stray from the plain meaning of the words used by Because the plain language of the statute does not lead to an absurd result, I

material element of the charged offense. RSA 625:11, IV (2007). By creating a self-defense or defense of others is raised as a justification, it becomes a Code] or under another statute.” RSA 625:6 (2007) (emphasis added). When constitutes an offense unless it is a crime or violation under [the Criminal omitted). The legislature has determined that “[n]o conduct or omission laws defining crimes.” State v. Rix, 150 N.H. 131, 134 (2003) (quotation Finally, I note that it is “the province of the legislature to enact choose not to require that second calculation. select an effective, non-deadly option. The legislature could reasonably case, which involves the use of deadly force to repel a deadly attack. This tells us nothing about the legislature’s view on the issue presented by this be used to repel a non-deadly attack by a cohabitant in the person’s dwelling. Warren supports the conclusion that the legislature agrees that deadly force may not Next, the majority relies upon the legislature’s actions in the wake of 571. Thus, the legislature’s failure to “vitiate” the holding of Warren at most deadly attack in the person’s home where the assailant is a cohabitant.” Id. at We concluded “that a person is not entitled to use deadly force to repel a nonassailant using only “unlawful force” in the defendant’s dwelling. Id. at 568. home.” Id. at 572. At issue in Warren was the use of deadly force against an deadly force against an assailant when the assailant is a cohabitant of the opinion itself, was simply that “RSA 627:4, II(d) does not justify the use of reasonable necessity.” The holding of Warren force, but also must contemplate the range of possible responses and, however, as stated in the did not vitiate our holding that the deadly force provision implicitly required must reasonably ascertain whether the attacker is about to use deadly stressful and urgent conditions. Under such a rule, the actor not only, stating that it has amended RSA 627:4 twice “and the amendments danger would demand a complicated mental calculation under highly actor use non-deadly force unless deadly force is necessary to avoid the about to use unlawful, deadly force.” To require in addition that the Warren, 147 N.H. at 568. another only when the actor reasonably believes that an attacker “is RSA 627:4, II(a) permits the use of deadly force in defense of self or

As the defendant argues in his brief: absurd result – but it does not, and the majority does not contend otherwise. action could be justified only if the plain language of the statute led to an limitation from the common law that the legislature chose not to include. Such construction relied upon by the majority support engrafting onto the statute a In my view, however, neither these cases nor the canons of statutory p. 43 43

force the defendant was permitted to use in defense of self or others. that the trial court erred in its instructions to the jury regarding the amount of accordance with its plain language is “reasonable.” Accordingly, I would hold at 568, the majority admits that interpreting the statute in this case in literal language of the statute leads to an absurd result, see Warren, 147 N.H. construe Criminal Code provisions contrary to their plain meaning when the written, and made it criminal. While it may be necessary for this court to taken conduct that would not constitute an offense under the Criminal Code as necessity requirement that does not appear in the statute, the majority has