2010-017, State of New Hampshire v. Adam Mentus

Michael A. Delaney

No. 2010-017

Rockingham

manslaughter, see DUGGAN, J. The defendant, Adam Mentus, appeals his conviction of

Stephanie Hausman

(Lewis, J.). We affirm.

RSA 630:2 (2007), following a jury trial in Superior Court

brief and orally, for the defendant.

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 p. 2 22 as 2

expert, see providing him with only $1, p. 2 200 of the $3,000 he requested to hire a firearms On appeal, the defendant argues that the trial court erred: (1) by

not qualified to testify as an expert and thus no expert testified on the against gun manufacturers. The court ultimately ruled that McDermott was result, the defendant hired Thomas McDermott, a lawyer involved in litigation allocation to $1, p. 2 200. This amount was not sufficient to hire Danas. As a The court initially allocated $750 and, after reconsideration, increased its gun had fired without him pulling the trigger – that is, that it had misfired. The defendant argued that he needed an expert to support his theory that the from the court to hire Gregory Danas, a firearms expert, to examine the Lorcin. Prior to trial, pursuant to RSA 604-A:6, the defendant requested $3,000

. . . I did not pull that trigger.” he also testified, “I might have hit the trigger. I might have hit the slide, but trigger guard area and that he did not put his finger on the trigger. However, chamber when the gun fired. At trial, he said that his finger was not in the guard area, and that he did not know whether there was a round in the “[his] finger hit the trigger,” that his finger was on the trigger or in the trigger State’s closing argument. when he was bending down to place it on the floor, it fired. He also said that he took the gun out of his left pocket, transferred it to his right hand, and, RSA 604-A:6 (Supp. p. 2 2005); and (2) by overruling his objection to the that after he sat down in the car, he wanted to put the gun under his seat, so After the shooting, the police questioned the defendant. He told them

where she died. defendant called 911. An ambulance arrived later and took her to the hospital, helped her into Caron’s house, where she collapsed on the floor. The Budzyna said “Adam,” slammed the car into park and got out. The defendant through the back of the driver’s seat and punctured Budzyna’s left lung. Lorcin. As he held the gun in his right hand, it fired. The bullet traveled Moments later, the defendant reached into his pocket and retrieved the

her. his left pocket. Budzyna got into the driver’s seat and the defendant sat behind additional ammunition from Caron’s room. The defendant put the Lorcin into they left, the defendant put a full clip of ammunition in the Lorcin and took a sandpit in Hampstead to fire the Lorcin. Budzyna agreed to drive. Before Caron’s house. Budzyna, Sorrentino, Palla and the defendant decided to go to shopping, and, approximately ten minutes later, the defendant returned to Sorrentino went to Caron’s house. Upon their arrival, Caron left to go house to show his brother. In the meantime, Deirdre Budzyna and Christina Eventually, the defendant left Caron’s house and took the Lorcin to his p. 3 3

Wellington him, and that the denial of funds substantially prejudiced him at trial.” complete a showing of necessity for the desired services as could be expected of clear and convincing evidence that his request to the court included as Accordingly, to succeed on appeal the defendant “must demonstrate by

not shown that he was substantially prejudiced.

, 150 N.H. at 784. For three reasons we hold that the defendant has

limited supply of State funds in reaching his decision. ultimately approved $1,200. Therefore, the judge did not rely solely on the defendant demonstrated that additional funds were needed; indeed, the judge exercise of discretion].” State v. Stow do for [$ p. 3 3,000].” Thus, the judge was open to approving more funds if the access and reliance upon it, without more, would constitute an [unsustainable “firearms expert to give . . . some detailed information as to what he can really 604-A:6 funds are in limited supply is not an appropriate reason for denying that this amounts to reversible error, for we have said that “the fact that RSA would supplement the $750 he initially approved if the defendant could get the “$3,000 to look at a gun? I need some explanation.” He also said that he solely because of concerns about the source of funding.” The defendant argues At the hearing, he asked the defendant why the amount was necessary, saying Based upon this statement, the defendant argues the judge denied his “request times. I’m not going to just easily approve $3,000 for a firearms expert.” whether $3,000 was actually necessary to cover the cost of a firearms expert. At the RSA 604-A:6 hearing, the judge said, “[T]hese are hard economic The judge here, though, did rely on more – specifically, he considered

discretion standard). Lambert, 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of

Sweeney, 151 N.H. at 675. court’s decision under our unsustainable exercise of discretion standard. State v. Wellington, 150 N.H. 782, 784 (2004). Therefore, we review the trial access to experts has been said to lie within the sound discretion of the court.” services to enable his counsel to assist him effectively, an indigent defendant’s protection, fundamental fairness necessary for due process, or the right to that issue. Id. “Regardless of whether a defendant has invoked equal expert’s testimony is essential to a matter in issue or could be conclusive on where the expert will advise or testify on a matter directly in issue, or where the See State v. Sweeney, 151 N.H. 666, 674 (2005). Necessity may be established court that the expert is necessary to ensure effective preparation of his defense. To obtain funds for an expert, a defendant must demonstrate to the trial

denying his request for $ p. 3 3,000. defendant’s behalf. On appeal, the defendant argues that the court erred in p. 4 4

defense. See misfired, it does not necessarily follow that he would have prevailed on his Third, even if the defendant had been able to prove that the gun had

367 (2003) (quotation omitted). natural, direct and immediate consequence.” State v. Lamprey, 1 p. 4 49 N.H. 364, predominating cause, a substantial factor from which the event follows as a which is “the cause without which the event would not have occurred, and the defendant’s reckless act must also have been the proximate cause of the death, person would observe in the situation.” RSA 626:2, II(c) (2007). The disregard constitutes a gross deviation from the conduct that a law-abiding nature and degree that, considering the circumstances known to him, its disregards a substantial and unjustifiable risk,” and the risk is “of such a 630:2, I(b) (2007). A person is reckless if “he is aware of and consciously Manslaughter is defined as recklessly causing the death of another. RSA

Green v. State, 881 P.2d 751, 752 (Okla. Crim. App. 199 p. 4 4).

theory. defendant’s description of the event did not provide a plausible basis for his the gun did not misfire even after being hammered with a mallet, the scenarios [together] because [he] still didn’t know what happened.” Given that gun banged into something, but only “because he was trying to put different have bumped into the gun. He did say that he might have told someone the in the negative when asked if there were hard objects around him that could times he maintained that the gun was in his hand when it fired. He answered children.”). He never said that he dropped the gun, except after it fired. At all children, where he admitted the underlying facts as represented by the court’s denial of his motion to [obtain funds for] an expert in interviewing 37 p. 4 4, 378 (Ga. Ct. App. 2002) (“[The defendant] was not prejudiced by the with how this particular gun could have misfired. Cf. Hall v. State, 566 S.E.2d Second, the defendant’s own versions of the shooting were not consistent

capable of misfiring. susceptible to misfiring, the jury was informed that this model of gun was even though the State’s witness concluded that this particular gun was not gun to misfire. All of this information was provided to the jury and, therefore, discovered the potential defect. However, this experiment did not cause the from several directions, the same method used in the study which initially To test the gun for this condition, he struck it with a two-pound rubber mallet dangerous condition and a potential for serious injury by firing when dropped.” find a safety warning that said the Lorcin L380 “may create an extremely the safety and trigger pull in good working condition. In his research, he did at trial). The State’s expert witness thoroughly examined the gun, and found did not prejudice defendant given that defendant’s treating psychiatrist testified (App. Div. 2003) (holding that trial court’s denial of funds for psychiatric expert substantially explored at trial. Cf. People v. Seavey, 762 N.Y.S.2d p. 4 43 p. 5 5, 437 First, even without Danas, the defendant’s misfire theory was 5

on the ground, what does that mean? . . . That means you bump into something. And while it may [misfire] when you drop it unloaded. Once its loaded, there’s a risk, and you can’t let it evidence.” State v. Sylvia There’s always a risk. The way we handle guns that are even presented to the jury and to urge the jury to draw inferences of guilt from the great latitude in closing argument to both summarize and discuss the evidence of the State’s closing argument: overruling his objection to the State’s closing argument. “A prosecutor . . . has Here, the court overruled the defendant’s objection to the following part As for the second issue, the defendant argues that the trial court erred in

or unreasonable to the prejudice of his case.” Id. (quotation omitted). prejudice him. not sustainable, the defendant must demonstrate that it was clearly untenable provide the defendant the full amount of requested funds did not substantially Sanchez, 1 p. 5 52 N.H. 625, 628 (2005). “To show that the trial court’s decision is had proved that the gun had misfired. Accordingly, the trial court’s refusal to decision . . . under an unsustainable exercise of discretion standard.” State v. effect the prosecutor’s closing remarks may have had on the jury, we review its jury could have found the defendant guilty of reckless manslaughter even if he Moreover, “[a]s the trial court is in the best position to gauge any prejudicial was sitting. Based on the defendant’s mishandling of the gun, a reasonable handling the gun, he had it pointed at the back of the seat in which Budzyna, 136 N.H. 428, 431 (1992) (quotation omitted). in the chamber, and did not even check to see if the safety was on, and, while unload the gun prior to entering the car, did not determine if there was a round were loaded. Yet, he admitted that he did not follow these rules. He did not when transported in a car, and that at all times it should be treated as if it a gun should always be pointed in a safe direction, that it should be unloaded gun. Based on his admitted knowledge of hunter safety rules, he testified that Here, there was ample evidence that the defendant unsafely handled the

reckless because it creates a risk that if it misfires, the bullet will kill someone. conduct reckless in the first place.” Id. Therefore, unsafely handling a gun is contributing coincidental intervening cause is the very risk that made the is based on the general rule that “[o]ften the risk of a particular kind of exculpate the defendant if he kills the bystander.” Id. at 3 p. 6 69. This observation the trigger, it does not follow that a mechanical failure of the safety should loaded handgun, ensure that the safety is engaged, aim at a bystander and pull ineluctably lead to this result. As we said in Lamprey, “if one were to pick up a reckless manslaughter because the gun had misfired. Our case law does not At trial, the defendant argued that he could not be found guilty of 6

Affirmed

inferences of guilt from the evidence.” Sylvia statement was permissible, for a prosecutor may “urge the jury to draw the gun, an argument that the defendant was free to counter. Therefore, this find the defendant guilty of reckless manslaughter because he had mishandled We do not agree. The prosecutor here was simply imploring the jury to DALIANIS, C.J., and HICKS, CONBOY and LYNN, JJ., concurred.

defendant’s objection was not an unsustainable exercise of discretion. omitted). We accordingly hold that the trial judge’s overruling of the

law and, therefore, the judge should have sustained his objection. se if he drops a gun and it misfires. He argues that this is a misstatement of

responsible for that. you pull it out, you better not drop it on the ground or you’re loaded, [it] better be in your holster with a triple safety. And when shouldn’t drop it on the ground. If you’ve got that gun and it’s